Protecting Privacy in Florida

Two Florida WorkCompCentral stories recently caught my eye. In Under Settlement, Telemedicine Doc to Stop Treating Injured Workers, the recruiting of patients was described. And in Three New Comp Laws Signed by Governor and in Effect Saturday, the signing of House Bill (HB) 1107 was announced, one of a few 2017 bills affecting workers' compensation. 

The two stories may be interrelated. And a third recent Florida story might be intertwined also. In Compounds Billed at $1,000 or Greater will Require Preauthorization, we learned that specialized medication creams can be expensive. The story notes that some of these prescriptions can cost as much as $30,000 for a single tube of medication. 

The first story, Settlement, describes a "Florida doctor who recruited workers’ comp patients." He used public records to identify injured workers, recruited patients through direct solicitation, and provided them with "telemedicine visits" for their work injuries. And, the result of at least some of those visits was apparently a prescription for compound medication. 

In Florida, physicians treating injured workers' are primarily selected by the employer or carrier. An injured worker retains the right to seek emergency care from other providers in certain circumstances. The injured worker also has a statutory right to transfer care to a second provider (also usually selected by the employer/carrier). That opportunity is referred to as the "one time change." There are situations in which a request for one time change, not acted upon by the employer/carrier rapidly enough, may even afford the injured worker their choice of physician. 

The doctor in this Settlement story, Samuel J. Gerson, would recruit patients for telemedicine examinations and prescriptions. Some alleged that the method and phraseology used in the recruiting may have allowed some injured workers to believe that the services had been recommended by the insurance company or their worker's attorney, but that Dr. Gerson did not even inform either of them about his solicitation for patients. Some of the paperwork completed by the workers suggested or said that the worker was requesting to change physicians, selecting Dr. Gerson, which could be seen as the patient's "one time change." The insurance carriers were then billed for the telemedicine services. 

Dr. Gerson agreed in the settlement to stop treating workers' compensation patients in Florida. He will not even be affiliated "with anyone providing medical treatment for injured workers." He also agreed to "pay a $5,000 fine." In exchange for the doctor's agreement to these, the Florida Department of Financial Services "agreed to not refer" complaints against the doctor to the Florida Department of Health." That agency has authority over Dr. Gerson's Florida medical license. The WorkCompCentral article details Dr. Gerson's credentials and previous interaction with California's physician licensing authorities. 

Dr. Gerson, and a company with which he was affiliated, obtained the names and contact information for those injured workers from Florida public records. The second story, Three New Comp Laws Signed by Governor and in Effect Saturday, notes Governor Scott's June 26, 2017 signature on House Bill (HB) 1107. This enacts an "exemption from public records requirements for the personal identifying information of an injured or deceased employee." In other words, it removes vital information from the public domain and protects the privacy of injured workers.

The new law has a limited scope, protecting the records and information of injured workers that is "held by the Department of Financial Services pursuant to the Workers' Compensation Law." The Florida Division of Workers' Compensation is part of the Department of Financial Services. Therefore, this law will protect the information that is reported by employers when they file the notifications of injury under Chapter 440, such as the first report of injury, See Section 440.185(2), F.S., claim expenditure reports, and more. 

Information in Florida is generally available. The "Sunshine State," has a broad "Sunshine Law" protecting public access to volumes of state information. The 2017 law just signed exempts injured worker information from this broad policy of public access. And, this is not the first time that injured worker's information has been protected. From 1998 to 2003, Section 440.185(11) protected such information. It provided:

(11) Any information in a report of injury or illness filed pursuant to this section that would identify an ill or injured employee is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution."

However, the 1998 legislation included a "sunset provision" common in Florida law pursuant to "the Open Government Sunset Review Act of 1995." Following that constraint, the provisions of Section 440.185(11)(1998) were nullified by the passage of time. That law itself stated that the exemption from public disclosure would be "repealed on October 2, 2003, unless reviewed and saved from repeal through reenactment by the Legislature." 

Most laws that are passed remain on the books unless some future legislative action removes them. As a result there are a great many laws around the country that various people think should be repealed. Supposedly, these continue to include everything from restrictions on the duration of bingo games to proper etiquette of poultry crossing roads. The "sunset provision" is intended to effect the opposite outcome, that laws will automatically cease, unless there is further legislative action concluding that they remain necessary. In 2003, the protections of Section 440.185(11)(1998) were not re-enacted, and they disappeared from the statute. 

The newly signed HB 1107, fourteen years later, will protect the privacy of injured Floridians through a new statute section, 440.1851, which is more complex than 440.185(11)(1998). It will likewise protect privacy for five years, but will disappear from the law on October 2, 2022 unless re-enacted by the legislature. Thus, a physician wishing to solicit patients as Dr. Gerson did will have more difficulty locating and contacting patients. The provision will also diminish the volume of attorney solicitations which injured workers receive; some believe that there are many attorneys that have employed direct mail solicitation of injured workers using the information formerly available from the Division of Workers' Compensation. 

The potential for affecting the injured worker's rights is likely part of the drive to protect privacy in this manner. An injured worker with a singular statutory right of "one time change" may wish to use that carefully. Anyone that hires an attorney for any legal process may want to consult that attorney before taking any action that could affect rights (as in speak to your attorney before police questioning, that is what you hired the attorney for). The potential for unsuspecting injured workers unwittingly exercising their "one time change" without the knowledge of their attorney or the carrier may justify this newly enacted constraint on public information. 

But, the third story Compounds Billed at $1,000 or Greater will Require Preauthorization may be worthy of consideration also. In addition to the harm on the injured worker, that is the unwitting exercise of the "one time change," the solicitation by Dr. Gerson may have led to the prescription of a compound medication. Those compounds have been in the news recently in various states. There is a growing concern with the cost and efficacy of compound medications. States like Florida and Texas are taking steps to restrict them. And, it is possible that the involvement of compound creams in Dr. Gerson's telemedicine practice also influenced perceptions and state reaction. 

Thought the three stories may seem unrelated at first blush, it is suggested that they are intertwined to some extent at least. It may be worthy to consider that workers' compensation is a large and complex system, with many facets. When something affects one, there may be results that affect more. 

