Challenges with Evidence

Not a workers' compensation case, but interesting contract litigation in the Florida panhandle resulted in an interesting appellate decision in Tarantola v. Henghold, 254 So. 2d 1110 (Fla.1st DCA 2018). This was one of those cases that was considered by the appellate court three times.

The first instance, Tarantola v. Henghold, 214 So. 3d 726, 726-27 (Fla. 1st DCA 2017), was an interesting issue regarding an action for a temporary preliminary injunction, to enforce a non-compete agreement entered between Dr. Henghold and Dr. Tarantola. On that issue, the Court concluded that the judge's injunctive relief was overbroad. The contract between the two doctors prohibited Dr. Tarantola from "performing Mohs surgery . . . within a forty-mile radius of" her former employer's office. The trial judge's injunction prohibited her from "practicing dermatological medicine" within that area.

Thereafter, Dr. Tarantola "put up a billboard and activated a website" for a clinic. Her former employer sought "civil contempt sanctions," which the trial court granted, imposing conditions. By complying with the trial judge's order, Dr. Tarantola avoided significant fines for contempt and sought review, Tarantola v. Henghold, 233 So. 3d 508, 509 (Fla. 1st DCA 2017). The appellate court quashed that order on the second review of the case, an example of an extraordinary writ for the appellate court to quash the trial judge's decision. See Writ Protection.

But, it is the third trip to the appellate court that is of potential interest to the world of workers' compensation This third review of the case was related to an evidentiary issue, one that might be litigated in workers' compensation. The fact that the case was reviewed three times, however, is illustrative that any litigation can become complex and expensive.

The path to the third appellate review came from Dr. Tarantola's eventual resulting motion to "terminate a temporary injunction," which the trial court denied. It concluded that the two-year contract period was extended by the trial court's perceptions of her violation of the original agreement, by her "advertising or marketing activity." The appellate court reversed the trial judge again on this third review. It noted at the outset that "we are now over three years from the date of Dr. Tarantola’s resignation, with a temporary injunction still in place to enforce a two-year agreement not to compete."

There was some agreement between the parties as to some tolling of the two-year period. However, they disagreed regarding tolling during a period in which it was alleged that "Dr. Tarantola was in further violation of the covenant not to compete . . . as a result of improper advertising through a website." The issue, essentially, was whether the website in question "constitutes ‘advertising or marketing activity.’" And, therefore the content of the website became a relevant issue. The trial court concluded that it was advertising, leading Dr. Tarantola to appeal. 

To reach that conclusion, the trial court relied upon "screenshots of the website as proof the website was in existence in May 2015." This was "date stamp(ed)" October 14, 2015, but Dr. Hengold alleged "the website was actually launched in May 2015." However, Dr. Hengold had no "evidence to support this." To support his argument regarding the publication date, Dr. Hengold directed the trial court "to May 2015 Facebook posts, which direct viewers to Dr. Tarantola’s website." Thus, perhaps indirect proof of the existence of that website. 

The Court noted that while the Facebook posts do indicate "a" website, they did not prove the existence of "the" website (that is the specific iteration with the objected to "advertising or marketing activity." That was certainly a complication in the evidence. 

More importantly, however, the Court noted that those screenshots "were not introduced into evidence, but were attached to pleadings." Attaching documents to a pleading (a petition, a motion, etc.) does not make those documents evidence, upon which a judge or jury can rely. Thus, the Court concluded that the findings based on those Facebook screenshots were "based on mere speculation." As there was no evidence as to the existence of Facebook screenshots, "the trial court abused its discretion in its determination that the website existed in May 2015."

Substantively, the Court noted that "even if evidence of record supported that the website existed in May 2015," the content of that website "did not constitute improper advertising or marketing in violation of the non-compete agreement." The Court noted that the website information may have said she is “Mohs surgery and fellowship trained.” However, the information did "not advertise availability and performance of Mohs-related services in the restricted area." The Court explained that the provision of biographical information was not the same as "advertising or marketing activity" as regards performing that type of care. 

The Court ended its analysis concluding that the non-compete period had concluded. And, it clarified that "this opinion should not be read as precluding Dr. Tarantola from the argument that she was wrongfully enjoined from practicing general dermatology in the restricted geographical area." Therefore, it is possible that litigation continued in the matter after this third appellate review. 

The point for workers' compensation is clear. The content of various Internet sites may be seen as relevant to a party in a workers' compensation case. It might be a website of an employer, potential employer, physician, or others. Likewise what a party or service provider posts on social media may be seen as relevant to some dispute or controversy. A party seeking to prove the content of such Internet evidence may struggle with proving what some Internet source represented (the "what") and proving that it did so at some relevant time (the "when").

The "what" may require whomever wants that evidence viewed to prove that their images (screenshots) are real. That is referred to as "authentication." There may be issues regarding whether the images are original or copies, which is called "the best evidence." And, finally, there may be issues about what the screenshots portray, and whether they are used to prove the truth of what they say (that the doctor is or is not certified for the Mohs services perhaps). That is a challenge governed by "hearsay." In all, it can be a complex and multi-faceted process to have a judge or jury consider documents or pictures. 

Comp Laude Nominations

What is good about workers' compensation? There are some who might decry that question, and respond with a firm and unequivocal "nothing." But they are wrong. There is so much going on in this community that is good, positive, and productive. David DePaolo of WorkCompCentral.com recognized that with the launching of the Comp Laude® awards. I have written on the subject various times. For general information, see A Comp Laude Overview (June 2018), published about a year ago. 

I believe that there are many in this workers' compensation community that merit mention. They are each fulfilling a role in what remains a "grand bargain." Despite the many critics who emphasize its failings, workers' compensation has very positive effects on people, businesses, and more. It has been an integral part of the American workplace for over 100 years, and it is delivering every day. Some will point out that it does not always deliver, but it does deliver. Furthermore, it is constantly evolving, striving, and becoming more than it was. 

In 2018, I submitted 14 nominations for the Comp Laude® (nominated in 2017, but concluded the process in 2018). I described the process in that Overview post and explained that the effort can be a challenge. Nominating itself is reasonably simple, you will need the person's name, title, company, email, and phone.  Then you select a category ("service provider," "defense attorney," "applicant attorney," "industry leader," "philanthropy," "employer," injured worker," physician," or "other"). You will also have to provide your own information to facilitate contacting you back.

This year, I submitted 32 nominations. This included industry leaders, philanthropy, applicant attorneys, defense attorneys, physicians, judges, and vendors. Those were submitted between November 20, 2018, and March 31, 2019. And, I am proud of every nomination. Each of them demonstrates a commitment to this workers' compensation community and each is an example that is worthy of study and emulation. My nominees came from eleven states: Arizona, Florida, Georgia, Kansas, Kentucky, Massachusetts, Mississippi, Pennsylvania, South Carolina, Tennessee, and Utah. 

