"The" Post

In the 1970s, there was an odd movie produced by Neil Simon: Murder by Death. It included a cavalcade of talent including Eileen Brennan, Truman Capote, Peter Falk, Alec Guiness, Peter Sellers and more. For the "non-boomer" reader, these were once Hollywood superstars, one and all. Neil Simon was a prolific writer responsible for shows dating to the 1940s. This movie is sometimes confused with Clue that followed the next decade, perhaps because that too starred the unparalleled Eileen Brennan. 

Murder by Death featured jokes with more offense. There were unfortunate plays on words, ribald jokes, and various exhibitions of inappropriate intolerance. It is most doubtful that such a film would be released today. In just one such unfortunate string of dialogue, the writers belittle a Chinese detective who has made various statements without including "the." The character played by Truman Capote loses his temper and the following exchange occurs:

Sidney Wang: What meaning of this, Mr. Twain? 

Lionel Twain: I will tell you, Mr. Wang, if YOU can tell ME why a man who possesses one of the most brilliant minds of this century can't say his *prepositions* or *articles!* "What IS THE," Mr. Wang! "What IS THE meaning of this?" 

Sidney Wang: That what I said! "What meaning of this?"

I am not sure why, but that exchange stuck with me over the years. It is likely how I first remembered the part of speech called an "article." I am not sure why we need to know such labels, but I recall one of my grade school teachers finding importance there. 

I was reminded of this exchange, and the article "the" when I recently read Is this the most Powerful Word in the English Language? on the British Broadcasting Corporation (BBC) website. The author makes a case for the primacy of the ubiquitous "the," despite it not being "descriptive, evocative, or inspiring." Perhaps its influence is in frequency; we are told that it is the most frequently used English word in English, "accounting for 5% of every 100 words used.“ The is pervasive. 

This article proceeds to explain that "the" and other words like it are "functional words." It/they help us to "make sense" of nouns as either "a subject or an object." Thus, we have a distinction in our expression between "I ate an apple" and "I ate the apple." There is a "signal (of) something important" with "the." It focuses us on the distinction that is this particular apple. With "the," we perceive importance in what follows, a particularity. An interviewee for the story reminds us that words are not necessarily singularly important, but instead "power in language comes from context."

It is also noted that "the" does not exist in all languages. Instead, some languages utilize "an affix" on the end of a word to denote the particular rather than general connotation between "an apple" and "the (particular) apple." Other languages use neither such an affix nor an article. Therefore, those who natively speak other languages may struggle to "construct a sentence in English," because of the reliance it places on articles. There is therefore the factual foundation for why Mr. Wang might struggle to utilize such an article. 

The article notes that even native English speakers may be markedly different, specifically referring to "British and American English." It concludes that the British are perceived as opting for "the" in instances in which Americans do not. I have long been distracted when a British speaker says someone is "in hospital." But, it contends that we are perhaps not even consistent individually in our use of "the." And, as curious, we are not necessarily consistent between our verbal and written use of "the." It is considerable, with "the" generally occurring "about a third less in spoken language."

There is allegedly or perceptively also a gender issue. The article says that men are more likely to use "the." A provided explanation for this is troubling, referring to tendencies to "take the voice of authority." It notes also that "those in higher status positions also use ‘the’ more," perceived by some as "a signal of their prestige and (self) importance," as in "the prime minister" or "the president." The same is asserted regarding the use of "the" to convey the importance of a thing such as "the migration problem." Thus, a potential that articles convey emphasis in some instances and distinction in others. 

The real point, of course, is that our speaking and writing are challenges that we face. Our language use, consistency, and tendencies may stem from our native language, our education, and more. We are different. That does not mean we are right or wrong (despite what my grade-school teacher insisted with her red pen), merely different. There is strength gleaned from our struggle to master language, but also in our acceptance of the use others make of it. That one does or does not use prepositions or articles as you would is not a reflection on them as Lionel Twain intimates in the movie. 

Judgment based on word and language choice is not helpful. Instead of becoming distracted by some missing article, let us strive to focus on the merit of the idea expressed. Perhaps the point is in the details of what is said more than in the articles, prepositions, and verbs. If we allow ourselves to be distracted by the missing article or word choice, perhaps we could miss the point?

We Don't Need You

The ABA Journal recently published Judge tells lawyer . . . the profession doesn’t need him. This is an intriguing tale worthy of attention from a variety of perspectives. The story involves an attorney with an antagonistic attitude and a proclivity for coarse language. The attorney sent emails to opposing counsel that were unprofessional and insulting. So insulting, even the full title of the ABA article is truncated here. I am appalled by the selection of language and the lack of professionalism exhibited. The attorney is fortunate that the trial judge there concluded the incendiary behavior was not the client's but only the attorney's. 

I have known lawyers who became incendiary, caustic, and rude. Litigation can be fraught with delay, denial, and deflection seemingly at every turn. The disappointment and frustration of the parties can wear on an attorney. Through the course of litigation and negotiations, lawyers absorb and suffer from a great deal of other people's stress. That can affect us emotionally and even physically. We have to find ways to deal with our stress. 

The ABA story involves litigation. The plaintiffs were represented by Mr. Christopher Hook, who apparently practices in Culver City, California, steps from Venice Beach, Marina Del Rey, and the Santa Monica Pier. If you have not visited the area, I recommend it. The plaintiffs are said to have suffered "a water loss that forced them from their home." One of the lawyers in the case contended that it was "a $200,000 dispute." It is not uncommon for attorneys to view cases from different perspectives, or to value them disparately. 

Despite that particular estimate or contention, it is alleged that Mr. Hook submitted a "$125 million settlement demand" to the property insurer. When that apparently did not elicit the response that he desired, his demand apparently escalated to "302 million." It is perhaps fair to say that negotiations were less than cordial, at least periodically; some might use other adjectives. Mr. Hooks' emails as quoted in the press are so inappropriate, in the famous words of Doug Neidermeyer, "decorum prohibits listing them here." But, it is fair to say that there appears to have been frustration and stress. 

The story has made headlines. You could read of it in The Washington Post, the LA Times, and of course the ABA Journal. It reminded me that Phineas T. Barnum is credited with saying "There is no such thing as bad publicity," but perhaps there are limits to that maxim? There are plenty of opportunities above for the reader to depart these tranquil pages and immerse themselves instead in the alleged vulgarities, insults, threats, and disrespect. Mr. Hook may revel in that publicity. 