Sharing Everything or is it TMI

Young people today sometimes speak in acronyms. It is not necessarily that they like them, it may be simply that they do not want the rest of us to understand them without consulting Google. A physician once told me that is why doctors use Latin words, but I digress. One of my favorites, largely because of its great versatility is "TMI," for "too much information." I have heard this one used in a great variety of contexts, from a sincere "stop talking, that is too much" to a more "tell me more, tell me more, like does he have a car" context (Grease, 1978, once considered by some to be a bit racy, but strictly "G" in the new millennia). 

Today, I focus on TMI. I am amazed sometimes at the amount and detail of information that people are willing to share about themselves. From Instagram and Facebook postings with pictures of every meal they eat to detailed discussions of personal issues, the Internet is simply full of detail. If you had told me thirty years ago that people would voluntarily disclose so much of their personal lives, I would have laughed. Of course, it is obvious I would not have had the last laugh; the joke's on me I guess. 

So, I should perhaps not have been so surprised recently by the story published on Yahoo about a lady and her purchase of underwear. She was dissatisfied with the result of her purchase. She might have quietly returned them to the retailer for an exchange. She might have worked around the issues. She did not, and instead photographed them for the Internet. 

These undergarments were supposed to be organized by the days of the week, with one pair for each day clearly labelled. The purchaser was upset that the set contained no pair labelled "Monday," but two pairs labelled "Thursday." Some among us might have simply worn one of the Thursday pairs each Monday, and gone on with life. 

This purchaser, though, instead posted on social media, noting that such labelled garments might only be attractive to an "obsessively organized person." She said she was "unprepared for the horror that awaited me upon opening the box." She explained someone that would just move on and wear a Thursday pair on Monday, would be a person from among "the illiterate or the criminally insane." If your underwear is mislabeled, it is a "horror," and if you are not bothered, you have serious issues according to this purchaser. 

The comments (it is not a real news story if no one comments, assails some group or population, or makes accusations of ignorance or worse), were to the effect that this story was "not news," that the purchaser might have certain bigger issues, and humorously that someone must have gotten stuck with two pairs of "Mondays." But the best comment perhaps was someone suggesting "the real horror is how many people don't get that this was just a light-hearted joke;" the posting, not the mix-up.

So, in the process, all of this person's social media connections learn something about the purchaser (as does the world because it went viral and made the news). What in fact is learned is debatable, and may just be "she has a great sense of humor." But it reminded me of a nagging feeling that perhaps people are just sharing a little too much on social media, as in "oh, that's your underwear? TMI." 

Another story struck me in a similar vein, that is "was that TMI?" It was more on the level of actual horror however, at least I believe most will agree with that adjective. This ABC News story is about Makeva Jenkins of Lake Worth, Florida. In 2013 she was homeless, but had one of those spirits that strives for success. Just four years later, she was reportedly "making six figures," and then "multi six figures." Suffice it to say that she was doing well. 

Ms. Jenkins was growing a business, following her heart and persevering. She worked creating "business plans and marketing strategies for small businesses and entrepreneurs." It appears that she was living the American dream, rising from humble beginnings and challenges that would perhaps be insurmountable to some of us (I cannot conceive how I would react to being homeless, it is a situation I cannot understand and which I have just never experienced). 

Ms. Jenkins posted about her success on social media. She advertised that she was soon to host a seminar to spread her expertise and market her business. She explained on social media about her challenges, dedication and success. She wrote about her income, the "six figure" and "multi six figure" income. And hours later a knock came on her front door. It was not "opportunity knocking."

A man reportedly knocked at about three o'clock in the morning, a few hours after she posted to social media. When she answered, the masked man walked in and fatally shot Ms. Jenkins, leaving her three children, aged 1-7, without a mother. He fled "in the family car," which was then abandoned nearby. A young and apparently vibrant entrepreneur, having overcome adversity and challenges, shot down in her own home. 

There is no direct link between Ms. Jenkins death and that social media post. But, the implication has been suggested. That is in no way suggesting or implying blame on the victim. No one deserves to be attacked and killed in their home. She had every right to promote her success and her business. The success story that Ms. Jenkins achieved is inspiring and motivational. Her drive and determination, her achievement of the American dream is heartwarming. But, perhaps we have to question whether it is a good idea to post everything about ones self on social media?

Maybe there is such a thing as TMI. And, perhaps we learn from these stories that it may be better for us to reserve a little of the facts and details for ourselves?

Outstanding Florida Millennials Recognized

Almost two years ago, I was invited to attend an informational meeting about an organization called Kids' Chance. I was familiar with it generally, but the meeting was nonetheless very informative. Kids' Chance provides scholarships for the kids of workers seriously injured in a workers' compensation accident.  A few months later, in December 2015, I attended the organizational meeting of Kids' Chance of Florida (http://www.kidschancefl.org/). 

The spring of 2016 was busy as this fledgling organization sought to become organized and functional. In August 2016, at the ripe old age of eight months, KCOF awarded its first scholarships. Fifteen thousand dollars awarded in its first year. It is unfathomable to me that a year has passed since, seems like last week. Last Thursday, Bob Wilson wrote a post about this year's scholarships (don't tell him I told you, he said "don't tell anybody"). He announced that KCOF awarded nine scholarships this year, totaling $33,000. As this toddler organization nears its second birthday, a total of $48,000 will have been dispensed to deserving young people. KCOF also purchased two Florida Pre-Paid tuition plans this year, which will be deployed in 2018 and 2019. It is growing, developing, helping, and planning for its future. 

I want to also mention the Friends of 440 Scholarship Fund, Inc. It has a similar mission, and some overlap of purpose. It awards scholarships to students who are connected to workers' compensation either because of an injury to a parent or guardian, similar to Kids' Chance, or because a parent or guardian is involved in this industry. Thus, it has some similar goals, but a somewhat broader approach. The Friends of 440 has been awarding scholarships since 1992. It has awarded over $1.6 million dollars over those years, and awarded $64,000.00 in 2017. To date, the Friends of 440 has impacted the lives of over 800 students, with 31 of those being awarded in 2017!

