The One Time Change - and Reminders of our Obligations

On July 15, 2015, the First District Court of Appeal rendered an interesting opinion in Gonzalez v, Quinco Electrical, 1D14-5395. The analysis revolves around Fla. Stat. §440.13(2)(f), the “one-time change of physician.” This “allows the E/C only five days to respond to a one-time change of physician, failing which the claimant’s requested physician must be considered authorized if the treatment being provided is compensable and medically necessary.”

This seems reasonably straightforward, but the statute has received some interpretation. Harrell v. Citrus County School Board, 25 So.3d 675 (Fla. 1^st DCA 2010), Pruitt v. Southeast Personnel Leasing, 33 So.3d 112 (Fla. 1^st DCA 2010) and Hinzman v. Winter Haven Facility, 109 So.3d 256 (Fla. 1^st DCA 2013) each provide some guidance on this section. More recently, the Court has rendered Gadol v. Masoret Yehudit, Inc., 132 So.3d 939 Fla. 1^st DCA 2014). It is likely fair to say that this statute is somewhat familiar to the Court.

In HMSHOST Corp. v. Frederic, 102 So.3d 668 (Fla. 1^st DCA 2012), the court concluded that “a PFB (petition for benefits) can constitute the written request of the employee.”  The PFB statutory authority is Fla. Stat. §440.192. This says that “for any benefit that is ripe, due and owing,” the “employee may” file “a petition for benefits which meets the requirements of this section.” The change of physician is a benefit, and so it can be sought in a petition for benefits.

What does Gonzalez v, Quinco Electrical, add to this analysis? Well, knowing that the petition for benefits can be the vehicle used to request the one time change, it is clear now that the request cannot be just any writing. In Gonzalez, the injured worker’s counsel became “of record” in the case by filing a petition. See Who Represents this Party and How to Transition Cases upon the Death of Counsel for more, but essentially an attorney for an injured worker can “appear” on a case by filing a petition. In that instance the rules do not require the attorney to also file a Notice of Appearance.

In Gonzalez, the attorney appeared by filing a petition. Then, “three weeks later claimant’s counsel also filed a document titled ‘Notice of Appearance.’” Although this document “contained the information typically included in such a notice,” it also included “on the second page,” a “request for one-time change” under Fla. Stat. §440.13(2)(f).

What was the intent of this request? Is the goal to obtain the statutory benefit, that is the one-time change? Or is the intent to have a specific, claimant-selected, physician authorized because of the employer/carrier’s failure to respond in a timely, within 5 days, manner? Is it a request or a “gotcha?”

The Court notes that claimant’s counsel in this case “’took advantage of’ his belief that adjusters do not always read in full every document they receive.”

Though the request was on page two of a Notice of Appearance, “the E/C discovered the request for a one-time change” in the document “one day after the five-day statutory window ended.”  The E/C then authorized the one-time change to a “new physician for the claimant that same day, although not the physician that claimant had requested.” The injured worker objected and insisted on the requested physician, essentially arguing that the employer/carrier’s authorization was untimely, and therefore ineffective. The trial judge disagreed and “found under the specific circumstances of the case, the ‘Notice of Appearance’ did not trigger the . . . obligation to authorize an alternative physician.”

The appellate court noted the express intention of the Florida workers’ compensation law, which is “an efficient and self-executing system” that should “ensure the prompt delivery of benefits to the injured worker.” The Court noted that “resort to adversarial proceedings in workers’ compensation cases should be a last recourse to resolve intractable disputes between claimants and carriers.”

The “tactic” of inserting the request for change in the Notice of Appearance, the court said “had the effect of delaying the delivery of benefits and increasing litigation and expense, directly contrary to the self-executing system.” The Court concluded that a “request for one-time change” such as this “should not be inserted into a document that appears on its face to have exclusively another purpose.” (The notice of appearance of counsel of record). Instead, “the request should be readily apparent, unobscured, and unambiguous, to advance the purpose of placing the E/C on notice that such a request is being made.”

There is an old saying attributed to Mahatma Ghandi, “if you don’t ask, you don’t get.” This seems logical, and variations on it have appeared. Nora Roberts said it a bit different; she says “if you don’t ask, the answer is always no.” The Court’s logic seems to be that in order to ask, one must make it apparent that one is asking.

The analysis of this case could end with this conclusion. However, it does not. The Court proceeds to remind us of some obligations and commitments. It reminds us of our aspirations.

The Court said that the dispute in this litigation was “the result of an attorney’s intentional act that we consider inappropriate sharp practice and gamesmanship.” The Court quoted from the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, and Rules Regulating the Florida Bar.

It noted that the Oath of Admission requires attorneys to use “such means only as are consistent with truth and honor.” It cited the “pledge (of) ‘fairness, integrity and civility to opposing parties and their counsel in court and in all written and oral communications.”

It noted “The Florida Bar Creed of Professionalism requires lawyers to “strictly adhere to the spirit as well as the letter of [the legal] profession's code of ethics, to the extent that the law permits and . . . at all times be guided by a fundamental sense of honor, integrity, and fair play.”

It cited Rules 4-3.3 and 4-3.4 of the Rules Regulating the Florida Bar as foundations for the principles in the Creed and the Oath.

It concluded that “lawyers’ adherence to these pledges and duties would eliminate the improper ‘gotcha’ tactics that generate disputes such as this that unfairly and needlessly consume public and private resources while delaying the workers’ compensation process and making it more expensive.” That is a fairly clear statement. The “courts will not allow the practice of the ‘catch-22’ or ‘gotcha’ school of litigation to succeed.” See, Salcedo v. Asociation Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3^rd DCA 1979).

This decision of the Court will perhaps generate discussion. There are a myriad of rules, guidelines, etc. that govern the behavior of attorneys, adjusters, judges, doctors, and more. It seems like every profession has devoted some measure of attention to professionalism and ethics. I suspect that every one of us has been in situations that challenged our ideals, tempted our behavior, and tested our will (as I write this morning, there are some brownies in the kitchen that are testing mine in a profound way!). We are all human beings, and as such we are one thing without dispute and that is imperfect.

We may strive . . . No; we must strive to live up to the rules that regulate our professions. Beyond the mere compliance with rules, we must also strive for professionalism. This is something beyond following rules (the “letter of the . .  . code”). 

