IMR in Florida?

Florida Tax Watch recently issued a report Keeping Workers' Compensation Premiums Low Through Independent Medical Review. It noted that in terms of workers' compensation insurance premiums, Florida is currently "33rd among the 50 states and District of Columbia," and notes the impact that recent court decisions could have on those premiums. It suggests that "the success of the IMR program in California" suggests that the program should be considered in Florida. 

The report notes that California has the highest premium in the country, at "$3.24 for every $100 of payroll," compared to Florida's rate of just over half that: "$1.66 for every $100 of payroll." It notes that "soaring drug prices are driving up health care costs," and cites specific examples of rising prices in recent years. And, overall, the report notes that costs are projected to continue to rise for all of "national health spending" over the near term. 

Last April WorkCompCentral published The Conundrum of Medical Inflation, which further supports that medical costs are increasing at rates well over inflation generally. Tax Watch reports that medical costs are significant in Florida, noting "only Louisiana, North Carolina, and Alaska have higher healthcare costs." There is also a reference to the "legal fees associated with workers' compensation claims," and to the 2017 OJCC Annual Report. For those who wish to review the latest, the 2018 OJCC Annual Report has also now been published. 

Tax Watch explains that the California Legislature sought to control system costs, and enacted Independent Medical Review (IMR) in 2012. This is a "non-judicial process" that resolves "disputes about the medical treatment of injured workers." It is tied to a separate but "related process" called Independent Bill Review (IBR). 

In the IMR process, a worker dissatisfied with care, or seeking different or more care, makes a request. That request is subjected to Utilization Review (UR). That process could result in the provision of the requested care, or the care could be denied. If denied, then the worker can request IMR. In that process, "professionals use principles of 'evidence-based' medicine to determine whether the requested care is medically necessary." The IMR process costs "are paid by employers." 

Tax Watch notes that the organization performing the IMRs, the "IMRO" "decided that the disputed service was medically necessary and appropriate 91.6 percent of the time" in 2016. It also notes that a significant majority of Reviews upheld the determination of the UR process (denial). Those two statements are difficult to reconcile. Notably, the California "Division of Workers' Compensation has also adopted an evidence-based drug formulary." That has been discussed in Florida, but no formulary has been adopted. 

Similarly, California has adopted, and recently updated, its Medical Treatment Utilization Schedule (MTUS). These are codified "treatment guidelines and rules for determining what is reasonable and necessary medical care." These determinations are "based on principles of evidence-based medicine." The California guidelines were developed by the American College of Occupational and Environmental Medicine (ACOEM). Thus, the UR process compares what is requested to the MTUS then, if a review is sought, the IMR compares the request to the MTUS. Both processes have objective criteria against which to measure a request. 

Tax Watch says that there would be considerable financial savings if Florida adopted IMR. It notes that IMR costs $345 to $390 to $515 each (depending on the claimed issues). It notes that the IMR resolution takes no more than 30 days, compared to the potential of 210 days afforded for OJCC trial in the Florida statutes. In 2018, the actual OJCC average time was 211 days to trial and an additional 15 days from trial to final order. 

Tax Watch says that at the $390.00 rate for IMR, the petitions litigated before the OJCC in 2016 would have cost $22.6 million. In 2016-17, however, the overall cost per petition in Florida was not $390, but $244 (2017-18 FLJCC Annual Report, P. 20). However, it emphasizes the savings in time (30 days to resolution), "PFB processing costs," and "a sizable reduction in attorney fees." It also sees the potential of "reducing or eliminating the Office (of Judges of Compensation Claims) or reassigning some or all of the 31 judges to hear other pending cases at the Division of Administrative Hearings." 

There are various topics intertwined in this proposal that bear discussion. First, Florida has not thus far shown any interest in either treatment guidelines or a formulary. The Tax Watch discussion seems to support that both UR and IMR, as they exist in California, are dependent upon the adoption of these standards. As I have heard about IMR from Californians, that is likewise the impression conveyed. The IMR could not viably process without standards. 

According to the National Institute of Health, Clinical Practice Guidelines "are systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances.” In other words, for a particular malady or diagnosis, there are pre-determined treatments that are deemed appropriate. The UR process relies on that consensus to decide if the requested care is appropriate. The IMR process likewise relies upon it. Is it possible that some of the California medical savings is based not upon UR/IMR, but upon the existence of published, clear, guidelines and formulary definitions as to what is or is not appropriate? 

If such guidelines were adopted in Florida, would that aid employers in making decisions about care, in a UR process? Would that "evidence-based" decision-making lead to fewer petitions being filed? Would the outcome of filed petitions before judges and mediators be more predictable? Would that "standard-based" process result in cost savings from less employer/carrier UR analysis, fewer petitions, and less litigation? If the guidelines produced that result, would a corresponding savings in attorney fees naturally follow, through resolution in the existing litigation system?

Similarly, would a list of medications that are covered in workers' compensation (a "formulary" according to Medicare) afford some objective standard for decisions regarding claims for medication? Would that "evidence-based" decision-making regarding medication likewise increase predictability and transparency, and perhaps expedite the resolution or adjudication of disputes?

Finally, there are two legal points worth mentioning. First, there are many disputes that would likely remain for adjudication. The term "compensability" as it is used in IMR would address whether a condition is or is not related to an event. However, it would not address whether or not the alleged event occurred. Those disputes would remain. Further, according to the 2017-18 OJCC Annual Report, over 30% of claims included a claim for temporary partial disability, slightly less sought temporary total, determination of the average weekly wage, permanent disability benefits, and other less frequent issues. Some systems for the resolution of those disputes would likely remain despite IMR. 

The second legal point mentioned by some is the "detached" or "impersonal" nature of IMR. There is no "hearing" in that process. Documents are submitted by the worker seeking care and by the employer. The IMR decision is based on those papers. There is no cross-examination or determination of credibility. There are those who see that as a due process issue, although there is precedent concluding that IMR affords sufficient due process. That legal analysis will be for another post. 

Nature v. Nurture

It seems that science is nowhere near ceasing to amaze us. A recent study by "a team of researchers at the University of British Columbia" has identified evidence of environmental effects being demonstrable in human DNA (deoxyribonucleic acid). DNA is not a new subject. The recent news has featured various instances of DNA providing leads in criminal cases. See Science, the Right to Privacy, and Big Brother (June 2018). But this recent news is not about using DNA to link a person to an event or another person. This is about human cells marking events, and perhaps potentially implicating descendants. 