But, his clients reportedly found themselves in court in December to answer a show cause order. Such orders are really only questions posed in the judicial capacity. Many attorneys take such orders as per se accusatory, or even threatening. While it is entirely possible for one to be so, it is also possible for such an order to simply be the equivalent of the old conversation point "correct me if I'm wrong." It is a method for a judge to impart what she/he perceives and allow the parties to a case to provide contrary evidence or repudiation explanation. Show cause orders are expeditious paths forward in litigation. 

These clients, it appears, faced dismissal of their lawsuit against the property insurance company. The language and behavior of counsel was so marked that a judge was considering the ultimate sanction of dismissal. That potential dismissal was foregone only after the clients explained to the judge "that they had no idea that Hook was sending emails" of this demeanor, tenor, and tone. Consider that for a moment. A party's chance to have a day in court, to confront the other side, to put on its evidence, to have its say, could be foreclosed as a sanction in response to bad behavior, low-class language, insults, and threats. 

In most instances, the Supreme Court of a state has responsibility for the licensing and discipline of lawyers and constitutional judges. The responsibility for administrative judges may be in the executive branch, but that may not preclude a Court from sharing its perceptions, see Deeply Concerned (November 2019). As the licensing authority, those courts have an obligation to the public and the profession to require both compliance with ethical rules and the aspirations of professionalism. 

In general, there is some perception that the Florida Supreme Court has become increasingly focused on both the conduct of attorneys and the deeper need for professionalism. The establishment of the Henry Latimer Center for Professionalism is part of that effort. Also notable, the Court has recently rejected various discipline recommendations regarding attorneys, and delivering more stringent punishment. Some may recall a 2019 case in which a recommended three-year suspension was rejected by the Court, and the attorney was instead disbarred. See Aggressive without Being Obnoxious (August 2019).

Well, in California, it is possible that the alleged author of these hateful emails may have just such an opportunity to address the allegations. The Judge before whom Mr. Hooks was appearing, in that case, was seemingly immune from various arguments and excuses regarding the word choices. Judge Wright was dismissive of Mr. Hook's contention that his comments were protected by the First Amendment. Reportedly, Judge Wright "slammed his hands on the bench" during this hearing "and said he had never seen such behavior."

Judge Wright also noted the contention that Mr. Hooks had apologized for his behavior. At one point, the judge apparently pointedly asked to be directed to when an apology had been made, as he had "asserted in court papers." When making an allegation, it is advisable that an attorney be able to point to the record in support. 

Judge Wright was also apparently as unpersuaded by Mr. Hooks' assertion that the emails could not be held against him because they were "unauthenticated." The Judge reportedly took issue with Mr. Hooks' arguments and legal ability, at one point questioning "You did go to law school, right?” The Judge was nonplussed and even dismissive. At one point, allegedly, telling Mr. Hooks simply to "Shut up." Judge Wright suggested that Mr. Hooks should not be an attorney.

Whether these various emails were sent, and whether they say what is alleged, are matters of fact. But, if they were, the content is scurrilous. inflammatory, and unprofessional. That we all say things we do not mean or wish we could unsay, is a fact. Generally speaking, when we do so, a sincere apology and an acknowledgment of responsibility are the best course.

If an ethical complaint is brought against Mr. Hooks, it will be considered in a unique Bar Court, as discussed in Don't Double Down Dummy. The Court will make its findings and then perhaps make a recommendation to the California Supreme Court regarding Mr. Hooks. It is important to remember that his defenses may be authentic. It is possible Mr. Hooks did not say those things. It is also possible that he did and now understands that they were inappropriate, hurtful, and wrong. Emotions may be governing intellect as this saga continues. 

I have perceived over my few years in this profession that the Courts seem to value contrition, the taking of responsibility, and the earnest focus on improved behavior. That said, this profession has much to protect. Its members are responsible for preserving the rights of clients, in some instances their very lives and livelihoods. The conflicts are real. They are stressful. They are frustrating. And, we are all imperfect. But, we have to maintain decorum and strive for professionalism. We cannot resort to hate and vitriol, even when our anger, frustration, and despair are overwhelming. 

The Judge allegedly said to Mr. Hooks "This profession doesn't need you." If the allegations are proven, perhaps Judge Wright is correct. Perhaps the California court will conclude that civility, demeanor, and decorum are both preferred and required. Time will tell. Next time your frustrations take you to poor word choice or anger, acknowledge the error, own it, apologize, and regroup. A stonewall defense such as denial and deflection is likely to lead only to more frustration, stress, and pressure.

Recognizing Service - Broward

Today is a proud and momentous day in Broward County. 

It has been several years ago that the Workers' Compensation Institute founded the Florida Workers' Compensation Hall of Fame. That has been outlined and discussed in Florida Hall of Fame (August 2019), and A Reminiscence and a Challenge (February 2016). Suffice it to say that our Florida workers' compensation community is replete with so many long-serving and dedicated professionals. We are indeed fortunate for their presence and contribution. Since that Florida effort began in 2012, other states have worked toward such recognition. Kentucky leaps to mind. 

This week, however, a local Florida bar association enters the recognition process. The Broward Bar Association tomorrow will "commemorate some of the greatest contributors to our organization and the practice of Workers Compensation in our state," according to Diana Castrillon, a member of that organization's board. It will present the inaugural "Broward County Bar Association’s Hall of Fame Award." This is a recognition of contribution to the community and the practice of workers' compensation. 

Ms. Castrillon noted that the recipient is "one of the founding members of the Broward Bar’s Workers Compensation Section," as well as one of its original board members. This legend of workers' compensation is moving into retirement and is remembered in the community for his efforts contributing to the annual Broward Section educational conferences, establishing and fostering primacy of professionalism in that community, and focusing the practitioners on the community and contributory aspects of this profession. 

Ms. Castillon says that his efforts are recognized as promoting education, and the discussion of "professionalism and ethics" to create "a stronger, better Bar." She credits this honoree's efforts with building a sound foundation of the Broward Section; "the group that we are today started with his hard work as well as that of other key members of our local community of practitioners." In addition, she noted he is "a consummate professional," known for his attitude of "utmost respect" with all the members of the Broward Bar workers' compensation community. 