Professionalism is idealistic and aspirational. It requires the best of us. We will not always be our best perhaps because by our very nature we will always be human. But we can always strive to be our best, strive to be true to “the spirit as well as the letter of [the legal] profession's code of ethics, to the extent that the law permits and . . . at all times be guided by a fundamental sense of honor, integrity, and fair play.” It is a Creed. It sets a high bar for us all. We may perhaps fail periodically, but that does not mean that we cannot or should not nonetheless strive.

How Far Would You Go for another Hearing?

How far would you go to get what you want? An interesting story from Canada makes a point about one injured worker.

The Toronto Star reported in May about a workers' compensation claimant named Ippokratis "Jimmy" Velgakis. Mr. Velgakis is a 75 year old man angry about his workers' compensation claim, which has been ongoing for twenty years. He explained that "I have the injury. I prove that and they refuse to pay me." 

How angry? The picture on the story shows him protesting with a sign outside a government office. At the time the story was written, he was eighteen days into his "third hunger strike in the past four years." The Star reports that each of his "last two ended with promises that he would get a new hearing" on his claims and "be given an opportunity to tell his side of the story." 

I have been told over the years that hearings and even mediations are cathartic experiences. In a world that is populated with email and voicemail and messages, I am told that it is a relief to look someone in the eye and tell one's story. 

A member of the Provincial Parliament, which seems similar to our state legislature, named Cheri DiNovo is on Mr. Velgakis' side. According to the Star, she "went on a 10-day hunger strike with Velgakis in 2013."  She says that his case is illustrative of larger problems with the workers' compensation system saying "it's very indicative of what injured workers have to go through with (the Workplace Safety and Insurance Board). He's just not letting it go. Why should he?"

An earlier story describes his occupation as a "rink rat" where he "drove the Zamboni and did other odd jobs at the Baycrest arena." He was injured when he "pulled his back after lifting a large piece of wood." Mr. Velgakis has claimed he is entitled to "about $500,000 from the city." 

According to the Star, he was injured in the 1990s, and "continued to work for three years" in a position that was modified. He was then "laid off in 1994" and given a "one-time payout" that sounds like a Florida settlement. Mr. Velgakis "unwittingly he says," "signed away . . .his right to pursue further claims." 

In 1996 there was a decision apparently finding his condition compensable, the 2015 story says "recognizing his injury and granting him benefits." Within days, however, the benefits "were cut off." He attended another hearing thereafter, but "his temper got the best of him and he was asked to leave while his future was decided without him." He did not prevail in that hearing.

The 2011 story says that the claim was denied "based on medical inconsistencies." One specialist diagnosed "degenerative changes in his lumbar spine."

He has been represented by an attorney, Marion Endicott, since 2011 and "free of charge." His attorney says that Mr. Velgakis "has been the victim of an insidious transformation of our workers' compensation system from an inquiry-based one to an adversarial one." In 2011 she filed a request for a third hearing, "known as a reconsideration." She alleged that he deserved this "because the tribunal erred in the previous two by excluding witness testimony."

How far would you go to get a hearing? The Internet reveals stories written about Mr. Velgakis and his hunger strikes. References are there to change.org petitions drives and Facebook posts; YouTube videos and more. However, as of this time, there is no further news  of his 2015 hunger strike or any new hearing. 

#workerscomp

The Running Man from Pensacola, Florida

Technology is changing our world. In April, I published How Will Attorneys (or any of us) Adapt. That post cites some other posts on the changes that technology will bring to the working world. Automation is coming. Anyone that doubts that should do some soul-searching. My coverage of the NCCI conference in Orlando in May included a post on disruptive technology, Salim Ismail and a Life Changing Seminar in Orlando.

These posts, and the references therein point to evidence of a coming automation. Three-D printers will alter manufacturing and even home construction. Software "autobots" will change litigation and a variety of business functions and processes. Jon Gelman even suggests that we could do away with hearing officers and judges, replacing us with the equivalent of a litigation ATM.

DARPA is the Defense Advanced Research Projects Agency. According to its website, the mission of the agency is "enduring" and simple "to make pivotal investments in breakthrough technologies for national security." Hold on there John Connor (Terminator), could there be a robot built to wage war in the interest of national security? It appears that this is not only possible, but the prototypes are already here. 

In the center of Florida is the metropolis of Pensacola (OK, not so center, and maybe not so metro), which is the home of the Institute for Human and Machine Cognition (IHMC). IHMC was one of 23 teams that competed in a recent "global robotics competition" out in California, sponsored by DARPA. IHMC's robot, "Running Man" came in second in the competition according to the Pensacola News Journal (PNJ). The complete results are on theroboticchallenge.org.

The competition required completion of eight tasks and it was timed. According to theroboticschallenge.org the eight tasks required by this recent competition included "driving alone, walking through rubble, tripping circuit breakers, turning valves and climbing stairs." 

According to the PNJ, only three of the entrants completed all eight tasks. The IHMC robot "finished the course in just more than 50 minutes." The winner, from South Korea, "completed all eight tasks, but  did so six minutes faster than the IHMC robot." Some entrants moved on four legs, some on wheels and some on two legs. The Running Man was in this last group. According to the paper, the IHMC support team for the over six foot tall, 380 pound, Running Man was 23 people. 

According to theroboticchallenge.org, this competition was "launched in response to a humanitarian need that became glaringly clear during the nuclear disaster at Fukushima, Japan." The Challenge was initiated "to accelerate progress in robotics and hasten the day when robots have sufficient dexterity and robustness to enter areas too dangerous for humans and mitigate the impacts of natural or man-made disasters."

One of the messages Salim Ismail delivered in April's NCCI program was "exponentials." Those technologies are "both information-based and doubling steadily in its price performance." As reported by the Wall Street Journal, Ismail says that price performance is doubling at incredible rates. He cites "brain imaging is doubling every 18 months. Sensors and drones are doubling in price performance every nine months . . .and solar energy has price performance doubling every 22 to 30 months." 