In Child abuse leaves ‘molecular scars’ on victims, study finds, the Times of Israel reports that this British Columbia study involved a small group, 34 adult men. Of these, some "had been victims of child abuse years earlier." That included "varying levels of emotional, physical or sexual abuse." The scientists found alterations to the DNA, called methylation. According to news-medical.net, methylation is an "epigenetic signaling tool" that influences a variety of "cellular processes" in the body. When a particular DNA strand is "methylated, the result can be the inappropriate silencing of genes such as tumor suppression genes." 

The news-medical.net discussion suggests that methylation is "vital to healthy growth and development," and may protect against "potentially dangerous sequences of DNA" which are present in the person. This has been the subject of research regarding "cancer and tumor suppressor genes." Hypermethylation is hypothesized to potentially impede body response and thus could "lead to spread of cancer." Not being a scientist, this leads me to conclude methylation is a normal and necessary process, and when it goes too far, that poses a risk to the body. 

In the British Columbia study, researchers found that "effects of the trauma were indelibly printed in 12 regions of the DNA." The normal methylation process produced evidence or indicia. Men who "had experienced varying levels of emotional, physical or sexual abuse" retained evidence of that experience on their DNA. The article explains that genes might be thought of similarly to light bulbs, and the methylation "controls how strong each light is." The researchers see this indicia of prior experiences as potentially aiding "investigators or courts to weigh allegations of child abuse." This is intriguing, that events, emotions, and traumas can leave evidence on the very building blocks of our person. 

The study concludes that genes are not "entirely pre-programmed from conception." Instead, the contention is that some are "activated or deactivated by environmental factors or an individual’s life experience" ("varying levels of emotional, physical or sexual abuse"). This suggests that emotional reactions to our environment may be evidenced by the appearance of our individual DNA. 

Certainly, that is the focus of this current study on abuse victims. However, it is DNA evidence of the influence of the environment. There has long been a "debate within psychology" regarding the "extent to which particular aspects of behavior are a product of either inherited (i.e. genetic) or acquired (i.e. learned) characteristics. See Nature vs. Nurture in Psychology. Thus, the potential to corroborate environmental (emotional or physical) events is reasonably noteworthy. This may be in support of "what" we each are, but also potentially "why" we are as we are. Researchers see potential for "the development of tests that could be used by healthcare workers or potentially even as forensic evidence.”

The implications in criminal law and psychology generally are easy enough to envision. However, how could this be implicated in the cause-and-effect disputes that so permeate fields like personal injury litigation and workers' compensation? The ability to document from DNA when some emotional or physical event(s) occurred could potentially influence the determinations of causation of either physical or emotional complaints. Is it possible that determining the onset of psychological complaints could be substantiated or challenged with accuracy using this methodology? Is it possible that a person's DNA might support the existence of emotional distress, for which damages are sought?

And, there is a suggestion that the presence of these effects in DNA perhaps means that environmental events occurring in one generation might be passed to another. In the field of personal injury litigation, could that potentially result in damages being sought both on behalf of a person who suffered an event, but also some other set of damages sought on behalf of a descendant? There are a multitude of questions that are raised. For example how long might such a process involve (imagine a young child experiencing an environmental trauma and then reproducing perhaps 15 years or more in the future, passing that DNA methylation to another generation). And, what are the implications for lasting transfer, might that child's child (grandchild of the person who experienced the event) also receive and maintain that altered DNA, albeit in some combination with other inherited effects?

For now, this research is limited to male subjects. The hypothesis is that similar changes will also eventually be identified and documented in females. The Times reports that testing will have additional hurdles and thus costs associated. Therefore, it may be this line of scientific inquiry proceeds only with male studies in the near term. 

It is certainly too soon to predict where this might lead. One source quoted by the Times of Israel concludes that "it is possible that epigenetic changes in sperm cells play a role in the physical and mental health of the next generation." It is possible that the debate of nature v. nurture is not as clear-cut as was once believed. It is possible that some of your nature is the result of your parent's or perhaps other ancestor's nurture, or lack of it. These are intriguing times indeed. 

Texting and other Distracted Driving

Technology is changing the world around us. Another example came up last June as reported by Fox in She says she was just checking her Apple Watch. This is interesting as various states have passed legislation aimed at distracted driving. Florida has a law but is considering changes yet again. Senate Bill 76 (SB76) has been filed for the 2019 session according to the Tampa Bay Times. A recent opinion piece in the Times refers to current law as a "blunder." Safety is an overall societal concern, but motor vehicle accidents are a leading cause of workplace injury (in case you were tempted to ask "What does this have to do with workers' compensation?"). 

Currently, Florida prohibits texting while driving in section 316.305, Fla. Stat. But, that provision is specific to texting and is limited to a "secondary action," meaning that a driver can only be ticketed for this if they are stopped by an officer for some other reason. The proposal in the language of SB76 removes specific references to "texting" and "text messaging" in favor of broader prohibition on "using a wireless communications device" and "listening or talking on such a device . . . for the purpose of nonvoice or voice interpersonal communication." The limitation to secondary offense would also be removed by this bill. 

SB76 would thus preclude making or receiving telephone calls while operating a motor vehicle; it says a person cannot operate a motor vehicle "while sending or reading data or listening or talking on such a device for the purpose of nonvoice of voice interpersonal communication." This bill specifically authorizes law enforcement to stop a driver "using a wireless communications device while driving." That is a reasonably broad prohibition. 

However, there is a specific list of exceptions already in section 316.305 regarding "texting," which would remain even if "texting" is expanded as SB76 seeks. Law enforcement, fire, and medical services professionals may use their mobile devices. Anyone may use their device for "reporting an emergency," or for "navigation" or "radio broadcasts," or to receive messages that are "safety related . . . traffic, or weather alerts." 

And, there is a clarifying sentence that "a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph. Thus, it would appear that interacting with your mobile device at a stop light would not be a violation. Furthermore, as the age of The Jetsons approaches ever more rapidly, the law "does apply to a motor vehicle operator who is operating an autonomous vehicle, as defined in section 316.003, in autonomous mode" (and no, that does not include merely "driver assistance systems"). 

