Filing a Response or NOT?

The Florida Office of Judges of Compensation Claims is responsible for adjudicating workers' compensation disputes throughout Florida. As the state's population has increased, the resources of this agency have remained virtually static. Of course, there was an expansion of personnel and resources in 1994 when the legislature added a mandatory mediation process. Positions were added for 31 state mediators, and 31 staff to support the mediation process. 

In 2006 the Legislature added one judge to the FLJCC, and that position was deployed to Ft. Myers. That "addition" was retracted in 2012, when the legislature eliminated a judicial position and three mediator positions in the FLJCC. This office is staffed today with fewer professionals than in 1994 (22 years ago).

But Florida has grown. The U.S. Census Bureau estimates that in 1994 Florida's population was 13,870,000. National and State Popluation Estimates, 1990-1994, Table 3.  The Florida population is currently estimated at  20,085,000. Over twenty-two years, a significant increase of 6,215,000, forty-five percent. 

In the 1993 special session,  the legislature made significant changes to the Florida workers' compensation law. An intent of that reform was to decrease friction in the delivery of benefits, to decrease both the need for and prevalence of litigation. The effort was not successful. Litigation blossomed and filings increased dramatically thereafter. 

In 2001, there were revisions to the statute, followed by more in 2003. An intent of that reform was again decreasing litigation. The effects were profound. Petition for Benefit filings decreased dramatically over the years following 2003. Simultaneously, the FLJCC and the Division of Administrative Hearings heeded an instruction issued by the 1994 legislature: draft administrative rules of procedure for workers' compensation. For decades, the Supreme Court had inappropriately and improperly provided procedural rules, and the legislature wanted that to end. 

The Rules of Procedure for Workers' Compensation Adjudication (Fla.R.Pro.Work.Comp.) were enacted. Following unsuccessful efforts by the Bar to prevent those rules from becoming effective, the Supreme Court admitted that it had no authority to make rules for executive branch agencies. The Court noted that it had never had such authority. The Supreme Court's Rules of Workers' Compensation Procedure, used for decades, were never legal, a violation of separation of powers. They have been repealed for over 12 years, and yet some attorneys still cite them. It is unclear if this is through inadvertence, artifact forms, or some other cause. 

The Fla.R.Pro.Work.Comp. rules are now applicable (there is debate on this abbreviation). Some believe that although the Supreme Court cannot make executive branch rules, it can dictate how they are cited. They therefore believe the appropriate abbreviation would be the one stated in the Court's Rules of Appellate Procedure, "Fla.Admin.Code.R. 60Q______." An interesting perspective.

One of the major changes that came with executive branch rules in 2004 regards the handling of motions. Essentially, the FLJCC is an adjudicatory body. Its mission and focus is to either resolve (mediation) or adjudicate disputes about workers' compensation benefits. The substantive issues are most often brought to the table through a Petition for Benefits, which states known facts about a case and details what benefits are requested and why. The law then affords the employer/carrier an opportunity to respond to those allegations, through a Response to Petition. 

The paradigm is relatively simple. One side says that it is entitled to something, by filing a petition. The other side then responds and either provides that benefit(s) or states why it is not. This defines and refines the dispute. Both sides should be comfortable with where their positions differ. They should understand what is the nature of, the foundation of, their disagreement. Armed with this knowledge, each may prepare to seek their desired outcome, to accumulate and authenticate the evidence that will prove their respective arguments. 

In the midst of such substantive disputes, it is too often the case that these parties have other disagreements. They disagree over whether various documents should be provided to each other, whether various evidence is admissible, whether certain evidence should be procured, when the trial or mediation should occur, and much more. These disputes, like those in the Petition, need to be decided by the Judge. 

These are brought to the attention of the judge by filing a "motion." The Fla.R.Pro.Work.Comp. require that "any request for an order or for other relief shall be by motion and shall have a title describing the relief requested." Rule 60Q6.115(1). Stated simply, the way to have a procedural dispute resolved is to file a motion in the case. Calling the Judge's office to describe issues, disputes, and conflicts is not the appropriate method to get help. Writing a letter to the Judge is not appropriate. The right tool is a motion, clearly stating the problem and requesting a solution.  

To simplify things for those who do not have an attorney, the requirements are somewhat relaxed. The Rules say that "the judge may treat any request for relief from an unrepresented party as a motion." Rule 60Q6.115(1). Thus, letters from unrepresented parties might be considered a motion and adjudicated. The fact is that letters from uninformed attorneys, who lack an understanding of motion practice, are often treated like motions, just as they would be if filed by an unrepresented party. Some attorneys simply do not grasp the motion concept. 

The point is that the party tells its story by filing a motion. Similarly to the Petition process, this will put the other party on notice of the dispute or issue. It is hoped that these issues will only be brought to the Judge's attention if there is a real dispute. To discover whether there is a real disagreement or just a misunderstanding, the parties need to talk about the motion and the issue. This communication is required: "prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion." This means having a "conversation" (from the same latin root as the word "confer"). Rule 60Q6.115(2).

Then, there is the opportunity to reach an even better understanding of the procedural dispute that has led to this motion. The Rules allow that "the other parties may, within 15 days of service of the written motion, file a response in opposition." This is the chance for the "other party" to tell her/his/its side of the story. In a funny sports parody movie, Dodgeball; A True Underdog Story, a commentator played by Jason Bateman provides nonsensical "color" to the ongoing play-by play. When the announcer notes that one team has forfeited (given in, given up, withdrawn) the championship, Bateman vacuously notes "an interesting strategy, let's see how that works out for them." 

I am reminded of that quote when motions are filed, but no response. The "other party" was consulted; there was a conversation. That process did not lead to resolution. The parties have a real disagreement. The motion says so (the rules require that the moving party state in the motion that she/he has conferred as required and that the other party objects). So, from the motion the judge knows there is a real dispute. One party wants something and the other side objects. 

But what is the real dispute? With one side presented in the motion, the other side elects not to file a response as allowed by the rule. They have forfeited, and then we perhaps hear Bateman's voice "interesting strategy, let's see ho that works out for them." Certainly, there is no requirement that a response is filed. But, if there is a reason why the judge should not grant the motion, what is it? If the "other party" does not want to see an order granting the motion, why don't they say why? Why don't they explain their argument? Why don't they tell their side of the story?

It is possible that some believe that they can just wait and make her/his points at a hearing on the motion. But this is naive and uninformed. Most motions in the Florida workers' compensation process will never have a hearing. There will rarely be an opportunity to sit with the other attorney and the judge and voice positions and arguments. Why? Simply because the rules say so, and most of the judges follow the rules.  