This price performance doubling is an outgrowth or description of Moore's law. Gordon Moore predicted in the 1960s that the performance of semi-conductors, for a given price, would double every 12 to 18 months. That is, for a constant input of value, performance would double. That prediction has been generally recognized as prophetic. However, development has generally outpaced his predictions. 

If the price performance regarding robotics continues on this predicted path, the capabilities of IHMC's next robot might be completion of 16 tasks (double) in the same 50 minutes or completion of the same 8 tasks in 25 minutes (half). Either could be seen as a doubling of performance in 2017. If that path continued to hold, then in 2019, the same 8 tasks might take 12 minutes, or 32 tasks might be completed in 50 minutes. in 2021, just six years from now, that next robot generation might complete 64 tasks in 50 minutes. In 2023, 128 tasks or 3 minutes for the 8; In 2025, 256 tasks or 1.5 minutes for the 8; in 2027 512 tasks or 45 seconds for the 8. 

There is a converse way to look at this, which is worthy of consideration. IHMC invested a great deal of money in Running Man. In two years, the next generation might complete the same number of tasks in the same 50 minutes. But, the robot might be built for half the cost. Thus, similarly, a doubling of the capability for the price. 

In the real world, both of these effects is likely to influence the ultimate progression. There are likely to be economies of scale and technological advances that decrease cost while capability likewise increases. To some extent this research will be funded by organizations like DARPA. And there will be "early adopters" who find the technology helpful in a particular industry or setting and are willing to pay for the "latest and greatest."

As those paths continue and converge, robotics will become increasingly effective (capability) and efficient (cost). Certainly, history has shown us that technology offerings can be expensive in early days. I got my first cellular phone in 1987 at a cost of over $1,000.00. I was an "early adopter." I think I paid $.25 per minute for each call in my "home city" and much more per minute when I "roamed." Today, the phone companies are much more numerous, the cell phones are virtually given away, the minutes are included in plans that make $.25 seem extreme, and no one under the age of 30 knows what "roaming" even meant. 

Could robotics follow the same developmental path? The first Mobile phone was created in 1973, and in 40 years it revolutionized the planet. If the Running Man is the equivalent of that 1973 Motorola, could the exponential development bring us to an I Robot state by 2055? A robot in every home, doing the cleaning, cooking, and more? If so, what will be the new presumption for firefighters, hazmat teams and others who today face some of the most dangerous situations on the planet? It is likely that those jobs will exist, but in much smaller numbers. Someone will be responsible for the equipment, but humans will likely no longer run into burning buildings. Those jobs may not be risk free, a robot in Germany killed a worker recently. 

There is some interesting video here from Yahoo, documenting the robotics. A new world is coming. How do we get ready for it? When they replace me with an ATM, I only hope that we are ready for that change. 

Tennessee Clarifies Guns at Work

According to FoxNews, the Tennessee legislature made some changes in 2015 to their "Guns in Parking Lots Statute." According to The Tennessean, Governor Haslam signed that law in April.

Fox reports that a law was signed by Governor Haslam in 2013, allowing Tennesseans with gun permits to keep their weapons in their vehicles at work "even if the employer bars them." That law was interpreted by Tennessee's Attorney General as a legislative preclusion of criminal prosecution for possession, but not an employment protection. In other words, an employee could not be arrested for having a gun in her or his car at work, but they could be legally fired for it. 

In 2015, the legislature passed a provision that says:

"No employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearms ammunition in an employer parking area."

The Fox article notes that most employers would not know of guns secreted in vehicles at work. It is estimated that about 500,000 Tennesseans have permits for firearms. But there was apparently concern that in some instance of vehicle vandalism or a drug sweep or an admission by an employee possession might be brought to the employer's attention, and that employment action against the employee might ensue. 

Tennessee's adoption was not unanimous. One member of the House leadership quoted by Fox characterized the new Tennessee law as "outrageous," noting that "business are now forced to allow people with weapons on their private property. The State Chamber of Commerce also opposed the law on the grounds that it "violates personal property rights" of the employers and it predicted that the law would be "costly to defend in court."

Fox notes that "nearly 20 states" have adopted similar laws. 

Florida has a law regarding weapons in locked vehicles. It is 790.251 (2008), which says:

  (a) No public or private employer may prohibit any customer, employee, or invitee from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when the customer, employee, or invitee is lawfully in such area.

  (b) No public or private employer may violate the privacy rights of a customer, employee, or invitee by verbal or written inquiry regarding the presence of a firearm inside or locked to a private motor vehicle in a parking lot or by an actual search of a private motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle. Further, no public or private employer may take any action against a customer, employee, or invitee based upon verbal or written statements of any party concerning possession of a firearm stored inside a private motor vehicle in a parking lot for lawful purposes. A search of a private motor vehicle in the parking lot of a public or private employer to ascertain the presence of a firearm within the vehicle may only be conducted by on-duty law enforcement personnel, based upon due process and must comply with constitutional protections.

The Wall Street Journal in 2013 said that "22 states have passed laws that limit property owners' ability to ban firearms in vehicles in parking areas." Some address specific employment, other laws are more comprehensive. According to an info-graphic in that 2013 story, the 22 states are: Alabama, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, North Carolina, North Dakota, Nebraska, Oklahoma, Tennessee, Texas, Wisconsin, and Utah. Since Tennessee was included in the 2013 listing, despite the then narrow interpretation of that state's law, it may be fair to say that the extent to which these states' individual laws apply may not be identical. 

There is debate still. Competing interests often bring interesting questions for courts. This one is a conflict between an individual's right to keep and bear arms and another person or company's rights to control his/her/its property. The Journal reports that in 2012 "375 workers were killed in shootings on the job" and that employers assert this "guns in parking lots" debate is a safety issue.

The Bureau of Labor Statistics (BLS) website breaks down the details of work-related shootings. Its analysis is based on averages for the period 2004-08, without explanation of why more recent data is not included. Over that period, BLS says that the average of "work-related" homicides was 564, and shootings accounted for 80% of those homicides. It may be interesting that the phrase used is "work-related" instead of "work-place." It is possible that the statistics include instances where violence occurred other than "at work," but nonetheless related to work. 

Violence at the work place, however, is perhaps the focus of the safety issue related to the gun possession laws discussed above. The BLS homicide total accounted for about "10 percent of all fatal work injuries" in 2008. So not all all work-related death is homicide and not all work-related homicide is gun-related.