Shortly after SB76 was filed, House Bill 45 (HB45) was filed. It also addresses section 316.305, Fla. Stat. and distracted driving. It likewise is focused on "using a wireless communications device," rather than "texting" specifically. This amendment would forbid "holding or otherwise touching" such a device while operating a motor vehicle. In the list of specific exclusions (this "does not apply") would be added "communication through the use of a hands-free device." HB45 similarly removes the "secondary action," limitation. Thus, either bill would make mobile device use a "primary offense."

An interesting element of HB45 would require police agencies to track the race of those ticketed for "holding or touching a wireless communications device." That data would be compiled in a report annually to the "Governor, the President of the Senate, and the Speaker of the House."

Last summer, a Canadian driver was stopped at a red light. A police officer "noticed a 'glow' in her car from an electronic device," and observed the driver to "glance up and down about four times." The driver was also "slow to start moving when the light turned green." The officer testified that "he had to shine a light to get her to go, at which point he pulled her over and ticketed her." The British Broadcasting Company (BBC) also reported on this. 

The driver's defense was that she was merely "checking the time." The court interpreted "Ontario's anti-distracted-driving law, which bans driving 'while holding or using a handheld wireless communication device.'" And, the driver was fined $400.00 by the court, despite the driver's argument that her "Apple Watch shouldn't be considered a handheld device." The Judge, according to the BBC, said "smartwatches were a distraction as much as a 'cellphone taped to someone's wrist.'" In a similar story, 9to5Mac reports a Canadian was fined for changing music on an Apple watch. 

In a California case, Benchmarks reports that a judge fined a driver who took a call on his cell phone while stopped at a traffic light. The foundation for an appellate court upholding that decision was that "driving" "encompassed a 'fleeting pause' at a traffic light." There is language in the interpretation focused upon the car being in gear, held in place only by the brake. The suggestion being that shifting into "park" might change the outcome. What would be the impact of cars at traffic lights habitually shifting into "park" so a device could be checked? 

Back to Canada, Fox, BBC and others note studies that "various studies" support that "hands-free devices in general (are) not safer than handheld devices while driving." Furthermore, there are studies that "smartwatches in particular slow down driver response time." According to the National Safety Council, "at any moment, 7% of drivers are using cell phones." And, "drivers looking out the windshield can miss seeing up to 50% of what's around them when talking on any kind of cell phone." However, somehow talking to a passenger in your car is not "just as distracting." 

But, of course, none of us are guilty, right? In 2017, the Sun-Sentinel reported that as many as "92 percent of drivers nationwide with cell phones have used them while in a moving car." The study that reached that conclusion also said that generally "Florida ranks second only to Louisiana for distracted driving." That could be more than phones though. 

There are those who reportedly shave while they drive. There is some evidence to link eating and drinking to distraction, as well as smoking. How about reading a book, or putting on makeup? But notably, Safestart ranks the number one distraction as being "lost in thought." That is somewhat troubling, as it attributes that in 62% of the distracted events, and "cellphone use" in only 12% (number 2 on the list), to perhaps 14% (because another listed category is "reaching for a device"). No plans have been found to allow primary ticketing for that vast population driving while "lost in thought." 

There is also some suggestion that distractions affect us all, not just those who are not emergency responders. One officer claims "distracted driving is just as serious and problematic among police officers as it is among civilians." But, the law seems inclined to exempt all such distractions for "law enforcement" and others regardless of whether such use is "necessary," or "emergency," or even work-related. The exception of Section 316.305 seems to apply to "law enforcement" and others in the broadest context. But officers do cause accidents while distracted, according to NBC 13, WAVE3 News, and NBC5. 

So, where would SB76 or HB45 bring Florida? The National Conference of State Legislators says that only 16 states "prohibit all drivers from using hand-held cell phones while driving." However, 47 states and four territories have banned text messaging for all drivers. That website has a chart illustrating what is banned where, and which states have designated primary versus secondary offenses. There is discussion in the Times' recent opinion piece referencing the risk of "novice drivers." But, really, if distraction is a problem is it more or less so based on experience? The reports of police causing accidents due to distraction seem to suggest the problem exists despite experience? 

Returning then to the Apple Watch, the question may be whether it is or is not a "handheld." It may be that the answer to that is no different than analyzing the use of a phone, it depends. Not on the device, but on the purpose for which it is being used. Could a motorist be ticketed for "touching" his or her watch under the proposed Florida legislation? Will distinctions of movement, "stopped" or in "park" make a difference? At the end of the analysis, will there be fewer accidents and injuries with a change in the law?

Drugs and Work

A couple of recent news stories brought my mind back to the potential issues that will continue to draw attention in an evolving ever-friendlier American drug environment. The people who keep track of injuries tell us that the predominant causes of workplace injuries include "falls to lower level" (#4) and "roadway incidents involving motorized land vehicles" (#6). The two stories involved these common workplace challenges. 

From Nebraska comes a decision on imputed relationships and responsibility: Supreme Court Rejects Suit Against Contractor for Fatal Accident by Drug-Using Trucker. WorkCompCentral reports that the Nebraska Supreme Court was asked to analyze the employment relationship, independent contractors, and statutory employers. That worker and employer relationships can be complex is nothing new. 

Factually, Lyle Carman was a truck driver. He decided to drive a dump truck while "under the influence of amphetamine and methamphetamine." Anyone who has driven a large truck will likely tell you that they are no picnic to drive under the best of conditions. Thankfully the dump truck was empty when Mr. Carman drove it into another vehicle (#6), causing his victims to "tumble end over end into a ditch." 

The 23-year-old driver of the other vehicle was killed. Her husband and infant daughter were injured. The survivors sued Carman. the owner of the trucking company which owned the vehicle (Lopez), and Werner Construction. "Werner had hired Lopez Trucking to haul debris." The survivors claimed that Werner was the "general contractor" and as such was a "statutory employer" and thus responsible for the actions of Carman. 

The Nebraska Supreme Court concluded that Werner lacked control over the way in which Lopez Trucking performed the debris removal it was hired to perform. The Court noted that Werner did not direct the performance or tasks for Lopez and thus for Carman. Therefore, Werner was dismissed from the lawsuit. Control was critical to the analysis of "employee" versus "contractor." 

The second article, also from WorkCompCentral was Worker Failed to Prove Discipline for Positive Drug Test Was Pretext for Discrimination. This describes a case from New Jersey. It involves an employee, Mr. Baker, who "fell down a flight of stairs" (#4). Mr. Baker was treated for his work injury and returned to work almost a year later. 