Thus, on February 27, 2020, the Broward Bar Workers' Compensation Section will honor Mal Steinberg as the inaugural Hall of Fame inductee. It has been my pleasure to know Mr. Steinberg for about twenty years. I have had numerous opportunities to interact with him both in conjunction with the Broward Bar activities and elsewhere. It is my pleasure, upon his retirement from practice, to congratulate him on this honor. 

Mr.. Steinberg was most recently "the senior partner in the Law Offices of Steinberg & Brown in Fort Lauderdale." He is what we colloquially refer to as a "double gator," having earned both his Bachelor of Science in Psychology and his Juris Doctor from the University of Florida. He has been practicing law in Florida since 1973 and is approaching the fifty-year mark as he retires. For 46 years he has specialized and focused on "primarily representing the interests of employer/carriers throughout the state." 

In addition to his service on the Board of Directors for the Workers' Compensation Section of the Broward County Bar, he has served the American Arbitration Association, the Academy of Florida Trial Lawyers, and the Friends of 440 Scholarship Fund, Inc. His service to the Friends of 440 has been notably long and outstanding. He is the recipient of numerous recognitions including the Friends of 440 Outstanding Achievement Award (2006) and the Friends of 440 Richard Sadow Award in 2012 (as depicted in the picture at the end of this post, courtesy of the Friends of 440, and presented by Cory Schnepper). 

Mr. Steinberg has lectured before the Workers' Compensation Claims Professional Association (WCCP), the Florida Bar Workers' Compensation Section Winter Meeting and Seminar (multiple times). the Broward County Bar Workers' Compensation Section Seminar (multiple times), and more. His dedication to the education and development of the Bar and its members is well-known and praiseworthy. He has also been a long-serving member of the 17th Judicial Circuit Grievance Committee for the Florida Bar. 

I am proud of the achievements and contributions Mr. Steinberg has made to his local community and the Florida workers' compensation community. I am as proud of the Broward County Bar Association Workers' Compensation Section for pausing to recognize his achievements and contributions. Its action marks a recognition of Mr. Steinberg certainly. But, as important, its chosen vehicle of a Hall of Fame recognizes that there are many in that community that are worthy of recognition. This presentation is a present action that foretells future recognition of others. 

I am pleased and grateful for the Bar's decision to institute this process. I am honored to be able to write about this inaugural induction and recognition. I only wish I were in the audience today. It is my fervent hope that the action today is a harbinger of many recognitions to come in the future. I hope you will join me in congratulating both the Bar and Mr. Steinberg.

Chatbots and Friends

The British Broadcasting Corporation recently ran A chatbot pulled me out of a 'really dark place'. It struck me for two reasons: the invasion of technology continues, and the time we spend on our screens is intriguing. 

The story focuses on a cancer survivor who experienced emotional issues following her diagnosis and the death of "her best friend." She complained of diminished motivation, and chose to turn to an online "mental health chatbot, called Vivibot." This is an application offered by a "social community for people affected by cancer," and is one of many chatbots said to be offered for mental health. 

While this cancer survivor lauded the bot, even those who design them admit that such applications "cannot treat clinical depression or clinical anxiety." They stress that these are not a replacement for "human interaction of any sort." The story quotes others who are critical of the bots. One says "They make you believe that, if you just look on your phone and do a couple of self-help kind of things, that's going to take the place of the healing nature of a healthy relationship." 

One of the criticisms in this respect is the lack of "non-verbal communication" that is employed when people interact in person. There is a perception that the "non-verbal" element is important in our interactions and perceptions. Despite this, the technology is said to be increasingly popular. Certainly, this may be driven in part by generational acceptance of technology. But, some even cite "research (that) suggests that people are more honest with robots than with fellow humans. That seems supportive of an acceptance that is beyond generational. 

The technological evolution is expected to continue, and some project that "artificial intelligence (AI) might be advanced enough to have a deep understanding of human mental health." Some predict "human-level AI in 2029," though it is only getting started in medicine. There is a perception that AI is coming to medicine, is suited to medicine, and is an inevitability. The real question seems to be whether we will relate to the technology and find solace in it for mental health issues. Thus, the implication is not whether it comes, but instead will it replace or enhance human therapists? 

About the same time as that story, various news sources broke word of proposed legislation against technology: Vermont bill would ban cellphone use by anyone younger than 21. The sponsor of this legislation concedes that it will not become law. In fact, he was quoted saying "I wouldn't probably vote for it myself." But, he seems to espouse a belief that we are too focused as a society on these screens and apps. Certainly, while driving that has been deemed to be a sufficient problem to drive legislation. 

There are critics of the Vermont proposal, cited by news organizations such as CNN. Some note the parallelism in the proposed bill and other bills that seek to limit access to weapons. The sponsor seemingly admits that his bill is intended to highlight conversations and legislation about gun possession by those under 21. However, there may be arguments against children having cellular phones. The Very Well Family site concludes that this is appropriately a parenting decision, rather than a legislative one. 

There are a variety of complaints about screen time generally. Rally Health summarizes the connections between screen time and various health conditions. The concerns included the promotion of a sedentary lifestyle, and the body's production of dopamine and melatonin. In short, there are reasons perhaps for concern. If these concerns prove valid, there may be room for discussion as to whether we are sufficiently benefited by health apps to justify the screen time that we would amass in using them. 

In the end, the evidence seems to suggest that we thrive on personal interaction. As technology permeates our society, technology encourages our isolation. We order goods instead of shopping. We appear for hearings or mediations by telephone. We send an ultimatum warning by email or text instead of discussing (interactive conversation, to "consult") a motion. And now, when we find that isolation troubling, a segment of our population does not turn outward to social settings, but instead to still more technology in the form of interactive bots. 

Timothy Leary encouraged us in the 1960s to "turn on, tune in, drop out." Perhaps in that age, this was sound advice. But the converse seems a better adage for today. It seems we would all benefit if we could instead "turn off, tune out, and drop in." There is value in human interaction. We should strive to find it, to engage our professional peers and friends in an interactive and personal manner. Our technology-enabled isolation is not healthy and the solution is not more screen time. 