The normal process will be for the judge to "rule after the response is filed or after the response period (15 days) has expired, based on the motion, together with any supporting or opposing memoranda." So, the default is for the ruling to be made on the written documents filed. Rule 60Q6.115(4). In fact, the "judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response." While there are a few judges who nonetheless regularly schedule hearings, a party cannot count on a judge breaking the rules for them. With growing litigation and growing state population, there is simply not time for a hearing on every motion. 

The ultimate conclusion of all of this is simple. The judges have their respective hands full. The population of Florida is expanding, and there is significant litigation in this system. In the vast majority of instances, there will be no motion hearing, no oral arguments. Therefore, the "other party" is well advised to take full advantage of the opportunity to file a response to any motion. Tell your story, make your argument. Forfeiting, while perhaps interesting to Jason Bateman, is not likely the best practice to prevail on your opposition to a motion. 

Attorney sues NCCI, FOIR and Insurance Commissioner

Workers' Compensation Institute (WCI360.com) has reported that on August 10, 2016 at 10:44 PM, an attorney filed a lawsuit against the National Council on Compensation Ins. Inc. ("NCCI"), the Florida Office of Insurance Regulation ("FOIR"), and David Altmaier as Commissioner of the Office. Represented by Shubin and Bass of Miami, plaintiff James Fee “seeks to introduce some required clarity and transparency into the opaque world of Worker’s Compensation insurance rates in Florida.” 

Interestingly the lawsuit was filed in the 11th Judicial Circuit, in Miami-Dade County, Florida. It is common for lawsuits against state government to be brought in Tallahassee, Leon County Florida. According to the complaint, one defendant (NCCI) is domiciled in Palm Beach County. Another (FOIR) is headquartered in Leon County Florida, but “has an office in Miami-Dade County.” There is no venue allegation in the complaint regarding the Commissioner of Insurance.

The complaint alleges that the Florida’s workers' compensation rate-making process is controlled by ”one private entity, the national Council on Compensation Insurance Inc.” It further alleges that the process engaged occurs “with virtually no public scrutiny.” Relying on the public records act and the Sunshine Law, plaintiff alleges he seeks to ”take this process out of the proverbial shadows and mandate that NCCI and OIR operate in a manner that ensures that the rate proposed by NCCI and ultimately approved by the Commissioner serves the interest of both insurance company and insureds in Florida.”

The lawsuit alleges violations of chapter 627, c. 286, and c. 119 of the Florida Statutes, as well as article I of the Florida Constitution. Based upon these alleged violations, and upon principles of due process, plaintiff seeks to void the recent rate increase filing, and ”enjoin an August 16, 2016 hearing set by the OIR on this proposed rate increase.” The plaintiff alleges he “seeks to vindicate not only its (his?) own interest in ensuring transparency in government, but the public’s right to the open government requirements that are bedrock constitutional and statutory requirements in the State of Florida.”

Interestingly, plaintiff alleges that Miami-Dade is the appropriate venue for this litigation because that is the location of his business,  a law firm which purchases worker’s compensation insurance. It is this purchase of Worker’s Compensation insurance, and the effect thereon of any rate increase, the plaintiff alleges has caused him damage. Additionally, as plaintiff requested documents, from his office in Miami-Dade County, he alleges that Miami-Dade is the appropriate venue. Similarly, he alleges that the public was entitled to notice of any meetings held by anyone at NCCI to discuss this rate filing, and such notices would necessarily have been required to all businesses, including his, which is in Miami-Dade County. On these ties to Miami-Dade, Plaintiff alleges that is the correct venue for this litigation. 

The complaint provides some interesting overview of the worker’s compensation market in Florida. It notes that “over 250 insurance companies offer Worker’s Compensation insurance to Florida employers.”  That is a significant volume of carriers (later, the complaint says it is nearly 260) and. The complaint notes that all carrier rate setting is subject to Florida statutory requirements. As an alternative to a carrier filing its own rates and rating plans, those insurers may “be, a member of, or a subscriber to, a licensed rating organization which makes such filings and by authorizing the office to accept such filings in its behalf.” The complaint states that “the overwhelming majority of Worker’s Compensation insurers select this option, and utilize NCCI to make rate filings on their behalf.” Plaintiff therefore alleges that thereby “NCCI effectively sets a single insurance rate for nearly all Worker’s Compensation insurers in the State of Florida.”

The complaint describes “a multitude of factors” which are considered in “the determination and fixing of rates.” Plaintiff alleges that any meetings held by NCCI to discuss a rate increase, should be conducted in public, upon proper notice (3 weeks); and,you that any such meeting should be “promptly recorded, and such record shall be open to public inspection.” Mr. Fee alleges that knowing failure to provide such notice, is “a misdemeanor of the 2nd degree.” Some readers may question whether the quoted statutory provision's coverage of any “member of a board or commission of any State agency or authority of any county, municipal corporation, or political subdivision” applies to NCCI.

Plaintiff alleges, “upon information and belief,” that at some point “an NCCI committee or committees met at least once in the State of Florida to discuss and decide upon the proposed rate increase.” He asserts that the occurrence of such meetings was without notice. He alleges that the identity of attendees at such meeting or meetings is unknown. And, that the ”role, if any, that the oh I are or the commissioner played in this meeting or meetings is also unknown.”

The plaintiff alleges that NCCI must certainly have a committee. He acknowledges the insurance Commissioner’s position that the “NCCI committee” process was discontinued in 1991. But, he contends that any gathering of any group is in fact a “committee” under the plain meaning of that word as defined by Webster’s dictionary. The assertion seems to be that any group "chosen to do a particular job" is a "committee."  So, by this logic anytime two or more people are gathered for a purpose it is a "committee." 

There is also an allegation that the role of NCCI represents “an improper delegation of the rate-making power to NCCI.”

In closing, plaintiff asks for a speedy hearing with respect to his complaint. It will be interesting to watch whether this Wednesday night complaint is scheduled for a hearing or trial before next Tuesday's FOIR hearing in Tallahassee. 

Plaintiff also seeks a declaration that NCCI violated the Florida statutes by not providing “notice of or a meaningful opportunity to participate and committee meetings at which rate filings” were discussed; and a declaration that all future gatherings of any individuals at NCCI, which might be a "committee" be publicly noticed as committee meetings. There is also a count alleging violation of the Florida Sunshine Law. Pursuant to the failure of public notice for any gatherings of individuals at NCCI, plaintiff asks that the current rate filing be voided. Plaintiff also seeks provision of documents from NCCI, and a determination that it violated the Public Records Act in not providing multiple documents already requested. 