Mr. Baker felt inappropriately treated upon returning to work. He alleged that the company discriminated against him, including comments about the cause of his accident, allegations of drug addiction, and denial of a requested transfer to avoid particular coworkers. The month before he had returned to work, Baker was informed he had been selected for a random drug test, which was actually performed the month after he returned. That test was positive for amphetamine. 

Mr. Baker was therefore suspended for five months. He sued the employer alleging discrimination and retaliation. However, in his testimony, he admitted "he did not believe his suspension had anything to do with his injury or any perceived disability." 

The commonality of these stories is obviously amphetamines. Amphetamines are stimulants, sometimes prescribed for attention deficit disorder, narcolepsy, and even obesity according to drugs.com. Methamphetamine is similarly a stimulant but produced for illicit use, according to the NIH. The first story illustrates how an employer, like Lopez Trucking and whomever else might be implicated by proof of "control," can be held responsible for events that occur when its employees are under the influence. The second story illustrates that when an employer seeks to enforce policies to prevent such use, they can be sued by the employees who are tested or disciplined. 

Thus, an employer can be liable if drug use occurs by those in its control, and can be sued for attempting to prevent drug use by those employees. This puts employers in a difficult situation. It could put someone hiring an employer (like Werner) in a difficult and expensive situation. Drug use in the workplace is a reality, but how widespread? As the American public witnesses the use of prescribed, recommended (marijuana is not prescribed), and illicit drugs in the workplace, how will that affect the working relationship overall? How will the cost of resulting accidents be socialized in the costs we all pay for goods and services? 

It is a curiosity. With the loosening enforcement on various substances, reports of increased use of methamphetamine, and the challenges of imported substances like Fentanyl, it is a subject that will likely remain prevalent in the news. It is also a probable topic in workers' compensation hearing rooms and appellate courts.

The Appointments Clause

WorkCompCentral reported on September 10, 2018, that "Trump Order Makes ALJ Appointments More Political." The article refers to the Executive Order Excepting Administrative Law Judges from the Competitive Service, which references Lucia v. Securities and Exchange Commission, No. 17-130 (June 21, 2018), a decision of the Supreme Court of the United States (SCOTUS). It is an intriguing topic regarding the employment of Administrative Law Judges (ALJ) by the Federal government. This has implications for any administrative judge perhaps, depending upon whatever state constitution or statute authorizes such appointment. 

The matter was instigated when the Securities Exchange Commission (SEC) charged Mr. Lucia with some security law violations. The SEC assigned the matter to an ALJ who thereafter concluded Mr. Lucia "had violated the law." The ALJ therefore imposed sanctions. Mr. Lucia appealed citing the "Appointments Clause" of the United States Constitution regarding Presidential powers:

. . . and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Mr. Lucia contended that agency ALJs are "Officers of the United States," and as the ALJ assigned to his case had not been appointed by either the President, "the Courts of Law" or the "Heads of Departments," that his appointment was invalid. A panel of The Circuit Court for the District of Columbia held that SEC ALJs are not "Officers of the United States." When the whole Circuit Court heard the case ("rehearing en banc), it split evenly on the question, thus leaving the panel decision intact. That itself is interesting in understanding the dynamic of appellate decision processes. 

The Lucia case has an intriguing procedural element also. The SEC was defended before the Circuit Court by the U.S. Department of Justice, which agreed that the ALJ was an employee, not an Officer. However, when Mr. Lucia petitioned the SCOTUS, the "Government switched sides," leaving the SEC on its own. The SEC is a federal agency that has 4,527 employees; it is not the Social Security Administration (61,062 employees) or Veteran's Affairs (378,319), but the SEC hardly seems defenseless. However, the SCOTUS "appointed an amicus curiae (friend of the court) to defend the SEC's "employee" contention. The SCOTUS noted that "the only way to defeat" Mr. Lucia's argument would be to "show that those ALJs are not officers at all, but instead non-officer employees," or "lesser functionaries."

The SCOTUS reversed the Circuit Court for the District of Columbia, concluding that ALJs are "Officers of the United States." It was not a unanimous decision, with six Justices joining the majority, a seventh concurring in the result, but dissenting in part, and two dissenting outright. The SCOTUS conclusion was founded on previously concluding that "special trial judges" of the U.S. Tax Court were "Officers," essentially because they serve on an ongoing basis, their appointment is "specified in the Tax Code," and though they "cannot enter a final decision," they exercise significant duties and possess significant discretion. The SCOTUS attached some significance to the ALJ appointment being a "career appointment." 

In the midst of that litigation, the SEC issued an order ratifying its appointment of existing ALJs. To "put to rest any claim" regarding the appointments clause, the SEC, the "Commission - in its capacity as head of a department - hereby ratifies the agency's prior appointment of" a Chief ALJ and four other ALJs by name. Thus, as the litigation proceeded regarding "employee v. officer," the agency appointed those ALJs again under the Appointments Clause, removing any potential for future issues in a case such as Lucia's, at least with SEC ALJs. 

The June 2018 executive order mentioned above then followed the SCOTUS decision. It recognized that the government "benefits from a professional cadre of administrative law judges (ALJs)." It echoes the finding of "significant duties" and "significant discretion" made by the SCOTUS. It therefore concludes, more broadly than the SEC-focused decision in Lucia, that "at least some ‑‑ and perhaps all ‑‑ ALJs are 'Officers of the United States' and thus subject to the Constitution’s Appointments Clause. 

Based thereon, the President of the United States (POTUS) concluded that the hiring of ALJs should be "an exception to the competitive hiring rules and examinations for the position of ALJ." Thus, affording agencies with greater discretion in the appointment of these career positions. 

This action was to "reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised." There are those who see this conclusion as politicizing the appointment process, as the WCC headline alludes. 

The Executive Order changes appointment and retention for ALJs in a variety of federal departments. Arguably, that change could make the process more political than it has heretofore been. However, the change was mandated to the SEC by the SCOTUS, not by any Executive Order. And, that decision by the SCOTUS was essentially an adoption of the Court's decision in Freytag v. Commissioner, 501 U. S. 868 (1991) regarding arguably similar Tax Court "special trial judges." Further, Freytag and thus Lucia, are founded upon the Court's decision in Buckley v. Valeo, 424 U. S. 1, 126, n. 162 (1976). Some would argue that the foundation for future challenges to agency ALJs under the Appointments Clause are therefore both possible and perhaps probable absent Executive recognition of and compliance with Lucia. 