On May 21, 2019, my email got a little exciting. I received six emails, one right after the other at 12:16 p.m., and the subject lines were identical: "Congratulations on your 2019 Comp Laude® Nomination." As I read the first of these, which led with: "Your nominee, __________, has passed to the second round in the 2019 Comp Laude® Awards process," I began to think about what I would need to do to submit the "second round" documentation requested therein. 

The "second round" requires a short biography, a "head and shoulders photo" at least one reference to "confirm the details/accomplishments of your nominee," and a "detailed explanation that demonstrates why your nominee is deserving of a Comp Laude® Award. Minimum one typewritten page, around 500 words." So, each "second round" effort would require some work. 

I no sooner closed that first message than 8 more emails hit my inbox at 12:17 p.m. I started a handwritten "to-do" list of names, and began to archive those 14 emails. Before I could finish, another arrived at 12:20, then another at 12:21. As I worked to build my list, the inbox continued to receive. at 12:35 the messages stopped. Twenty-three. Of the 32 nominations submitted, 23 (72% app) had made it to the second round!

I had learned my lesson in 2018, and started the 2019 process with an email to each of the nominees, requesting that they each send me the bio and photo I needed. That same day, I began emailing potential references, certain that would be a time-consuming challenge. Wrong. The reference replies came almost as fast as I could send requests. They said "glad to," "my pleasure," "nobody more deserving," "absolutely," "I'm a big fan," "for sure," "my privilege," and more. These outstanding workers' compensation leaders were not too busy to support a nomination, they were glad to do it and proud to be asked. 

On June 7, 2019, I finished the process of submitting the second round of information (two days before the midnight Sunday deadline). Admittedly, it involved some work and effort. But, I was proud of each and every nominee. They are each part of what makes our community of workers' compensation great. Some had similarities, but for the most part, they each contributed and inspired differently. They make us better because they set an example for us. They make us better because they are building on the simple fact that this is a community. They are each imperfect, human, but striving for better workers' compensation.

I cannot wait to see if any of these 23 are announced at the Comp Laude Gala® in September. But, one thing I know for sure is that I did not nominate the winner of the People's Choice award. See, that one is not up to any of us to nominate, or the judges to choose. Those nominees will place themselves in contention by proposing a "Ted talk" to deliver. Six or seven will present (it is officially seven, but I know for a fact that one guy flaked out last year and left them hanging with only 6; it was me, and I stayed home at the last minute to watch Hurricane Michael hit our Florida panhandle). And, the audience will vote. The attendees will pick the People's Choice winner.

So, if I nominated you, congratulations again! If you did not nominate anyone, please consider doing so next year. I believe that every person in this community of workers' compensation knows someone who fits the Comp Laude® criteria: 

Career dedication to integrity and excellence.
Commitment to working with all industry stakeholders and treating injured workers with dignity and respect.
Contributions have improved or advanced the industry.

So, when the time comes (nominations will likely re-open in November 2019), take the time to recognize those who you notice, and those who inspire you. They may not win an award but think of the compliment you are delivering by merely nominating them. If nothing else, perhaps you can make them blush a bit, reflect a bit, and know they are making a difference. In the end, isn't that a pretty nice compliment to deliver?

Risks for Attorneys

There has been much publicity in Florida this spring as The Florida Bar has focused on the health and wellness of its members. It all seemed to start in early 2018 when then-Bar President Michael Higer highlighted the subject in the Florida Bar Journal. That issue had various related articles including Mental Health and Wellness: Destigmatizing the Discussion and Promoting Solutions; What do the Statistics About Lawyer Alcohol Use and Mental Health Problems Really Mean?, The Surprising Master Key to Happiness and Satisfaction According to the Lawyer Research, and more. Perhaps those efforts were spurred by a "landmark report on attorney well-being" that was published in August 2017. 

That 2017 report was mentioned recently in a report by the Virginia State Bar. The Virginia authors find significant merit in that report of the National Task Force on Lawyer Well-Being, a group assembled by the American Bar Association (a voluntary group to which some lawyers belong). While praising the effort of the Task Force, the Virginia report concludes that "little has been done to 'drill down' to the reason that lawyers experience wellness problems at a disproportionate rate." That is, accepting that there are wellness issues as identified, why are there such issues?

The report leads with a discussion of a national survey of 13,000 attorneys. And it demonstrates we have problems with drinking, depression, anxiety, and stress. The effects of these mental health problems included suicide, social alienation, work addiction, sleep deprivation, job dissatisfaction, a diversity crisis, and even negative public perception. Significantly, the ABA study found that younger lawyers in the first ten years of practice and those working in private law firms experience the highest rates of problem drinking and depression. 

The Virginia report identified both physical and non-physical risks that are of interest. The "physical included sedentary nature of work," "long and unusual hours," "sleep deprivation," "working indoors," and the "aging of lawyers." The non-physical factors included: "adversarial nature of the work," "individual work," "professional demands," "vicarious trauma and managing other people's problems," "the duty of confidentiality," "educational debt," "business management and the practice of law," and the "need to display confidence and conceal vulnerability." 

Physical Factors: 

"Physical included sedentary nature of work" 

The report says there is "a risk of dying similar to the risks of dying posed by obesity and smoking" associated with a lack of activity. This is not only a lawyer problem, as it also notes "86% of American workers sit all day at work." But, there is evidence that this one can be reasonably simple to combat. In fact, "low-intensity, non-exercise activities" are seen as effective. The report recommends: "parking at a distance from a building, using stairs instead of elevators, setting reminders on a phone or watch to stand up and move, working at a standing desk, taking multiple stretch breaks, and walking at lunch" as efforts worthy of consideration. 

"Long and unusual hours" 

It notes "working long and unusual hours is a fact of life." This may "yield predictable consequences, including exhaustion, stress, and mental burnout." The report notes that our affinity for remaining connected and leveraging technology is part of both the "long and unusual." The report recommends various methods to combat this including delegation and organization. But also suggests avoiding the lure of multi-tasking and procrastinating to reduce the stress. Finally, it says "schedule time to relax and recharge." Lawyers are inherently (it seems) resistant to such scheduling. 

"Sleep deprivation" 

Surveys suggest that lawyers are the "most sleep-deprived professionals." A recent study on the effects of sleep loss found even minimal interruption is problematic. Admittedly, this is a stressor, but also itself "a major health issue," that may impact "mental and physical health." The impacts are listed in detail but include impaired driving, food cravings, obesity, diabetes, and high blood pressure. The authors recommend a variety of tools, including exercising regularly, putting "thoughts on paper and out of the mind," and even mid-day napping. The report suggests that recognition of the importance of sleep by organization leadership may encourage good habits by associates and employees. 