The cure for isolation is engagement and interaction. We have to work to re-establish it. We must all remember that the "a" in AI is "artificial." While apps may help us, I suggest actually being with people, and interacting with people, will help us all more.

Arbitration News in Workers' Compensation

Most practitioners are surprised to learn that Chapter 440 (the Florida workers' compensation law) includes an arbitration provision, section 440.1926. This provides that 

"the employer, carrier, and employee may mutually agree to seek consent from a judge of compensation claims to enter into binding claim arbitration in lieu of any other remedy." 

That is, the parties could stipulate to have their dispute decided by someone other than the Judge of Compensation Claims. Of course, that would require the assigned JCC's consent. It is another instance in which the Legislature has recognized that JCCs are not a "court," specifically providing for an interpretation in which JCCs are equated with a "court" in this specific instance. Chapter 682 governs the arbitrations, and as used therein "the term 'court' shall mean a judge of compensation claims." 

The subject of arbitration recently came to the fore with a decision from The Florida Fifth District Court of Appeal in Hobby Lobby Stores, Inc. v. Cole, Case No. 5D18-3809 (January 3, 2020). This is similarly a workers' compensation statutory issue that was not heard before a Judge of Compensation Claims. There is a provision in the workers' compensation law intended as a protection for injured workers, section 440.205. It is short and succinct: 

"No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law." 

Because the statute does not specify that such claims would be heard by judges of compensation claims, the Florida Supreme Court concluded years ago that such issues are within the jurisdiction of Florida's court of general jurisdiction, the Circuit Courts. See Smith v. Piezo Technology, 427 So. 2d 182 (Fla 1983). Thus, Mr. Cole's claim for "wrongful discharge" proceeded there, and was appealed to the Fifth District. 

Hobby Lobby responded to the civil complaint by filing a "motion to compel arbitration." The employer had hired Mr. Cole in 2015. Also in 2015, Mr. Cole and the employer signed "a two-page, single-spaced document" which "conditioned Mr. Cole’s employment on his acceptance of its terms." He contended that thereafter he was the target of "antagonistic conduct, culminating in his discharge." This agreement stated 

"that any employment-related dispute Mr. Cole had with Hobby Lobby, including '[d]isputes involving interference and/or retaliation relating to workers’ compensation,' would be submitted to and settled by final and binding arbitration." 

The agreement required the Employer to pay all arbitration costs, and allowed Mr. Cole to "select from two sets of arbitration rules." 

Finding this short agreement "unconscionable," the trial court denied the Employer's motion to compel arbitration. Relying upon an affidavit from Mr. Cole, the trial court concluded that Mr. Cole did not understand the contract, had no knowledge of "what an arbitrator or an arbitration was," nor understanding that he was "waiving his right to a jury trial." He also complained that he was not told he could consult with an attorney regarding the agreement. Finally, he concluded that "he believed he had no choice but to sign the agreement to get and keep his job." 

The Fifth District reminded of a three-part analysis for the application of a mandatory arbitration agreement: 

“(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” 

It concluded that there was "no dispute that Hobby Lobby met all three prongs of this test." The Court next examined the conclusion of "general contract defenses, including unconscionability." 

The Court described "a court must conclude (such a contract) is both procedurally and substantively unconscionable." It reminded that "the party seeking to avoid arbitration bears the burden to establish unconscionability"; that is, Mr. Cole had to prove it was applicable. 

The Fifth District noted that the "trial court relied on California law. In California, “[a]n arbitration agreement that is an essential part of a ‘take it or leave it’ employment condition, without more, is procedurally unconscionable." But, Florida has not adopted that view of unconscionability. While the "take it or leave it" nature may be relevant, it is not dispositive of the question here. The Court explained that Florida employs various factors worthy of consideration: 

“(1) the manner in which the contract was entered into; (2) the relative bargaining power of the parties and whether the complaining party had a meaningful choice at the time the contract was entered into; (3) whether the terms were merely presented on a ‘take-it-or-leave-it’ basis; and (4) the complaining party’s ability and opportunity to understand the disputed terms of the contract.” 

The Court noted that Mr. Cole had not demonstrated an inability to read the agreement or that he was "pressured, rushed, or coerced . . . into signing it." Furthermore, "He makes no allegation that he lacked a full and fair opportunity to inquire into the Agreement’s terms or to enlist help if confused." Therefore, the Court concluded that "the trial court erred in finding the Agreement procedurally unconscionable." 

As to substantive unconscionability, the Court noted that the trial court relied upon 4 points in concluding that the contract was "so unreasonable and unfair" that it should not be enforced: 

"(1) the Agreement required Mr. Cole to forfeit his right to a jury trial; (2) the Agreement truncated the statute of limitations for tort claims to one year; (3) the Agreement did not define which arbitration rules apply; and (4) the Agreement required Mr. Cole to pay Hobby Lobby’s attorneys’ fees if he contested the Agreement in court." 

The Court found no merit in any of these four, concluding that (1) "all arbitration agreements waive the parties’ right to a jury trial," and "the Agreement’s plain language contravenes the remaining findings." The Court concluded that "ultimately, there is no basis to conclude the Agreement is substantively unconscionable."

The takeaways from this Court's explanation are noteworthy. First, trial judges should look to Florida law when determining issues. Reliance on the law of another state should never be the first resort in such analysis. Second, arbitration clauses are enforced by the Courts of Florida. That may mean that employers are encouraged to utilize them in hopes of evading court litigation. Third, it might be that some will seek to include workers' compensation determinations in such agreements. The sole obstacle then might be the required JCC approval post-accident. Finally, anyone entering a contract is well advised to take the time to read and understand what is being agreed. Before signing, it may behoove one to ask an attorney questions about precisely what is intended and meant. 

It may very well be that signing some agreement may be the only choice offered in any exchange. But, even in that context one still has the choice to decline such a contract and seek an alternative elsewhere (there are many places to work). At a minimum, one might seek alternate language in that contract/agreement. In the end, one might still elect to sign such an agreement. But, the decision to do so should be with an understanding of its implications and knowledge of its terms. We alone decide what we sign. We owe it to ourselves to read, understand, and question before we do.