As such, it is practical to believe that similar challenges regarding the appointment process of other agency ALJs might well have reached the same destination as Lucia, albeit after a similar delay. It is notable that Mr. Lucia was charged in 2012. The decision of the SCOTUS came six years later. And, the result of the SCOTUS decision is that the case against him must now be retried by another ALJ (The SCOTUS concluded that the "head of the department" ratification order from the SEC could not "cure" the ALJ's impaired position under the Appointments Clause at the time of his trial decision). 

Also of note, one of the dissenting SCOTUS Justices agreed with the Court's conclusion that the ALJ appointment by the SEC was improper. His disagreement lay in the reasoning, which he contends could instead be reconciled by statute, rather than resorting to "constitutional grounds." As such, the majority on the issue of improper appointment in this setting was in fact seven of the nine justices. 

The two dissenting Justices disagreed with the SCOTUS conclusion of what constitutes an Officer and proposed a more restrictive "significant authority" test than that applied by the majority. In so doing, the dissent asserted that (1) "this Court’s Appointments Clause jurisprudence offers little guidance on who qualifies as an 'Officer of the United States,'" and that therefore (2) "[Q]uestions about the Clause continue to arise regularly both in the operation of the Executive Branch and in the proposed legislation.” There seems consensus that clarity regarding the Appointments Clause would be beneficial, while there remain perhaps differing opinions as to what that clarity should be precisely. Whether one agrees with the Executive order, it does bring that clarity. 

Both Lucia and the Executive Order perhaps will guide appointments, and avoid the litigation and debate that "arise regularly?" In that vein, the decision likewise addresses the concerns about Executive Branch operation and litigation. Some may argue that the more accurate assessment of the situation is that the Constitution (Appointments Clause) makes ALJ appointments more political. In the end, the Constitution contains constraints and requirements, the highest court in the country has provided its considered interpretation, and the chief executive has effectuated that judicial interpretation. 

That does not mean that critics cannot criticize (Taylor Swift might contend they most certainly will "haters gotta hate," but would that be banal?) It does mean that the change in federal ALJ appointment brings clarity, will decrease litigation and debate, and thus increase predictability and finality regarding ALJ decisions in similar settings. In all, the Lucia decision is instructive and productive, and the Executive Order is appropriate.

The Sunk Cost Fallacy

Recently, workers' compensation prognosticator Peter Rousmaniere published The New Democratic House Likely to Confront Work Comp. He contends that workers' compensation will soon be "under the most intense Congressional scrutiny in decades." That conclusion is predicated in some part by the October 20, 2015 letter penned by "ten Democrats" who "showed their irritation" with the overall workers' compensation concept. They expressed that they were “concerned about a pattern of detrimental changes to state Workers' Compensation laws and the resulting cost shift to public programs like Social Security disability…”

Note that this argument is of a shifting of cost from a system financed by employer insurance premiums to a system financed by employer and employee-paid taxes. Or, it could mean shifting of cost to health insurance, which some contend is majorly subsidized by employers. In any event, the "costs" are likely to be monetized and whether the expense is a payroll tax or insurance premium, it will be passed to the consumer in the price of goods and services. Or, contrarily, when no treatment is provided, the cost is shifted first to the worker, and then to the economy in general through diminished productivity.

Mr. Rousmaniere reminded of the 2015 correspondents' reference to "a 2015 study by OSHA," concluding that workers' compensation costs are allegedly not borne by American industry: Adding Inequality to Injury: The Cost of Failing to Protect Workers on the Job. The correspondents assert that this report concludes “employers now cover only about 20% of the overall cost of a workplace injury. Furthermore, that "the workers themselves, their families, (with) their private health insurance covering nearly 63% of the cost and tax payer-supported safety net programs covering the remaining (approximately 17%).” He further cites research by ProPublica and a series of articles it produced in 2015 (to both acclaim and criticism). 

The fallacy here is that any cost is borne by employers. All costs incurred by employers are passed to their customers (us) in the prices we pay. Costs incurred by employees, not covered by an employer, are generally passed to taxpayers (us) in the taxes we pay. 

The 2015 OSHA Report concedes that after 35 years of concerted effort, OSHA has come nowhere near enforcing its mandates regarding documenting work injuries. It notes "that many, and perhaps the majority, of work-related injuries are not recorded by employers." Of course, the enforcement for monitoring such recordation is OSHA and its 2,100 inspectors. It is notable that the Office of Personnel Management lists OSHA with only 1,876 total employees. In 2019, OSHA's budget is projected at approximately $549 million (about $261,429 per employee at 2,100). 

OSHA is pointing fingers at state laws, and concluding they are either inefficient or ineffective (20%). In publishing its conclusions regarding what is being reported and being paid, it is refreshing for a bureaucracy to note its own shortcomings. According to the OSHA Factbook, those 2,100 inspectors conducted 39,000 inspections in 2007, or about 19 inspections per inspector. OSHA's goal for 2019 is to conduct fewer inspections, but with more employees, according to Safety and Health Magazine. Nineteen inspections per inspector per year, or one about every three weeks. 

The Factbook also notes that in those 39,000 inspections, "two-thirds of work sites were not in compliance with OSHA standards," and that "this demonstrates the success of OSHA’s programs which focus on employers and employees with the most injuries, illnesses, and fatalities." Read that again, that 2/3 of worksites are not in compliance "demonstrates success." The Factbook also notes that there are "over 8 million work sites . . . nationwide." If two-thirds of those work sites are not OSHA compliant (consistent with the findings in 2007 of the extremely small sample of sites that were actually visited), that means potentially about 5.3 million non-compliant work sites. Some will argue this does not "demonstrate success."

It is worthy of note that "over" and "under" inclusion, the phantom of "cost shifting" is often raised in workers' compensation. There are those who believe the industry is avoiding responsibility for a population of injuries appropriately attributable to the workplace ("under"). There are also those who believe that industry is, at least at times, burdened with injuries that are not demonstrably attributed to work ("over"). The truth of the matter may be that determining injury causation, absent some clear trauma like a fall or collision, may devolve to some choosing between competing expert opinions. That may be true in a particular dispute or in a broader category of particular maladies or injuries. It is possible that those decisions are not entirely objective or even capable of being so. 