I am not aware of any answer or response from NCCI. However, in the world of litigation time is required to both file and serve a lawsuit (service is a critical point). After service, that is placing the complaint officially in the hands of the defendant(s), there is time allowed for response. When time has allowed all of this to occur, or if the Court in Miami acts, I will update this post to provide some perspective on the answer or response. 

Too Poor to Pay?

A recent article about an employer caught my attention: Employer cries poor over worker's comp claim. The story was published by HRD Singapore. In this July 19, 2016 story, HRD describes a construction company whose employee suffered a serious work injury.

It is allegedly somewhat common for employers to dodge the responsibility to procure workers' compensation insurance. Some critics of workers' compensation assert that both avoidance and misclassification are rampant in the employment setting. It is sometimes referred to as being, or going, "bare." It undoubtedly occurs inadvertently in some instances, through misunderstanding of obligations and requirements. But, there is a perception that some businesses knowingly operate without coverage to save costs, and in the belief that luck will persistently shine on them and nothing bad will happen.  

In Singapore, Tan Zengshun suffered a work accident and "was left blind in one eye." It was apparently not some cataclysmic accident, just a normal, perhaps even mundane, work accident with serious results. The employer lacked workers' compensation coverage, and therefore defended itself against Tan's claim for workers' compensation benefits. Tan prevailed in the "labour court," and was awarded SG$93,000 (app. U.S. $69.080) in damages as a result of the accident. Later litigation increased this to SG$122,800 (app. U.S. $91,216).

The employer, Yao Xing, having not procured workers' compensation coverage, was ordered to pay the injured worker itself. I have seen this happen in Florida. Some employees in that "uninsured employer" situation will file a civil lawsuit. The consequences for the employer in that setting may be significant. The workers' compensation law in Florida penalizes the uninsured employer, see Fla. Stat. 440.06. And the financial consequences are not limited as they may be in workers' compensation. A recent Texas case illustrated the the potential financial impact, more serious from a financial impact than this Singapore case. 

The Singapore verdict and order to pay prompted company officials to complain about the size of the judgment against it. A director of the company wrote a letter to the Ministry of Manpower (MOM). This January 2016 letter complains that "it is beyond the firm's means to pay Zengshun compensation or medical fees." The letter "also claimed Zengshun’s condition was partly due to 'possible neglect' on the part of doctors in the hospitals that treated him." 

Workers' compensation is undoubtedly not perfect. The National Conversation has identified a multitude of issues that could stand further discussion, refinement, and repair. This Singapore story illustrates that it is likely or perhaps certain that there is regret when an accident threatens the existence of an employer. No business owner wants to lose their assets, their livelihood, to pay medical bills and income benefits to an employee. 

As I write this, I am reminded of Rhiana's ballad Take a Bow. Responding to an appologetic paramour, she says "Don't tell me you're sorry cause you're not; Baby when I know you're only sorry you got caught."

The time to protect the business against that risk and exposure is not after (as mom would perhaps have put it) "someone gets an eye put out." As kids in America, we all experienced the "go to" mom threat that someone was going to get "an eye put out." Mom warned us to stop certain activities. She was able to perceive danger that did not readily occur to us. She was the ultimate risk manager, observing behavior, instructing, warning, correcting, preventing. And, when someone did get hurt, she was the medical department. She always had some iodine, Mercurochrome, antibiotic creme, band aids, and when necessary a trip to the emergency room. 

But her focus was on preventing the injury, that is preventing the risky behavior ("young man, get off that roof this instant!"). The benefit of workers' compensation is similar. It is effective because all businesses purchase the coverage before there is an accident or injury. The coverage is not there primarily to prevent, but to mitigate effects of the risk. The business pays a certain sum (premium) in advance, in case there is an injury, and thus avoids the uncertain sum (damages) possible in the end. There is an ancillary preventative effect. To keep premium costs down, businesses are also encouraged to be safe and to prevent injury.

When a business elects not to protect itself, when a business chooses not to buy coverage to protect its employees, should there be sympathy after someone is injured? The answer is certainly yes, there should be sympathy. Sympathy is a natural human emotion. We have to be careful with the tendency or desire not to acknowledge sympathy; it does not mean we condone or excuse behavior, it just means we understand someone's predicament. But that sympathetic feeling is probably more appropriate for the employee. There is nothing wrong with sympathy as an emotion, but it does not change the outcome of the case. 

And, it is important to remember that it is the employee in this instance that is now blind in one eye. Whether that result is 100% the work injury or somehow partially attributable to the medical care as alleged, the result is the same - blind in one eye. There is nothing wrong with feeling sympathy for this employee either. It is the employee who has been living at "the Migrant Workers' Centre," who has lost his ability to "do the work I used to," whose "home is gone." But, that sympathy likewise does not change the outcome of the case. 

So, the effects of this event are devastating. The employee is blind in one eye, and has suffered significant loss. The employer is likely to cease to exist. The employee, employer, and all of its other employees are likely to be affected. And despite the best efforts of a legal system, it is perhaps unlikely that Tan will ever receive the full measure of damages, as similarly occurred in the recent Texas case. In the end, there is no winner in this story. 

It is important to remember that although both parties were damaged here, it was the employer in this instance that had the choice. The employer chose not to follow the law. The employer chose not to have workers' compensation coverage. Having chosen to take the risk, the employer likely enjoyed some gain. For some period, the employer did business and collected revenue while avoiding the expense of insurance coverage. Its luck ran out, and it suffers the result. Unfortunately, the employer's decision impacts Tan, Tan's coworkers, and ultimately the taxpayers that will bear at least part of the cost of his care and support. 

The most disturbing part of this story, however, is perhaps that it sometimes takes tragedy to correct bad behavior. The story says that in Singapore "insurance is a legal requirement for employers of foreign workers in order to secure their work permit." Enforcement processes are in place, and failure to procure insurance "can result in a fine of up to $10,000, up to a year's jail, or both." So, one might conclude that Singapore is serious about requiring coverage and preventing occurrences like this. 

But, it turns out that "insurance is only scrutinised by the authorities when the work-pass term starts," essentially once a year. The article notes that this lackadaisical enforcement paradigm resulted in minimal convictions for "failing to insure workers," one in 2015, "compared to two in 2014 and four in 2013." Seven prosecutions in three years? 

In Florida, we often hear that attorney fee liability is the "penalty" or downside that encourages appropriate carrier behavior on providing workers' compensation benefits. Some believe that this "penalty" is necessary because they perceive the government is not effective at policing the market. They feel there just are not enough workers' compensation "troopers" on the system "highway of benefit delivery," and not enough "tickets" being issued for bad behavior. That is a subject perhaps destined for more discussion in months to come.