The Friends of 440 has had an amazing impact across Florida. Last year I wrote a post about the Friends' scholarship selection process, How I Spent my Saturday. It struck me then how exceptional those applicants were. They were "focused, intelligent, conversational, respectful, gregarious, effusive, enthusiastic, grateful, dignified, poised, and downright impressive, with a particular emphasis on impressive." I did not make it to the Friends' interview meeting this summer, but I am sure it was more of the same. I am pleased that there are some students that are being assisted by both the Friends and Kids' Chance. 

I did attend the Kids' Chance of Florida meeting that Bob Wilson blogged about though. I enjoy reading Bob's posts, and his perspectives are always pertinent, witty and wise. But, in his post last week he did not mention a few things that I think are also worthy of mention:

These Kids' Chance scholarships are helping fund the pursuit of degrees in accounting, business, psychology, engineering, medicine, and more. These exceptional young people have set their sites high. Dreaming big dreams is the foundation of achieving big things. 

Despite the challenges of an injured or ill family member, these students have been engaged in their family lives, schools and communities. The Kids' Chance students are involved in athletics, DECA (for students interested in marketing, management and entrepreneurship), Interact (a Rotary Club affiliate), Key Club (Kiwanis affiliate),  The American Red Cross, The National Honor Society, Helping Hands Club, and a spectrum of other academic and professional fraternities and societies. 

Some of these students graduated high school with 4.0 grade point averages (of higher; back in the day a 4.0 was the highest, but that has changed). Some graduated high school with an Associate Degree. Some submitted college transcripts documenting their outstanding college grades, which mirrored all that high school achievement (I never had a 4.0 semester in college, but some of these students have). Some were named to the dean’s lists, or similar recognitions. 

Some were employed during high school. They volunteered for such things as environmental efforts, tutoring of younger students, elementary school field day, the annual breast cancer walk, the Head Start Program, helping families in need of social services, and as Sunday school volunteers. As one example of a letter of recommendation said, one student contributed to “countless community service activities." Another letter said one student was "leaping tall buildings to achieve” dreams. 

I am frankly astounded by these students. They are rising up against challenges that many will never face. They are setting (and achieving) goals professionally and personally. They are the building blocks of a better tomorrow, through academic success, hard work and community involvement. These were the kids my mom told me I should hang around with when I was in high school!

Now, let's face the fact that young people today can get a bad rap. That is nothing new. I remember the older generation talking down "these kids today" back when I was one. This spring, I attended a local high school awards night and learned there are a great many who are achieving, persevering, and succeeding. The successes are inspiring. But, remember that these kids of the workers' compensation world have each overcome some additional challenges, emotional, financial, and familial to reach this point. They are great examples of dedication and focus. I am proud of them (I struggle not to tell you their names and particulars, but I also respect their privacy). 

2018 will see Kids' Chance of Florida into its "terrible twos." It is known as an age of struggle in any life, with growing independence, confidence, and achievement. I look forward to seeing Kids' Chance enter this next phase of its success, maturation, and grow. I know from watching the Friends of 440 that the effort, dedication, and focus of many professionals can achieve tremendous outcomes, positively affecting many lives. Did I mention that Friends has disbursed $1.6 million dollars assisting over 800 students over 25 years!?!? Well Kids' Chance is going to be able to say something similar one day soon, and it is off to a phenomenal start. I tip my hat to both organizations.

The goals of these two groups is similar. I am proud of their shared goal of providing educational assistance to the kids of those who suffer injuries at work. It is a laudable goal, and it is working right here in Florida. But even more, I am proud of these young people who are so determined to be successful and contributing members of our society. I am confident that there is not one among them that will not be turning back, when safe on the other side of this educational quest, and helping us or someone else to build a bridge for the youth who must yet pass this way. 

And finally, I am thankful that there are dedicated professionals pouring their time, effort and emotion into these special students. I congratulate and applaud all of the people that volunteer for these worthy organizations. Thank you all for helping to build a bridge for these outstanding young people, who are our future!

The Meaning of Legislative Words

I have spent a fair portion of my spring reading bills and watching hearings. the 2017 session was lively and interesting. Much of a bill's procession can be seen on a schedule. During the committee process in Florida there are agendas for meetings. The bill you may be watching is either on the agenda for a particular meeting or not. Being on the agenda does not tell you what time it will be discussed, or really even in what order. But, it tells you that the discussion will be during that time allotted for the meeting.

The chamber floors are a little harder to predict. A bill may be listed on the "calendar" for a given day, but that does not mean that it will be called up. And, that possible time window is not the 3 hours for some committee meeting. If the bill is listed on a day's calendar, it can be called anytime that day. I recall one bill years ago that was listed as third or fourth on the calendar when a chamber convened at 10:00 a.m. I watched all day on the video, and finally gave up. The next day I learned it had been called at 8:00 p.m. and passed. Watching legislation made can be an exhausting process.

So, the 2017 session involved a great deal of interest in SB1582 and HB7085. As the end of session neared, the House had passed its bill, and the Senate Bill was listed on the floor calendar, and from call-to-order through adjournment, a great many watched and waited. Some had a specific interest, a feature of one bill or the other that was valued or disliked. I was more curious at that stage than anything else. But we watched, waited and wondered. In the end, neither bill was sent to the Governor.

In the course of the waiting and watching, however, I became acquainted with CS/CS/HB937. That name signifies that since the House Bill ("HB") 937 began its life, there have been two "committee substitutes," or "CS,' that changed the original language in some way.

The bill caught my attention because the discussion on the Senate floor included mention of "addiction." Anyone that reads this blog is likely to know that I have been a critic of opioid and heroin misuse, and have attempted to explore how our society can address the many deaths in which drugs are implicated. When I caught the word "addiction," my attention was refocused. 

And, while CS/CS/HB937 can be characterized as being concerned with addiction, it is not about drugs. It is about gambling. Gambling was the subject of other bills this session also, but this one is specifically about lottery gambling. It is a form of gambling that has become institutionalized in Florida, with state control and much of the money generated going to the state education system.