HB 1147 and the Electronic Medical Record

House Bill (HB) 1147 was filed on January 7, 2020, by Representative Payne. A similar Senate Bill (SB) 1882 was filed on January 13, 2020, by Senator Lee. Those who are familiar with the Florida Legislative process will know that a new law usually requires two bills, one in each chamber. They are each generally referred to committees for consideration. That process is a great feature of the Florida process because anyone can appear at a committee meeting to hear the discussion, and everyday people may sign up to comment on a bill at those meetings. 

HB 1147 would add paragraph (3) to section 394.4615, Fla. Stat. This would afford a "service provider" fourteen working days to "furnish clinical records in its possession" following a request. And, the provider would be required to provide them "in paper form or, upon request, in an electronic format." Those providers that maintain and "an electronic health record system" are required to provide the "records in the manner chosen by the requester," and the options "must include electronic format, access through a web-based patient portal, or submission through a patient's electronic personal health record." Thus, the provider that elects to maintain records electronically may be compelled to produce them electronically. Photocopies can create costs, remember What is a Photocopy Machine? back in 2014? (May 2014).

The change may be significant, because section 395.3025(1), Florida Statutes, already provides that charges for "nonpaper records . . . are subject to a charge not to exceed $2." That same section limits the charge for paper records to $1 per page. Thus, a 100-page composite of records kept in paper form could potentially result in a charge of $100.00 compared to the $2.00 charge for an electronic copy (plus a search fee of up to "$1 may be charged for each year of records requested").

HB 1147 would also add new subsections to section 397.501(7), Fla. Stat. This would afford a similar fourteen working day period within which a provider of substance abuse services would have to provide a copy of records. It institutes a similar constraint on those who "maintain an electronic health record," and mandates that such a provider must afford options to the requester as described in section 394.4615. Paragraph (7) would also have a subparagraph requiring such providers to afford record access (for examination) to both requester and "legal representatives." The deadline for providing that access is only 10 working days. 

For nursing homes, HB 1147 would amend section 400.145 to require that facilities provide a response to a written request from a resident "within 24 hours, excluding weekends and holidays." The actual copies of those care records would have to be provided "within 2 working days." 

The bill would create section 408.833, Fla. Stat. This chapter of Florida Statutes is focused on hospitals, hospices, and other care facilities. This would echo the provisions above regarding the fourteen working day parameter and the constraints requiring that a requester be given the electronic option if the provider maintains an "electronic health record system." There are also changes in the bill where statutes currently require record production "in a timely manner," to the fourteen working day requirement (section 456.057). 

There are some reference corrections also in the bill. These are instances in which a law makes reference to another section of the Florida Statutes. As the law evolves and amendments are passed, those referential paragraph numbers and letters can change. Various such references to other statutes are accordingly amended by this legislation. 

The overall impact of these changes would seemingly be more rapid access to medical records. The potential for eliminating or perhaps minimizing the use of paper (and the costs and effects of shipping it) is also noteworthy. The limitation of copy costs may have a significant effect on the workers' compensation system, in direct expenditures. And, finally, those who request records and wish to store them digitally will perhaps no longer be faced with the scanning of records produced in paper form. 

Since its introduction, HB 1147 has moved expeditiously through the hearing process. It was reported favorably by the Health Quality Subcommittee on January 20, 2020, by the Health Care Appropriations Subcommittee on January 28, 2020, and by the Health and Human Services Committee on February 12, 2020. It was placed on the House of Representatives "second reading" calendar that same day and is awaiting further action on the House floor. 

Senate Bill 1882 has not yet been heard by a committee. Upon filing, the bill was referred to the Health Policy Committee and the Judiciary Committee, and the Rules Committee.

Update 02282020: The following counter point was provided by email and is reprinted here with permission:

 

We recently read your opinion on medical record fee legislation in Florida, House Bill 1147 here. 

Ciox Health is a medical record reproduction company that works on behalf of medical providers as a HIPAA business associate and fulfills record requests by entities like health insurers, medical providers, auditors, liability insurers, attorneys, and patients, to name a few. I have represented Ciox Health, formerly known as HealthPort Technologies, since 2012. Ciox is charged with protecting patient privacy under a myriad of state and federal privacy laws while responding to requests for production of records. In order to adequately protect patient privacy and comply with a legal and valid request for records, Ciox must review every page of the record screening out any information that was not authorized to be released by the patient, or that is protected by various privacy laws. Reproducing a medical record is not as easy as pushing a button or copying a file. There is real privacy work being done when a request for records is made. This privacy work is performed by specially trained individuals who undergo regular training and receive periodic updates on everchanging laws, and many times then reviewed by the physician and their attorney. The longstanding business model for this industry has been to charge the requestor for the production of the record. To make the health care providers bear this financial burden would merely increase the cost of healthcare as medical providers primary source of revenue is obtained from providing medical services. 

Implementing exorbitantly low fees in law for the reproduction of medical records is devaluing patient privacy and shifting any financial burden back to the patient themselves through the increased cost of healthcare. Please also keep in mind this is not an issue of patient access to medical records. Patients already have a guaranteed right of access to their medical record afforded them under HIPAA. HIPAA even prescribes the fees a medical provider or their business associate may charge a patient for requesting their own record and it should be no surprise the fee is limited to the actual labor involved in copying the record plus any material costs. That is because the patient is entitled to their record without the privacy protections. However, when a patient authorizes an attorney, insurance company, or other third party to obtain a copy of their medical record they do so with certain limitations only permitting the third party to obtain the records typically necessary and related to their relationship and while upholding the aforementioned state and federal privacy laws. 

The Board of Medicine spent several years and over 38 public hearings on the adoption of a rule revision for the cost of records. The rule was challenged all the way to the Supreme Court and we participated in the proceedings all the way through the challenges. One item discussed what your reference to electronic, paper, and non-paper records. The rule is very clear that paper and electronic copies of those paper records are the same fee. Non-paper records are historically defined in rule as microfiche and x-rays. Your reference to a $2 charge is for microfiche and x-rays, not the electronic version of a paper record. It is important to note the difference and not confuse the two. There was much discussion on that point during rule adoption that I am sure was not shared with you.

 

In summary, medical providers and their business associates are the gatekeepers protecting patient privacy and protecting patient privacy is not free or cheap. When a third party who is going to use the record for financial gain requests the record and thereby risks a breach of patient privacy, it is only fair that the third party compensate the provider or business associate for the labor, resources, and materials involved in protecting the patient's privacy before disclosure. 