In 2008, "robbers and other assailants made up 72 percent of assailants for men and 51 percent of assailants for women." It appears that assault by persons known to the victims is lower; "relatives and other personal acquaintances accounted for only 4 percent of assailants for homicides for men, but 28 percent for women." In 2008, only 12% of the shootings involved "co-workers and former co-workers" as assailants. 

To break that down, there were 564 homicides in 2008, of which 80% were shootings. So, 451 shootings in 2008 resulted in work-related death. Twelve percent of that total equates to 54 shootings that involved "co-workers and former co-workers." Because this total includes "former co-workers" it is not clear that all 54 shootings would be related to possession of a firearm in a locked vehicle at the work-place; some may have involved a weapon specifically brought to that place for violence by a former employee. 

Some might conclude that the guns in parking lots might nonetheless affect/decrease this 54 shootings. There is no breakdown regarding how many of these 54 shootings in 2008 occurred in the 22 states that allow gun possession in parking lots compared to the states which do not specifically protect that possession. Does possession of legal firearms in the parking lot make fatal work-related shooting more likely?

The debate over gun possession is likely not over. Tennessee has passed legislation to clarify in 2015. Twenty-two states have legislated in some manner. It will be a subject that will inspire continued conversations and perspectives. 

Judicial Pay

Judicial pay makes the news periodically. Recently, the Providence Journal in Rhode Island reported that three judges there would soon retire. Two of them are workers' compensation judges in the nation's smallest geographic state.

The Workers' Compensation Chief Judge will retire at the end of July. His pension will be $200,642. He has served on the workers' compensation bench since 1991, almost 25 years. He will be 65 years old. The other workers' compensation judge retiring this year is 71, and has served since 1995 (20 years), first as a probate judge and since 1999 as a workers' compensation judge. He will receive a pension of $164,351.00.

It is said that it is expensive to live in the northeast. With no reason to dispute that cost of living may be high there, I wonder if it is more expensive than it is to live in large Florida cities such as Miami, Orlando and Tampa?

A curious point raised by the Journal article is the comparison of pension to the "base salary" for these positions. Judge Healy will receive a pension of $200,642 but the base salary for his position is $170,759.00. So his pension is about $30,000 higher than the base rate his successor will purportedly receive, that is about 17.5% above the base rate.

The math is similar for the other workers' compensation judge, who will receive $164,351.00. The "base rate" for his position is $149,410. So, he will receive about $15,000 above the base rate in pension, about 10%.

In May, WorkCompCentral reported that the Georgia Code links the salary for Georgia Workers' Compensation Board members to 90% of the pay for the Court of Appeals judges.  Under a bill passed this spring, "Supreme Court and Appeals Court judges will get a 5% raise to $175,600 and $174,500 respectively. Due to the link, "the legislation would also give members of the board a pay increase of up to $22,000, according to the Atlanta Constitution."

The idea of tying salaries to some figure is not new. Florida had a "tie in" for workers' compensation deputy commissioners and then judges of compensation claims. That was removed from the law in 1994. As reported in the 2012 OJCC Annual Report (page 35), the salary for judges of compensation claims has not kept pace with inflation since that time. In the 23 years prior to 2012, the JCC salary effectively decreased about 17%. 

In 1989, the JCC salary was $79,359. If that figure had kept pace with inflation, according to the U.S. Inflation Calculator, then the salary today would be $151.421.45. According to the Tampa Bay Business Journal, however, judges of compensation claims currently earn only $124,564.30, a difference of almost $29,000.00. Looked at a different way, using the same inflation calculator, what would that $124,564.30 have been worth in 1989? It would have been worth $64,235.15 compared to the actual salary in 1989, $79,359, a difference of $15,123.85, or 19% less than $79,359.

In June, US News reported that "pay growth, though improving, remains tepid." This describes an environment in which "average hourly wages rose at an annual rate of 2.3 percent," which was "slightly ahead of inflation." One employee quoted in the story says that he is in his third job since graduating in 2012 with a degree in computer science. He says "each job has paid me a little less than the one before it, which is not the trajectory that I wanted."

Wages are generally flat. The economy is strained and struggling. But the stagnation of judicial and coincidentally mediator salaries in the Florida executive branch (the OJCC) are notable. Even if the Judges were to receive a salary increase similar to the recent Georgia decision, of roughly $22,000, it would not restore the inflation adjusted salary of 1989, but admittedly it would be close. 

Retirement in Florida State employment will not be what the New Hampshire judges enjoy. Generally speaking, Florida's executive branch employee's retirement is calculated by formula. It is essentially 2% of the average salary earned in the five (or eight for those hired after 2011) highest fiscal years, multiplied by the years of employment. 

If New Hampshire Judge Healy earned the "base rate" of $170,759 in the last five years, remembering he was a state employee since 1991 or 24 years, then the math calculating his pension in Florida would be $170,759 x .02 x 24. The retirement would be about $82,000, about 41% of the $200,642 that New Hampshire will provide. 

The other New Hampshire judge who is retiring this year will receive a pension of $164,351. Assuming that he earned the "base rate" for his position, $149,410 over the last five years, and remembering that he has been a state employee for only 20 years, his Florida pension calculation would be $149,410 x .02 x 20, or about $60,000. That would be about 36% of the $164,351.00 pension that New Hampshire is providing. 

A salary adjustment similar to the Georgia action would not equalize the Florida executive branch judges with New Hampshire in terms of retirement, but it would significantly increase the base figure upon which the current retirement calculation is made. The OJCC Annual Report has highlighted the effective wage decreases associated with the Florida Judges of Compensation Claims. It illustrates a situation that likely affects many other state employees. It is worthy of consideration. 

Wage growth may be stagnant in the economy generally, but the "tepid" annual increase rate of 2.3 percent reported by U.S. News is far better than the aproximately 1% annual decrease illustrated for the OJCC. 

Another Unconstitutional Statute - and its not Florida

Florida has been a follower in workers' compensation in recent years. One of the leaders has been Louisiana. It has pioneered electronic medical billing and has been at the forefront of the move adopting treatment guidelines. Just last week, its advisory counsel began discussing how to institute a drug formulary despite its legislature's inaction on that issue. California is also innovating in recent years, and is likewise currently working on a formulary. 