There is also a suggestion that costs are shifted to workers' compensation indirectly. For example, Why Does Surgery Cost Double in Workers' Compensation? (April 2014). There is evidence in the statistics to support a conclusion that financial reimbursement rates for procedures have the potential to drive conclusions about whether a particular malady is or is not work-related. See Cost Shifting Evolves into Case Shifting? (April 2016). That is to say that individual financial incentives in particular instances may drive the inclusion analysis. And if that is real, could it be that finances drive inclusion analysis overall? Some have suggested that system dysfunction and conflict fuel the demand for expertise and effort, thus some population both embraces and desire system dysfunction. 

At the end of the day one truism has to be faced. Injury and illness are bad. They both hurt, diminish function, and affect performance. I am not saying people cannot learn to deal with pain, overcome impairment and dysfunction, or otherwise persevere. We have all seen examples of inspirational people who do all of those things. But, that they persevere and succeed neither means that it was easy, painless, or quick. We must applaud their achievement but also recognize the price they have paid. When all is said and done, when an injury occurs, Someone Has to Pay. Unfortunately, there is a population that does not achieve the functional restoration that inspires us in some. 

And on the subject, the concept of "payment" deserves some explanation. When we discuss the "real" cost of work injuries, we have to remember that "paying" may mean an economic exchange where money and goods or services change hands. But, paying may also include that residual bodily dysfunction, that pain, that disability. While workers' compensation focuses on how those affect the ability to work, it ignores that these all impact the human being more broadly, 24/7/365. That is true whether a work injury impacts personal life or a personal injury impacts professional life.

As I contemplated Mr. Rousmaniere's contention regarding involving the feds in workers' compensation, I also happened across an intriguing British Broadcasting Company (BBC) article: Whatever Happened to Berlin's Deserted Ghost Airport? See, when the Berlin Wall fell in 1989, the leaders there concluded a new airport was to replace the two (one east and one west) existing airports. They planned, financed, and began construction with their eyes on opening in 2012 at a total cost of about €2 billion (€ means euro, the currency of the European Union). That would be about $2.25 billion (according to The Currency Converter).

Well, 2012 came and went. In 2018, the current estimate is that €7.3 billion will be spent before it opens, maybe eight years overdue in 2020. One airline executive was quoted predicting the terminal will never open. He contends that it will yet be torn down and begun anew. That is eight years behind schedule and over three and one-half times the estimated cost. Notably, the project has been managed by a government corporation, a "committee," rather than a "general contractor." The "committee" decided on this construction model "despite not having experience with an undertaking of that scale." A project on a scale it had never attempted, and "staffed with politicians."

The airport stands empty in late 2018. It is a punchline of sorts. Officials there recently replaced all "750 of the monitors showing flight information." Despite there having never been any flights, no one turned these off, and they simply wore out. For years, this equipment has drawn electricity, and heated circuits, and accomplished nothing in the vacant halls and galleries. The replacement cost was about €500,000. In addition, "4,000 doors were wrongly numbered; escalators were too short." The design of the terminal also did not allow for enough "check-in desks" for passengers. 

Astoundingly, as of now, "approximately 300 to 500 people work regularly in the main terminal building," but no planes ever come or go. It is a mind-boggling mess. This is a bureaucracy functioning for its own interest, accomplishing nothing beyond the consumption of resources. 

As an aside, one wonders if Europeans have been forced to do online flight check-in like we have, complete with cell phone-based boarding passes? I was recently in an airport and noticed the "check-in desks" seem a bit underused perhaps. While they diligently work to enlarge the new airport's check-in facilities, one wonders if they are answering an ever-decreasing problem or need. Are they fixing today's and tomorrow's issues or addressing yesterday's? Perhaps there is a government sub-committee for setting priorities? 

An "airport committee spokesman" faulted the decision to "push forward with fixing" problems, suggesting instead that managers should have decided in 2012 to "totally gut the building and dismantle all the complicated facilities.” the spokesman contends that solution would have been faster and cheaper. The BBC questions whether the airport is a victim of the "sunk cost fallacy." 

If you are in the sales or marketing game, you may have been trained on the "sunk cost fallacy." The more a buyer becomes invested in a purchase or the purchase process, the more likely they will stick around to close the sale. This is because the alternative is going to the next vendor and starting that acquisition cost expenditure (time, money, or both) all over with new issues, questions, and more. There are some who masterfully use this process, driving the investment of time and energy. In the end, a fair amount of sales are accomplished by exhausting the target, uh, I mean customer. 

The BBC notes that there is a value in speed and responsiveness. There seems to be some sentiment that the efforts toward opening have been sincere. However, it cites that over the course of the many delays, additional faults have come to light. Furthermore, as a political entity, that project leadership "has changed hands nearly as many times as the opening date has been pushed back." With every leadership change can come the shifting of priorities, the challenge of driving home long and short-term needs, and the seemingly endless process of describing and documenting both mission and approach.  

And all of that might leave the reader lost (I can see the comments now "What does this have to do with workers' compensation? No worries, I hear that sometimes from even seemingly engaged industry people). I would suggest that the "sunk cost fallacy" might be a point of consideration if the federal government elects to wade into the complexity that is American workers' compensation. It might bear consideration even without the feds, as states consider workers' compensation. Certainly, there has been extensive effort and money invested in these various systems, state and federal. Over the decades, more than one band-aid has been applied here and there. But, if this "facility" that is workers' compensation is not functioning optimally, is another band-aid (or box of them) the answer?

Certainly, there are emotional and intellectual ties that bind us to a particular program, approach, or organization. But, if it is time to look at workers' compensation from a broad and national perspective, it might be appropriate for that examination to include the potential of bulldozing this terminal and starting over. And while they are at it, perhaps the OSHA terminal is due for a similar evaluation based upon its demonstrated success with only an extremely small sampling of American workplaces despite its significant budget? 

Perhaps it is time for some hard conversations about socialism, regulation, compensation, causation, compromise, recovery, residual function, ability, disability, impairment, remediation, cure, and more? Perhaps it is time to consider not where we are, or even where we have been, but to return to an analysis of what is right for all (pronounced "both," as there are only two real parties to workers' compensation, the employer and the employee) involved. 

