Florida Workers' Comp: December 2017

Thursday, December 28, 2017

Lawyers, Competition, and Roles (10)

People are talking about workers' compensation, perhaps more today than ever. This is the tenth in an 11-post series (links to the first nine are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

Lawyers in the systems

This concern is tied to the perception that systems are persistently adversarial. The involvement of attorneys may purportedly be motivated by a number of factors. Lack of reliable and understandable education regarding system benefits and process, and distinctions from more familiar systems such as health insurance may lead to injured worker dissatisfaction. The complexity of a system, and frustration with comprehension of statutory and regulatory provisions may discourage and confuse injured workers.

Delays in delivery of medical care, whether treatment or diagnostic testing, may likewise cause consternation, confusion and dissatisfaction. Certainly, learning of complex legal classification issues surrounding compensability, such as employment status may lead a worker to seek advice. The expectations of full recovery and non-attainment of that end may drive injured workers to distrust of or lack of confidence in physicians and care regimen.

The resulting dissatisfaction with system, provider, or care may drive injured workers to seek change in the form of different providers, different specialties, and different or more invasive care. Worker perceptions about the calculation and adequacy of benefits may encourage them to seek expert assistance. Thus, the very nature of the various systems may inexorably create situations that:

(1) are difficult to understand

(2) do not communicate realistic expectations

(3) produce results inherently, which do not meet preconceptions

(4) encourage workers to engage and rely upon attorneys

In these regards, various voices do not see attorney involvement as inexplicable.

There are those who perceive an inherent conflict in attorney representation of injured workers. They note that many injured workers lack independent financial resources to compensate attorneys providing expert assistance with navigation of the systems. As such, injured workers are dependent upon proceeds from benefit awards to pay counsel.

In many instances, the systems constrain and restrict the amount of attorney fees payable. (There are jurisdictions that apply caps to attorney fees. Others restrict the type of benefit obtention upon which fees may be charged. Others constrain fees to a defined percentage of benefits recovered). Critics see a potential conflict in which an attorney may be inclined to pursue additional benefits or treatment in order to enhance the value of a worker’s case, and thus increase the total value for, or from which, fees could be paid.

Some believe that the proliferation of unsuccessful treatments such as spinal fusions and opioids have been driven by the desire to obtain expensive care in those regards, to the detriment of the worker. They see the detriment both in the delivery of these doubted modalities and the related disability. In regards to the disability, this may be temporary, while such care and treatment is debated and delivered, or may be permanent based upon the eventual “impairment” or “disability” being enhanced by the very care sought.

A related concern voiced regards settlement of workers’ compensation cases. Some perceive that settlement is a preferred conclusion for attorneys. In the instance of litigation or dispute, an attorney may invest significant time and effort. When that concludes, an administrative provision of benefits could result in that attorney receiving small incremental payments against the ultimate fee amount over a period of months or years.

Alternatively, reducing the benefit provision to a lump-sum payment provides the injured worker with resources both to manage her/his future care and “disability” or “impairment,” and to pay attorney fees in a similar lump-sum. Some contend that this creates a conflict between the worker and the attorney.

Some perceive settlement as ill advised in any context. They see injured workers as unlikely to effectively manage the proceeds of a settlement in any event. They also perceive the end result of settlement as a closure of employer liability that places undue and inappropriate burdens on other benefit systems including group health, Medicare, Medicaid, Veterans’ Administration and Social Security. They term such an effect “cost shifting.”

The issue of incentives is thus implicated in the attorney/client relationship. This is not necessarily limited to those representing injured workers. There is a similar perception voiced regarding the defense of workers’ compensation claims. Some perceive that attorneys encourage employers and carriers to resist voluntary provision of benefits because those attorneys are compensated well for the litigation that ensues. These critics believe that the resistance by carriers generally reinforces the adversarial nature of the systems, the assumptions and opinions of injured workers, and the perceptions of regulatory complexity.

Competition between states

The twentieth century economic development was influenced by state competition for industry, and deployment of economic incentives for business location and relocation. States made direct financial contributions to attract business in various forms, including cash, taxation relief, and infrastructure development. Issues regarding costs of business were newsworthy, with states being lauded or derided upon the standard of being “business friendly.” State’s laws and regulations were characterized and those perceptions or labels were marketed in the efforts to both draw and retain jobs.

Workers’ compensation is a regulatory system in each state. As perceptions of workers’ compensation systems were discussed, the regulatory burden and comparative cost of workers’ compensation were included. In 1994, Oregon (Current study at http://www.cbs.state.or.us/external/dir/wc_cost/about_the_study.html, last visited January 1, 2017) began studying comparative cost of workers’ compensation, and has published its analysis biannually since.

The insurance rates resulting from various state constructs exhibit wide differences. In the 2016 report, workers' compensation rates ranged from $0.89 per $100 in payroll in North Dakota, to a high of $3.24 in California. These rates exhibit significant deviation from the median, $1.84 per $100 in payroll. Through its study and publication, Oregon sought to highlight the comparative cost advantage of workers’ compensation in that state, thus encouraging business to locate or relocate there.

The reporting effectively rated all jurisdictions, and likely encouraged competition for comparative advantage. Such competition would perhaps be primarily legislative, focused on the volume and duration of benefits delivered. The cost of benefits available or delivered would affect the degree of overall risk to a carrier and thus the price of an insurance product to cover the potential losses indemnified.

Similarly, jurisdictions perceived potential cost advantages in procedural process. States have been perceived as altering process and procedure to decrease delay in claims, adjudication and appellate processes. Though various degrees of reform have been exhibited, some jurisdictions have radically modified processes. Most have abandoned jurisdiction of constitutional trial courts over benefit disputes, adopting administrative processes instead. With administrative transitions, most recently in Oklahoma and Tennessee, only Alabama retains a constitutional court trial process.

In addition to premium cost advantage, states perceived the potential for decreasing burden and cost through regulation. There is a perception that state regulatory agencies responsible for workers’ compensation, insurance licensing, and adjusting have propagated significant regulatory reforms. Deregulation is perceived as streamlining procedures and administrative burdens, and thus costs. Various states have engaged in purposefully limiting the growth of regulation or actively pursued reduction in regulatory burden.

Roles and delineation

There are a multitude of decisions that are critical in the course of a workers’ recovery. Identifying the timing and importance of such decisions is a focus of this report. Contributors to the conversation generally agree that mismatches occur in the systems, in which decisions are inappropriately delegated to individuals who lack the expertise therefore. While these individuals may not be appropriate for particular decisions, each is in fact appropriate for some decisions. The criticism is not lack of expertise or competence in a general sense, but a disconnect between an individual’s training/expertise, and a particular decision.

In the course of many claims, there will be medical treatment decisions required. Some critics contend that all such decisions should be made by medical experts, and not by claims experts, risk experts or adjudicators.

Similarly, there are decisions regarding employability. While it is generally accepted that physicians must make decisions regarding physical (what amount can be lifted or carried, how much walking, sitting, or standing is medically acceptable following injury and/or recovery) and perhaps emotional ability, some contend that doctors should not render opinions as to whether a patient is or is not employable, "can" or "cannot" work.