"Working indoors" 

The report says that this tendency leads to "limited exposure to sunlight," "disruptions of circadian rhythm," and "vitamin D deficiencies," and can thereby contribute to issues with sleeping. There are also attendant risks of depression, air quality, and even vision issues. This is also not an issue limited to lawyers, it notes that "90% of all people spend close to 22 hours inside each day." The authors suggest more time outdoors, "two hours of daylight per day," and advocate that firms and other employers should "adopt policies promoting time outdoors, such as permitting 'walking meetings.'” 

"Aging of lawyers." 

This one is certainly not about lawyers only, and the authors acknowledge that. The authors contend that with age comes "the potential for mental or physical impairment." These may include physical challenges due to degenerative disease, or mental issues related to memory, attention, concentration, or emotion. The report recommends annual medical examinations, and if necessary with specialists in psychology or psychiatry. Employers should encourage all lawyers to "watch out for each other," and to be conscious of "red flags that suggest a colleague’s cognitive abilities" may be suffering. 

In a nutshell, it seems a great deal could be accomplished in regards to all of these physical factors by each of us taking a couple of breaks daily and spending time walking around outside with others while we all engage in conversation? 

Non-Physical Factors: 

"Adversarial nature of the work," 

The authors conclude that legal work "is necessarily conflict-ridden, and conflict breeds stress." This may be frustrated by the fact that lawyers involved may be high-stress ("type - A") to begin with. The very nature of the work means "conflict is an unfortunate reality for many lawyers." The process leads to "anger, guilt, and fear," and the chronicity of it can produce physical effects. The authors suggest training and education on "civility-centered" topics and engagement in "organizations devoted to professionalism and civility, such as the American Inns of Court." Firms should "create comradeship and combat the feeling of isolation engendered by the chronic aggression of law practice." 

"Individual work," 

The report suggests that attorneys are lonely, concluding the practice is "the loneliest kind of work." There is a danger of feeling isolated as well as challenged by an "often-competitive culture." Loneliness is seen as driving "diminished physical activity," "depression," "disrupted sleep," a variety of physical changes that could affect health. How detrimental is loneliness? The Authors conclude "loneliness has the same effect as smoking fifteen cigarettes a day on our overall health." The report suggests lawyers should "say 'yes' to as many social gatherings as" possible. A concerted effort should be made to "maintain healthy relationships with family and friends." And, employers should be aware of the "risk and symptoms," and create "positive social support in the workplace." 

"Professional demands" 

The report notes a tendency for lawyers to be "pulled in too many directions to manage," noting "clients, colleagues, and the courts." There is no mention of the concurrent commitments to family, friends, and other social outlets (see above, re loneliness). The authors note that clients are often in stressful situations, thus they hire a lawyer. They may be disappointed, demanding, or even angry. And that may lead to "bar complaints, unfavorable online reviews, and malpractice claims, adding to the lawyer’s overall stress." The authors suggest establishing expectations at the outset of relationships (clients are mentioned, but this might as well apply to others). Furthermore, they recommend focusing on communication, time management, and having a "trusted mentor or colleague" to speak to about such issues. 

"Vicarious trauma and managing other people's problems" 

The report says this one is complicated by the primacy of other's problems, and the way lawyers "shoulder" them. These aggravate other issues already mentioned such as "increased stress, depression, anxiety, sleep disturbance," and more. The pressures can lead to “emotional fatigue” and “compassion fatigue,” as the lawyer's emotions and energy are invested in the troubles of others. The effects may include avoidance of some kinds of work, "risk-taking behavior, insomnia, feeling helpless," and withdrawal (social isolation, see above). The report suggests that lawyers acknowledge and recognize the potential, and commit to "not feel guilty about taking breaks during the work day," whether that is "a workout, lunch with a friend or even a massage or quick trip to the mall." The emphasis for such breaks should be something "that will occupy the mind and provide a break from worrying about a client’s situation." 

"The duty of confidentiality" 

This leads to feelings of isolation according to the authors. That may be particularly challenging when facing a novel issue, situation, or circumstance. When there are issues "attorneys cannot unravel," there is frustration and stress. When an attorney must maintain confidentiality of "disturbing facts," that may prove particularly challenging. The authors suggest that this may be more prevalent in the "solo practitioner" who lacks an attorney confidant with whom to consult or share. The report suggests that therefore "lawyers should strive to develop strong working relationships with the other attorneys in their firm or organization." "Collaborative environments," where attorneys are "companions rather than rivals" is a suggested remedy. That is not of assistance to the "solo" attorney. The report recommends that such attorneys might reach out to their state bar, through an ethics hotline, for support and advice on dealing with challenges of confidentiality. 

"Educational debt" 

The report sees debt as "relatively new" and "potentially soul-crushing." It notes that law school "tuition increases have vastly exceeded the normal rate of inflation." In this regard, the educational process may have similarities to the medical inflation situation featured in The Conundrum of Medical Inflation. The report advocates for planning before undertaking debt of this magnitude. However, it contends "many law students make the life-altering decision to take out large amounts of student loans with little to no thought as to the repercussions." In short, people are borrowing money, obtaining education, and then facing a lifetime of repayment. And that, the authors contend, is causing these lawyers to stress. The report advocates better research and informed decisions, delayed law school entry until some capital is saved, and more thorough thought about return on investment. They contend that "simply beginning — and continuing — this conversation is a good start." 

"Business management and the practice of law" 

Lawyers learn a variety of skills in law school. Business management, in my experience, is not one of them that is stressed. Thus, the graduates are trained to practice law, but not to manage their bank account, staff, assets, liability, and more. The report notes that "many new lawyers are forced to start their own practices to make ends meet"; that the employment market is not sufficient for the volume of graduates being produced. The authors conclude that the lack of business training and knowledge therefore "certainly contributes to stress and anxiety." The report recommends having resources for "preparing law students for the business side of being a lawyer." The authors advocate for "Practicing lawyers (to) consider taking business classes through local colleges." There is also the suggestion that small firms or solo attorneys should network with others to confront these business challenges. 

"Need to display confidence and conceal vulnerability" 

The report concludes on this point that the practice of law "can be, at times, ruthlessly competitive." The education process discourages any showing of vulnerability, which includes "seeking help." The authors see this as an outgrowth of "the inherently competitive nature of law school," and processes that "pit students against one another without regard to their individual merit" as they will be in "the practice of law." This is magnified perhaps by the public perceptions of attorneys, and their role in our country, which "incentivizes lawyers to exude confidence." The recommendation on this point is to essentially destigmatize those who seek mental health assistance. The authors advocate that employers should similarly "indicate acceptance, and even encouragement, of help-seeking behaviors" such as obtaining mental health treatment. Furthermore, "more social interactions and team building" might "increase firm profitability in the long run." 