That is not to say that federalization is the answer. The spectacular under-performance that is OSHA, with its average of 19 workplace visits per inspector per year, more than demonstrates the potential that a national, federal system or process can be as inefficient and ineffective as any other entity. The stories we are provided about the Veteran's Administration are equally cautionary. Bigger and more centralized have certainly not proven to be incontrovertible successes. But, perhaps if there are to be standards or even recommendations from a broad perspective, it is time to start with a clean slate, discuss the challenges of injury and illness, and formulate some core conclusions about work, employers, employees, and the reality of injury and illness. 

All that said, it is doubtful to many that meaningful change is on the horizon in Washington. Our national workers' compensation consensus seems confident that special interests and narrow foci will persevere and prevail, and that band-aids will be the chosen course. There is a perception that many parties engage in the regulatory and legislative processes in the spirit of the sunk cost paradigm, striving to exhaust their opponents into capitulation. In that regard, perhaps workers' compensation is as mainstream as any other American regulatory process?

Time is Critical

In October, the Mississippi Court of Appeals published Emmanuel Ridge Community Services Inc. v. Loggins, --- So.3d ---; 2018 WL 4870914 (Miss. Ct. App. 2018)(NO. 2017-WC-01624-COA). It is a case primarily about about time, and there are lessons to be learned from that aspect. It also appears to be about diligence in a broader sense, and that is worthy of examination as well. 

In Emmanuel Ridge the injured worker prevailed in her petition seeking workers' compensation benefits. The employer was dissatisfied with the result and sought review by the Workers' Compensation Commission. In Mississippi, as in many states, there is an administrative level of review before a party may invoke the jurisdiction of the appellate court. 

The Commission noted that the "petition for review" was filed with it on October 10, 2017, twenty-one days after the administrative law judge had awarded benefits. The Commission deemed that filing untimely and dismissed the appeal. Emmanuel Ridge appropriately filed a motion for rehearing. That process is appropriate because it allows for correction of any overlooked facts or misapplication of the law. This encourages correction of error prior to invoking the appellate court jurisdiction. Errors should be corrected as early in a proceeding as possible. That prevents wasting of judicial resources at the appellate courts. 

In Florida, the parties at trial are obligated to raise issues with the trial judge. They must "preserve error" for it to be later considered by the appellate court. This generally means a party is obligated to object at trial. And if the error about which there is concern is first evident from the trial order, the aggrieved party is obligated to raise that issue with the trial judge by motion for rehearing. If the party fails to do so, that may be grounds for dismissal of the appeal. See Hamilton v. R.L. Best Intern., 996 So. 2d 233 (Fla. 1st DCA 2008). 

In Mississippi, the statute requires that a "petition for review" is filed within twenty days. The petition in Emmanuel was filed twenty-one days after the trial judge's decision was rendered. The Commission therefore dismissed the appeal and the employer then sought review by the Court. The Court noted that this time limitation "is not merely procedural." The requirement is "jurisdictional," meaning that “if the notice of appeal is not filed within twenty days, the Commission does not have jurisdiction to hear the matter.” There is an exception to that legal requirement if the Commission finds “unique facts which would permit [the] petition to be considered constructively filed.” 

Until this point, one might struggle to understand why the employer either sought Commission rehearing or review by the appellate court. The law requires the notice within 20 days and in this instance, it was clearly not filed within that period. But, the argument Emmanuel raised is factual. It argued to the Commission that its October 10, 2017 filing should be deemed timely because October 9, 2017, was a holiday, Columbus Day. 

The Court acknowledged the holiday, but explained that Columbus Day is "not a legal holiday." As a result, the Commission offices were open for business on October 9, 2017. There was no factual impediment to filing the petition within the statutory deadline, and thus it was untimely, regardless of Columbus Day. The situation might be different if one of the days in that 20-day period had been Labor Day, Martin Luther King Day, or Thanksgiving and the Commission office had been closed. 

But the decision is also broader in its criticism of diligence. The Court also noted that Emmanuel failed to support its argument seeking reversal. In many settings, the failure of a party to make a substantive argument, supported by authority, can be fatal to the party's cause. In Florida, there is ample appellate authority that holds it is the party's obligation to be specific as to arguments and to cite specific authority in support of its arguments. There is also, unfortunately, other authority in which the appellate court has conflated that requirement and insinuated some duty on the part of the trial judge to perform the party's research for them. The lack of appellate consistency in this regard is lamentable. 

The Mississippi court noted that "Emmanuel Ridge does not cite any authority in support of" its argument of timeliness. It reminded that in Mississippi “failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the" arguments of error by the Commission. Essentially, the Court could have affirmed the Commission's dismissal of the "petition for review" merely because Emmanuel cited no authority in its argument. That seems logical and functional. Some would argue such an obligation on the parties is appropriate. 

The issue of timeliness occurs periodically in Florida workers' compensation disputes. There are some who misconstrue the legal authorities regarding time constraints. Others, misapply the requirements of irrelevant rules or laws, to their detriment or the detriment of their clients. Attorneys and parties alike should remember the calculation of time in Florida workers' compensation disputes are controlled by the Rules of Procedure for Workers' Compensation Adjudications. 

Certainly, those rules are not the only litigation procedural rules in Florida, but they are the procedural rules for the Office of Judges of Compensation Claims. Too often, parties or lawyers will cite the provisions of the Florida Rules of Civil Procedure or the Florida Rules of Judicial Administration in support of their timeliness arguments. While it is possible for these rules to influence workers' compensation proceedings, that influence is only permissible if the Rules of Procedure for Workers' Compensation Adjudications provides therefore. In the absence of such specific adoption or implication, the Florida courts cannot make rules for this administrative process. 

Generally, the Florida Courts have no authority to dictate processes and procedures for the Office of Judges of Compensation Claims (OJCC). This, as explained by the Florida Supreme Court in Amendments to the Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004), is because of the "separation of powers" in the Florida Constitution. The Florida OJCC is part of the executive branch. The Courts have the authority to dictate processes and procedures in the courts, the judicial branch, but not the executive branch. 

That does not mean that the executive branch cannot elect to follow court rules, it merely means the OJCC is not compelled to do so. The Florida Rules of Civil Procedure are applied in some instances in workers' compensation proceedings because the Rules of Procedure for Workers' Compensation Adjudications say so. See Rule 60Q-6.114. The Florida Rules of Judicial Administration are similarly applied in some instances, but also because the Adjudication rules say so. See Rule 60Q-6.126. But those rules have no general application in workers' compensation disputes. 