There seems to be a general consensus that worker’s compensation efficacy would be enhanced if systems included clarity regarding the appropriate roles and responsibilities for various professionals. If there were significant consistency in this regard between various jurisdictional systems, that may provide relief from challenges of regulatory complexity, beliefs, benefits, and competition. There is also some belief that such delineation and consistency could assist with staff retention, decrease adversary conflicts, and decrease attorney involvement through system consistency and simplicity.

Tuesday, December 26, 2017

Attorney Fee Distribution Remains Similar

Attorney fees are a consistent interest in the Office of Judges of Compensation Claims Annual Reports. Much of the focus seems to be on the attorney fees approved in a given fiscal year, reported recently in Attorney Fees in Florida Increased. Those figures represent only the amount of fees “approved” during each respective fiscal year.

During any particular fiscal year, fees might be approved on cases for which the date of accident was also during that particular fiscal year. More likely, the approved fee might be related to a date of accident prior to that fiscal year, perhaps many years prior. In 2016-17, fees were approved regarding 51 distinct accident-date years. That is reasonably consistent with prior years.

In 2016-17 attorneys’ fees were approved on a 1943 date of accident (74 year-old claim). This case illustrates the manner in which claims can occur and not come within the OJCC jurisdiction for a significant period. That case was opened in 2016 with the filing of a petition for benefits. Certainly, there may have been previous litigation on the case, prior to the OJCC becoming part of DOAH. However, the first record that this agency has regarding this case is the PFB filed more than seventy years after the accident.

Most fees approved during any particular fiscal year will be associated with accidents that occurred prior to that particular fiscal year. This is because most cases in the OJCC system are not related to accidents in any current fiscal year, and because many cases in the workers’ compensation system remain active, with periodic litigation issues, for many years. Logically, therefore, most litigated cases within the responsibility of the OJCC at a particular time involve dates of accident prior to any current fiscal year.

The claimant fees approved in fiscal 2016-17, for accident dates in the last 20 years are illustrated in this graph. The volume of fees has increased, as noted above, but the distribution each year is persistently similar.

The vast majority, approximately eighty-eight percent (88%), of the fees approved in 2016-17 related to accident dates in the ten years between January 1, 2007 and December 31, 2016, a notable increase. For comparison, the similar ten year period prior to 2015-16 represented 80%, and the ten years prior to 2014-15 represented 79%. That ten year period, prior to each annual report year, has been reasonably consistent between seventy-seven percent (77%) and eighty percent (80%) for the five years prior to 2016-17.

Generally, the highest single “accident date year” in the annual fee analysis is the year two years prior to any particular Annual Report. This is illustrated again above for 2016-17 in the chart above.

This illustrates two points. First, the most recent accidents historically account for the vast majority of claimant attorneys’ fees approved, or awarded each fiscal year; second, the most significant accident year for claimant attorneys’ fees is usually two years prior to the reporting year. This is overall consistent with the resolution of cases demonstrated above. Petitions are filed, the state mediation and final hearing processes engage, and as resolution occurs, the fee issues are resolved. Despite the notably short statutory time frames for mediation (130 days) and trial (210 days), it is unlikely most cases will reach the point of fee awards in the first twelve months after accident date.

Of the claimant attorneys’ fees approved in 2005-06, only two percent (2%) were for dates of accidents more than 20 years prior to that fiscal year. That percentage rose and then stabilized for much of recent history. However, the 2016-17 figures represent a return to a slightly lower figure related to the oldest claims. This illustrates that claims on dates of accident older that twenty years have also increased in terms of their proportion to the whole, but still do not represent a significant part of the fee awards and stipulations.

Thursday, December 21, 2017

Nationalization, Participation, and Disease (9)

People are talking about workers' compensation, perhaps more today than ever. This is the ninth in an 11-post series (links to the first eight are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

A new national commission?

Summit participants discussed recent events in the workers’ compensation marketplace, including criticisms published by organizations. In recent years, Propublica and others have been critical of the measure of benefits in various systems. They have also leveled criticism regarding the variety and distinctions between and among the various systems. Critics lament a perception of competition between states, each striving to minimize financial impact of particular jurisdictions’ system in order to accomplish comparative advantage over other states, and thus attracting employment and business. The process of minimizing cost in such a pursuit has been denigrated as a “race to the bottom.” Conclusions and reactions regarding these criticisms have been varied. To some degree, reactions to the criticisms may be influenced by individual perspectives and biases.

The National Commission was created by federal legislation. With a legislative mandate, structure, financial resources, and input, the Commission produced a report regarding recommendations for the future of workers’ compensation. As the marketplace questions whether a new commission would be helpful or effective, a common response is to highlight that none of these 1972 Commission strengths seem likely available today. Though there is some interest in workers’ compensation in the press, there seems little interest on the part of Congress. As such, there is a consensus that federalization of workers’ compensation (see #21) is unlikely even as a point of debate. In the absence of motivation to act on workers’ compensation, Summit participants are doubtful about the need or potential for a twenty-first century commission.

However, there is concern that federal action may nonetheless have impact upon workers’ compensation processes and benefits. A cited example is the impact that federal Medicare legislation has affected on the workers’ compensation marketplaces. In the 1980s, Congress charged Medicare with taking a hand in assuring that system’s financial success and survival. The conclusion was predicated upon belief that Medicare was financing care and benefits that was appropriately the responsibility of others. This was perceived as contributing to solvency issues for this federal program. The results were not immediate, but in the early 2000s Medicare’s interests became a critical analysis in workers’ compensation claims. Workers’ compensation payers were forced to accommodate those Medicare interests in payment and settlement. The effects of these interests have influenced multiple aspects of claims management, litigation and settlement.

There is therefore concern that other federal action could likewise have impact upon workers’ compensation, although it is not necessarily direct federal intervention. An oft-mentioned federal concern is the Social Security Disability program. This social program utilizes federal tax revenue to provide support for individuals that meet various definitions of disability. None of those definitions are dependent upon causation, in the manner in which workers’ compensation entitlement is dependent upon the disability or impairment being caused by work. Therefore, Social Security is a broader program than workers’ compensation. An effect of its broad application is that an injured worker might be simultaneously entitled to both workers’ compensation and Social Security benefits.

This potential led federal legislators to include an offset provision in the Social Security Act. Thereby, Social Security benefits in some instances may be reduced proportionately for the simultaneous receipt of certain workers’ compensation benefits. A compromise in that legislation also afforded an opportunity to state workers’ compensation systems for a similar reduction in state benefits, which became known as a “reverse offset.” Currently, there is some discussion of Social Security reconsidering the “reverse offset” in the interest of decreasing Social Security Disability payments as that system faces significant and chronic funding shortfalls. Certainly, this discussion is part of a larger conversation about the future of Social Security Disability. However, there are those Summit attendees who perceive these discussions, and similar ancillary federal concerns and issues, as having the potential to impact workers’ compensation.