The verdict, having considered all of this, is perhaps not clear. Some may argue about particular conclusions of the report regarding risks or solutions. Some may see particular aspects as avoidable or not, addressable, or not. Some may even raise the potential for some proposed solutions to create unintended detrimental consequences. Some will note that the report repeatedly acknowledges that various issues are not "only lawyer issues." But everyone should remember that they are perhaps nonetheless issues for lawyers. That they are faced by a variety of professions should perhaps not in itself diminish the potential effect or importance. 

Perhaps everyone could agree, despite the potential differences of opinion regarding various details, that the key point of the whole report is best summarized in the particular suggestion regarding debt that "simply beginning - and continuing - this conversation is a good start." While the report makes that contention as to debt specifically, perhaps the fact that there is this conversation, from the Florida Bar Journal articles devoted to the topic or from this Virginia report, that we are perhaps beginning to be introspective, analytical, and self-critical is truly "a good start?" As for me, having been up most of the night writing this, I am going to go try that "sleep" thing with which they seem so enamored. Each of you should perhaps go have a conversation about these topics with a co-worker or friend as you take a nice break and walk outdoors? After all, what can that hurt?

Legend Jack Langdon Passes

I have one fewer reader today. I found out via text message. It was short and to the point: "Jack Langdon passed away I'm told. I don't have any details." It took me several hours Friday to confirm. There is no obituary as yet, but there will be a link here when one is published. 

There are a great many workers' compensation lawyers in Florida today who will not remember Jack. He stopped practicing in the early 1990s. I met him by accident, and we became friends. I recall when he first called me, back in 1993 I believe. He had received a document in the mail from one of the workers' compensation district offices. The envelope was addressed to him, but the document inside was intended for me. The similarity in our names had led to a simple error. We chatted briefly and he promised to send the document on to me in Jacksonville. 

I cannot recall if it was in that call or shortly after, but Jack told me he was relatively new to St. Augustine, having sold his interest in a practice in Gainesville to his former partner James (Mac) McCarty. He explained to me that he was going to mediate cases rather than practice law. Mediation was a relatively new idea in workers' compensation back then. I am proud to say that the first workers' compensation case Jack ever mediated was one I was defending. I hired him for a great many cases over the ensuing years. He kept reminding me about that first case, Jack had a great memory for people. 

I once tried to schedule a mediation with Jack and he was unavailable. He told me he was headed to Peru, Indiana for a family visit. He explained that was something he did annually, for his mother. That got us discussing Indiana, where I too graduated high school. And, through that, we came to realize that we had both attended Ball State University. For two lawyers ending up in the community of workers' compensation in northeast Florida, that was quite a coincidence. And, as we continued discussing, we realized we were also fraternity brothers, had lived in the same house years apart, and had a great many coincidental friends and acquaintances.  

Jack could talk to anyone. That is why he was a successful mediator. He took an interest in people and discussed what was important to them. I recall a mediation in which he told me that it would take "a riding mower, a trailer with a ramp, and a Dodge 1500 pickup" to settle. See, Jack listened for and then talked with the worker about, what the worker wanted. He tried to make the process personal and conversational with them. As I recall, that case settled just about where Jack said it would. He always encouraged me to think less about calculating benefits or my client's exposure and to think more about what the injured worker wanted. 

Jack loved to travel for mediations. He was flattered when someone hired him to mediate a case in some faraway venue like Pensacola, Tampa, or South Florida. He was proud that his particular perspectives, experience, or skills were perceived as worth the cost of travel. One of his great joys was traveling to Jacksonville for mediation, a short trip from his St. Augustine condominium. Despite being able to return home, he would often spend the night in a Jacksonville hotel in the "Elvis Presley Suite," so named when that entertainer performed in Jacksonville in the 1950s. That hotel also coincidentally housed his favorite steak restaurant. Jack persistently reminded me that one must pause and smell the roses periodically, and that could be done far from home or not. 

Jack was avid about workers' compensation, and those involved in it. But, he was particularly fond of District "B," which is now known as "Gainesville." He graduated from the University of Florida Law School and practiced there until selling his practice. District "B" was one of the few Districts in Florida that experienced long-term stability in its administration back then. Judge Elwyn Akins presided there from 1961 to 1991. To this day, only two Florida JCCs have a longer tenure (Judges Kuker and Lewis). Back in the day, the District "B" office was in the town of Trenton, Florida (about 30 miles west of Gainesville). That, according to Jack, was because Trenton was where Judge Akins lived, and had grown up. Jack was a font of trivia, about Florida, about workers' compensation, and about those fellow travelers he met along the way. 

Jack loved to tell stories about the practice back then. He told me of his decision to install a desk in a van. He hired a driver to take him around the diverse geography of District "B" and beyond, while he sat at that desk and practiced law with a tape recorder (there were no cell phones then). He also enjoyed relating how Judge Akins "rode the circuit," and there were specific days practitioners knew Judge Akins would be in some particular county courthouse. The details escape me presently, but I recall Jack's description and his obvious affinity for "the good old days." He really liked to tell stories about Judge Akins and the cases he had won and lost before him. 

Jack spent over 20 years practicing in Gainesville and the surrounding area. He built a defense firm there, which he once bragged was "the biggest defense firm in Gainesville." He delivered that line with a laugh and a twinkle. Years later, when I opened my firm in Ponte Vedra, it was Jack who told me I had the "biggest defense firm in Ponte Vedra" (4 lawyers), and then he laughed. Jack always had a laugh, a story, and usually a compliment. He loved people and more so loved talking about his favorite people. Many of those were in workers' compensation. 

Workers' compensation was a passion. Jack served as Chair of the Workers' Compensation Section of The Florida Bar. He served on the first iteration of the Statewide Judicial Nominating Commission for Judges of Compensation Claims. He was one of the early advocates who believed mediation would thrive in this practice. I mentioned to a friend that I was striving to write this commemorative post, and he wrote back "Hope your post will be larger than life like Jack." That is as apt a description as one could hope for regarding Jack. He was certainly one of a kind. 

Jack was a mentor. Coincidentally, on the day he died, I was at a Florida Workers' Advocates meeting in Orlando. There, I encouraged attendees to strive to be mentors, to support young lawyers in their development in the law, workers' compensation, and professionalism. Afterward, an attendee told me he was increasingly serving as a mediator, and I encouraged him to mentor in mediation. He was somewhat skeptical, and I therefore recounted a story about Jack Langdon teaching and mentoring through mediation. Over the years, I have often returned to his example when encouraging others. Jack would persistently counsel, teach, and critique. I learned much about negotiation, communication, and litigation from Jack. And, he frequently made me laugh. I never missed an opportunity to take his call. 