But in late June, a trial judge in Louisiana concluded that Louisiana's statute regarding dispute resolution in medical claims, another of its recent innovations, is unconstitutional. The story broke on WorkCompCentral on June 30. A very disappointing part of the story says that this Judge has declined to prepare an order. It reports that the judge issued "a two page document stating what his decision will be." The Judge then "directed counsel for the plaintiffs to draft a written judgement for him to sign." 

Drafting orders is the judge's job, and it is always disappointing to hear a judge has delegated that responsibility of the impartial adjudicator to one of the partisan litigants in a case. Would a doctor say "O.K., I have decided your appendix is the problem, you need to take it out yourself?"

The judge has already issued an injunction that essentially prevents Louisiana from using its current medical dispute resolution process. There is dispute and discussion as to how broadly that injunction will be enforced. Certainly, Louisiana cannot employ that process regarding the disputes/claims of the plaintiffs who sought the relief in civil court. Will Judge Johnson's order preclude the use of the process in other workers' claims? Undoubtedly, there is a great deal of effort being expended in Louisiana's adjudication system this week. It will have to quickly decide how to resolve medical claim disputes in light of the injunction, whether limited to the cases of those who sought the injunction or more broadly. 

As a side note, a problem with injunctions is that they generally tell someone not to do something, but they do not usually offer any direction or advice as to what to do instead. Thus, it is not uncommon for a judge or court to say that a process or procedure is not acceptable, but the agency is then left to find some way to fulfill its mandate (determining medical claims) through some other means. 

Under the Louisiana treatment guidelines, decisions about medical care were removed from the jurisdiction of the administrative law judges, who adjudicate other workers' compensation issues. The process there used to be similar to the Florida system. An injured worker would file a claim for the treatment sought and "an administrative law judge would get to decide the issue." Since Louisiana adopted treatment guidelines in 2009, "it's been up to OWC's (Office of Workers' Compensation) medical director to apply the guidelines to the disputed request for treatment and deny or approve requests."

It is difficult today to understand why the Louisiana process is unconstitutional. Difficult because we do not know the judge's reasoning. That will not be known until the plaintiff's attorney, J. Arthur Smith, III, explains the infirmity in the order that he is drafting for Judge Johnson's signature. Foreshadowing how his order will likely read, Mr. Smith was quoted as saying "that the ruling will be a 'tremendous benefit to workers in Louisiana' since it halts the use of an administrative process that has 'systematically violated their right to access medical care and treatment for their work injuries."

Mr. Smith argued that the medical director decision process denies "workers due process, and it also runs afoul of separation of powers doctrine by limiting judicial independence of the ALJs." According to WorkCompCentral, the judge agreed with these two arguments. 

There is disagreement among lawyers in Louisiana regarding the purpose of the treatment guidelines and this medical dispute resolution process. One of the plaintiff's attorneys in this case contends that the OWC "simply became an arm of the insurance lobby" and the resulting medical dispute resolution process has resulted in frustration for injured workers who saw their requests for treatment denied. A defense lawyer quoted in the article says that he finds the process consistent with due process and disagrees with the outcome. He explained that the process is intended to "have a trained medical professional apply guidelines" rather "than have a bunch of lawyers who can argue anything."

At its essence, this disagreement seems to be about who should make determinations of the need for medical care. I have attended national conferences where this dichotomy has been debated. One judge once told a group "how am I supposed to know, I am not a doctor." I responded that most juries are not doctors either, and in workers' comp that jury responsibility belongs to the judge. The job is not to be the doctor, but to decide which medical evidence or testimony is most persuasive. 

Regardless, there are many who think that the appropriate methodology for medical dispute resolution has to involve a medical professional. Florida's legislature has agreed with that theory, imposing the mandatory use of expert medical advisers on the process. 

Florida statute section 440.13(9) provides that "if there is a disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee's complaints or the need for additional medical treatment, of if two health care providers disagree that the employee is able to return to work, the department (division of workers' compensation) may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request . . . order the injured employee to be evaluated by an expert medical advisor."

The findings and conclusions of the Florida Expert Medical Advisor (EMA) are cloaked in a presumption of correctness, as are the treatment guideline decisions of the Louisiana OWC Medical Director. Presumptions are merely conclusions that are "correct" until someone proves that they are not. The simplest example of this for most people is the long ingrained "innocent until proven guilty" we all heard a million times on prime-time television, second in our youth only to the Miranda warning for frequency in court and police shows. This is merely a presumption of innocence. Similarly, the Florida EMA and Louisiana Medical Director conclusions are correct until proven incorrect. 

In the law, there are tools we call burdens of proof. They define how much evidence is required to prove a point. The burden in most civil matters is called "preponderance of the evidence." This is generally described as "more likely than not." Some phrase this as "over 50% likely," and asked how much over 50%, they answer "it does not matter how much over, just over." This can be compared to the burden in most criminal matters which is "beyond a reasonable doubt," a higher burden. It is because of the difference between these two that we can see someone like OJ Simpson acquitted (not guilty) of criminal charges, but still held responsible for civil damages for that same event (the deaths of his ex wife and  Mr. Goldman). 

Both the Florida EMA decisions and the Louisiana Medical Director decisions are presumptively correct. But either can be overcome with evidence that is "clear and convincing." This is an evidence burden that is not as difficult as "beyond a reasonable doubt," but is more difficult than a "preponderance of the evidence." So, in each, there is a medical decision made by a medical professional, and that decision can be overcome if there is "clear and convincing" evidence. That is "compelling" evidence. 

In 2013, California began using a similar process called IMR. There, at the expense of the employer, medical disputes are submitted to an independent medical review, or IMR. These are provided by independent medial review organizations (IMROs) that agree to provide such dispute resolution processes and contract with the Division of Workers' Compensation to do so. It is a process similar to Florida's EMA, but applied in a much broader context. There are also challenges to that process in the California system. 

It remains unclear whether the judge's decision in Louisiana will apply only to the plaintiffs who sought relief and sued or whether it will apply to all injured workers' cases throughout the state. There is discussion as to whether and when the decision might be appealed, and many are confident that there is a path directly, and therefore rapidly, to the Louisiana Supreme Court for a question such as this. 