Because of these concerns of potential federal impacts, and because of the other concerns documented in this report, the Summit attendees have reached consensus that there is a need for an ongoing national conversation regarding workers’ compensation. While this is not an endorsement for a specific format such as a commission, it is a call for ongoing intellectual consideration of the strengths and weaknesses of these systems that affect virtually every employer and employee in the country.

Employee participation in the conversation

Summit participants lamented the lack of employee engagement in workers’ compensation issues and processes. A perceived truth is that employees primarily become engaged in the “what” and “how” of workers’ compensation only following an injury. In this context, organized labor is seen as somewhat exceptional, perhaps most notably in the instances of “opt-out” (see #9).

There is a perceived value in greater employee participation in the development and structure of workers’ compensation (as a result) and workplace safety (as a preventative). Some contend that greater appreciation of the systems would be beneficial in systematic efforts toward simplification and restricting overregulation. It is also perceived that greater appreciation of the systems and their inherent shortcomings would be positive in developing and implementing more effective safety initiatives.

Some Summit participants lament the logistic and regulatory impediments on compensability and care. In pursuit of consistency and predictability, systems have resorted to definitions and time limitations. Failure under some constraints may be fatal to receipt of care or indemnity. Employees are generally informed at hire of the existence of a jurisdiction’s system, procedures for reporting accident or illness, and perhaps some constraints like statutes of limitations. However, at the time of hire, the employee is confronted with a multitude of other facts regarding benefits, leave, compensation, retirement, and more. Many, or all, of the other facts are more immediate and primary foci. The operation and effect of workers’ compensation, a resulting process dependent upon the occurrence of an event neither planned nor expected (“it can’t happen to me”), is easily ignored or at best unappreciated.

There is a value seen in engagement of all employees in the structuring and design of workers’ compensation. There is a value in employee appreciation for the legal and regulatory requirements of these systems. And, there is an expressed frustration at perceived employee ambivalence or skepticism (“it cannot happen to me”) in the greater employee population.

Occupational disease

Workers’ compensation was created to provide care and treatment for injuries resulting from accidents at work. At the inception of these programs, such injuries were largely free from the work-relatedness or “compensability” disputes that exist in the modern systems. Accidents in the early age of workers’ compensation, at least perceived in retrospect today, tended to be less subject to dispute as to occurrence or causal relationship. When a trauma occurs, whether through a vehicle accident or being struck by an object or a fall, the event and causation of resulting medical conditions are perhaps more readily apparent and thus accepted with fewer distractions or questions.

As workers’ compensation systems gained acceptance, the scope was broadened, encompassing more than the apparent results of traumatic events. Exposure to other work-place risks such as chemical exposure and repetitive trivial trauma entered the workers’ compensation realm and brought specific challenges for legislative and regulatory constructs. Causation of injury in such instances may be more difficult to perceive, accept, and prove. There are a variety of challenges to such causation analyses.

In exposure claims, an employee may face significant obstacles in establishing the presence, strength, and perniciousness of an offending agent. Exposure may occur over extended time and geographic expanses. Effects, though pernicious, may be difficult to perceive, document, and prove. Therefore, such risks may prove challenging for workers and carriers attempting to effectively underwrite the risks.

Systems have responded to the uncertainties of such exposure situations with specific statutory and regulatory parameters and constructs. The perceived effect is that such claims are more difficult to both prosecute and defend. There is a sentiment that issues and proofs in such claims require expert testimony to a greater degree than other claims and that therefore litigation is disparately expensive. The issues inherent in these claims have therefore likely contributed to regulatory complexity (see #2), system failures (see #4), worker beliefs (see #10), the adversary nature of the systems (see #6), and attorney involvement (see #25).

Tuesday, December 19, 2017

Attorneys Fees in Florida Increased

The OJCC is required by law to approve all attorney’s fees paid by or on behalf of an injured worker. Section 440.34. Fla. Stat. There is no such specific requirement for the approval of fees paid by employer/carriers for their defense counsel representation. Despite the absence of such specific requirement for defense fee approval, the broad language of section 440.105(3)(b), Fla. Stat. arguably could require OJCC approval of defense attorneys’ fees. However, this statutory authority has historically not been interpreted to require approval of defense attorneys’ fees, although some claimants’ attorneys and groups have questioned this interpretation.

The OJCC has required insurance carriers to report their respective total annual expenditures for aggregate defense fees. Because these defense fee figures are reported in the aggregate, it is impossible to discern whether cost reimbursement to E/C attorneys has been included in the figures reported by the various carriers. Furthermore, this information regarding defense fees expended during the fiscal year, does not provide any edification regarding the respective dates of accident involved in the cases in which those fees were paid during that fiscal year.

It is fair to say that the data collection process is imperfect. However, significant effort has been invested in assuring that the reported figures are as accurate as possible.

During 2016-17, a total of $439,609,031 was expended on combined claimant attorneys’ fees and defense attorneys’ fees (and perhaps defense “costs”) in the Florida worker’s compensation system. This represents a significant increase, about 16%, from the 2015-16 aggregate fee total. Both claimant and defense fees decreased each year from 2010-11 through 2014-15, more significantly on the claimant side. Both figures increased in 2015-16, more significantly on the defense side. However the 2016-17 figures demonstrate a significant increase of 36.07% in claimant fees with a more modest 5% increase in defense fees.

In the majority of years following 2002-03, claimant attorneys’ fees decreased. In 2015-16, that trend reversed for the first time since 2003-04. That increase was modest, and this office conjectured the 2015-16 figures could demonstrate an anomaly, but in light of Castellanos, more likely indicated of a trend change. The 2016-17 figures demonstrate a sizable increase in claimant attorneys’ fees. The increase of 36% resulted in the highest claimant attorneys’ fee total ($185,676,766) since 2007-08 ($188,701,256).

The aggregate attorneys’ fees in Florida workers’ compensation are detailed in the chart below. This illustrates the total fees for both claimant and defense, and then provides the percentage that each make of the whole. This delineation was close to 50/50 in the early years of the comparison, see 2002-03, but aggregate claimant fees decreased and employer/carrier fees first increased markedly and then decreased at more moderate pace, a disparity between claimant and defense fees has developed. Since 2009-10, the defense portion exceeded 60% for seven years. In 2015-16 the defense share was 63.95%, the highest since the 2003 statutory reforms. However, the significant 2016-17 increase in claimant attorneys’ fees impacted the percentage distribution that year, despite the fact that defense fees also increased in 2016-17.

In the 2012 annual report, this Office first noted the inflation effect. Considering inflation over the last decade, this difference is more pronounced. According to the U.S. Inflation Calculator, the 2002-03 aggregate ($427,359,212), in 2017 dollars, adjusted for inflation, would have been $573,262,899. This is $133,653,868 more than the 2016-17 actual aggregate of $439,609,031. Adjusted for inflation in 2017 dollars, aggregate attorneys’ fees in Florida workers’ compensation have decreased over one hundred million dollars in the last fourteen years, despite the marked increase in claimant fees in 2016-17.