If the bill becomes law, there will be warnings included in lottery advertising. It was presented to the Governor on June 14, 2017 and so the Governor's decision will be known this week. One of the bill sponsors likened these warnings to those that have been included with cigarette advertising in recent decades. The bill would require the use of a series of warnings on that lottery advertising, including:

1.  "WARNING: GAMBLING CAN BE ADDICTIVE."

2. "WARNING: LOTTERY GAMES MAY BE ADDICTIVE."

And it was these two sentences that spawned much of the debate on the Senate floor in May. One Senator essentially questioned whether gambling is an "addiction" or a "compulsion." Another question was raised as to whether studies had supported that gambling is not an addiction. It was a discussion focused on specific words, meanings, or interpretations. I was later questioned about that debate, it had caught more ears than mine. Why would the Senate, with so much business to do, be so focused on specific words?

Addiction is defined by Mirriam Webster as 

compulsive need for and use of a habit-forming substance (such as heroin, nicotine, or alcohol) characterized by tolerance and by well-defined physiological symptoms upon withdrawal; broadly : persistent compulsive use of a substance known by the user to be harmful

And, Mirriam Webster defines "compulsion" as

an irresistible persistent impulse to perform an act (such as excessive hand washing) her compulsion to repeatedly check and recheck the stove to be certain that it is turned off; also : the act itself Gambling is a compulsion with him.

The two words do seem to convey a similar sentiment in terms of the behavior exhibited. But these dictionary definitions support that "addiction" and "compulsion" are not synonyms. The key words in "addiction" are perhaps "substance," and "well-defined physiological symptoms." These are missing from "compulsion," whose key definitional terms in this context might be "an act" and "irresistible." Perhaps "irresistible" is not included in "addiction" because that definition begins with the word "compulsive"; thus, perhaps compulsion is a broader subject, within which certain "substance" issues form a sub-category of "addiction?"

The Scientific American contends that gambling is an addiction. Psychguide.com describes both forms of gambling and offers the logic that drives some people to this "gambling addiction," which it nonetheless describes as a "compulsive." 

Researchers at the University of Sydney contend that gambling is not an addiction. They note that the "symptoms such as tolerance or withdrawal, which are central features of addiction, are rarely seen in gamblers." Others question the models or standards through which we define "addiction." One fascinating example by Stanton Peele is worthy of review. He essentially concluded that gambling as an activity can be "addictive," but seems to agree that medically it is mislabeled as an "addiction" per se. This may be parsing words, but after all he is not just a doctor, but a lawyer as well. 

Peele eloquently draws some intriguing distinctions. Perhaps the most valuable thought he provides on this, however, is 

any powerful experience in which people can lose themselves can become the object of an addiction. The result of this immersion is deterioration of the person's engagement with the rest of his or her life, which increases the person's dependence on the addictive object or involvement.

And, in that context, it is perhaps possible to accurately say that any activity can be "addictive," without characterizing the activity as an "addiction?" Perhaps I find writing this blog addictive?

More importantly, Peele explains why there is debate about gambling and addiction. He contends that gambling and gamblers are generating 

continued and increasing attention — due to state reliance on gambling for revenues and government and private marketing of the gambling experience

He suggests that there could be some perception that as society we are enabling and encouraging behavior that can be addictive, and which may lead to untoward outcomes. He seems to suggest that in their drive for revenue, states have become complicit in promoting a social problem. As I read his analysis, I wondered if we might apply the same analysis to the exponential opioid distribution in the 1990s, and the many dollars that it generated? There is no Florida sales tax on prescriptions, but that is not nationally universal. And, those sales generated commissions for sales persons, wages for manufacturers, etc. There was undoubtedly state revenue from the boom in opioid sales. 

And so, back to the Florida Senate. As mentioned, a fellow observer asked why legislators would be so focused on individual words. The purpose of CS/CS/HB937 is clear, and the distinctions between "addiction" and "compulsion" seem, to some observers, to be a case of semantics. That perception, at least so far as it generates discussion, has some validity. 

The fact is that law is made of words. Some will react to that sentence viscerally because of their belief system. In America today there are multiple views on the law. Some contend that documents such as the U.S. Constitution and statutes should be read and interpreted according to their words. Others, contend that these writings are merely expressions of sentiments, and that law should evolve based upon how judges feel more so than upon what those laws actually say. Because of this, both camps are likely to have equal but quite opposite reactions to the simple premise that "law is often made of words."

And, that is why the legislature might struggle with the words. Why should these statutory warnings about gambling say "addictive" or "compulsive," or either? Though my inquisitor was dismissive of this debate (concluding it a "silly" debate), and though it could be perceived as picking nits, I would posit that there are several good reasons to both select the right term, and to do so thoughtfully. 

In interpreting statutes, courts are supposed to follow rules of interpretation. The first and foremost of these is the "plain meaning" rule in which law are "interpreted using the ordinary meaning of the language of the statute." In other words, a statute that requires leashes on dogs would not be interpreted expansively to require leashes on the feline, bovine, or swine. 

The Florida Supreme Court has steadfastly held that "the legislature is presumed to know the meaning of words and the rules of grammar." Therefore, the "only way the court is advised of what the legislature intends is by giving the generally accepted construction," to the words themselves and to the "manner in which it is punctuated." Florida State Racing Com'n v. Bourquardez, 42 so.2d 87 (Fla. 1949). For a a sincere, but perhaps whimsical, review of a recent punctuation peccadillo, see I Never Knew Oxford had a Comma. Legislators are expected to know words and meanings, and how courts interpret those law they pass can critically depend upon them. That is a valued reason to debate word choice. 

Some contend that courts too often eschew the "plain meaning," and instead deviate to personal perceptions of what the legislature "meant," its "legislative intent." Advocates of this departure assure that they select this path when the meaning of words is not clear, either in that statute or when read along with some other statute. Others argue that these departures are merely courts seeking to create law rather than interpret it. Much depends on the perspective of the interpreter. 

An interesting discussion of that conflict is in Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 129 (Fla. 2004). After reminding that "the Legislature is presumed to know the meaning of the words it chooses," the Court provides an overview of the elusive "legislative intent." In that case, one judge dissented, citing "legislative history" for foundation. The one judge expressed the "intent" of a legislator that offered an amendment when that bill was passed. The Court explained that

the problem of using a single legislator's comments to 'prove' the intent of the Legislature, however, is that the clause at issue was not even included in the amendment the representative offered.