So, with an absence of effective enforcement, perceived or real, employers apparently gamble regarding coverage. They put their livelihood, their business, and their employees on the line for near-term gain and hope against hope that no one will get hurt. In all likelihood that gamble must pay off sometimes for some employers, or else employers would quit laying that bet. But then sometimes the result is tragic. People are hurt. Lives and businesses are destroyed. It is important to remember that there are no winners in that event.  And perhaps if we think about it, read about it, the potential risks will drive better behavior?

Department of Justice Hacking Expanding

A headline in The Atlantic in April caught my eye. It declared The Supreme Court Expands FBI Hacking Powers. That has an ominous tone. Usually, when you hear the word "hacking," it is in the context of someone doing something inappropriate or illegal, stealing identities, invading networks, etc. But not in this context. This one is about expanding federal authority to invade privacy. 

The law is all about “jurisdiction,” which is really just a way of saying “authority.” Jurisdiction can be confusing because it comes in a variety of flavors. It can be “personal jurisdiction” (who you have authority over), “subject matter jurisdiction” (what kind of cases you have authority over), “geographic jurisdiction” (where you have authority) and more. Law students struggle with the concept, as do a fair number of attorneys. Jurisdiction is sometimes not easy. 

The U.S. Supreme Court has changed its rules regarding where federal judges may issue certain warrants (a judicial command allowing search and seizure). There was a time in America that your government needed a warrant to get into your home or your business. In a post-09/11 world, this changed significantly. Through the Patriot act and other legalities, your government has had significant, easy, warrant-less access to a great deal of arguably private information for years.

The Atlantic article tells us that the Supreme Court rule amendment is yet another expansion in federal authority. It will allow judges to issue warrants that “target computers outside their (geographic) jurisdiction.” This sets “the stage for a major expansion of surveillance and hacking powers by federal law-enforcement agencies,” according to the Atlantic. 

Currently, “federal magistrate judges can typically only authorize searches and seizures within their own (geographic) jurisdiction.” So, if there is data on a computer server in your town, or county or state, the magistrates can allow investigators authority to search that data. The data, after all, is in the state, and authorizing a search of a server in your state is really no different than a warrant to search a house or office in your state. There is a logic to that. 

But currently, if the server is in the next state over, or on the opposite coast, a law enforcement agency would have to (a) figure out where that server physically is, and (b) get a judge in that geographic jurisdiction to approve the warrant for a search. 

The rule changes recently published “would allow a magistrate judge to issue a warrant to hack into and seize data stored on a computer, even if that computer’s actual location” is either not known, or perhaps is not knowable. We have learned over the years that there are those who excel at concealing identity and location. Just try tracing those folks who send you spam email phishing for data. Unfortunately, the cyberworld is a place in which finding things and information can be a daunting task for all of us, including law enforcement. 

This rule change expands the judge’s authority by allowing them to reach beyond their geographic location. But, more importantly, it allows a warrant to be issued when no one really knows where the data or the server physically is. Step (a), above, is eliminated completely. The Atlantic says that “Justice Department officials defended the change.” They say it is a critical tool in a world of “changing technologies.” In other words, when faced with the impractical or impossible, the solution is simply expand government authority and power. 

Not everyone shares that sentiment. The Atlantic says that “tech and privacy experts raised concerns about the amendments’ reach.” Some refer to it as a “sprawling expansion of government surveillance.” They warn that the changes “will have significant consequences for Americans’ privacy and the scope of the government’s powers to conduct remote surveillance and searches of electronic devices.” Critics say that this could give power through “a single warrant to access and search thousands or millions of computers at once.” 

Arguably, this is not of much concern since it is the “bad guys” computer that is being searched. But privacy experts warn that such a search for the "bad guys" could as easily now involve all of the victim’s computers (your computer) as well, wherever they might be and however free from probable cause their owners might be. The government gets a warrant to search the "bad guys," and the search includes all the computers of all the "bad guys" innocent victims. Thus, having done nothing but be victimized by the "bad guy," you are victimized again by your government "hackers." 

With the pervasive nature of the Internet and such electronic devices in our lives, it will be interesting to see how far this expansion goes. Some have threatened legislation to restrict this expansion. But, unless Congress acts by December 1, 2016, these changes to federal magistrate jurisdiction will be the law of the land. We have seen that Congress can pass legislation when it chooses to do so, but can also become mired in procedure and delay when it chooses. Time will tell. 

Feigning Sleep

A few years back, the Office of Judges of Compensation Claims purchased engraved wood blocks for each hearing room. They read "Professionalism Demands Courtesy." It is intended as a reminder of the demands or professionalism. Lawyers are governed by a variety of rules and regulations. Most professionals similarly have various standards. It is not easy keeping track of all the obligations and expectations. To keep the issue prominent, The Florida Bar requires lawyers to participate in continuing education that specifically focuses on ethics and professionalism. Some would see those two as similar or perhaps even the same. But professionalism is a step above. An attorney can behave ethically and still be unprofessional. 

Professionalism has been in the news in Florida in recent months. We have adopted Professionalism Standards. Professionalism Panels have been created and empowered. We are struggling with attorneys who do not act professionally, and our leaders have recognized it as a problem worthy of addressing. The Supreme Court has recently issued some decisions highlighting professionalism. The Court has referred attorneys to education focused on professionalism. See The Florida Bar v. Sebago, SC15-2190 (June 23, 2016), The Florida Bar v. Waters, SC15-1070 (March 24, 2016); and The Florida Bar v. Chamberlain, SC 15-71 (August 28, 2015). These are unpublished decisions and so are available only on the Court's website.

The efforts toward professionalism are described in detail in a published opinion The Florida Bar v. Norkin, 132 So.3d 77 (Fla. 2014). The Court concluded, among other points, that 

"the most serious problems facing Florida lawyers are the lack of professionalism and the lack of ethics."

"The Court and the Bar share the overarching objective of increasing the professionalism aspirations of all lawyers" 

“Surveys of both lawyers and judges continue to consistently reflect that professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today.” 

“the 2001 Membership Opinion Survey . . . found that one-third of responding Bar members reported a lack of ethics or professionalism as one of the 'most serious problems facing the legal profession today.'” 

In February, the American Bar Association published a professionalism story that is interesting, educational and most disappointing. On an ABA blog called Lowering the Bar, it is reported that "wrongful, … sophomoric, (and) unprofessional" behavior was displayed by an Assistant Attorney General during a trial. It made me recall a case I tried decades ago, before a jurist whose reputation for an orderly hearing room was not the best. In my trial, opposing counsel leaned back in his chair, hands behind his head, elbows outstretched, and closed his eyes for several minutes. His message seemed clear, the trial (or at least this portion) was boring and irrelevant. 