The claimant attorneys’ fee aggregate for 2014-15 marked the 11th consecutive decrease in claimant fees. The 2015-16 figures demonstrated a minimal increase in claimant fees, followed by a marked increase in claimant attorney fees (36.07%) in 2016-17. The increase is attributable to the hourly fee component of this aggregate. Comparing 2015-16 to 2016-17 fees illustrates notable changes. The greatest portion of claimant attorneys’ fees are paid by injured workers when their claims are settled. In 2015-16, settlement fees accounted for sixty-nine percent of the total claimant attorneys’ fees. The data for 2016-17 demonstrates that weight shifting, with settlement fees representing only fifty-three percent of the total claimant attorneys’ fees. Although the total value of settlements in 2016-17 decreased slightly (-.38%) to $788,912,823 from the $791,898,239, the settlement attorney fees increased (4.91%) from $94,428,009 to $99,066,123. Notably, the settlement attorney fees remained reasonably consistent over the last two years.

The notable increase in claimant attorneys’ fees is attributable mostly to hourly attorneys’ fees for litigation of issues. The aggregate of hourly attorneys’ fees increased in 2016-17 to $75,353,918 from $25,866,295 in 2015-16, an increase of almost fifty million dollars, or one hundred ninety-one percent. In the same period, statutory fees in litigated issues decreased about thirty-one percent from $16,285,382 to $11,256,762. Clearly, there is a trend suggested of increasing claimant attorneys’ fees in the wake of Castellanos and Miles.

It is noteworthy that defense fees remain the greater portion of the overall aggregate fees paid, at 57.76 percent. It is furthermore notable that the aggregate fees in 2016-17 remained less than the aggregate in 2003-04 and significantly lower than the inflation-adjusted 2003-04 aggregate. Comparing the two elements, claimant and defense, separately, the claimant fees in 2016-17 remained below the corresponding total in 2002-03, while the defense fee element remained significantly higher in 2016-17 than the corresponding total in 2002-03, as illustrated in this chart.

In 2017, the Florida OJCC produced mid-year calculations of attorney fee data in January. That effort may be repeated in 2018 as questions continue regarding the trends and developments in fee volume.

Sunday, December 17, 2017

What is a Signature?

What is a "signature," and why would it matter? There are various documents in Florida workers' compensation that must be signed. Signing is mentioned in 60Q-6.102(6), 60Q-6.103, 60Q-6.106(3), 60Q-6.110(5), 60Q-6.113(2), 60Q-6.123(1)(a) and (2)(e), and 60Q-6.124(1). But what does "signature" mean? I have spent a lifetime working in this practice of workers' compensation. I have spent a great deal of time reading, researching, writing, trying cases, hearing cases, and preparing orders. But, the question of what "signature" means never really occurred to me.

The Florida Rules do define "electronic signature." That is, what is an electronic substitute for signature. Rule 60Q-6.102(6) provides:

(6) “Electronic signature” means that a graphic version of the e-JCC user’s signature or “s/” followed by the e-JCC user’s typewritten name is deemed to be the legal equivalent of the e-JCC user’s handwritten signature.

This allows an attorney to "sign" a document without a pen, pencil or stylus, simply by typing a name. No witnesses or notary required. An attorney types their name and the document is "signed."

Recently, the issue of defining "signature" has arisen in the context of documents people must sign to effectuate contracts in a broad sense, and in Florida workers' compensation cases. There are commercial services that are being engaged to facilitate interactions on behalf of law firms. These services digitally interact with someone, the injured worker or witnesses, and through that remote digital process the service provider documents the person's assent to some document and places an "electronic signature" on a document or pleading. Documents are reviewed, and electronically "signed."

This may seem new to legal practitioners, in the "silo" of their legal experience. Silos are lamented in business, describing how a person in one department or operation becomes familiar with only those operations, and disregards the needs or processes of some other department. However, those same legal practitioners are very likely consistently engaging with similar "signature" services themselves. Legal contracts are being made every moment by people who never "sign" their name in the classic "pen and paper" sense. They just click.

Anyone that has ever installed or updated software, used I-tunes or Pandora, made a purchase from Amazon or WalMart online, or booked a trip on Amazon or Priceline, has likely clicked on a button like these. These buttons have become ubiquitous on the Internet. A recent decision regarding the interactions between buyer and seller on E-Bay illustrates that these "clicks" have legal consequences. Clicking "I accept," or similar buttons on the Internet can form contracts.

One might expect that the meaning of "signature" and signing has long since been resolved. And, that is why the subject perhaps arises so infrequently. In fact, it was not until 1965 that the Florida Supreme Court addressed the meaning of "signature." For 120 years, Florida existed as a state before the subject apparently came up. And, Williams (below) was decided at about the same time that Al Gore invented the Internet in 1962 (at the age of 14), and thus created the various electronic issues and the "accept" and "agree" buttons.

In December 1965, the Court decided In re Williams' Estate, 182 So.2d 10 (Fla. 1965). This interprets a specific statute on probate, that has nothing to do with workers' compensation. It is important to remember that statutory interpretation is dependent upon the words of the particular statute. So, arguments may be made that similar language in another statute might be similarly interpreted, but if the language is not identical, a different interpretation is also possible. The interpretation depend on what the specific statute actually says. However, Williams may nonetheless be instructive on the meaning of "signature" in Florida.

The parties in Williams argued over a will, and a judge refused to admit it to probate because it was "signed by the testator with a mark, similar to an X." One party claimed this "X" was a "signature," and the other party claimed "the making of a mark was not sufficient." The statute at issue was section 732.07 Fla. Stat. which required wills to be written and that the "testator must sign," or someone else could sign that person's name "in his presence and by his direction must subscribe the name."

The Court struggled to find meaning in the statute, and concluded that "nothing in the statute itself" helped the Court decide between the two parties' differing interpretations and arguments. The Court was "surprised" to find that the issue had not arisen before in probate, though it acknowledged a similar dispute regarding a witness signing a deed, which previously allowed the "X" in that context.

The Court examined an earlier Alabama decision for guidance. That interpretation of "signature" edified the Court that the English word "signum (from which our word "sign" is derived) meant no more than a mark." It noted that the "prevailing view in this country" was to give effect to the "X," and not to require signing the "alphabetical name." So, the Florida Court concluded that the person could execute the will by making the mark instead of writing the alphabetic name.

There was discussion of the potential for fraud from such an interpretation. The Court conceded that even a handwriting expert might be hard pressed to distinguish one "X" from another. But, the Court noted that the proof of execution did not rest "entirely upon the identification of the mark or signature," because there was also a requirement that the signing be done "in the presence of at least two attesting witnesses." The Court's decision was not unanimous, two Justices dissented; they thought the plain meaning of the statute required "alphabetic name."