The attempt to discern intent came from comments made when that language was not part of the bill. And that, in a nutshell is the challenge of interpreting "intent." When that statute in Knowles was passed, the clause upon which the dissent relied to suppose intent was not the bill sponsor's clause, but was "inserted into the amendment on the floors of the two houses of the Legislature," an "amendment to the amendment," much perhaps like a "committee substitute" for a "committee substitute." 

As Justice Scalia noted in Crosby v. National Foreign Trade Council, 530 U.S. 363, 390–91 (2000):

the only reliable indication of that [legislative] intent—the only thing we know for sure can be attributed to all of them—is the words of the bill that they voted to make law.

There is a value to the debate of word choices. Courts will assume that legislatures choose carefully and thoughtfully. So, legislatures should. Perhaps not because of future debates that they see coming, but in case there are debates coming unpredicted and unforeseen, debates about what words mean or what the legislature itself meant. 

With the selection of "addiction" over "compulsion," might there be implications regarding how someone suffering through a "powerful experience in which people can lose themselves" might be perceived or treated medically? Might treatment be afforded for addiction, where none would be for "compulsion?" Might there be differences in how someone having "lost themselves" might be perceived if that is an "addiction?" In that choice of words, might the legislature be seen as expressing intent regarding the perceptions of others?

Or, might a simpler explanation apply to the selection of "addiction?" As the learned Senators exhibited in this year's debate, there is no universal agreement on describing the inclination toward gambling. As illustrated above, there are arguments among the brightest as to whether "addiction" or "compulsion" best describes what to some is nonetheless this "powerful experience." And, when a warning is necessary, perhaps it is best to use a word that is easily recognized, a word that carries a disagreeable connotation? In that perspective, perhaps warning someone that they could become "addicted" is more likely to produce results (conscious, intelligent consideration of the act) than a warning of potential "compulsiveness?" 

In the end, the meaning of words does have impact. Courts will presume that legislators knew the meaning of their words, and that resulting statutes are intended to do as they say. Canine leash laws should not be implied upon loose bovines any more that statutory definitions should be loosely and retrospectively relabelled as presumptions. Statutes should be clear, words should be carefully chosen, and people should be able to understand them. Courts should respect those words when stated, and avoid inserting words of their own to facilitate their conclusions. 

Whether warnings are added will be seen this week. That is the other forgotten piece of the legislative process: once the legislature agrees, the Governor's opinions mean a great deal.

Update, June 26, 2017 - this bill was vetoed by Governor Scott. 

Waiver and Estoppel

Human beings may alter behavior based upon legislative and regulatory consequences. Certainly, the legislative enactment of a fine for speeding may result in slowing vehicles on roads, an intended consequence. But, there may be other instances in which legislative construction may similarly produce consequences less intended or unintended. 

This year I had the opportunity to testify before the Florida House of Representatives regarding Worker's Compensation reform. An intriguing question was whether there are elements of our system which "encourage" litigation. The question, in retrospect, seemed to focus upon attorneys fees that result from litigation, but a broader answer occurred to me.

Generally, parties to a lawsuit, may take positions at various stages through the litigation. Having taken one position, a party may be legally prevented from later taking a contrary position. In its broadest legal description, this is known as "waiver," or "estoppel." 

Florida has some waiver provisions in its Worker's Compensation law. For example, if an injured worker files a claim for compensability of a condition, and the employer carrier accepts that condition and provides Worker's Compensation benefits, that employer carrier may thereby waive the right to later deny the compensability of that condition. 

Phrased differently, the employer carrier may be "estopped" from denial. Under the current law, that waiver will not apply during the first 120 days after the accident, if the employer/carrier invokes the statutory right to "pay and investigate." This is set forth in Section 440.192(8):

Within 14 days after receipt of a petition for benefits by certified mail or by approved electronic means, the carrier must either pay the requested benefits without prejudice to its right to deny within 120 days from receipt of the petition or file a response to petition with the Office of the Judges of Compensation Claims.

Another waiver provision in the statute is found in Section 440.19(4). Section 440.19(1) and (2) provide a statute of limitations for the filing of claims regarding a work injury under the Florida law. Section (4) essentially says that an employer/carrier must raise the statute of limitations defense immediately, that is in its initial response, or the defense is waived: 

Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits.

An example I used in the House was a hypothetical back injury. Imagine the injured worker has suffered a potentially surgical back condition, and is under the care of the physicians selected by the employer/ carrier. The treating physician identifies a co-morbidity of high blood pressure (HBP), and believes that the high blood pressure must be brought under control before surgical intervention for the back can be attempted. That logic may or may not be explained by the physician, she may merely prescribe the HBP medication. 

Say that recommendation for HBP is either not noticed by the employer/carrier, or there is a conscious decision not to provide the treatment as it is seen as not related to the work accident (seen for whatever reason as a request to treat an unrelated condition, not as a request to control a condition to facilitate or allow treatment for the back). 

Therefore, a petition is filed seeking payment for a HBP medication, of nominal value ($40.00). An adjuster might initially be inclined to provide this prescription, get the patient cleared for surgery, and move the injured worker towards recovery and return to work. That is, if all the information is known. However, doing so may render the employer/carrier liable for HBP treatment for the rest of the injured worker's life. Providing a prescription today may estop the carrier from denying that HBP care in the future. An interesting waiver trial decision is here.

If that prescription is $40.00 per month, or about $500.00 per year, and the injured worker has a 35 year life expectancy, then this expense could be as high as $17,000. Thus, the adjuster is perhaps not making a decision about a $40.00 expenditure. He/she may be making a decision that could have potentially significant future impacts, even if it's never more than medication to control blood pressure. The impact is potentially more significant if the HBP later requires more extensive care and treatment, or perhaps becomes disabling at some point in the future. 