Currently, Louisiana is in a similar situation to Florida's last August when the trial court ruled in Padgett. There will be much discussion and debate in coming days. Padgett caused a stir and a great volume of discussion over the last ten months. 

It is unfortunate that Judge Johnson has elected not to draft an order in Louisiana. Often in the course of my practice, I heard the lament that "who knows what the judge thought, s/he just signed the order that _________ (insert party name or attorney) drafted." I have long believed that judges should draft orders, that is our job. When a judge drafts an order, and makes findings, and explains what s/he finds relevant and persuasive, parties tend to feel like they got their day in court. It brings transparency and credibility to the process. It helps people feel they know what the judge thought was important. 

When a judge does not fulfill this responsibility, s/he opens the decision to the criticism that the order does not, or does not fully, represent the judge's thoughts and conclusions. There are those who argue that the judge must read these proposed orders, and if the judge did not agree it would not be signed. Despite this argument, there are many who find no comfort in lawyer-generated orders. They argue that such orders are self-serving and at times even inflammatory or pejorative. 

So, time will tell what conclusions can be drawn from Judge Johnson's order once Mr. Smith has drafted it and the judge has signed it. Whether the decision is appealed, and when, will be interesting, as will be any appellate decision ultimately reached. Until then, the main curiosity will be whether the injunction and decision bind the Louisiana DWC to abandon the DWC Medical Director review process in all cases until some appellate court decision, such as the recent reversal in Padgett. 

There was much discussion of Padgett at the 2014 workers' compensation educational conference. That decision was issued days prior to the annual gathering in Orlando. In 2015, it is likely that much of the discussion will instead be about this Louisiana decision, or the recent determinations in Tennessee and New Mexico, each finding constitutional flaws in their respective workers' compensation statutes. 

Workers' compensation is an intriguing subject. The fact that each state has a statute, and that they are different, makes for interesting comparisons and discussions. I look forward to hearing more about these recent Louisiana, New Mexico and Tennessee conclusions. 

#workcomp
#workerscomp
#fljcc
#WCEC2015

Tennessee and New Mexico Provisions Deemed Unconstitutional

Florida has its share of recent and pending constitutional challenges to workers' compensation. We are currently watching Castellanos and Westphal at the Supreme Court. Recently, we learned that the 11th Circuit decision of Judge Cueto (Miami) would more likely avoid the Supreme Court and instead return to the trial judge from the Third DCA on remand, for dismissal. Thus ends (?) the challenge that was commonly referred to as Padgett.

There are other constitutional challenges going on around the country. There was a recent decision in Oklahoma that called exclusive remedy into question. There are a variety of constitutional challenges to the Oklahoma Opt-Out that are being considered also. I mentioned some of these in Court Watching recently. 

Just last week, the New Mexico Court of Appeals declared a provision of that state's statute unconstitutional. New Mexico does not statutorily require coverage for farm and ranch workers. The Court concluded that the distinction of this section "fail to serve the purpose of the Workers' Compensation Act" and that the distinction results in "dissimilar treatment of similarly situated workers." More on New Mexico in a future post. Interestingly, this is a constitutional challenge to force inclusion of workers in the system, compared to Padgett, a challenge to allow workers to leave the system. 

In March 2015 a Chancery Court Judge in Nashville, Tennessee concluded that a portion of that state's workers' compensation law is unconstitutional. The story first came to my attention on The Tennessean, but there is also a good blog on the subject on Knoxblogs.

The issue sounds like an equal protection dispute. Tennessee's law is drafted so as to specifically provide less benefits to undocumented workers. In striking the provision, the Chancellor concluded that the question was controlled by Arizona v. United States (U.S. 2012). Essentially, that is a preemption case which concluded Arizona could not regulate immigration because the federal government so regulated. Interestingly, Arizona is the authority that Florida lawyers relied upon in challenging the prohibition on false statements made to obtain employment in Brock (the Florida constitutional challege that has arguably received the least coverage). 

Brock was decided by the Fourth DCA in April of 2014. Last fall, the Florida Supreme Court declined to hear the case. Earlier this year, the U.S. Supreme Court denied the petition for writ of certiorari.  Thus the Fourth DCA decision stands. Essentially, it is illegal to make misrepresentations in obtaining employment, whether you are an immigrant or not. It is important to remember that in Florida a District Court decision like Brock is "binding authority" in that district, but not in other districts. Thus, a similar challenge to Fla. Stat. 440.105 could be pursued in another district and the result could be contrary to Brock.

When two district courts have reached opposite conclusions, the Florida Supreme Court can review the question(s) under what is commonly referred to as "conflict" jurisdiction. Thus, any conflict is resolved by the state's highest court. There are those who argue that the Florida Court's consideration of Westphal is pursuant to such, but is to resolve a conflict between the full First DCA in Westphal and the full First DCA in Matrix Employee Leasing v. Hadley. Of course, the Supreme Court is reviewing Westphal on certiorari (request), not on conflict. But it illustrates the concept of conflict. Courts can reach conclusions that are diametrically opposed to other decisions, even its own.  

In Brock, the Florida Fourth DCA did not find Fla. Stat. 440.105 to be an immigration law, and concluded that it was constitutional. The Tennessee Chancellor concluded otherwise regarding the restriction on benefit levels resulting from status as documented or undocumented. In doing so, he concluded "by limiting benefits to the workers," the legislature "intended to establish what amounts to a state immigration policy, but that could not trump federal law."

The Tennessee court does not address the question of whether criminal activity (immigration status) can be prohibited. It simply concludes, following Arizona that the states cannot punish certain activity. Worker status therefore cannot be the basis for a determination of the volume of benefits due. The state law in Tennessee, in specifically delineating benefit levels based on worker status violates the preemption doctrine that affords the federal government exclusivity in addressing issues within the express grants of the people and states to the federal government (the people and the original states were here first and formed the federal government, in the process granting it specific powers). 