And, that returns us to the modern age, and the influence of electronics and perhaps "progress." As mentioned, there are companies that are providing notary and signing authentication services over the Internet. The signer visits a website and then uploads a copy of the document to be "signed" and an image of a government issued identification. The person's identity is verified and a video conference is started (sounds like a Facetime or Skype-like experience). So, the person verifying "sees" the signer.

The notary then witnesses the signer "e-sign their name," which the notary then attests and certifies. This appears to be significantly similar to clicking the now ubiquitous "I accept" button so common in electronic commerce. The uploaded document is then provided to the signer and/or whomever she/he might designate (the signer's attorney, or whomever may have prepared the document). The purported benefits are availability of a notary 24/7 and the lower cost than might be charged by some notary around town. There are also those whose mobility and therefore access to a local notary may be limited. There are those who champion this process, but others harbor doubts.

Hearing of the process, I recalled the Uniform Electronic Transaction Act (UETA) Since 2000, 49 states have adopted this statute (Washington state is alone in not; you know, the home state of Microsoft). Florida was an early adopter of the UETA, which is now Section 668.50, Fla. Stat. That law defined "electronic signature" a bit differently than the Rules of Procedure for Workers' Compensation Adjudications. The Rules, in 60-Q6.102(6) establishes a graphic representation of signature (above). The statute defines it more broadly as:

(h) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

The UETA specifically does not apply to "a transaction to the extent" it is governed by "rules relating to judicial procedure." Thus, it is arguably not applicable to proceedings in this tribunal. But, it is intended to affect transactions when all participating parties have agreed "to conduct a transaction by electronic means." And, the law provides that "A record or signature may not be denied legal effect or enforceability solely because the record or signature is in electronic form."

Thus, a Florida contract cannot generally be denied legal effect "solely because the record or signature is in electronic form." Furthermore, the law specifically says that "if a provision of law requires a record to be in writing, an electronic record satisfies such provision," and similarly, "if a provision of law requires a signature, an electronic signature satisfies such provision." Thus, there is perhaps room for debate regarding if such an electronic signature can or should be denied effect before this tribunal.

And, critical to this discussion, the Act specifically contemplates notarizing signatures.

(a) If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized by applicable law to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record. Neither a rubber stamp nor an impression type seal is required for an electronic notarization.

It might therefore seem that the legislative drafters thought of all contingencies. But, there is always the potential that something was overlooked. The question is whether an injured worker, or other Florida workers' compensation participant or witness, can utilize such a service to notarize an electronic signature. Certainly, there seem to be conveniences and cost savings from electronic signature. However, are there also risks?

Some might argue that Florida workers' compensation proceedings are governed by "rules relating to judicial procedure," and therefore not subject to the provisions of section 668.50. Others will perhaps argue that those judicial procedure rules (Chapter 60Q) do not address electronic signature of documents in this context, and thus this signature practice is not governed by such rules (though perhaps the Rules could address such issues). They might argue that if workers' compensation is to be different than the UETA, then the rules would clearly say so.

Some would no doubt raise the fact that "a settlement agreement" is "governed by contract law." Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. 1st DCA 2006). They might suggest that if parties can execute contracts all day long on E-bay, Amazon, WalMart and more, with the click of "I agree," and that perhaps it is logical that other contracts such as workers' compensation settlements could be completed with a similar electronic signature?

Others may note that in litigation, signatures bind parties and their attorneys. And, in Florida workers' compensation, the letter "s/" followed by a typewritten name "is deemed to be the legal equivalent of the e-JCC user’s handwritten signature." 60Q-6.102(6). That rule seems perhaps to run the risk that someone could type and thus "sign" another's name. There might seem to be risks of identity verification and authenticity. And yet, after years of allowing this substitute for the handwritten, "alphabetic signature," can anyone cite an instance of impersonation or forgery?

Some may argue that this digital signature issue is really one for the parties to a case. The Court reminded us in Citrus World, Inc. v. Mullins, 704 So.2d 128 (Fla. 1st DCA 1997) that the statute may have dictates (admission of physician opinions), but that the parties to a case may stipulate. When the parties stipulate, those agreements are "normally binding." The Court says "that it is the policy of law to encourage and uphold stipulations." So, despite any feeling that a process (notary or signing) is or is not legally sufficient, one might validly ask "have the parties to the case stipulated that it is valid?" In the face of such a stipulation, should the judicial process inquire further?

It may be that some are not ready to accept the digital signature. They may doubt the legal sufficiency, or harbor concerns about mistake or misrepresentation. What if the person "signing" is in fact not actually the person that they say they are? That is a seemingly valid concern. If a worker is waiving all future benefits, it is imperative that they do so knowingly and willingly. It is also therefore important that the person signing the paper is actually the person otherwise entitled to the benefits.

But, is that more easily discernible or verifiable in person? Perhaps. Can someone commit forgery in the presence of a notary public somewhere, in person? That has happened. Is it less likely to occur in person than electronically? Or, perhaps we are just more comfortable believing that in-person verification is more sure because that is a paradigm to which we have adjusted over a lifetime of experiences?

In other words, it is possible that we may fear "electronic" signing merely because it is different. Recently, in North Carolina Practice of Law, I noted there are perils in both "change for the sake of change" and in "fear of change." But, change is inevitable. The world around us is evolving, and technology is undeniably a significant influence on us all. Technology will change our lives, not an "if" but a "when." It was not that long ago that I was assured by a venerable attorney that this "e-filing fad won't last."

I would therefore suggest that an entire industry of online sales (Amazon, WalMart, Priceline, e-Bay and more) is thriving on the "I accept" button. Contracts are being made every second of every day, and rely upon a signature that is a click of a button. Courts are enforcing those contracts, effectuating those signatures. To suggest that a document "cannot" be signed in the same manner is perhaps akin to suggesting that an "X" cannot be a signature. The "X" was given effect, because there were other assurances (witnesses) and similarly the signatures described above are "witnessed" over a video call. Is it the same? Is it similarly effective in instilling confidence?

And, in the end, it is critical that these are musings. The issue, of course, is whether the particular assigned judge finds validity in the e-signature or e-notary process. Has the judge been informed sufficiently by the parties about the process? Is there sufficient demonstration of the process providing assurance of assent and/or identity? Is the process stipulated by the parties? Those are all issues for the trial judge to decide. Everyone should remember that judges make decisions based on what the parties to a case provide. Are the parties providing sufficient information to inform the judge and convince her/him of the parties' advocated course?

These issues for the trial judge are undoubtedly challenging. And, in the age of rapidly changing technology they will be issues that may likely become increasingly frequent.

__________

Rule provisions with "signature" or "sign."

60Q-6.102 Definitions.

(6) “Electronic signature” means that a graphic version of the e-JCC user’s signature or “s/” followed by the e-JCC user’s typewritten name is deemed to be the legal equivalent of the e-JCC user’s handwritten signature.

60Q-6.103 Pleadings and Proposed Orders.

(1) Pleadings. All documents filed with the OJCC shall:

(c) Contain the signature, or the electronic signature if filed electronically, of the party in interest or, if represented, the party’s attorney of record;

60Q-6.106 Consolidation and Venue.