The Workers' Compensation Institute Hall of Fame was founded in 2012. The initial inductees soon began a process of recognizing those who had come before them. The "Legends" branch of the Hall was established for those who had retired from the workers' compensation practice or profession, but who formed the foundation of Florida workers' compensation. I was proud when Jack was later inducted as a Legend. He was immensely proud to count as his contemporaries and peers such Florida icons as Richard Sicking, Albert Frierson, Steve Rissman, Jim McConnaughhay, Dan Hightower, and George Kagan. He was proud to be among them, but also proud of them. 

Later still, another Legend inductee was Judge Akins. By then, of course, Judge Akins had moved from the area and passed away (2009). There was no one to present with a plaque commemorating his Hall induction. Jack and Dan Hightower took it upon themselves to have the plaque hung in the Gainesville District Office, to commemorate the 30 years that Legend invested in this community of workers' compensation. It was critical to Jack that Judge Akins' service and story be remembered. There was a well-attended ceremony when that plaque was hung. As is too often true, I was too busy to make that trip. In retrospect, I regret missing the opportunity to stop and smell the roses. 

  

Photo courtesy of Dan Hightower; Jack Langdon, far right. 

Jack was sometimes colorful. He told me he once engaged in racing. No, not your prototypical kids with fast cars, but a serious late-model team with two cars. They raced on the USA Racing Circuit in Florida. It is not hard to see how he was drawn to it, with Florida's connections to auto racing. (note, this paragraph originally made references to NHRA drag racing, which was an error). 

He also told me one day of his family's efforts to support a group called the Rodeheaver Ranch For Boys in Palatka, Florida. Jack and his mother contributed to constructing the Langdon-Newby Activity Center at the ranch. Jack was very proud of his philanthropy, but privately. I had various conversations with him over the years about the ranch and other beneficiaries of his attention. But, I never heard him mention his contributions and efforts publicly. I vividly recall an instance when he and other workers' compensation Hall of Fame members quietly contributed to provide a modified van for a Gainesville attorney in need. It was typical Jack; someone was in need and he took it upon himself to quietly find a solution. 

As I have striven here to memorialize a friend, one that I knew for almost my entire career, I have reflected on some of those many conversations and mediations. Jack was gregarious, proud, engaging, gracious, professional, funny, and helpful. I count him among my mentors, and I lament his passing. As I think back on the many conversations that we had, I realize that he was persistently mentoring; passing on his wisdom, experience, and perspective. Florida workers' compensation lost a Legend Thursday. 

Jack was one of my fans. He read this blog persistently and would often call me or email a thought. Most of the time it would be long before the sun rose. If I happened to be late posting, he sometimes would accuse me of oversleeping, at 5:00 a.m. He was sometimes sarcastic or facetious regarding these posts. And, he often saw perspectives or points that I had overlooked. He would call to discuss and then might end the call quoting Paul Harvey, that now I knew "the rest of the story." I told him more than once that I would like to recount some of his stories here. Ironically, I did not get around to it in time. 

Regretfully, as noted above, there are a great many lawyers practicing workers' compensation in Florida today who will not remember Jack. But, those of us that do lament his passing. And, when we gather next winter for the annual Florida Hall of Fame induction dinner, there will be memories, stories, and anecdotes. If you ever get the chance to be a mentor, take it. If you can ever lighten someone's day with a story or anecdote, take it. If you get the chance to be good to someone, take it. Jack would have. 

This community of workers' compensation would be better if all of us were a little more like Jack, a little more about the community, a little more about smelling the roses, a little more like the simpler life of Trenton, Gainesville, or St. Augustine. Godspeed Jack.

Ed Note: The following was received from Jeffrey Langdon, on Sunday, June 9, 2019. It is added here to correct and supplement the foregoing. Reading it was a comfort to me.  The fishing story led me to laugh out loud. 

Judge Langham:
(I tried to post this as a comment to your blog, but it was too long.)

This will probably be a comment you never expected. I am Jeffrey Langdon, Jack Langdon's son. I thank Mac McCarty for sending me a copy of this blog. More importantly I thank you for writing it. It was an accurate portrayal of my father and a fitting tribute.

In the true spirit of my father, I want clarify one thing. My father was a NASCAR fan, not NHRA. While my father was a straight line kind of guy on a lot of things, when it came to racing he liked going in circles. He did own 2 late model teams that raced and won on the USA racing circuit in FL. The pictures and trophies were proudly displayed in his home office for years.

It was a tremendous blessing to hear all of the things you shared about my father and his impact on the practice of WC law and the WC lawyers in the state of FL. I heard many stories of the cases and people he interacted with such as yourself. I know many of you by name, and story, alone. Dad talked fondly of you and the fact that you were both from IN, graduated from BSU and were lamb chops. In true Jack Langdon fashion, he would usually start singing Disney World's "It's a small world" whenever he shared a story about someone he met in which there was a connection like this. My father had an uncanny knack for running into people in strange places of the world in which he would have some familiar connection with whether it be where they grew up, went to school, or people they knew.

His sharing of the cases and people he worked with were always from his perspective and never gave me the full impact he had on the industry. Your blog helped me to better appreciate the mark he left on those he interacted with professionally. It also brought back many memories of days gone by and stories that were told. I remember Judge Akins from when I was a child. He always seemed very southern, bigger than life, no nonsense and funny. My father and Judge Akins were similar in many ways which is probably why they got along so well. 

Ok, I am going to share a Jack Langdon, Judge Akins story for somewhat mature audiences. My father and I had the opportunity to stay at Judge Akins' place on the Suwanee River and to go fishing with him one weekend back in the '80s. We were tucked up along the trees fishing when my father decided he needed to "relieve" himself. He stands up in the boat and grabs a hold of the tree next to him to brace himself and handles his business. While going he looks down and about waist high in the trees sits a water moccasin staring at him. He finishes and sits down and asks Judge Akins. He says "Judge, if that snake had bit me would you have sucked the poison out?" Judge Akins looked at him with all seriousness and responded, "Son, I'm sorry, but ida had to let you die!" To which we all busted out laughing.

As I sit here drinking my coffee on a Sunday morning reading your blog and reflecting, I am reminded of the man my father was. He was far from perfect, but he was loving, caring, giving and funny. He had a dry, albeit sometimes corny, sense of humor that kept everyone laughing. Family and work comp law were the two things most important to my father. You could tell by the amount of time and the stories he told about each. 