The statute of limitations decision is not significantly different in the analysis process. A call is received seeking authorization for a treating doctor to see the injured worker in follow-up, or to authorize a prescription. The adjuster may not have time at that moment to make a knowing, educated decision as to whether the statute of limitations has or has not run on the claim. But, the worker wants to be seen or to receive that medication immediately. If the adjuster authorizes care, then the case will be revived regardless of whether the statute has already run. Later, an auditor or supervisor with more free time may second guess or criticize a decision that revives an otherwise closed claim.

The injured worker may acquiesce in denial by the adjuster, and elect not to follow-up with the physician. That worker may her/himself pay the cost of ongoing medical care. Or, a petition may be filed. The response to that petition may be delayed while the statute of limitations or compensability question is answered or analyzed. At a minimum care may be delayed, or litigation instigated, or a worker pays for care that should perhaps have been provided. None are the outcome the worker wants, which is authorization for that appointment or prescription. 

From the claimant's perspective, there is benefit in future certainty. As I say that out loud, there's probably benefit to any of us in future certainty of any facts in our lives. However, the "waiver" laws that provide that certainty in some instances may create a bigger situation, currently, from what might otherwise be a relatively insignificant, and easier to make, $40.00 decision. 

Should the law encourage the carrier to take the chance on the $40 prescription, and expedite the injured worker care? Should the law encourage the carrier to provide the doctor visit, expedite care? If not for the waiver/estoppel provisions discussed, the potential long-term effects of today's decision, the adjuster might well simply provide that care and treatment. That care might be provided more rapidly, perhaps while the patient is in line at the pharmacy. The injured worker might benefit significantly from the ease of obtaining that care immediately, today. 

Is the injured worker better off with the prescription today, which may or may not actually be related, but which will expedite the care he needs for his low back? Or, is the injured worker better off with an insurance carrier that perhaps instead sees the potentially significant downside, and is therefore perhaps encouraged to litigate or at least delay based on the potential dispute of the relatedness of the high blood pressure condition now?

Waiver may skew behavior. Under the Florida Worker's Compensation law, an employer/carrier who receives a claim for a benefit, and does not assert the statute of limitations in its initial responsive pleading, waves the statute of limitations forever. A carrier that provides care beyond the 120 days may waive ever denying that treatment, and may be liable for other treatment for that condition.

Thus, when that $40 prescription is received, an adjuster might ordinarily find it beneficial and expeditious to simply approve the prescription. However, if that action may waive the statute of limitations on a claim or render a condition compensable forever, the adjuster may be disinclined to a rapid decision, and instead undertake an investigation. If provision of the prescription today did not forever effect the statute of limitations defense, the adjuster might today be inclined to provide the $40 prescription without a great deal of present analysis or investigation. 

The waiver and estoppel provisions in the statute alter the cost/ benefit analysis that perhaps is part of every payment decision. To the extent that these waiver provisions were removed, in no way actually altering the injured worker's present position, then faster and more rational decisions based on today's expense might be made in these cases.

What the injured worker would lose with such a change would be certainty about the future. The certainty that if a carrier pays for something long enough, the worker will be entitled to it forever. The certainty that if a mistake is made after the statute of limitations has run, then the case is reopened thereby forever. These are undoubtedly beneficial to injured workers, and they preclude some volume of litigation today. But, is it possible that these provisions facilitate or even encourage other litigation today?

Pennsylvania High Court Magnifies Protz

In September 2015, I penned As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional. That reference to Florida waiting for its Supreme Court to address any of the then pending constitutional workers' compensation challenges. Those cases have finally been addressed, See Westphal is Over, Questions Remain and Castellanos is Decided by Supreme Court. I have heard criticism of the Florida decisions, some directed at outcome and other directed at the extent or clarity of explanation. Courts are here to make decisions, and that usually will mean that someone is not happy. I therefore tend to find the criticism of explanation or clarity more interesting.

The Pennsylvania Commonwealth Court Protz decision in 2015 found fault with Pennsylvania's legislature's process in adopting impairment guides. It is worth noting that the concept of impairment guides is not some ancient and inexorable truth. In fact the first American Medical Association Guides were conceived in the 1950s and the first publication was 1971. That is not ancient history (watch it there you Generation X, Y, Millennials, Centennials, etc., some of us were alive "way back" in 1971).

In Protz, the injured worker underwent an Impairment Rating Evaluation or "IRE." The IRE physician assigned a rating (PIR) using the AMA Guides 6th Edition, which at that time was "the most current edition." That is critical because the Pennsylvania legislature required by statute that all IRE be performed using "the most current edition." As time passed, following that statutory enactment, the Guides changed. The Guides that were "the most current edition" when the legislation was passed (4th Edition) were no longer "the most current edition" when Ms. Protz underwent her IRE.

The fundamental legal issue analyzed here is called "delegation." In American government there is a tremendous amount of "delegation," where the legislative branches (federal and state) have authority over a variety of issues and powers and they delegate that power and authority to others. This is the "administrative process," and is the foundation of a vast spectrum of executive branch agencies. Each is created by an "enabling statute," and those statutes delegate specific authority. This case is about a derivation of that commonality, more exceptional, delegation of government authority to a private organization. 

Ms. Protz challenged the PIR assigned, asserting that the doctor should not have used the Guides 6th Edition, but should instead have relied upon the Guides 4th Edition which was in effect when the legislature adopted the Guides. The Commonwealth Court agreed with that argument in 2015, and instructed the Pennsylvania workers' compensation judge to reconsider her case using the Guides 4th Edition.

The jurisdiction of the Pennsylvania Supreme Court was invoked shortly thereafter, and now about 18 months later the Court has rendered its decision. Its decision is broader than that of the Commonwealth Court, and the implications are worthy of consideration by anyone with an interest in American workers' compensation. Arguably, the Supreme Court's analysis could be more persuasive on other states than the Commonwealth Court analysis.

It may be important, in a general sense, to consider delegation broadly first. The Pennsylvania Supreme Court was careful to temper its analysis with the precursor that delegation is in fact permissible. This is a critical point. How that delegation occurs, and the extent of that delegation must fit within constitutional parameters, but it is not per se improper. 