(3) A motion to change venue shall be filed with the judge and shall contain the signature of the moving party, or, if represented, the party’s attorney of record.

60Q-6.110 Mediation, Generally.

(5) . . .The appearance of an attorney for a party does not dispense with the required attendance of the party. No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report.

(b) Any person attending mediation telephonically shall provide an e-mail address for use in exchanging documents during the mediation unless good cause is shown to the mediator at least five days prior to the mediation. Any mediation attended telephonically is not concluded until the signed report is returned to the mediator. The signed report shall be returned by the end of the business day unless excused by the mediator.

60Q-6.113 Pretrial Procedure.

(2) . . . The judge may excuse any party who has complied with filing their completed and signed portion of the pretrial stipulation from live or telephonic attendance at the pretrial hearing. The judge may cancel the pretrial hearing if the stipulation is timely filed. In pretrial stipulations and at any pretrial hearing, the parties shall:

60Q-6.123 Settlements Under Section 440.20(11), Florida Statutes.

(1)(a) When a joint petition signed by the parties is filed pursuant to Section 440.20(11)(a) or (b), F.S., it shall be accompanied by:

(2) (e) . . . it shall be signed by the claimant and the claimant’s attorney, furnished to all other parties, and contain:

60Q-6.124 Payment of Attorney’s Fees and Costs Other Than Pursuant to Section 440.20(11), Florida Statutes.

(1) . . . include a statement that claimant’s counsel has not previously secured or received a fee on the benefits for which a fee is now being sought, the claimant’s signature, and an attorney’s fee data sheet setting forth the benefits secured by claimant’s counsel and the value of the benefits.

Thursday, December 14, 2017

Misclassification, Expectation, Federalization (8)

People are talking about workers' compensation, perhaps more today than ever. This is the eighth in an 11-post series (links to the first seven are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

Misclassification

Workers’ compensation insurance is generally valued by calculating the financial risk associated with a particular employer in a particular employment. Riskier employment is more likely to result in accidents and thus workers’ compensation is generally a more expensive proposition in those employments. Because of this economic reality, workers’ compensation insurance is more expensive for riskier occupations.

Similarly, some employers are more safety-conscious than others. Those who are less safety conscious may experience a greater frequency of workplace accident or illness. In industry parlance, they are deemed to suffer greater “frequency.” As a result, many systems calculate insurance premiums allowing insurance carriers to charge additional premium based upon these “experience” factors.

Workers’ compensation systems generally affect employers and employees. The remainder of the systems is comprised of a vast assortment of vendors and service providers. Most systems require participation of both. A historic exception has been for non-employees, “independent contractors.” As this classification of labor is not included in “employee,” those who labor within it are not covered in most workers’ compensation systems. As such, the cost injury or illness suffered by contractors is not borne by employers. Some perceived this as another form of “cost shifting." Such contractors are not typically insured for workers’ compensation and therefore the cost of their care and treatment will be borne by themselves, health insurance, providers, or federal programming.

Alternatively, costs for these workers may be shifted to insurance companies otherwise engaged in the systems. A business may employee people and appropriately secure workers’ compensation payments through insurance. Concurrently, the business may engage the services of various independent contractors. When a contractor is injured, she or he may seek to retroactively evade the label of “contractor” and instead ask for the system protection afforded for an “employee.” There are instances in which business is deemed to have misclassified these workers, and they are deemed to be employees. This designation renders the employer’s insurance carrier financially responsible for the various impacts of such illness or injury, for which no premium may have been collected.

Misclassification may also occur more subtly. A business may misrepresent the nature of work performed by an employee in order to avoid premiums related to more hazardous employment. By labelling creatively, the employer appears safer and obtains employee coverage at a more modest price. There is an anecdotal example repeated of roofing company that classified all of its employees as "clerical" employees.

Either misclassification may weaken the insurance marketplace. Insurers contractually assume risk based upon employer representations. Premiums are collected and invested in anticipation of reasonably expect-able loss probabilities. If such contracts present more significant risks, hidden from the rate-making process by misrepresentation, then the probability and degree of risk assumed may be significantly greater than the risk for which premium was collected. As a result, losses may outstrip revenue and insurance carriers may be disinclined to writing coverage within a particular system or industry. Those who consistently practice misclassification or other inappropriate premium avoidance may also be accurately included in the population of “bad actors.”

Unrealistic expectation of full recovery and youth

Medical science has made miraculous advances in the last century. The success and progress has fueled expectations for miraculous results in all instances. However, evidence supports that medicine remains challenged regarding remediation of a great many conditions. Further, there is evidence that some medical “advances” have provided little in aid to patients. For example, surgical intervention for spine pain complaints, “fusions,” have demonstrated a documented history of increased frequency and unfortunate lack of efficacy. Patients have complained of minimal benefit, and often detriment, from these expensive procedures. Another tragic example has been the rapid growth in opioid prescriptions. Long-term use of such pain medications has proven spectacularly ineffective and has been accompanied by side-effects and addiction complications.

Science accepts that youth is often advantageous for injury recovery. The body’s ability to recover from injury or illness is considered compromised with time. Older bodies are more prone to injury and more likely to incur significant injury from a given insult. Older bodies may recover less rapidly and less extensively, thus effecting a greater “impairment” or loss of function.

However, most injured workers are not scientists and have limited information regarding injury or workers’ compensation prior to an accident. Injured workers are perceived as expecting favorable outcomes following work injuries. These may include “full recovery,” a return to “100%,” an absence of dysfunction or disability, and an absence of impairment. Such may be encouraged or caused by similar personal experiences when younger or the experiences of others known to the worker (friends and family) with similar complaints, but perhaps significantly different actual diagnoses.

Despite the foundation or source of expectations, workers are perceived as having high expectations of full recovery and return to full function following injury. Some believe that these expectations are partially responsible for the perceptions of vocational rehabilitation ineffectiveness. Age is potentially life-changing, as are accidents, injuries and illness. Unrealistic expectations regarding minimization of injury or illness effects impacts both workers and employers.

Federalization

Participants in the 1972 Commissions suggested that state systems effect a number of changes in favor of injured workers. Its report suggested that if such “reforms” in favor of labor were not accomplished, that intervention through federal legislation might be the only method for rendering workers’ compensation systems acceptably uniform or consistent. In the decades following that report, the structure and findings of the commission have meet with criticism. Most perceive the state systems’ responses to the commission recommendations as inconsistent and incomplete.

In 2016 ten Democratic United State legislators (Senators Bernie Sanders, D-VT; Patty Murray, D-WA; Sens. Patty Murray, D-WA; Ron Wyden, D-OR; Al Franken, D-MN; Sherrod Brown, D-OH, and Representatives Bobby Scott, D-VA; Chris Van Hollen, D-MD; Sander Levin, D-MI; Frederica Wilson, D-FL; and Xavier Becerra, D-CA) signed a letter asking the U.S. Department of Labor to examine workers’ compensation. Lamenting recent news coverage and perceptions of disparate benefits and procedures, these officials advocated federal intervention in the various jurisdictional systems. Workers’ compensation has been a non-federal group of systems for over 100 years.