Bring Value

I recently had the opportunity to speak to a group of young people. They are on verge of their future, which affects us all. As we age, these young people will come to be in charge of our communities and our world. We will be the beneficiaries of their success and their missteps. As one generation fades to retirement, another takes up the initiative of leadership, within government, business, and the community. 

In such settings, I remind young people of the shrinking world. The information superhighway, world wide web, Internet, bring us all information in increasing volume and with unfathomable speed. Certainly, the information is not all valid, verifiable, or accurate. But, there is a lot of it and it is easily obtained. Similarly, robotics is marching forward, changing our world. Its progress will affect employment. Artificial intelligence will similarly affect another segment of employment. Innovation will pervade workplaces as worker tools, and efficiency enhancements, and will then claim some volume of jobs. 

Prior to that conversation, I recently ran into someone at a luncheon. She celebrated having worked over thirty years in a singular career. There is perhaps no shock at that, because today we periodically encounter those who have such continuity. But, this lady worked all those years for a single employer, which is somewhat more rare. While some of today's students may in fact reach retirement after such a singular path, prognosticators find that unlikely. Increasingly, today's students need to be focused on the world that stretches before them, and the changes that will come to them as they progress toward whatever horizon they elect. 

This conversation with youth led to a question about planning, anticipating, and reacting to the changes that this "next generation" will face. Certainly, we may perceive the onset of changes as more rapid, systemic, or pervasive than what our generation faced. But, that may not be valid. There are various generations in American society today: The Silent Generation 1925-45; the Boomers born 1946-64, the Gen X born 1965-76, Gen Y 1977-95 (Millennials), Gen Z 1996-2009. Each of these has faced challenging and systemic change. Perhaps we tend to see the changes in the future with more trepidation, as we minimize those changes and challenges faced in the past? 

The Silent Generation began two years before television was invented. Also in 1927 the first movie with sound was released. This generation was born into the midst of the automobile becoming influential, effecting serious change in the rural environment and beginning the phenomenon of suburbia. The Silent Generation faced systemic and life-altering change. 

The Boomers were born into a post-World War II environment. The U.S. had just ended a conflict with nuclear weapons, and in 1949 the Soviets joined that club. The Cold War would work change and anxiety for a generation and beyond. The planet chose sides, socialism writ large and capitalism entered what would be a long and global conflict. It was a world to which suburbia had come, though more of a North American paradigm, it nonetheless was a massive societal change. 

The Gen X was born into an America that was beginning the real change in race relations. Though the Fourteenth Amendment was ratified 100 years earlier (1868), court decisions in the 1950s like Brown v. Board of Education (U.S. 1954), and evolution led to legislative change such as the Civil Rights Act of 1964. Simultaneously in the 1960s and 1970s, the Women's Rights Movement was underway. Society was challenged, it was changed, and a generation faced a future that was different and perhaps at times a bit difficult to understand. 

Perhaps no generation has been more written about than Gen Y, the so-called Millenials. They were born into a world that had just witnessed the term "personal computer." Over the course of this generation, we went from that landmark in 1975 to the birth of the World Wide Web in 1990 (scientist Tim Berners-Lee claims credit for this, to the dismay of Albert Gore who has publicly claimed credit for taking "the initiative in creating the Internet."). Personal computing, access to data, and all that entails permeate the very identity of this entire generation. In the midst of this generation, socialism fell (or perhaps merely stumbled), the Berlin Wall fell, and the world economy changed fundamentally. To say it is a generation that has faced societal change is an understatement. 

Generation Z began in 1996 and brings us to the present. These Americans matured into the "gig economy," the intersection of personal technology and work. While the roots of this date back logically to the personal computer in 1975 and the Internet in 1990, the changes in both employment opportunities and stability for Generation Z have been marked. And, their future will likely be different than our collective past; collective as in all of the generations discussed herein. In fairness, it cannot be doubted that the next generation will similarly face challenges that neither Gen Z nor the others have, nor perhaps that we can even anticipate. 

The point of all of this comes down to the inevitability of change. Our resiliency perhaps diminishes with age, and today too many of us look back in comfort forgetting the anxiety, or even memories of the anxiety, of our own generation's changes and challenges. Because ours are past, we perhaps magnify those of the next generation? 

So, in that conversation with Generation Z, the discussion turned from fear of the future to preparation for the future. What can young people do today in order to address the challenges? I advocate that their reaction be one of introspection and preparation. The first step is to perhaps to appreciate the inevitability of change, with hopefully some resulting decrease in anxiety. 

Today's "next" Generation must focus on what skills, attributes, and abilities make them valuable. That is "valuable" in terms of creating economic advantage, and can come from work ethic, intellect, imagination, personality, and more. Part of the challenge for each is to identify what makes one able to provide progress, service, and assistance to others. We all procure services in the marketplace from others who have skills that we lack, or who are at least better or more efficient at those skills than are we. 

Having determined in what ways we can each bring value, the next step is to figure out how to deliver that value in a manner that brings benefit both to ourselves and to others in the marketplace. That fundamental has not changed. Economic exchange is the foundation upon which all employment is built, whether that means an employee/employer relationship, an independent contractor, vendor, or a gig-economy relationship. The fundamental is that the exchange of goods or services for remuneration is, in each instance, a relationship. 

The key for each generation, and individual, is to determine how to bring value to the marketplace and thus participate in that economic relationship. The structure of the market may change, the skills that are most valued may change, and the details of the relationship may change. But, the key point is that every person has the capacity to bring value. All each must do is identify that value, and focus on how to bring it to bear in exchange for remuneration. 

The tough news is that Generation Z faces challenges. The tough fact is that the world is continuing to evolve and change. The good news is that every generation has similarly faced change, uncertainty, doubt, and an entire panoply of challenges. The good news is that the Millennials and Gen Zs will succeed just as their forebears did, through their strengths, and the value they bring to the economic exchanges which they will undertake. 

As the other generations pass to our place in history, the best we can do is to remind the young of both the challenges and promises that they face. We can deride them, or guide them. Our job as mentors is to pass along what we can substantively, but also to encourage them to see and appreciate their strengths and value. We collectively and individually need their strengths and must support their success. Just as we need them to bring value, we are uniquely positioned to reassure them, mentor them, and encourage them. Thus, in symbiosis, we bring value in helping them to grow and thus likewise bring value. 