In the ABA story, a man was convicted following the death of his neighbor. While it is unclear whether murder, manslaughter or otherwise, this was a serious case. 

The defendant complained about the prosecutor's behavior. In Maine, the Attorney General's office apparently does the prosecuting. Thus, the highest legal office of the state sent this representative to court to act on behalf of the people. The Maine Supreme Court opinion on the matter is worth reading. Oddly, the court's opinion does not identify the Assistant Attorney General by name. 

One point raised by the defendant was the Assistant Attorney General's sarcasm. He told the jury that in his 25 years' experience, "strangely enough, when it comes to trial, I’ve always been wrong…. We never get the right person." 

The defendant also complained that "the prosecutor (Assistant Attorney General) engaged in gestures and communications that constituted improper contact with the jury.” In one instance, the prosecutor was "feigning" sleep during the proceedings. The defendant alleges that this "was intended to convey an implied message to the jury, something like: 'I consider the defense argument/counsel so unworthy of belief that I am over here sleeping or pretending to sleep through it, and you should feel free to do so as well, after which you should return a verdict of guilty.'”

In another, the Assistant Attorney General allegedly "improperly responded to rhetorical questions defense counsel made, again behind his back." When defense counsel rhetorically asked "who would have had this inside information about the victim’s activities," the prosecutor allegedly "pointed at (defendant) Robinson and mouthed the words, ‘He did.'”

The jury convicted the defendant and he was sentenced to a significant prison term. The defendant moved for a new trial "based partly on those (sarcastic) comments and partly on the claim that feigning sleep "constituted improper contact with the jury.” 

The Assistant Attorney General denied that he mouthed "he did." His sarcastic opening statement was a matter of record. The "feigning sleep" allegation he essentially admitted, and he claimed that he did so “because it can annoy defense counsel,” and "not to send a message to the jury."

The Maine Supreme Court concluded that "the evidence against (defendant) was so strong the conviction outcome would have been the same in any event. Because of the compelling nature of the evidence, denial of a new trial was appropriate in its opinion. The issue before the Court was limited to the new trial question. 

But, that is a different question than professionalism. Having concluded that a new trial was not justified, what about professionalism? Well, the "court noted 'it is well established that a prosecutor may use wit, satire, invective and imaginative illustration in arguing the State’s case.'” 

The ABA Blog author suggests that the Assistant Attorney General is now "former" because he has become a judge. The described behavior is not exemplary of professionalism and his elevation to the bench may therefore perhaps be curious. The unidentified ABA blog author adds that "courtroom humor can be problematic for judges, too, but it’s a lot easier for them to get away with it." 

This statement is troublesome, as it reveals a misconception attorneys may have of the bench. Judges need to be even more wary of professionalism issues than lawyers. Judges need to be conscious of impropriety and even the "appearance of impropriety." That difficult and onerous standard is imposed by the Code of Judicial Conduct. Such behavior by a judge would clearly be entirely inappropriate. And any attorney engaging in such conduct should certainly expect it to be discussed should the bench be sought one day. 

The unidentified author of this blog concludes "just to be clear, the court was not saying it is okay to do this." In fact, the court "found the lawyer’s conduct—assuming it occurred—to be 'wrongful, … sophomoric, unprofessional, and a poor reflection on the prosecutor’s office.'” I cannot disagree with the court's conclusions. I understand that the court's mandate was to decide whether a new trial was justified. But, I am disturbed that the court opinion does not conclude with "and so this court has referred Assistant Attorney General _____________ to the proper authorities for investigation of his professionalism." In fact, the court does not even name this "sophomoric, unprofessional" Assistant Attorney General.

By not doing so, the court is saying, in essence, that it "is okay to do this." When attorneys and judges ignore unprofessional conduct, they condone unprofessional conduct. The behavior is not professional, and that remains true whether one is prosecuting, defending or adjudicating. The Maine Supreme Court should be ashamed of the manner in which they have ignored their responsibility to professionalism and condoned this behavior. And, I suspect that they and Maine itself shall reap as they have sown. 

The Attorney General in Maine is Janet Mills. As the state's top legal officer, I am curious what actions she has taken to see that this behavior is appropriately investigated? 

When poor behavior is ignored and tolerated, poor behavior will be repeated. With or without a formal complaint, judges and lawyers are obligated to confront it. If we elect not to do so, we must accept that such behavior will continue and most likely worsen. Indeed, it lowers the bar and the entire judicial process suffers.

The Baby with the Bathwater

I have often heard of the perils of civil litigation. There are said to be many more variables there, compared to workers' compensation. The procedures are different, cases take much longer to reach trial, juries exert influence, and there is no real constraint on damages. That civil litigation presents these potential risks and challenges is regularly cited as the reason that workers' compensation is so valuable and so worthy of praise and protection.

The employee and employer make a contract. For decades, this employment contract has included workers' compensation  across America; for a century or more in some states. It is a "mutual renunciation" of common law rights and duties. Workers compensation changes the liabilities and responsibilities of both employers and employees. 

The protection that workers' compensation provides employers is not absolute. There are instances in which the "exclusive remedy" is waived. An interesting Florida example was detailed several years ago by David DePaolo in Florida Court's Hard Lesson. That was an instance in which the employer purchased workers' compensation coverage, and still faced a civil court proceeding brought by some employees. But there are other instances in which employers may face civil liability more voluntarily. 

Workers' compensation is mandatory in most states. However, there is a tendency for many states to exempt small employers from the requirement. It is not an absolute, some states require coverage regardless of the business size, an excellent summary is here. This exemption of small employers effects many people. The Bureau of Labor Statistics estimates that ten percent of Americans are self-employed. In addition, many work for very small, potentially exempt, businesses. It is likely therefore, that there is a significant population in various states that is not mandated to participate in workers' compensation. 

There has been a great deal written in recent years about states allowing employers to withdraw from workers' compensation laws. These recent efforts have been uniformly and inaccurately labelled singularly and generically with the title "opt-out." Oklahoma has been featured in many such discussions. Their "opt-out" law allowed employers to elect not to participate in workers' compensation, and instead to create their own compensation plans as a substitute, while retaining the "exclusive remedy" protection against civil lawsuit. Some referred to this as "having your cake and eating it too."