It is therefore important for practitioners and parties to understand that timeliness under the Rules of Procedure for Workers' Compensation Adjudications is determined by reference to Rule 60Q-6.108, Rule 60Q-6.109, and others. These explain when time is extended based upon the use of U.S. Mail or electronic service, explain the effect of weekends and holidays in calculating times, and even provide a specific definition of what is and is not a holiday by reference to section 110.117, Fla. Stat. Which, coincidentally, does not include Columbus Day either. 

Familiarity with the Rules of Procedure for Workers' Compensation Adjudications is critical. Failure to comply with time requirements in rules or statutes can affect the rights of parties before the OJCC. It is also important to remember that any proceedings before the Florida appellate courts are similarly controlled by the Court's Florida Rules of Appellate Procedure. And like Mississippi's requirement for filing is "jurisdictional," so is the Florida rule that an appeal must be filed within 30 days or the Court cannot hear the case. See Florida Rule of Appellate Procedure 9.180(b)(3); Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007).

Familiarity with the rules is a matter of diligence. Researching and presenting authority in support of the advocated outcome is a matter of diligence. And in the end, diligence is a matter of professionalism and due care. Lawyers owe their clients both competence and diligence.

Tech is Changing Work

A couple of recent articles on the workplace caught my attention. There are employees seeking better working conditions, and others concerned that their jobs will disappear. The two concerns may be discreet and unrelated, but it is also possible that one might see them related. Business is driven to be interested in the "bottom" line," and that is a financial consideration. In The Coming Automation (November 2017), the cost/benefit analysis of investment in automation is discussed in some detail. 

Reuters recently reported that Walmart to pay $65 million to settle lawsuit over seating for cashiers. The case is Brown v. Walmart Inc, U.S. District Court (Northern Dist. CA), No. 5:09-cv-03339. The workers in this lawsuit were troubled that their cashier jobs involved standing virtually the entire shift. The business allowed "cashiers with medical conditions or disabilities," to have stools to sit on at their workstations. It also afforded store managers "the discretion to provide stools to cashiers on a case-by-case basis." But, as a general rule, the cashiers had to stand throughout their shift. 

Reuters reports that this litigation is not necessarily innovative. It reports that multiple other businesses have been sued for not providing employees with seating. These include "Bank of America, CVS Health Corp, JPMorgan Chase Bank, Kmart, AT&T Corp, and Home Depot Inc." Interestingly, the LawProf blog recently reviewed "new scholarship" regarding the risks of sedentary workplaces. The scholars noted therein advocate increased socialization of health risks associated with lack of activity, including stand-up desks so people can sit less. It is almost dizzying that one might be liable either for making people stand or making people sit. For some reason, the Alan Parson's Project is stuck in my head. 

The cashiers sued, citing a "California regulation that requires seating for employees 'when the nature of the work reasonably permits.'” The procedural tool used is "California’s unique Private Attorney General Act." This appears to be similar to a "whistleblower" statute, that "allows workers to sue their employers on behalf of the state and keep one-quarter of any money that they win." If attorney fees are 25% to 33%, the recovery per employee in this instance might be $400 to $500 each.

Courtesy Kioskmarketplace.com

The self-check-out kiosks that are becoming ubiquitous in retail neither want nor need stools. A search of the Internet did not reveal a single case of such kiosks filing lawsuits against any business regarding the conditions in which the kiosks worked. Some suggest that these kiosks will become more prevalent in the coming days. They are appearing now at fast food, check-ins (airlines, doctor's offices), and even in the rapidly growing dope business. They have long reigned in banking. 

CBS News recently reported that Striking Marriott Workers Job Concerns Center On New Technologies. The story is from Boston, and reports that there is concern about "robots delivering room service, check-in kiosks with facial recognition technology and 'smart' speakers that serve as an in-room concierge." That last item is perhaps no different than the Siri found on so many phones or the Echo or Alexa. 

It seems that hotels are embracing the digital age, robotics, and artificial intelligence. Employees are not averse to technology, but they want it to make their jobs easier. They do not want it to eliminate their jobs. The potential for implementation of these technology solutions is leading to anxiety among the workforce. They are therefore striking, seeking input regarding the implementation of changes to the workplace. 

There is a desire for employment to continue, whether the business needs particular workers or not. The striking employees are seeking to protect housekeepers as demand for their services diminishes. On a recent four-night trip, I opted out of having my room cleaned on each night. I am capable of picking up after myself and simply do not need the room "refreshed" daily. And, the hotel awarded me "points" on my frequent traveler account in exchange for declining the daily bed-making and straightening (little "cleaning" is done in an occupied room). That trend apparently concerns workers as well. 

Employees are a means to an end for business. There is a great trend toward recognizing the contribution of employees, with some businesses referring instead to "associates" and "team members." But, at the end of the analysis, the question is whether a person or persons bring value to the business and its customers. So long as the customer perceives value, and is willing to consume the business' goods or services, then those businesses will perceive value in the employee. 

However, it is unlikely that employees can force employment for the sake of employment. As kiosks and automation continue their march to primacy, employees will have to bring value to the economic exchange that is being made between customers and businesses. An associate recently recounted an interaction at a somewhat famous fast food outlet that offered kiosks for ordering. This person disregarded the kiosk because "I believe in people and like ordering from a person." But, the person that she/he encountered at the counter turned out to be surly, rude, and slow. The "people" championing customer assured me that the next time around the kiosk would be used instead. 

It recurrently seems that technology takes jobs. The typing pool died at the hands of word processors, many accounting clerk jobs were replaced by spreadsheets, and manufacturing jobs have been replaced by robotics. These effects can be stated in many occupations. The fact is that progress and technology affect employment. 

Employers will likely be influenced by the value that employees bring to the customer. And there will likely be influence affected by cost. The cost of an employee versus the cost of a kiosk. It may be that the ability of a kiosk to work without the need for a stool, or alternatively a "stand-up desk," and the cost savings related to that will figure into decisions as well. Employees may be able to influence through lawsuits and strikes. However, employees' best tool of influence will be in the value that they bring customers (hint, "surly, rude, and slow" is not the right answer). 

The future is coming for us all, and it is really a question of "when" it impacts our occupations, not "if." If change is gradual, then attrition may ameliorate the impact that these changes have on particular individuals' employment, income, and lives. However, the fact is simple: change is coming, jobs will be eliminated, and people need to figure out how to adjust and evolve. Like it or not, we all need to understand change and figure out how we each bring value to our customers.