As we step from the limelight, their strength and success will be critical for us all. What are you doing today to mentor the next generation in your profession? What are you doing today to help the next generation appreciate and apply their personal value? What are you doing today besides telling these "kids" to get off your lawn? Regardless of what you are doing, what more could you do?

Workplace Bullying

Back in 2013, I penned Bullying is in the News, Is It in the Workplace (November 2013). The premise was a pair of bills introduced in the Florida Legislature. I briefly returned to the subject in 2019, in Aggressive Without Being Obnoxious (August 2019) and Great Public Harm - and Social Media (March 2019). You have no way to know what pressure someone is under. At the end of the day, the two bills in 2013 did not become law. I have not returned recently to the idea of bullying. But overall, it is important to remember to treat others with kindness and dignity.

The British Broadcasting Corporation (BBC) recently published Workplace bullying is more harmful than we realized. It asserts that bullying is likely to have emotional effects, "but could also have serious consequences for your (physical) health." The article concedes that the studies "can’t outright prove that workplace bullying causes" physical maladies. It is "possible . . . pre-existing mental health vulnerabilities increase a person’s risk of being bullied," thus potentially becoming a chicken v. egg analysis on causation. However, the study results are nonetheless worthy of consideration. 

The article recites anecdotal complaints of physical symptoms. It asserts that "researchers have long known about the adverse mental health effects of workplace bullying." Cited studies from Sheffield University support that these mental health effects may be experienced by bullied employees or those who merely witness the bullying. Furthermore, this article concludes that there is now suggestion that bullying "could have serious effects on physical health." This comes from an examination of medical records from "nearly 80,000 male and female employees in Sweden and Denmark."

The foundation of the study relied upon self-reporting by patients regarding "whether they’d been bullied at work in the previous year." Medical records were then examined for evidence of development of "any cardiovascular illness over the next four years." The study concluded that those who "more frequently" self-reported being bullied exhibited a greater "risk of developing cardiac problems." The researchers concluded the risk was markedly higher (1.59 times more likely). 

There is an element of frequency stressed also. The authors concluded that "8% to 13% of survey respondents" reported they had been bullied. The BBC does not provide edification as to why there is a 5% spread. It therefore remains unclear how prevalent workplace bullying is in actuality. However, either of these is a significant figure.

Too often, we hear about frequency studies, and there is little or no effort to ensure the absence of coincidental positives. Thus, it is interesting that the researchers concluded that the increase of "59% in the bullied compared with the non-bullied" remained defensible after controlling for "factors such as body-mass index and smoking status." Despite this effort, the reader must return to the concession that it remains possible that some with physical maladies might be more prone to bullying or to self-reporting it. 

A similar analysis in the article identified a link between bullying and the onset of type 2 diabetes. The increased diabetes prevalence (46% higher) while not as high as with cardiac disease (59% higher), but is very significant. The potential for coincidence here is likewise conceded. However, the significance of the finding is worthy of consideration. In each disease process, the bullied appear to have an approximately 50% higher incidence of serious disease processes. 

A recent post covered the occupational disease standard in Florida. In Florida Occupational Disease Burden (December 2019), two Florida First District Court decisions were reviewed. The Court there explained that Florida law creates "a dose-response analysis." That is, the worker seeking compensation for such disease must demonstrate both "actual exposure" and "dose" (the level to which exposed.) It is possible that we as individuals may see our "dose" of bullying differently. Possibly what I would self-report as bullying you would not. That is one potential perception bias of self-reporting. 

That "dose" analysis seems congruent with the reported bullying study. The authors there concluded that "the more frequently participants said they were bullied, the greater their risk." The dose of bullying seems to have a relationship to the onset of both cardiac disease and diabetes. The study leader, Xu, says this might be explained by bullying leading to "chronically rising levels of stress hormones," as well as the "victims adopting harmful coping behaviors" (overeating or alcohol). It may thus be either these hormones or our coping reactions that stimulate the untoward health results.

The premise that bullying equates to a greater risk is therefore not proven by this study. The data does support significantly greater diagnosis in those who have been bullied at work. It is possible that those with predispositions toward either cardiac disease or diabetes may be disproportionately represented in the bullied population.  It is also possible that results might be different in studies of other cohorts; this study population was entirely European. However, the overarching recommendation is that “employers should be aware of the adverse consequences to their employees from experiencing workplace bullying.” There is some belief that education may be of benefit both for those who are doing the bullying and for the "victims to 'seek help as soon as possible'.” 

The costs of healthcare for such conditions may be significant. It is possible therefore that the costs may drive employers to more closely monitor for bullying in the workplace. It is also possible that there will be some who note the costs of resulting absenteeism and perhaps diminished productivity, and those costs may drive employer monitoring also.

Whether any states seek again to legislate workplace anti-bullying remains to be seen. However, it appears that there is at least the beginning of a foundation for evidence or indicia that diminished workplace bullying would be beneficial to both the workplace and the health of those who labor there.

Dinosaurs in the Hearing Room?

The Louisville Courier Journal reported recently that Kentucky judges’ gavels are ‘dinosaurs.’ It recounts the Hollywood perception of wooden hammers and the efforts of judges to maintain decorum in a hearing setting. The Journal posits that Kentucky judges do not use gavels much anymore and that these instead have "gone the way of the powdered wig." The story quotes an attorney's claim that "gavel-swinging judges were commonplace in the 1970s," in comparison to a rarity today. Others contend that it was never as prevalent as Hollywood has characterized it to be. 

The perception is that "Judges still have them," but they have become decorations or paperweights. The author asserts that they are received as gifts, but "rarely, if at all" used. Apparently, it is not a recent mass extinction either. Sources are quoted as saying these are "long gone,” or "never used." There is some perception that "smacking a gavel at an unruly lawyer or litigant is too imperious and smacks of arrogance."

One Circuit Judge is quoted claiming that "any judge 'worth his or her salt should command the respect of all in the courtroom without the aid of a gavel.'” Some contend that technology and modernization have led to the tool's demise. The article mentions smaller courtrooms and the presence of microphones that perhaps aid with amplifying a voice. One judge is quoted as endorsing the raised voice, claiming he "can be as loud as a gavel.” Another judge is quoted that he "uses his gavel ironically, to punctuate his jokes." Yet another "said he used it to wake people, but mostly for fun."