A fair number of states, at least 12 according the National Association of Workers' Compensation Judiciary, have "opt-out" provisions in their statutes. These are generally restricted to plans negotiated in a collective bargaining agreement, thus restricted to union employers. There are those who insist on calling these dozen programs "carve-outs" rather than "opt outs." But the effect is identical and the naming or labelling distinction is likely of little or not import or effect, except to excuse or explain one's personal sentiment accepting or supporting one ("carve out") while opposing others ("opt-out"). Remember "toe may toe," "toe mah toe;" or perhaps "a rose by any other name would wither and die?" (Alan Swan, My Favorite Year, 1982). But the fact is that these several states allow at least certain employers to elect not to participate in workers' compensation. 

Too often, Texas is lumped-in with these states in discussions of "opt-out." But Texas is not an "opt-out" state. At a recent conference, an attendee explained to me that "even so-called scholars seem to miss the point here." Texas is a "non-subscription" state. In Texas, workers compensation is simply not mandatory, and in fact it never has been. In Texas, companies that want the protection of "exclusive remedy" may elect that protection by electing to participate in workers' compensation. They are called "subscribers" and they subscribe to the combined legal requirements and protections of the workers' compensation alternative to civil liability. 

In the Oklahoma "opt-out" model, the employer opts to keep the protection from liability, and yet not to participate in statutory workers' compensation. The Oklahoma plan is designed to provide employer protection and near-complete employer control of the procedures and processes of providing benefits to substitute for that statutory workers' compensation. 

Contrary to that paradigm, those Texas businesses that do not subscribe remain potentially liable for the full range of damages that civil liability presents. Employees of these businesses may sue their employer. Those employees remain subject to a range of civil defenses that do not apply in workers' compensation, such as comparative negligence. Comparative negligence is a legal maxim by which the injured person cannot collect for the damages that she or he caused. In civil proceedings, juries are asked to figure out how much fault is attributable to each plaintiff and each defendant, and the awarded damages are ordered to be paid accordingly. 

So, for example, if the damages are $100 and the plaintiff is 50% responsible, the defendant is ordered to pay only $50. This is an important distinction, compared to workers' compensation. In workers' compensation, the worker generally recovers less workers' compensation benefits than would be expected in civil proceedings, but also generally recovers more rapidly and does not face defenses like comparative negligence. In workers' compensation, the employee can be 100% responsible for the accident/injury and generally still recover workers' compensation benefits. There is a point that so-called journalists have failed to stress in their criticisms of workers' compensation. 

So the employer has the choice in Texas. The employer may perceive benefit, but also faces risk, by not subscribing. Last December, WorkCompCentral published a story Series of Large Verdicts Against Non-Subscribers isn't Rattling Risk-Benefit Balance. The article uses confusing description regarding "opt-out" and "non-subscription," but it provides a good analysis of risks presented when employers remain in the civil system through "non-subscription." It is a subject that is worthy of discussion in Florida. 

The Florida workers' compensation system is currently being discussed by a great many system participants. There is a current proposal for an almost 20% workers' compensation insurance rate increase pending. The discussions are polarizing, and a few folks have already unfortunately descended into name-calling and hyperbole. Competing public relation campaigns appear to be underway, complete with talking points and finger pointing. Unfortunately, it appears that it is always easier to point fingers than to analyze, study and contemplate the various perspectives on issues. 

I have heard of at least four organizations forming "task forces" or "working groups" to "fix the problem" with Florida workers' compensation. Unfortunately, there seems little consensus on what "the problem" is or how significant it is. Some say the state needs to respond to recent judicial decisions specifically, and to do so rapidly and precisely. Others say that it is time for an overhaul of Florida workers' compensation, comprehensive and contemplative. The coverage recently has been extensive. Some good examples are Business Wants New Laws, and AIG Boosts Reserves $100 Million.

However you personally think Florida should proceed with revision or reform (or not), it may well be related to your perceptions of the way our current system is (or is not) working in your opinion. We are all perhaps tied to our perspectives. I have heard some lament the "expansion" of workers' compensation, others the "contraction." Many agree that the system is "unfair," but the examples they cite are often very different from others who complain. There seems a lack of consensus on "the problem."

One option that has been mentioned in Florida is the Texas concept of "non-subscription." It is possible that the "opt-out" is being discussed also, though I have not heard that mentioned lately. Florida already has an "opt-out" ("by any other name") for union employers; an "opt-out" that could easily and precisely be legislatively adapted to include more employers. However, the Oklahoma "opt-out" has suffered some judicial criticisms recently. See Another Constitutional Decision, and Statute Declared Unconstitutional. It seems those complications have perhaps given some proponents pause, but Texas and "non-subscription" is still discussed. 

So, what would "non-subscription" mean for Floridians? Such a structure would allow any employer, large or small, union or not, to elect not to have either the liability or protections of workers' compensation. That is the main distinction between "non-subscription and "opt-out." In "opt-out" lawmakers attempt to allow employers to keep the protection benefit and yet modify the liability burden. In the "non-subscriber" paradigm there is similar employer choice, but that choice is an "all or nothing" election, not a "pick and choose option."

The detractors of "non-subscription" point to the liability issues illustrated by WorkCompCentral's Series of Large Verdicts Against Non-Subscribers isn't Rattling Risk-Benefit Balance. The main point is that civil verdicts can be significantly expensive. A second point, that is generally of interest to risk managers and insurance companies is that jury verdicts can be very difficult to predict. Risk professionals generally like to be able to predict losses, and generally that is perhaps easier in a statutory framework like workers' compensation. 

It is important to remember that perspective is important. We have seen litigation across the country as some workers have sought to be included in workers' compensation, while others have litigated for the right to be excluded. It is important that no workers' compensation system can likely be sustained where such decisions of inclusion or exclusion are all made after the risk is a certainty (after the loss). When these decisions are made after the fact, the ability to assess risk, and therefore price risk, is strained. Those who handle risk become reluctant of uncertainty, and coverage markets may suffer. Decisions of inclusion before loss are more predictable and therefore foster more stable relationships and investments. 

"Non-subscription" in the Texas model presents issues for employers. But, it also presents issues for employees. Recently WorkCompCentral published Supreme Court Says Decapitated Worker's Parents Cannot Collect From Carriers. What a headline. One might understand it all without even reading the story. The worker in this case was severely injured and died. The story described the event as "gruesome," as if "decapitated" did not capture it sufficiently. 

The survivors sued and "secured a judgment entitling them to $71.7 million in damages." An appellate court reversed the judgment. That reversal was recently affirmed by the Texas Supreme Court. As an aside, the injury in this case occurred on back in 1992, and the recent 2016 Texas Supreme Court decision bringing closure is about 24 years in the making; as mentioned above, civil litigation can be time-consuming. 