He imparted a tremendous amount of wisdom to me through the years. In fact, during one of our recent conversations I told him "you know, the older I get, the smarter you get!" So I say to all of the son's or mentees reading this. Just because something a wise persons shares with you doesn't seem to be true, doesn't mean that it isn't. It may just mean that it is not a truth for you yet. Through the years as I have been married, had various jobs and raised 5 children, there have been many times I have heard my father's voice ringing in my ears or am reminded of the challenges I put my father through when I was younger. And yes, there have been times I have felt like I was reaping what I sowed and there were even occasions I apologized to my father in retrospect. Dad would just laugh with the knowing laugh of a good father who knows his son would someday "get it" and that that day had come.

I miss my father especially today, Sunday. Sunday is raceday and we liked to talk NASCAR on race day. Today in particular is the Michigan 400. I am reminded that my father and I attended this race 20 years ago on Father's Day together. I am reminded of all of our fishing trips on Orange Lake outside of Gainesville, fishing for Reds on the intercoastal and going tarpon fishing out of St. Aug. I miss all of the greasy hamburgers and french fries that usually accompanied the end of these trips and the Waylon Jennings, Willie Nelson and Johnny Cash that got us to them.

Thank you again Judge Langham for your blog, the information it gave me, the memories it brought back and the grieving it assisted in.

Sincerely,
Jeffrey Langdon

Does False = Fraud?

There is a perception that in Florida a great many litigation allegations are leveled regarding "fraud." This is mentioned in multiple appellate decisions such as Isaac v. Green Iguana, Inc., 871 So.2d 2004 (Fla. 1st DCA 2004)("employer/carrier sought to raise a fraud defense").

In Pinnacle Benefits, Inc. v. Alby, 913 So.2d 756 (Fla. 1st DCA 2005), the Court referred to this as the "so-called fraud defense." This defense is based upon the provisions of section 440.105(4)(a), Florida Statutes. This renders actions of an employer illegal if done "knowingly." The provisions of paragraph (4)(b) are directed more broadly to the actions of "any person." In some of the subparts of that statute, there are requirements of "knowingly," "knowing," and "intended." 

In Alby, the Court explained that various "statutory provisions require a showing of 'knowing; or 'intentional' activity." Thus, to make a mistake, alone, may not equate to a violation of the law. Furthermore, though the word "fraudulent" also appears in multiple sub-sections, that is not the only word used. There are sections that also or instead use "false," "misleading," "incomplete," "knowingly omit," "conceal," and "misrepresent." These subsections affect such topics as "applications for coverage," "the employment relationship," and "obtaining or denying any benefit."

The precise language related to statements made "as part of, or in support of, a claim for payment or other benefit," paragraph (4)(b), requires that "such statement contains any false, incomplete or misleading information concerning any fact or thing material to such claim." Note the word "material," which may narrow the application of the prohibition. This is the subsection that is engaged by the employer/carrier as a "defense." Thus, there are those who instead refer to the "so-called fraud defense" instead as the "misrepresentation" defense.  

Practitioners sometimes give little consideration to the language regarding the intent, i.e.: "knowingly," "knowing," and "intended." Some perhaps do not give full consideration to the "material" requirement. There are those who find anything that is not true to equate, ipso facto, to something that is knowingly or intentionally false. The fact is that human beings are fallible. We all make mistakes and even misstatements sometimes. It may be because we recall things inaccurately, or even that we misstate or poorly describe what we accurately remember. 

The Court in Alby stressed that determining the credibility of a witness is the trial judge's responsibility. It is up to the trial judge to observe the witnesses and to determine whether the testimony is believed or not. The appellate court will generally uphold or affirm the trial judge's conclusions "if any competent substantial evidence supports the JCC's decision." It is not the role of the appellate court to determine if there is "other persuasive evidence, (that) if accepted by the JCC might have supported a contrary ruling." 

I was reminded of this when I reviewed a May 22, 2019 decision of the Court of Appeal Second Circuit, State of Louisiana titled Hunter v. Town of Richwood, No 52,696-WCA. There, an injured employee accused the employer of misrepresentation. The case arose from a work-related motor vehicle accident. The workers collected workers' compensation benefits and filed a lawsuit against the driver whose vehicle struck them. A particular payment of workers' compensation to one worker, approximately $6,377 consisted of various components: costs, attorney fees, medical care, and temporary total disability benefits. However, the check stub memorandum reflected merely "temporary total disability."

The employer sought to participate in the employee's recovery from the other driver. As part of proving what the employer had paid, and thus what it might be entitled to recover, it provided the employee's attorney with a "record of payments." The employee's attorney recognized that the $6,377 was not fully labeled correctly, and pointed that out to the employer. The employer wrote back and explained why it contended that figure should be included and added: "There is clearly no intention of defrauding anyone."

The matter came before a workers' compensation judge, upon the injured worker's contention that the employer was "guilty of workers' compensation fraud," having "disguised" some non-indemnity payments ("costs, attorney fees, medical care") as indemnity and that the reason for this "false information" was "an effort to recover" that money. The worker asserted that the employer should therefore be barred from participating in his recovery against the third-party driver he had sued for the accident. 

An adjuster testified regarding the $6,377. She explained that all of that money was characterized as indemnity benefits because the computer software utilized only offered limited category choices. She testified that she provided the "record of payments" to the attorney for the employer, but that she "did not know that the document was going to be presented" to opposing counsel. She also "denied that she was trying to defraud or mislead," or "gain an advantage." The trial judge accepted this testimony and held for the employer. The employee appealed. 

The appellate court quoted La. R.S. 23:1208, a statute not dissimilar to the provisions of the Florida law quoted above. It explained this statute's use of "willfully" and that such statement be "for the purpose of obtaining or defeating any benefit" were each important in the evaluation of an untrue statement. 

The Court found the employee's argument about the $6,377 check characterization was "somewhat disingenuous" because that check was "made out to" both the employee and the attorney, and that the attorney was "presumably . . . aware of exactly what the check included." The Court also noted that the trial judge had observed the employer's testimony at trial and accepted it (concluded it was credible). Thus, acknowledging that the characterization was at least incomplete (listing one category and omitting others), the Court held that did not amount to being either "willful" or intentional. 

Thus, in this example, there is support for the conclusion that false does not equal fraud. False may not even equal misrepresentation. The party that seeks to benefit from a prohibition such as La. R.S. 23:1208 or section 440.105(4), Florida Statutes, will have to prove "all the necessary elements required under that statute." When those elements are not proven, then false or misrepresented may merely equal an error or mistake. Admittedly, we all make mistakes. When asserting that some misstatement, omission, or representation is actionable, the community should consider any statutory modifiers regarding intent and materiality. 