What is prohibited by the "non-delegation doctrine" is not delegation per se, but "incorporating, sight unseen, subsequent modifications to such standards without also providing adequate criteria to guide and restrain the exercise of the delegated authority." (Slip opinion at P. 16).

What is perhaps curious, in light of those statements, is that the Pennsylvania Supreme Court nonetheless concluded that the Pennsylvania statute is unconstitutional. As I discussed in As Florida Waits, Commonwealth Court Holds Pennsylvania Statute, North Dakota's Supreme Court was presented a near identical issue and concluded that language requiring “use of the ‘most recent’ or ‘most current’ edition of the AMA Guides should be interpreted to mean the most recent edition at the time of the statute’s enactment.” (Babitsky, §3.04) (McCabe v. North Dakota Workers’ Compensation Bureau, 567 N.W. 2d 201 (N.D. 1997). That Court's conclusion was based upon statutory construction and traditional analysis.

Indeed, the Pennsylvania Court noted that analysis. It said that legislatures are not presumed to "intend to violate the Constitution" of the nation or state. Therefore, the Court reminded that "if a statute is reasonably susceptible of two constructions, one that would render it of doubtful constitutionality and one that would not, we must adopt the latter." But, the Pennsylvania Court did not adopt the latter, that is the construction adopted by North Dakota's high court.

The Pennsylvania Court engaged in a brief analysis of what "most recent" would or could mean. It then concluded that it "must construe the 'most recent edition' requirement to mean the most recent edition in force at the time of the IRE" and rejected the possible alternative of "most recent" at the time of legislative adoption, which the North Dakota Court chose. The Pennsylvania Court rejected the interpretation that would have rendered the statute constitutional. There will perhaps be those who will be critical of the Court's espousal of a construction standard, followed by a seemingly contrary result. Or, perhaps some will believe at least that such an outcome might have been more thoroughly explained.

The Pennsylvania Court next turned to "severability," a concept that will perhaps confound many. This is a legal maxim by which a problem with part of a statute or rule might be deemed improper, and that portion alone would be removed leaving the remainder alive and vibrant. Think of a mole or a wart, which a dermatologist might remove specifically, leaving the body around it untouched and unaffected. Many state statutes have severability clauses that suggest and support that outcome. The Pennsylvania statute has such a clause.

But, the Court concluded that removing the "offending language" in this instance "would render the remainder of the Section 306(a.2) incomprehensible." The Guides, according to the Court are "critical context" to language in the statute that would otherwise be "hollow phrases." Thus, the Court concluded that this statute is a "paradigmatic (a "model" or "paradigm" example) example of a law containing valid provisions that are inseparable from void provisions." So, the Court concluded that both baby and bathwater must be disposed of together. That this is the outcome, from the election not to adopt a different interpretation of the language ("adopt the latter," see above) may be seen by some as troublesome and confusing.

Coincidentally, the Court noted elsewhere (slip opinion, P. 8) that a trial court "must explain the grounds of its decision in a reasoned opinion which will serve as precedent to guide decisions in future cases." See A Kentucky Constitutional Decision for some thoughts on the value of predictability and precedent. Some may ask whether such an admonition applies equally to appellate courts. Seemingly, appellate courts should hold themselves to the same standards to which they purport to hold trial courts. 

Ultimately, the IRE process in Pennsylvania is no more. The authority for that process, the entirety of Section 306(a.2) is unconstitutional completely. The infirm portion of the statute cannot be severed from the rest to allow any portion of that process to be used. 

Aside from that direct effect, the case "holding," there are critical points that are also worthy of note.

First, this decision is not an indictment of the American Medical Association, its process or intentions. The Court suggests some "parade of horribles" hypotheticals as to egregious conduct by which the Association could act inappropriately. Those examples may seem to some to be pure hyperbole and even insulting; some might suggest they were unnecessary to the opinion. The Court seems to desire to illustrate thereby the potential for bad behavior, thus bolstering the reason for delegation to be constrained by the law. In this regard, the analysis may make sense, but could likely have been explained better.

The Court was critical of the General Assembly delegation to the AMA without required "procedural mechanisms" that are "considered essential" protections of process under the law. The Court was critical that this statute (Section 306(a.2)) did not require "the AMA hold hearings, accept public comments, or explain the grounds for its methodology in a reasoned opinion." Such requirements, the Court said, would allow for "judicial review." These foundations are therefore a critical element in Pennsylvania delegation. 

Having assured the reader that the Court ascribed no ill will to the AMA, the Court then quoted critical comments from a 2004 article which the Court apparently found persuasive. Whether that article was part of the record (admitted in evidence) in this case, and had been subjected to the kind of inquiry that is legally required for such evidence remains unclear. If that article was not evidence, it is difficult to understand how those criticisms could be relied upon by the Court, having never been tested by cross-examination or other due process. Appellate courts are known to rely on information outside the record, such as articles and even Wikipedia (not subject to cross-examination and amenable to alteration and editing by virtually anyone with Internet access), but are contrarily critical of any trial judge who might do so. 

Second, delegation is not unconstitutional. There will be some who may jump from this Court decision to a simple and contrary conclusion. But, the careful reader will discern that such a conclusion is an oversimplification. The Court has not said that; it has said that this delegation is unconstitutional. Delegation is constitutional in Pennsylvania (and other courts have agreed regarding various states). In Pennsylvania, the appropriateness of this delegation is dependent upon the law including "concrete measures to channel" discretion, and "safeguards to protect against arbitrary, ad hoc decision making."

Delegation is constitutional when it does not extend unfettered discretion, affords a method of review and monitoring. One might argue that delegation is constitutional in Pennsylvania in the context of the Assembly adopting the AMA Guides, "most recent" edition, if the Court had adopted the statutory construction adopted by North Dakota's high court. That delegation, arguably, would pass the tests espoused by the Pennsylvania Court. 

Finally, there may be misconception that delegation is only appropriate when it conveys authority to another government entity, the kind of delegation that is discussed above and which is responsible for the formation of a vast spectrum of executive branch agencies. There is suggestion in Protz of that government versus private distinction. The Court noted that "private entities are isolated from the political process, and, as a result shielded from political accountability." But, recognizing that Pennsylvania precedent is hostile to  the delegation to private entities, the Court cautioned these precedents "have not unequivocally supported the . . . view that the General Assembly cannot, under any set of circumstances, delegate authority to a private person or entity."