This Texas employer had not subscribed, and so there was no workers' compensation. Instead, it had "comprehensive general liability insurance." Because liability risks can become large, and because insurance companies seek to spread risk across large pools of resources, this employer's policy was actually underwritten (they would pay certain percentages of loss at various levels of damage) by "15 different carriers." These agreements to spread loss are not at all uncommon in the world of insurance. 

After the accident, the employer "stopped doing business," and was "involuntarily dissolved by the Secretary of State's office." Thus, the employer no longer existed. It went out of business, as companies do, literally every day. 

When an employer is covered by workers' compensation, and becomes insolvent, its workers' compensation insurance still covers its injured workers. If the employer is "self-insured" (no carrier involved) and ceases to do business there are usually other resources for paying benefits (most state workers' compensation regulators require self-insured employers to post collateral or security for future losses). There are also many states with "guaranty association" organizations that cover losses in the event of bankruptcy and dissolution. 

Similarly, if a workers' compensation insurance company ceases to exist, many states have insurance "guarantee funds" that exist precisely to insure against carrier bankruptcy; to provide benefits to injured workers. Workers' compensation generally is a significantly structured system. In short, a great deal of effort has been invested in assuring workers' compensation payments to injured workers when employers or carriers fail, as the employer did in this Texas decapitation case. 

But, remember that the Texas company was a "non-subscriber." There was liability insurance, but no workers' compensation insurance, no state-held collateral, no guarantee fund, no "safety net." Also, in this Texas case, two of the 15 carriers had become insolvent, or "bankrupt." There was no "insurance guaranty fund" to step in for them either. The insolvent employer ran out of money and stopped defending the survivor's lawsuit. The solvent general liability carriers stopped defending the lawsuit. And the survivors prosecuted the civil case with no one defending the employer. The survivors won. Thus, the significant verdict ($72 million) against the (bankrupt and dissolved) employer. Some would suggest winning against an empty chair is easier. 

The employer, of course, thought that the carriers should have defended it. When the carriers did not, the employer might have sued the carriers for breach of contract. Instead, the employer signed that right over to the survivors of the decapitated worker (called an "assignment of rights"), who then sued the carriers for bad faith breach of contract (failing to defend the employer and failing to settle when they reasonably could have). 

Some of the 15 carriers on the risk settled with the survivors. However, two carriers proceeded to trial, resulting in the award of damages from the original trial, "which had grown to $71,696,547 because of the continued accumulation of interest." That is a number that will make headlines and garner attention. Not the attention you might see from a half-billion dollar lottery draw or a natural disaster, but attention. But then the Texas appeals court concluded that the "one-sided" trial against the undefended employer was not fair and reversed the award. The Texas Supreme Court affirmed the denial of damages, but on different grounds. 

The Texas Supreme Court, after years of litigation, concluded instead that the decapitated victim was not actually an employee of this employer. The Court concluded he was actually employed by another company owned and operated by one of the employer's principals. the victim was therefore a "leased-in" worker, that was excluded from coverage under the pooled liability policies. The employer wins and the survivors receive nothing from their 24 years of litigation, except what they had already settled for with some of the pool carriers. 

Here again, workers' compensation has solutions that civil law may lack. In workers' compensation, the subtle and legalistic distinctions of subcontractors may be resolved by simple statutory concepts like the "statutory employer." The "subcontractor" distinction in workers' compensation might well have resulted in the employer remaining liable despite the technicality of who "actually" employed this person.  

The point is that jury verdicts may make headlines, and therefore the tort system may appear advantageous to employees. But this case illustrated that the tort system also presents obstacles and complications that perhaps are less common or are non-existent in workers' compensation. There is greater regulation and focus in workers' compensation. There are safety nets (guarantee funds, legal constructs, and coverage or collateral requirements). Workers' compensation is criticized by employers because of cost and complexity. But, these verdict cases support that Comp is likely still more predictable and stable, and it provides protections that civil law simply does not. 

If anyone thinks that there is a perfect world somewhere, I would encourage more reading and study. If you conclude utopia does exist, please tell me how and where. Provide me a route; I may decide to make a pilgrimage. But, it is unlikely that any perfect world exists. Despite our difference of perspective on what "perfect" would be, we might all agree that "perfect" is simply not practical. Thus, as I suggested recently, perhaps compromise is the only solution?

The relationships between employers, employees, insurance carriers, states and more can become complicated and can yield unexpected and sometimes unfortunate results. Perhaps the solution is to allow employers the "non-subscription" choice between complex and difficult systems?  Or, perhaps the solution is focused and reasoned discussion and compromise on workers' compensation. Perhaps there is a path to an improved program, through a collective agreement that such a system will be, despite everyone's best efforts and intentions, imperfect? Imperfect, but better than the likewise imperfect alternatives?

Can I get a Continuance?

And interesting motion for continuance crossed my desk recently. It was a case in which the employer carrier had moved for a continuance earlier in the year. Now the claimant was seeking a second continuance. The motion was brief and provided little detail or explanation. It essentially said that the claimant needed additional time for discovery, and that the employer/carrier did not object.

Of course, the motion was denied as being statutorily insufficient. I am surprised by how often attorneys express dismay upon being reminded that any motion by the injured worker, for a second continuous, must be accompanied by a waiver signed by the injured worker. Why? Simply stated, because the statute says so Fla. Stat. 440.25(1). 

But "why" can be a different analysis also. "Why" might also be answered with the legislature intending that injured worker's claims be adjudicated within a reasonable period of time. The result of that intention is a statutory definition of when trial shall occur, within 210 days from the date of filing the petition. 

And when that time frame cannot be met, there appears to be an intention that the injured worker knows about motions to continue. It is likely that they always have known. But the waiver makes sure that they know and that their understanding is documented. 

Another element of the motion, was the statement that additional time was required for discovery. That may always be true when a continuance is sought, and may be as persuasive as "because this motion was typed." See, each statement: "I need more time" and "this motion was typed" are true. But is either persuasive? That more discovery is needed, alone, also does not satisfy the statutory requirement found in Fla. Stat. 440.25. The statute requires that the circumstances requiring a continuance of the trial be demonstrated to be beyond the parties' control.

From grade school we remember that one cannot show up to class, look the teacher in the eye and say "I cannot turn in my homework, I need more time." This never worked in school, and it is unlikely to work in seeking a continuance. The statute requires more than "I did not get my homework done." The statute requires a demonstration that there is a rational, reasonable reason that the homework is not completed. And, that reason must be demonstrated to be beyond the person's control.

"Hello Professor, I did not get my homework done last night because I was binge watching Psych on Netflix;" continuance likely denied.