One distinction between this Tennessee analysis and the Brock analysis may have been legislative intent. The Tennessee bill that resulted in its law included an introduction. That introduction referenced the purpose of the statue as preserving "traditional legal immigration" and the purpose was to "encourage the employers of this state to comply with federal immigration laws." I am aware of no such statement of intent regarding Fla. Stat. 440.105. Can one infer, in the absence of such a statement, that this Florida statute was intended as an immigration enforcement?

It is also worth noting that the Tennessee provision specifically refers to immigration status as a criteria in determining benefit entitlement, thus a facial constitutional challenge. The provisions of Fla. Stat. 440.105 make no such specific references to immigration status, race or national origin, suggesting that challenges thereto would be on the basis of how the statute is "applied."

Facial constitutional challenges require a showing that there are no circumstances in which that statute can be applied appropriately. The courts, in such challenges, consider the facts or situation in the case actually before them. but also search for any circumstance in which the provision might be appropriately applied. If any such circumstance can be identified, the statute is not facially unconstitutional.

As applied constitutional challenges require a less stringent proof. In this setting, the challenger need only prove that the application of that statute to a specific set of facts results in an inappropriate outcome on those facts, under the constitution. 

The greater distinction between the two types of challenges is their precedential value, that is the future impact of the court's decision. Generally, once a court decides an issue, it is bound to follow that decision. The current conflict between Westphal and Matrix suggests that precedent is neither a constant nor an absolute however.

A declaration that a statute is facially unconstitutional will render it invalid per se in all future applications. It is a broad result, based upon a broad consideration of both the presented factual setting and any other potential factual setting. The result in an as applied challenge is more limited, resulting in invalidation of a statute in a particular case. Thereafter, that result might be argued to be applicable to support a similar result in similar factual cases, but is not as clearly a blanket prohibition. 

These recent decisions in Tennessee and New Mexico affect the respective statutes in a facial manner and will thus likely have wide spread application in those states. As we await decisions in Westphal and Castellanos, we can wonder whether the Florida Court will find those constitutional challenges persuasive (it remains unclear whether the Court might simply conclude that the challenged statutes are constitutional), and if so whether any infirmity found will be facial or as applied in those specific cases. 

It is worthy of consideration that Westphal may not even be a constitutional challege at this point. The First District did initially invalidate specific provisions of Fla. Stat. 440.15 in a panel decision (three judges). The panel concluded that this section is contrary to "natural law." When the full court ("en banc") considered the challenge in Westphal there were multiple opinions written, but none of them concluded that the statute was unconstitutional. The "natural law" challenge was seemingly abandoned. 

A year ago, Risk and Insurance questioned whether more states would pass laws restricting benefits for immigrants. It seems that this is unlikely in light of Arizona, whose impact can be seen in this regard so recently in Tennessee. Seeing that the Tennessee courts will not enforce such a distinction may discourage other states from this course. 

*Update, February 20, 2016: The Florida Supreme Court has yet to rule on Castellanos or Westphal. The New Mexico Supreme will reportedly review the decision of the New Mexico Court of Appeals. In the interim, the high court has issued an order suspending the effects of that decision. 

#workerscomp

#FLJCC

It is Padgett Time, Third DCA Reverses

One of the cases upon which the Sate of Florida has focused over the last year has been decided. The Third District Court of Appeal today (June 24, 2015) rendered its REVERSAL of the trial judge in The State of Florida v. Florida Workers' Advocates (Commonly referred to as Padgett).  

Remember last August Judge Cueto, a Circuit Judge in Miami, concluded that the Florida Workers' Compensation exclusive remedy provision is unconstitutional. Details are in "Padgett," or Florida Workers' Advocates," A Rose by Any Other Name. There was a push to have the State's appeal certified directly to the Florida Supreme Court. The Third District denied that request and undertook review, see Now We Know Where Padgett will next be Decided.  

After a long winter, the Third District held oral argument in the case in late March. In May, I wondered, Is it Padgett Time Yet? And I must admit I have thought that there would be a decision literally any day since then. Today is that day. In that post, I recited some prognosticators thoughts that the case would be reversed on more procedural grounds. The discussion centered on whether Ms. Padgett's employer had been afforded due process after she intervened into the originally filed case.  Those prognostications regarding her employer turned out not to figure in the Third District's reasoning. But, similar concerns regarding the State of Florida did. 

The Third District reversed Judge Cueto today and the matter is therefore (likely) headed back to the Miami Circuit Court. I say "likely" because either party may move for the Third District panel (three judges who decided this case) to revisit the opinion, called a "motion for rehearing;" or a party could ask for the entire Third District Court to rehear the case, called a "motion for rehearing in banc." Also, the parties may still seek review by the Florida Supreme Court in this case. 

As described in an earlier post, if the Third District had affirmed Judge Cueto, finding the statute unconstitutional, then the Florida Supreme Court would have been obligated to review the decision. As the Third DCA reversed that conclusion, the Supreme Court still may review the decision, but is not necessarily obligated to do so. 

The District Court considered the State of Florida's appeal of a "final summary judgement determining that section 440.11, Florida Statutes (2014), the 'exclusiveness of liability' provision of the" law "is facially unconstitutional under the United States and Florida Constitutions." That trial order is here. The Court did not address those specific constitutional questions however, and instead concluded that "the threshold requirements for the prosecution of such claims were not met" and reversed the trial court. 

You see, Ms. Padgett and the Florida Workers' Advocates were not originally parties to this case. The case started out as a civil lawsuit by Julio Cortes against Velda Farms. The Court said that it was "transformed by the present appellants and their counsel into a completely different set of claims and parties over the three years which followed." 

Velda Farms defended the workers' compensation case by Mr. Cortes, and denied his claims. Mr. Cortes sued in civil court and alleged that "Velda Farms and its employees were negligent" and that "Velda Farms should be estopped (precluded) from claiming immunity under the Workers' Compensation Law because of the denial of Mr. Cortes's claims by" the employer/carrier. The court notes that "to this point, no party had raised an issue relating to the constitutionality" of exclusive remedy.

In 2012, "Cortes filed an amended complaint" and alleged that "440.09 and 440.11 of the Workers' Compensation Law are facially unconstitutional or are unconstitutional as applied to Mr. Cortes. The distinctions between "facial" and "as applied" constitutional challenges are discussed in Brock is Gone, is Hector next, in the Florida Court, or the U.S. Supreme? Essentially, a facially unconstitutional statute cannot be appropriately applied in any set of circumstances. One that is unconstitutional "as applied" can be constitutionally applied in some circumstances, but a court determines its application in a particular case or situation does not operate constitutionally. 