However, over the Twentieth Century, the general trend has been toward expansive interpretations of the U.S. Constitution’s Interstate Commerce Clause. The result has been greater federal involvement in subjects once deferred to the states in the American federalism construct. There is general consensus that federal intervention in workers’ compensation would be upheld as a valid exercise of federal authority. The United States Supreme Court decisions in Wickard v. Filburn, 317 U.S. 111 (1942) and National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012) are seen as supportive of such intervention.

Some voice concerns with federalization of workers’ compensation, either through direct appropriation (nationalization) or through legislated standards or parameters for state systems. The concerns included doubt of the efficacy of a “one size fits all” solution, concern of costs associated with a federal bureaucracy, and federal interference with insurance markets. Potential benefits of federalization included consistency in benefit calculation, duration and extent, and elimination of competition between states.

Tuesday, December 12, 2017

Florida OJCC is a Cost-Effective Service

The OJCC budget, divided by the number of petitions for benefits (PFB) closed, reflects that the overall cost per PFB closed fluctuated in recent years, due in large part to the significant fluctuation in PFB closure rates. These figures demonstrate relevance when considered in comparison to filing fees in Florida’s Circuit Courts. For “small claims” filings, the Circuit filing fees may be as low as fifty-five dollars ($55.00), but for civil claims with a value over $2,500.00, the filing fee is three hundred dollars ($300.00); for larger claims the Circuit filing fee may be as high as four hundred dollars ($400.00).

The OJCC is demonstrably more financially efficient, with a per-petition cost well below the Circuit Court filing fees. Additionally, in the majority of instances, the OJCC cost is inclusive of mediation services, which generally are an additional cost to the parties in other civil litigation. Over the last fifteen fiscal years, the average cost per petition closed was $232.00, just above half the comparable Circuit Court filing fee.

Another illustration of the cost-effectiveness of the OJCC is the volume of child support arrearages collected through the judges’ efforts. The Judges of Compensation Claims are statutorily required to ensure that the rights of child support recipients are considered when support payers settle their workers’ compensation case.

Each judge devotes considerable time and effort to the investigation and verification of child support arrearages when cases are settled. The significant amounts of child support collected through these efforts for the last fifteen (15) fiscal years are represented in this table, which total over $160 million ($162,740,517). When the judges were given the responsibility for recovering these arrearages, no staff or budget was added to the OJCC to accomplish this task.

The volume of child support arrearages collected is particularly interesting when considered in light of the overall OJCC budget. Over the last fifteen (15) fiscal years, the OJCC has collected an average of 63% of its overall budget annually in past-due child support to the benefit and advantage of support recipients throughout Florida.

In 2012-13, the OJCC undertook the duties associated with reporting arrearage information on behalf of the Department of Revenue (DOR). In 2013-14 the OJCC integrated the process of reporting Circuit Clerks’ arrearage information. This combination eliminated redundancy and waste across the process for all Florida workers’ compensation litigants. Litigants in Florida’s workers’ compensation adjudication system now get all of their required child support arrearage information from the OJCC instead of DOR and the Circuit Clerks.

These tremendous child support services on behalf of support recipients have been delivered without any additional staff or funding for the OJCC operations. Because of the sensitive nature of this data, the burden of investigating these support inquiries has fallen primarily on the OJCC mediators and Commission Clerks.

Sunday, December 10, 2017

The First Hotseat Webinar

In workers' compensation, marijuana has been a hot topic for the last several years. Seminar after seminar, and expert after expert have addressed the legal, social, and medical implications of this subject. I have even written about the substance a few times, such as Marijuana May Be a Problem, You Think? Measuring Marijuana Intoxication, and So Federal Law Matters in Colorado.

Back in September, I participated in the inaugural "Hot Seat" webinar, and it was a discussion of issues regarding workers' compensation and the implications of drug formularies, marijuana and more. That program was prefaced in The Hot Seat, Opioids, Marijuana and More. As noted, a major distinction in the Hot Seat is that it is unedited, unscripted and unrehearsed. The guests know the topic before hand, and the program title might suggest some lines of inquiry, but once the cameras come on it is just a free-flowing conversation about important workers' compensation issues.

The actual program on September 29, 2017 was a great success. Hundreds tuned in. Bob Wilson wrote about it on October 1, and noted I would "soon" be following up as well. Ahem, that took a little longer than I perhaps intended; this post results from long reflection and contemplation, I have visited the "play back" and digested the comments of both the guests and the viewers.

Marijuana is a subject on which there sometimes seems scant middle ground. It appears that many people have their feelings and have reached their conclusions regarding marijuana, either pro or con. As with any issue though, perhaps there is also a population on more of a "middle ground." Some express ambivalence about the subject, and others perhaps care but have merely not arrived at a conclusion as yet. It is a struggle to understand whether there is in fact polarization and conflict, or whether that merely attracts the attention.

Mr. Pew stated that most of us come to marijuana with a bias, perhaps from our own experiences with it or from our perceptions of people we have known (or suspected) that used it. Hollywood portrayal of users was mentioned in that discussion. One attendee disagreed: "I don't agree that everyone comes in with a bias. The real issue is whether the studies show that there is a true benefit for the treatment of chronic pain etc."

The main take-ways from September were essentially that marijuana is not going away, and that it will become increasingly pertinent in workers' compensation. The financial issues are perhaps becoming less threatening as vendors and payers seem to be adapting to the complications of federal banking laws. There is apparently no fear of federal law enforcement having any significant effect. There is perception that pot is cheaper than opiods, and that money spent on pot is not included in the calculation of Medicare set-asides. Those are interesting financial points.

Mark Pew, the @RxProfessor, concluded that there are six documented cases of marijuana being provided by workers' compensation jurisdictions. One attendee commented to add a seventh. That is an interesting aspect of the live webinar format, attendees can be part of the discussion. The marijuana development began with a New Mexico claim that received significant discussion and publicity thereafter.

Though there are only the seven discussed jurisdictions, Mr. Pew said "I'm convinced that there are other states with pears paying for marijuana already." He concluded that the analysis leading to that decision was one of "reasonableness" and not so much a conclusion of efficacy. In this regard, it seems that both Mr. Pew and Commissioner Brannen find common ground regarding non-anecdotal proof of patient efficacy.

The discussion became intertwined with vocabulary distinctions and some seemingly interrelated emotions. There are those who take umbrage at the use of terms like weed, dope and even "marijuana." They contend that this substance must be referred to only as "cannabis." While news outlets such as the Baltimore Sun, Reuters, and U.S. News and World Report refer consistently to "medical marijuana," there are those who have seemingly visceral reactions to "medical marijuana," and insist instead that any discussion be about "cannabis." The Rolling Stone prefers "medical pot." In this regard, one commented "Stop calling it pot or marijuana, if its medicinal its cannabis and not smoked."