The key point, according to the Court, is not whether the delegation is to a public agency or a private entity. The key point is "traditional constitutional requirements (i.e., 'policy choices' and 'adequate standards') are necessary whenever the General Assembly delegates its authority 'to any other branch of government or to any other body or authority." (emphasis in original). The issue the Court focuses upon is not the "if" of delegation, but the "how."

So, there will now be many discussions and debates about Protz. Does this analysis suggest broader issues? Some will suggest that there are implication for legislative adoption of treatment guidelines, pharmaceutical formularies, or medical service reimbursement schedules, to name a few examples. Will constitutional challenges similar to Protz seek to undo these and other delegations? Will it matter if some, such as the Medicare reimbursement constraints, are the product of our federal government and all of the due process that would seemingly entail? Will this Pennsylvania determination, interpreting the Pennsylvania constitution, lead to similar challenges and outcomes in other states? 

Fasten your seat belts, it may be a bumpy ride ahead!

The Opportunity to be Heard is Important

The Florida First District Court of Appeal rendered a decision in Jiminez v. United Parcel Services, Case no., 1D16-4959 on June 19, 2017. The case is interesting, and reminded me of a case I decided several years ago. 

The Claimant, Mr. Jiminez filed a petition for benefits, which was dismissed for lack of jurisdiction. As I have written before, jurisdiction is another way of saying "authority," and thus the Judge in this case concluded that he did not have the authority to hear the claim because it challenged the constitutionality of section 440.12(2), Fla. Stat., which provides:

(2) Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week. However, if the employee’s wages at the time of injury are less than $20 per week, he or she shall receive his or her full weekly wages. If the employee’s wages at the time of the injury exceed $20 per week, compensation shall not exceed an amount per week which is:
(a) Equal to 100 percent of the statewide average weekly wage, determined as hereinafter provided for the year in which the injury occurred; however, the increase to 100 percent from 662/3percent of the statewide average weekly wage shall apply only to injuries occurring on or after August 1, 1979; and
(b) Adjusted to the nearest dollar.

This is commonly referred to as the "maximum compensation rate." It is based on a calculation of the "statewide average weekly wage." A similar cap on benefits is part of multiple workers' compensation statutes in the United States. Several years ago I witnessed someone ask why states rely on these "maximum rates." That is interesting, and I have addressed it some in What is the Max Rate Payable? and What is Comp Worth? There is plenty to debate and discuss regarding both the existence and extent of maximum rates. 

But, procedurally Jiminez is also an interesting decision. The Court's opinion reminded me of a case I heard over a decade ago, Anderson Columbia v. Brown, 902 So.2d 838 (Fla. 1st DCA 2005). The trial order is here (see if you can find my egregious typographical error; spell check leaves you hanging sometime), and the appellate decision is here. I concluded in Anderson that the discovery sought in that case was "of little relevance to the issues before me." However, I recognized that the discovery "may or may not be relevant to the Court of Appeal in this matter."

The parties in Anderson conceded that I had no authority to make any determination of constitutionality regarding the statute. That is a power and authority that is beyond Florida Judges of Compensation Claims. For more on that distinction, and the way in which some other states may differ regarding judicial authority, see Another OK Court Challenge. As the issue the parties in Anderson were disputing was a constitutional decision, I agreed with their consensus that I had no authority to decide the issue. 

However, I concluded that it was appropriate for such issues to "be raised in this proceeding, for preservation of the record." I therefore concluded that whether the documents sought in discover were or were not relevant to the issues before me, they might be relevant to a decision for "the tribunal which will decide"; the constitutional issue, before the First District Court. 

The issue before me was not whether the statute was constitutional or not, nor whether the documents sought in discovery were relevant in that question or not. The issue before me was whether those documents should be produced in discovery. Discovery is not governed by whether requested documents are "relevant," but (back in 2005) whether that discovery was "reasonably calculated to lead to the discovery of admissible evidence." In other words, was it likely that the documents sought would contribute to the understanding of the matter by either being admissible or helping the parties find evidence that was admissible. 

I ordered that the documents be produced. The Employer/Carrier sought relief or protection from the Florida First District Court of Appeal. The Court agreed with my order. Essentially, the Court concluded that it is appropriate for parties to make arguments, to make a record, before a Judge of Compensation Claims on issues that the Judge cannot decide. This record then is the foundation for the Court, exercising its broader jurisdiction as a constitutional court, to decide those issues which are not within the Judge of Compensation Claims' jurisdiction or authority. 

Anderson Columbia has been periodically relied upon by the Court since that time. In Punsky v. Clay County Bd. of County Com'rs, 60 So.3d 1088 (Fla 1st DCA 2011), the Court said "That does not mean, however, that claimant was prohibited from creating a record in support of his constitutional challenge." In Russ v. Brooksville Health Care, Ctr., 109 So.3d 1266 (Fla. 1st DCA 2013) the Court reiterated "A JCC's inability to rule on constitutional issues does not preclude a claimant's right to build an evidentiary record in preparation for a constitutional challenge." In Govea v. Starboard Cruise Service, Inc., 212 So.3d 456 (Fla 1st DCA 2017) the Court reminded the "Claimant was not prohibited from creating a supporting record below." 

The Court has concluded that a party seeking to build such a record is entitled to "an evidentiary hearing." That hearing opportunity is the procedural path by which the party can mount a constitutional challenge. The opportunity to be heard, which includes the opportunity to conduct discovery in some instances and to submit evidence, is a constitutional right of immeasurable value and effect. It is discussed in recent posts like Notice and Opportunity to be Heard and Wondering Whether to Object.

That does not mean that the maximum rate statute is or is not constitutional, or that it is or is not appropriate public policy. The real point at this stage is that if someone makes such a challenge to a statute, it makes sense for them to have an opportunity to discover and submit their evidence (build a record) so that a court with the appropriate authority (jurisdiction) of the constitutional question can decide that issue. 

Jiminez v. United Parcel Services just reminds us of that process.