The Court noted that when the amended complaint was filed, the plaintiffs did not "join the State of Florida as an additional defendant." Thereafter Florida Workers' Advocates (FWA) and the Workers' Injury Law and Advocacy Group (WILG) intervened into the case as "additional plaintiffs." In 2013 "Velda Farms voluntarily dismissed its" immunity defense" and sought dismissal of "claims other than negligence and loss or consortium." Velda contended that the "relief sought by WILG and FWA - had become moot and should be dismissed."

The intervenors (FWA and WILG) contended that Velda could not seek that relief, and "that the Attorney General of Florida was not a party in the case, though it had been mailed the notice of constitutional question" by Cortes. Despite the fact that "the Attorney General had not filed a notice of appearance or responsive pleading in the case, the trial court ordered that Count IV 'shall go forward to be tried separately by" the intervenors "against the State of Florida." The name of the case, or "caption" was then changed to "In re: An Action for Declaratory Judgement seeking a judgement that s440.11 Fla. Stat. 2003 is invalid." The intervenors were "designated as 'petitioners' and the State of Florida, Office of the Attorney General, as 'respondent'."

Then Elsa Padgett came into the case. She is "an individual workers' compensation claimant in an unrelated matter" against her employer, Miami-Dade County. She sought determination of "whether or not workers' compensation benefits are my exclusive remedy for my on the job injury in light of thee  vact there is no compensation benefit in the law for my loss of wage earning capacity . . .."

The Court notes that throughout, WILG, FWA and Padgett "did not name the State or the Attorney General as a defendant," nor was the State or AG served "with original process." Judge Cueto later entered an order commanding the State to show cause as to why the State had not responded, and concluding that the lack of response was in spite of his conclusion that "the record indicates proper service." The District Court noted that the trial court concluded that the "notice of constitutional challenge" that was sent "is sufficient to align and implead the State of Florida as a defendant." Thus, that the notice was a valid substitute for service of process in the perspective of the trial court. 

Then, just prior to the 2014 workers' compensation conference, Judge Cueto entered "a twenty -page order granting the petitioner's amended motion for summary final judgement," concluding "the Florida Workers' Compensation Act, as amended effective October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. §440.11 is constitutionally infirm and invalid.”

The prognostications and discussions that followed covered a multitude of ideas, interpretations and contentions. Was the whole statute unconstitutional? Was exclusive remedy unconstitutional? A Judge from another state, at the 2014 comp conference, asked me if the OJCC would be open for business the following week in light of the Circuit Judge's decision. It, like many of the questions raised, was answered with the standby "I don't know." There was much uncertainty in the air as this trial decision was discussed. The Florida workers' compensation community has been abuzz for ten months. 

The nation has watched also. Professor Burton has mentioned the case more than once. He was one of the witnesses upon whom Judge Cueto relied in his order. Professor Burton also mentioned Padgett recently,at least in terms of the challenges to exclusive remedy generally, in testimony in Illinois related to reform efforts there.  I have heard the case discussed in a multitude of national gatherings, including SAWCA, last fall's IAIABC in Austin, and more. 

The District Court today held that only Velda Farms was "named as a party and duly served." When that defendant dismissed its workers' compensation immunity defense, the issue "became moot, and any further proceedings were an intervenors-only exercise." The Court held that the "Attorney General of Florida was not a party to the case below."

The Court rejected the intervenors' argument that mootness should be excused because the situation presented was "capable of repetition, yet evading review." In its most famous (to lawyers and law students anyway) context, this exception was adopted for the challenge of abortion law cases. In those situations, a pregnant person seeking that procedure, against the constraints of some state or local law, would be virtually precluded from reaching a meaningful appellate review before the child was born (40 week human gestation is longer than the 45 weeks between Judge Cueto's August 13, 2014 order and today's order from the Third District). Thus, there are contexts in which a court will proceed with a determination even when something has caused a mootness issue, but which situation is likely to recur. 

Rejecting the application of this exception in Padgett, the Court noted "workers' compensation claims, and employer defenses are individualized; and such cases have not been shown, as a category of cases, to be short in duration or to 'evade review'." 

The Court also concluded that as "intervenors, Ms. Padgett, WILG, and FWA took the procedural posture of the case as it stood when they were allowed to intervene."  The Court says that the law "does not support some sort of 'piggy-back' standing by an intervenor based exclusively on a predecessor plaintiff's subsequently dismissed claim." Thus, when Velda Farms dropped the exclusivity defense, it was no longer an issue in that case. 

The Court held that the intervenor organizations "may have an economic interest in establishing their clients' rights to file tort claims, but that indirect interest does not confer standing upon them in the present case."  Standing is a legal concept that requires a party to have a definite interest in a legal question in order to be allowed to prosecute or defend the issue. There must be some personal harm suffered or threatened upon the party for that party to have "standing." 

Thus, the "trial court lacked a justiciable case or controversy" (the question was moot) and "the intervenor/appellees lacked standing to assert" such case or controversy. Therefore Judge Cueto's order of August 13, 2014 was REVERSED. The case was sent back to Judge Cueto ("remanded") so that he could enter an order "dismissing Count IV of the amended complaint."

There are those who are already saying that this decision vindicates the statute, and that Florida exclusive remedy is "constitutional." That is not what the opinion says. It says that the parties who brought the question (WILG and FWA) did not have the standing to bring it, and that the question was moot when Judge Cueto ruled. Those are procedural decisions. The Third DCA did not address the substance of Judge Cueto's ruling. It did not conclude that exclusive remedy is constitutional. It said that the question was not appropriately before Judge Cueto. 

That answers one of the questions that has been on so many tongues for the last year. The debate on the substance will have to wait for another challenge in another case. The Brock questions were resolved earlier this year. We now await word from the Florida Supreme Court in Westphal and Castellanos. Their decisions are released on Thursdays. Tune in tomorrow to see if it is time for either or both of them. 

#workerscomp
#workcomp
#fljcc