Despite this seeming war about what words are acceptable, it seems that the media has accepted "marijuana" as the description of choice. It seems doubtful that any effort will succeed in walking that back to adoption of the "cannabis" preferred by those commenting during the Hot Seat. It seems instead that "marijuana" is a term in the debate to stay, although individuals will certainly make their own word choices.

Mr. Pew noted that marijuana acceptance seems to be growing, with 93% of respondents in a recent survey favoring medical marijuana. However, he cautioned that most medical cannabis does not include a product that is smoked (consistent substantively with the vocabulary debate, but still using "marijuana"). He says the "medical marijuana" tends instead to be either edible or an oil.

Some of these products with "derivatives" provide effects of marijuana constituents (like THC) without the "high" associated with smoking. Mr. Pew expressed that the associated "high" and concerns about a "secondary gain" have impeded acceptance of medical marijuana. In light of the vocabulary discussion above, that term itself may be an impediment to some. One Hot Seat comment addressed this "my understanding if cannabis it is not smoked thus does not screen through urine as does not generate a high like smoked."

The smoking may be a valid concern. Is it practical to worry that people might consume a prescribed substance for effects beyond the original purpose of the prescription? The federal government thinks that is a potential, and claims that medicinal misuse has increased in recent years. If misuse can be an issue with opioids, depressants, and stimulants that are already in the legal market and prescribed, there seems some validity to concerns that a new market entrant like medical marijuana could raise similar concerns. It seems likely that there is at least merit in discussing the potential of secondary gain. One Hot Seat comment noted that "If recreational marijuana is legalized, does that make the medical argument moot? Kinda like medical scotch."

At a seminar in the spring, I challenged the audience to name any other medical treatment that is also used for non-medical, recreational, reasons. An attendee proudly exclaimed "Viagra." That example fails, of course, as the drug is administered for a medical reason, which has the effect of restoring function, which in turn allows or enhances engagement in a non-medical activity. However, the same could be said of a patient taking Flexeril, which loosens inflamation, and allows the patient to engage in a flag football game. Examples abound in this regard, and the Viagra example simply does not hold.

Perhaps a valid example is "massage therapy." That is a modality that is prescribed for people with soft tissue injury, and it provides relief of particular symptoms. The same modality is also used by people without injury, who nonetheless enjoy some relief and relaxation from the process. There may be other modality examples. However, it is rare that any substance available without a prescription is also used by prescription. The "medical scotch" point is perhaps illustrative of perceptions in this regard.

Mr. Brannan, @wrbrannen, noted that there is no medical proof demonstrating the efficacy of marijuana. There has been much discussion of the absence of science. Some claim that this absence is due to the government's prohibition stance, and the resulting lack of availability of various marijuana strains for testing, study and publication.

The medical proof versus anecdotal belief is also perhaps consistent with scientific conclusions that reasonable volume of the relief afforded by any modality may be influenced by whether a patient has faith and belief in it. In other words, if the patient does not believe something will help, it likely won't, and vice-verse. This so called "placebo effect" has been documented over the years.

In that vein, some workers' compensation experts have voiced the argument that they do not care if any modality "works," but only if the patient believes it works. That has been applied to a variety of modalities that employers have provided despite perceived equivocal scientific proof of efficacy, or their own skepticism regarding a modality.

The Hot Seat focused on this efficacy issue with discussion of the New Mexico decision ordering workers' compensation to reimburse the patient for his marijuana purchases. The conclusion seemed to be, in large part, that the pot (this was smoked) provided relief for that patient, according to his subjective reporting, and therefore it must be medically necessary for that patient. On that anecdotal conclusion of efficacy, a system change occurred, and it has begun to spread. The Hot Seat discussion focused on the establishment of workers' compensation system responsibility without scientific proof, per se.

While Mr. Pew sees this course as inevitable, Mr. Brannen returned to the dearth of scientific proof regarding efficacy. The lack of science, he says, means that it is too early to make decisions regarding medical marijuana. He noted that increasingly workers' compensation systems are governed by medical treatment guidelines and prescription formularies. Mr. Brannen notes that even if the products are legalized (a change in the federal posture), that those guidelines and parameters may nonetheless exclude (or inhibit) the products from workers' compensation.

Bob Wilson noted presentations he has seen regarding administration of the "oil." He says he has witnessed video evidence of patients being administered the derivatives (oil), and visible improvement in appearance." Mr. Wilson concedes these are likewise anecdotal, and not necessarily scientific outcomes, but notes that they are powerful, visual examples and that they may influence the ongoing debate.

Throughout the discussion, I persistently suspected that a great deal of the ongoing debate comes back to vocabulary. Mr. Pew pointed out that there are already FDA approved medications that use marijuana-derived substances. There seems to be significant acceptance of the efficacy of the "oil" that has generated significant publicity (and was apparently what Mr. Wilson witnessed). But, these are not "marijuana," "dope," "pot," or even perhaps "cannabis." Would the public perception be different, would the debate calm, if the smoking and the "high" were off the table? Would the analysis be simplified if constituent derivatives were incorporated into non-smokable, non-high-producing forms, which had different names?

Admittedly, FDA approval of the use of derivatives in medication seems at odds with the government's listing of marijuana as a Schedule I substance, which includes marijuana, heroin, ecstasy, and meth, according to the DEA. But heroin is similarly an opium derivative, an "opioid." and seemingly not absolutely distinct from the plethora of other opium derivatives, natural and synthetic, that are prescribed by physicians daily. Is that derivative nature a distinction that might quell or just modify the debate?

Thus, perhaps is it possible that some products may be appropriately constrained ("marijuana" meaning something smoked and producing a "high"), while the other might be approved ("cannabis oil" meaning something consumed and producing no "high")? Perhaps that would be a distinction as logical as the Heroin ban compared to opioid prescription availability?

At the end of the day, the real point of the Hot Seat was the exchange of ideas. While I feel that I have invested significant effort in understanding the American drug crisis and the marijuana debate, the fact is I learned from the Hot Seat. There was no PowerPoint, no rehearsed speeches, and no handouts. But this unedited, unscripted, and unrehearsed discussion was interesting.

Oh, there were some notable issues with the platform. Some attendees' companies would allow access to YouTube, which blocked their participation. Some also had issues with the browser selection. But, we live and learn. The next Hot Seat will be presented on a different platform. Stay tuned for details on that change, and the greater accessibility it promises.

But overall, the reactions seemed positive. Some said:

Actually, really like this format. Great job, guys!

Maybe next time we could have a q&a format

Good job - enjoy the weekend!

And, the conversations continue. On January 5, 2017 two workers' compensation attorneys Robert Rassp and Stuart Colburn will join us to discuss the ethical issues in workers' compensation relationships. Questions will be asked, and perspectives explored. Click here to register. I have seen these two on stage before, and they definitely have their opinions and positions. Whether you agree with either, it is likely that they will make you think. And perhaps that is what this system of systems needs the most, honest discussion, debate, and expression of thoughts.

WC.com