Contrarily, the article quotes both a Circuit and a federal judge who recount circumstances in which they felt compelled to gavel loudly. One said a "criminal defendant cursed at him," and his gaveling "dented the bench." Afterwards, the judge felt that he "got control again.” The federal judge quoted described a "hyperaggressive" attorney being "gaveled . . . to silence." 

Years ago, one of the Florida JCCs had a very large gavel (the handle was perhaps two feet long) that was kept in the hearing room. It was a conversation piece, and similar to the article's contention had been received as a gift. Certainly, it was memorable. I have been in many hearing locations over the years, and I can still picture that hand-made gavel leaning behind this judge's bench. As a memento or gift, there is certainly nothing wrong with a gavel. But, is it an appropriate tool for the unruly or not? I tend to side with the contention that order can be achieved without such pounding. 

Another aspect of the news story refers to court security. Some contend that a "bailiff’s sidearm is a more effective deterrent to misbehavior than a wooden hammer and sounding block." I have not witnessed any hearings in which either of those was necessary. And, that is a great compliment to the professionalism and demeanor of not only the many practitioners that frequent this system, but to the citizens on both sides of the argument that participate as well. 

The article notes that in Kentucky there is no provision for the government to purchase such accouterments. It says that "neither federal nor state judges in Kentucky are formally issued gavels," but "must buy them with their own money." For the federal judges, "the same is true of a robe." The state will buy its judges gavels upon request, for about "$85.50 each." And, the requests are infrequent. The Florida OJCC does not buy gavels for judges, nor powdered wigs.  

I was gifted a gavel upon my initial appointment. I recall for years keeping it on the hearing room table. When Judge Winn was appointed in Pensacola in 2006, I cleared that out. I struggle to remember where that gavel is today, or when I last saw it. I am not comfortable saying I never used it, but for the life of me cannot remember any instance that I did. Curious how evolution changes our world around us. The only constant, they say, is change.

The Law of the Case

An interesting decision from Texas: Steele v. Murphy & Beane Inc. and Viacom, The plaintiff was hired as "an independent makeup artist" on a television series. After lights were extinguished following a taping, she "fell down two flights of stairs and suffered severe injuries." One of the defendants offered benefits, but eventually, there was a lawsuit in which Steele (the makeup artist) alleged deceptive practices fraud, fraudulent inducement, gross negligence, and more. 

The defendants there claimed workers' compensation immunity, and alleged that the Texas "Division of Workers’ Compensation (Division), had exclusive jurisdiction over Steele’s claims." The trial court agreed and dismissed the lawsuit. The appellate court agreed and affirmed the dismissal. It is noteworthy that the injury occurred in Texas, and that workers' compensation is optional there. 

The Court noted that medical care was provided by Viacom, and Steele signed "a Texas Workers Compensation Work Status Report." Steele was surprised therefore when Murphy & Beane filed "an Employer’s Report of Occupational Injury or Illness in California." Steele also alleged various other representations or omissions conveyed to her by Murphy & Beane. She thereafter received some care, even traveling to California at one point for a QME, but did not receive that evaluation. She complained that the California "medical-treatment guidelines" were used in her claims. The decision leaves the analysis of such questions of jurisdictional issues in doubt. The Court concludes the Texas Division has authority but does not explain why California's Division does not. 

After the civil complaint in Texas was dismissed, the Texas Division became involved. It was eventually concluded that "Steele’s recovery was barred by the Texas Workers’ Compensation Act (TWCA)." Therefore, Steele filed a second civil lawsuit. She contended that the Texas Division's conclusion was an exhaustion of her administrative remedies, thus that she could file this second civil lawsuit. The appellate court explained the necessity of pursuing administrative remedies such as workers' compensation. The Court relied upon the earlier dismissal and that court's conclusion "that the Division has exclusive jurisdiction over Steele’s claims."

The Court explained that once the initial appellate court had so concluded, that "opinion is the law of the case." The Court further concluded that "Steele did not exhaust administrative remedies." The Court described a multi-step process regarding the resolution of Texas workers' compensation disputes. Steele pursued only a Benefits Review Conference (BRC), “a nonadversarial, informal dispute resolution proceeding.” This might be similar to pursuing a workers' compensation claim in Florida, but only to the mediation. 

The Court explained that there are two types of benefit disputes in Texas. The agreement reached at the BRC addressed only "issues of compensability," the first type of dispute. It did not reference any "dispute about the extent of injury, preauthorization, medical necessity, or administrative violations," the second type of dispute. 

The Court noted that the Division is empowered to investigate claims "alleging that a workers’ compensation carrier has improperly investigated, handled, or settled a workers’ claim for benefits.” The record in the appellate court did not demonstrate "that Steele has either exhausted administrative remedies under Chapter 413 or provided the Division with notice of administrative violations," regarding her allegations about the manner in which the defendants administered her Texas accident. Thus, before a lawsuit for alleged mistakes or misstatements in the process, the Court concluded Ms. Steele must ask the Texas Division to investigate those. 

Similarly to collateral estoppel (January 2020) the "law of the case" may preclude a party from re-litigating an issue once that issue has been decided in a case. Therefore, the timing and thoroughness of bringing a claim may of significant importance. The Steele analysis is also an important reminder of the potential for claims to be potentially within the authority of multiple states. This injured worker would seemingly be within the jurisdiction of the Texas system (per the Court's analysis) and simultaneously the California system (per the Murphy & Beane election to provide care under that law). 

The case illustrates that workers' compensation can be both complicated and challenging for even seasoned practitioners. When presented with injuries and allegations, an attorney may have an obvious alternative as well as various less-than-obvious potentials. The implications of California and Texas law may differ regarding details such as when and how a claim must be filed. The elements of proof and available benefits may likewise differ from state to state. And, this case illustrates that the determination of who the responsible employer is may require some sorting (as between Murphy & Beane and Viacom). 

There will correspondingly be events in which determinations of state law, the correct jurisdiction, venue, and parties are more clean and concise. However, complications are often present, requiring the navigation skills of an attorney with a breadth and depth of knowledge in a variety of challenges. The involvement of multiple potential jurisdictions and parties can make a workers' compensation accident significantly complex.