Electronic Legal Documents

One of the less publicized bills of the 2019 Florida session is House Bill (HB) 409. As yet, it has not been signed by the Governor. If signed, it will put Florida among 21 states that have adopted this process. (ed. note June 7, 2019, bill signed by Governor DeSantis).

It is worthy of discussion even though it is not a workers' compensation bill. In 2017, I penned What is a Signature. That post discussed the electronic signature and mentioned the developing practice of "notary and signing authentication services over the Internet." In those instances, the person signing has her or his identity confirmed in a video conference. It also mentioned the Uniform Electronic Transaction Act (UETA), Section 668.50, Florida Statutes, and Rule 60Q6.102(6). 

HB409 is specific to the function of notary public services. Notary public are mentioned in Section 440.30, Fla. Stat. That is the only mention in Chapter 440. However, there are various instances in which "sworn" or "verified" are used. These include 440.25(5)(b)("sworn" and "verified"), 440.381(4)("sworn"), 440.525(3)("sworn"). There are also mentions of "sworn" or "verified" in the 60Q Rules of Procedure for Workers’ Compensation Adjudications. These include Rule 60Q6.123(1)(a)7.("sworn"), Rule 60Q6.123(2)(a)6.("sworn"), Rule 60Q6.105(4)("verified"), Rule 60Q6.124(3)(a) and (b)("verified"), Rule 60Q6.124(4)("verified"), Rule 60Q6.124(5)(a) and (b)("verified"). 

Thus, there are occasions when involvement of a notary may be necessary. There is also a practice of using a notary with joint petitions for lump-sum resolution. Those are most often accompanied by an affidavit of the injured worker, and those joint petitions are regularly notarized. Therefore, there is a probability that the changes to Chapter 117 in HB409 will impact some aspects of the workers' compensation process in Florida. 

The bill clarifies that a notary must be "within the boundaries of this state" (L159). All notaries "shall use an electronic signature" if "performing an electronic notary act." That electronic signature must be secured "through the use of passwords or codes." (L170-172). But, whether to perform such services electronically is strictly up to the notary, who cannot be "required" "to perform a notarial act" "with a form of technology that the notary public has not selected." (L176-178). The notary must complete a "jurat" attesting to the signature on the document. The bill adds to that jurat requirement that the signatory appeared "by physical presence or by means of audio-video communication technology." (L-217-219). There is clear stress on the video requirement. Section 117.107(9)(L513-515). Telephonic notarization is not authorized by this bill. 

The statute provides forms for attestations as well as delineating questions that must be "asked by the online notary," "in substantially" the form stated in the statute." There are also various definitions provided by the statute. Of particular note, Section 117.201(4) synchronizes with the UETA: 

"'Electronic,' 'electronic record,' or 'electronic signature' has the same meaning as provided in s. 668.50." (L544-545). 

The law will also require the Department of State to 

"adopt rules establishing standards for tamper-evident technologies that will indicate any alteration or change to an electronic record after completion of an electronic notarial act." (L180-183). 

It also empowers the Department of State to adopt rules pursuant to Section 117.295 regarding what "audio-video communication technology . . . meets the requirements" of the statute. (L590-591). 

The statute has provided for the notary to make photocopies of documents and to provide a certificate attesting that the copy is a true copy. The bill expands that authority, allowing the notary to make a copy "of a tangible or an electronic record or the printing of an electronic record." (L306-308). This may have an impact in the trial of workers' compensation matters, and otherwise, where printed copies of an Internet website are desired as evidence. 

Location may be important. The bill clarifies that a notary in Florida can perform these functions electronically regardless of whether the signatory is "physically located in this state at the time of the online notarization." And, the validity of such notary services is determined by Florida law, similarly regardless of the signatory's location. (L622-626). 

The ability to perform services electronically is not automatic. The notary must complete training and be registered as an "online notary public." (L657-659). And, the notary must keep an "electronic journal" of those occasions in which electronic methods were used. Furthermore, the journal and the recordings of the video conference for such notarization must be kept for 10 years (L-753-755). 

In time, the use of online notaries is likely to become ubiquitous. The Florida bill has not been signed yet by the Governor. However, in the event that it is, the law will be effective January 1, 2020. (L1926).

Medical Charges and Challenges

There is nothing in this world that is free. Several years ago, I penned Someone Has to Pay (May 2016). I have had significant feedback on that over the years. Some perceive the solution to medical care costs as simple. One famously has explained that it is easy to provide "Medicare for all." This would mean that every American would have access to the treatment and care that the government deems appropriate and necessary. The finances are purportedly as simple, "You just pay for it." There has been some criticism of that statement, some feeling it is an oversimplification. 

But, in Someone has to Pay  (May 2016), I suggested that we need to understand that "payment" may mean an actual exchange of money for services. But, "pay" may mean instead a diminution in value on the other side of the equation. If one is injured, some form of insurance may pay for care (health, auto, liability, workers' compensation). Alternatively, if one lacks such coverage, one might pay for such care with cash or credit. But, if none of these are available, then one might instead simply elect to forgo care, and "pay" with diminution of function or pain. 

As a country, we long ago decided that the ability to pay will not limit the delivery of care. In 1986, Congress enacted the Emergency Medical Treatment and Labor Act. This is not universal health care. The requirements of the bill apply only to hospitals that accept Medicare patients. Thus, it is voluntary; a hospital may choose to participate in Medicare or not. Furthermore, the care that is mandated is only "stabilizing treatment" for "emergency medical conditions." There are also various state laws that may require more than this in some situations, at some facilities, etc. While the provisions vary, it is fair to say that universal health care does not exist in America today. 

However, there is care rendered at some hospitals that is covered by insurance or Medicare. And, those facilities therefore must provide stabilizing treatment to all. Additionally, there is other care not paid for by health insurance. There is care that is billed for, but which may not be paid by the individual, see Bob Wilson's discussion of Explanations of Benefits. There is perhaps even care that is not billed, but merely written off. And, there is undoubtedly care that is simply never sought or delivered as whoever needs it elects not to seek it, or it is not deemed sufficiently emergent to require care. There is a real spectrum for consideration. It is likely that these many variables are part of the reason that the discussion of health care and policy is challenging. 

This all came to mind in May when The Washington Post published Who's Going to Take Care of These People? The article describes a "15-bed" hospital "fending off closure hour by hour for the past several months." It was in significant debt, and "its outside ownership group entered into bankruptcy." The result of the closure of "remote hospitals" is characterized as creating "“health-hazard zones." The article says that there are demographic burdens and changes faced by hospitals, issues with "Medicaid and Medicare reimbursement rates," and challenges with the "percentage of uninsured patients." In short, the economics of their dilemma at this Oklahoma hospital is not balancing. 