"Hello Professor, I did not get my homework done because I became distracted by my other classes, and did not pay sufficient attention to this one;" continuance likely denied.

"Oh Professor, I finished my homework last night and left it on the kitchen floor. You're never going to believe this, but my dog ate my homework off the floor;" continuance likely denied.

Know your deadlines. Do your homework. Put it in a safe place. The circumstances to justify a continuance need to be beyond the attorney failing to do his or her job. Good examples I have seen over the years include: 

"a family emergency arose when my ___________ passed away suddenly yesterday. I have to be out of town for the funeral and cannot attend the trial." Continuance granted

"My paralegal was driving to the office this morning, with my file he was organizing last night, and he was in a serious motor vehicle accident. My entire file, notes, and exhibits were destroyed in the accident. I cannot proceed with trial today." Continuance granted

"We scheduled the deposition of Dr. _________ to occur a month ago. She presented at the deposition, and was sworn. During examination, the hospital paged her with a traumatic emergency, and she left without further comment. Despite our best efforts, the earliest opportunity to complete his deposition is two weeks from today, and we need a continuance to accommodate the completion of this testimony." Continuance granted.

What are the similarities in all of these instances? The similarity is that something has occurred, which is beyond the control of the moving party. Something has happened beyond "we did not do our job, and we are therefore not ready." There may be a big difference between "after the pretrial last month we tried to schedule Dr. _________ for deposition and she is not available before trial" and "we started trying to set Dr. ________ for deposition when this claim was filed 5 months ago and she is not available before trial due to her other commitments."

Competent counsel, seeking a continuance, will perform several important tasks. First, he or she will read Fla. Stat. 440.25. Second, he or she will draft a competent motion, Rule 60Q6-115(1). Third, if representing the claimant, and if there have been any prior continuance, counsel will obtain a signed written waiver, from the worker, acknowledging and agreeing to the second (or third, "additional") continuance. And finally, Counsel will communicate with opposing counsel pursuant to the rule, 60Q6-115(1), and determine if there is an objection to the motion. Whether there is or is not an objection, that should be stated in the motion. 

Explanation helps. Details matter. Tell the whole story. It does not require pages, a simple paragraph with salient facts should do the trick. 

As an aside, the time to do the job right is when the Motion for Continuance is filed. Counsel will be efficient and effective when they read the statute and rules, prepare complete pleadings, and file as early as practical. Many Florida judges are regularly responding to motions the day they are filed, but putting off to the last minute expecting such response times could place you in a tough position as trial approaches.

Pharmacy Frustration

ABC News reported recently Mississippi. Lawmaker Suggests Woman Buy Daughter's Diabetes Meds After She Writes for Help. This constituent wrote to her state representative and expressed concern and upset with receiving assistance from Medicaid for her daughter.

The mother expressed her perception that “that children with Type I Diabetes ‘aren't getting the necessary diabetes supplies and meds they need to stay healthy.’" The constituent’s daughter is eight years old and suffers Type I diabetes. The more publicized diabetic condition, Type II, results from a variety of factors. Type I is a result of systemic failure and often affects youth (often it is called "Juvenile Diabetes").

The constituent reminded the state representative that supplies and medication for diabetes are “explicitly stated as a covered benefit" under Medicare/Medicaid. She complained that difficulty and delay in obtaining these items puts the patient at risk, saying “the essential diabetes supplies (are) needed, not only to keep our kids healthy, but to literally keep them alive,"

Her representative responded and apologized that the mother was experiencing issues. He questioned “have you thought about buying the supplies with money that you earn?" This reply did not go over well, and the mother described herself as “filled with "'silent fury.'" She responded and provided an overview of what diabetes medication costs; she estimates it is about $2,500 per month, almost $100 per day.

Coincidentally, or not (there is support for the notion that Type I diabetes can have a genetic component), this constituent’s husband also suffers the disease. She noted, however, that “he has not had any problems receiving medication, which is covered by his insurance through his employer.”

What on earth does this have to do with workers’ compensation? A major complaint that I hear regularly involves workers’ delay and hassle in getting medication. This includes authorization issues, refill issues, and convenience issues.

In the authorization issue, people complain that they visit the doctor that the employer/carrier has selected. A script is either handed to them, or increasingly transmitted electronically to a pharmacy. When the patient arrives at the pharmacy, however, the script is not ready to pick up. The staff explains that they have called the workers’ compensation adjuster to seek approval (an agreement that the pharmacy will be paid), and that they are awaiting a return call.

In the refill issue, there are similar authorization complaints expressed. But, more often the complaint is that refills do not necessarily match the patient’s understanding of the physician’s advice. This is less prevalent when the instructions are to take one pill each morning and one each night. In the definiteness of that set of parameters, it should be reasonably easy to calculate how long "x" pills will last. But often, physicians are not so definite, and the prescription provides some leeway or discretion for the patient ("as needed," or something similar). The patients complain that refills are denied or delayed based upon some insurance carrier rule or guideline or belief about how long a medication refill should last.

The convenience issue often regards refills as well. A claimant once described to me that a primary care physician had prescribed a 30 day course of mediation. Within days, the worker was blessed to get an appointment with a specialist, who added two new prescriptions. Filling those two required a few days due to authorization issues. And within two weeks, the worker was seen by a second specialist, and a fourth medication was added to the regimen. All four were thirty-day scripts. The effect, however, was that this worker had to visit the pharmacy on an almost weekly basis each month for refills, because the three thirty day periods did not have the same conclusion.

Are these real concerns? I cannot say because I am not a workers’ compensation patient travelling to the store for medication. But, each has been related to me enough times that I conclude there is some truth to the issues. Certainly, I can see the frustration for the patient when deadlines (for refills) occur on different dates. Certainly, I can see frustration when the pill bottle is empty and the patient can neither get it refilled nor get any real explanation. And, I can see the frustration of multiple trips each month to the pharmacy. 

In Florida, the injured worker has the right to select his or her own pharmacy, and that can be a real benefit. I have an acquaintance who uses medication persistently, provided by group health. He explained to me that his health insurance company uses a pharmacy benefit manager, or “PBM.” Due to an acquisition, his PBM changed. As a result, he was not permitted to use his long-time pharmacy (less than a mile from home) and had to use a store in the carrier network, which was miles in another direction, and not convenient. At least in workers' compensation, there is not this added inconvenience?

In terms of delivering service to the injured worker, is there a way to decrease the hassle of multiple monthly pharmacy trips, speed authorization of routine refills, and enhance communication between the patient, the medical provider and the pharmacy? And from the original point of the mother that inspired this post, is the solution really just buy the medicine yourself?  I am dubious that this is the appropriate response.