That article followed only a few days after The New York Times featured differences in charges for hospital systems, described in a recent Rand Corporation study. An Indiana hospital charged "private insurance companies about four times what the federal Medicare program paid for the same care." A cited example in Colorado was even higher. The Times contends that "competition has faltered" in the medical industry. It asserts that "the costs of care are secret," and "hospital systems" have "outsize(d) clout in price negotiations with employers." 

Somewhat confusingly, the Times proceeds to then describe rates as "a closely held secret between insurers and hospitals" ("insurers," not "employers," though there is a further discussion there of "employers" also). The article describes employers contracting with insurance companies for coverage, and the employer not having access to information about what the insurance company pays for hospital services. There is a discussion of care prices affecting premiums, that is the cost to employers. However, it also noted that Michigan is among the states demonstrating private rates closer to Medicare. Despite its lower hospital prices, the "insurance premiums are relatively high." 

And, it is notable that the distinctions may not stop there. In 2015, I penned Medical Costs (June 2015). The figures reported in the article that underlay that post supported that workers' compensation charges in some states were markedly higher than the charges for the same diagnosis if not work-related (health insurance or private pay). A sponsor of a Florida workers' compensation bill in 2014 asserted that some surgeries cost double if work-related. That post cited an article claiming that "workers compensation claims were reimbursed at 1.5 to 2.5 times more than . . . other commercial health plans." 

In the midst of this discussion about costs, there are also discussions of treatment and testing volume. Verywellhealth.com reported in 2018 that 

"There are valid reasons for having multiple diagnostic tests, but sometimes doctors order tests that are not truly necessary." 

It attributes this to "limited accuracy" of tests, "defensive medicine," and "patient request." That last one is interesting, tests are performed because a patient has somehow concluded it is necessary, and providing it is easier than explaining the "why not" to the patient?" The post suggests that there may be some instances in which "profit" motivates, but suggests this is rare. It notes that: 

"Most of the tests your doctor orders for you are done at facilities that are owned and operated by someone besides your doctor" 

And, that testing facility might be a hospital. It is entirely possible that the testing has to be at a hospital (when a doctor is making her care decisions in an acute setting while the patient is inpatient, there is little time for sending a blood or urine or tissue to a separate lab for testing). But, it is possible that the testing is performed somewhere as a convenience to a physician, without regard for the cost to the patient (or other payer). 

Likely, the overall price of health care is contributed to by product costs as well. Fiercehealthcare.com reported recently that "more than 500 drugs saw price hikes at the beginning of 2019." That site asserts that "prescription drug pricing is one of the biggest health care issues in politics." Benefitspro.com also contends that "overuse of services and care are identified as being the top two factors driving medical costs per person." It also identifies the cost of "new medical technologies" as a contributing factor (a doctor once told me a particular test he ordered in a case was "because they got a new ______ machine at the hospital and I am expected to order its use at least twice a month"). 

There are examples of medical care prices being disparate. There is also evidence of medical prices continuing to increase. In 2018, I penned The Conundrum of Medical Inflation. That noted that the costs of medical care have increased more rapidly than the costs of other things Americans consume. The medical consumer price index has exceeded, not quite double, the consumer price index for many decades. As a result, medical care has grown in its consumption of the American family budget. The same is true for America overall. According to www.thebalance.com, in 1960 health care accounted for 5% of gross domestic product. In 2017, that had grown to 17.9%. Medical care is consuming our resources. 

That impact may be felt through the payment of medical bills by those who are not insured. However, it may also be felt through the increase in health insurance premiums, which some contend have been increasing steadily, see the 2018 report of the Henry J. Kaiser Family Foundation (Section 1, "Cost of Health Insurance," figure 1.10). That report also discusses the changes in American's deductibles and other "cost sharing." (Section 7, Employee Cost Sharing). There is significant evidence that medical care cost is increasingly affecting people.

The Balance (www.thebalance.com) contends that "government policy and lifestyle changes" have fueled this expansion. It says that "government programs like Medicare" expanded the population of healthcare consumers (demand) and thus led to increased prices by those who supply healthcare. In the category of "lifestyle," it suggests that there have been increases in "chronic illnesses," which it asserts affect "almost half of all Americans." This analysis also makes various assertions regarding the volume of care that is rendered in the final months of life. 

So, what is the crisis in America? Is it that medical care costs too much due to outside forces (products, liability, etc.)? Or, is it that demand has simply driven prices? With some hospitals already in financial straights, and at least implying that Medicare rates must be supplemented by group health and private payers, would a transition to a single-payer ("Medicare for all")(July 2016) process further strain such facilities? The implication is that today, those who private-pay or who have health insurance are subsidizing those on Medicare somewhat, and those stabilized at no cost even more. 

And, the impact on workers' compensation might be more pronounced. If the claims regarding the cost of workers' compensation medical care are accurate, that a comp surgery is double the group-health surgery, then reducing those group-health payments to Medicare rates through "single payer" might further stress the economic posture of some hospitals. 

Of course, it is possible that such economic stress could be avoided. The math would suggest that if everyone were paying Medicare rates, and that those rates are insufficient even in the current diverse market of payers, in a market predominantly or exclusively Medicare, those rates would have to increase markedly for hospitals to remain in business. Thus, a Medicare-for-all, or other single-payer transition might be more expensive in the long run than one would anticipate by merely examining what is spent by Medicare on a per-person basis in the current market with its private payer subsidies. 

In today's market, if the New York Times and Washington Post are accurate, group health is paying a great deal more for services than Medicare and hospitals are nonetheless financially failing. If all charges were reduced to Medicare rates, that would seemingly exacerbate the problem. Thus, perhaps what "you just pay for" Medicare taxes would necessarily increase if it were the only significant payer left in the system? However, might such a decision save employers a significant amount on workers' compensation?

The point, is that the questions of medical care are complex. The costs have risen, and debate seems mired generally in a focus of how that can be financed. There seems little if any interest in discussing why the products and services are this costly or why the inflation rate is so robust. In short, there is some suggestion that in this discussion there is perhaps room for conversation about more than just who should pay and how. Perhaps there is room to discuss why the prices are where they are, how they got there, and what might be done to bring the medical CPI in line with the market generally? Maybe there is some level of cost that might be better controlled?

Or, left unaddressed, perhaps the share of domestic product described by www.thebalance.com will continue to expand. In 2064, at the rate of increase yielded by comparing 1960 to 2017, medical care could be consuming 64% of our domestic product. And, in the meanwhile, the only medical care debate or discussion may have been focused exclusively on how society can shoulder those payments? Maybe there is room for more robust analysis than "you just pay for it?" It is interesting indeed.