Stay in Your Lane

On May 7, 2020 the Supreme Court of the United States (SCOTUS) rendered an intriguing decision in United States v. Sineneng-Smith, No. 19–67. Justice Ginsberg wrote for the unanimous court. Justice Thomas authored a concurrence dealing mainly with the substantive issue in the case, the "overbreadth doctrine." The Court's opinion, however, focused on the procedural history of the case, a review of a decision of the Ninth Circuit Court of Appeals. That procedural discussion applies to all adjudicators, an apt reminder of role and purpose. 

The Ninth Circuit opinion under review was authored by A. Wallace Tashima (Clinton nominee), and joined by Marsha S. Berzon (Clinton nominee), and Andrew D. Hurwitz (Obama nominee). Judge Huriwitz came to the case late, being assigned by random drawing following the death of Judge Reinhardt. There are those who find the history and appointment of judges interesting; In that regard, it is notable that the SCOTUS decision in this case was unanimous in finding fault with the Circuit panel's foray into advocacy. 

The defendant in this criminal case, Evelyn Sineneng-Smith, provided "consulting" to immigrants in California. The Court noted that a jury convicted her of violating a federal law that prohibited anyone to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States . . . ." The Court noted that she charged clients $5,900 each (over $3.3 million total) to complete/submit immigration applications, although she "knew her clients did not meet the application-filing deadline." The applications were thus destined for denial when filed.

Following her conviction, she sought review by the Ninth Circuit. There, she argued that such applications were "often approved despite expiration," and that such applications "would place her clients in line should Congress reactivate the dispensation" (in case the law changes). She also proferred other legal arguments in favor of the reversal of her conviction.

The Circuit Court then "moved" her case "onto a different track." The SCOTUS described that "instead of adjudicating the case presented by the parties, the appeals court" raised "a question Sineneng-Smith herself never raised," a First Amendment overbreadth argument, and invited three organizations (not parties to the litigation) to join the litigation to address this new question. Forbes recently noted that a federal trial court seemingly pursued the same course in yet another case. There is some perception that advocacy is a recurrent judicial theme. 

The SCOTUS in Sineneng-Smith held "that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion." It directed the Ninth Circuit to consider the appeal again (on remand) "attuned to the case shaped by the parties rather than the case designed by the appeals panel." (Emphasis added). The use of the word "designed" seems particular and pointed. 

The SCOTUS explained that "party presentation" means adjudicators "rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” There is a narrow exception acknowledged when a criminal party is unrepresented, and a court may in that setting "recast pro se litigants’ motions to 'avoid an unnecessary dismissal.'" However, the "general rule" is that parties "know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.” 

Quoting Justice Scalia, Justice Ginsberg reminded that “[C]ourts are essentially passive instruments of government.” Furthermore, quoting United States v. Samuels, 808 F. 2d 1298, 1301 (CA 8 1987), Courts: 

“do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” 

That does not mean judges can never engage the parties, it is a discretionary decision. A court can provide a modicum of direction. However, the SCOTUS noted that United States v. Sineneng-Smith "scarcely fits that bill."

The SCOTUS acknowledges its own history of calling "for supplemental briefing" and in which it "appointed amicus curiae in recent years." In other words, the SCOTUS has taken the reigns on occasion. However, it noted that none of those cases "bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case." Some will perhaps perceive some level of "do as I say not as I do" in that admission and conclusion.

In this case, the SCOTUS essentially concluded that the Circuit Court designed and constructed a First Amendment argument, invited in the "friends of the court" (amicus) to brief that question, and "Sineneng-Smith’s counsel adopted without elaboration counsel for amici’s overbreadth (1st Amendment) arguments." 

Justice Ginsberg acknowledged the defendant's dilemma, noting "how could she (Sineneng-Smith) do otherwise?" The defendant was in search of reversal of her conviction, thus in pursuit of a goal. All litigants, civil and criminal, likewise seek to prevail in court. When the adjudicator defines the path, and signals the way, it is likely the litigants will follow that path to maximize the chance of persuading that authority and prevailing. The Court noted here that Sineneng-Smith "rode with an argument suggested by the panel." Her original appellate issues "fell by the wayside" because the defendant's filed appellate issues simply "did not mesh with the panel’s overbreadth theory." In essence, the party that wishes to prevail will follow the Court's lead and conform to expressed pre-conceptions or conclusions (which should not exist with an unbiased and appropriate court). 

The SCOTUS' language is somewhat blunt. It noted that "no extraordinary circumstances justified the panel’s takeover of the appeal." (Emphasis added). The "takeover," Justice Ginserg noted, was not only beyond what was raised by the defendant in the trial, but actually contrary to it. The defendant had not raised overbreadth. 

Furthermore, notably, the opinion adds that the SCOTUS "has repeatedly warned" that overbreadth should be sparingly applied. Thus, the appellate court not only designed its own approach but did so with a theory the SCOTUS has said should be narrowly applied. In this vein, both the opinion and Justice Thomas' concurrence suggest some broader doubt as to the future of the overbreadth doctrine generally, see more below. 

A court providing some direction or suggestion is not, apparently, per se offensive. The SCOTUS explained that a court may appropriately infer arguments, that it "is not hidebound by the precise arguments of counsel." However, "the Ninth Circuit’s radical transformation of this case goes well beyond the pale." Such guidance (or lack thereof) is perhaps destined to leave the process habitually in a state of grey, with various litigants appreciating an adjudicator's weighty cooperation and others lamenting their struggle against the opponent and bench. For the layperson, one suspects that bright lines and clear parameters are more predictable and understandable than nuance and grey areas. 

Justice Thomas specially concurred in the opinion. His concurrence is critical of the appellate court's design and takeover of the defendant's case. However, his opinion focuses primarily on the overbreadth doctrine itself and his reservations concerning it. He explains that the overbreadth 

"doctrine provides that a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged' in relation to the statute’s plainly legitimate sweep.’” 

He describes and decries the source of this doctrine (saying it "lacks any basis in the Constitution’s text"), the appropriateness of its application ("violates the usual standard for facial challenges, and contravenes traditional standing principles"), and advocates for therefore "revisiting this doctrine in an appropriate case." One wonders how this was not "an appropriate case" for just such a consideration? Well, perhaps in that this issue, in this case, was manufactured and constructed by the appellate court in hindsight. 

Addressing the Circuit Court's "Abuse of discretion" (its design and takeover) in this matter, he notes that 

“[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” 

Therefore "when a court . . . seeks out—an overbreadth challenge, it casts aside the 'judicial restraint' necessary to avoid 'premature' and 'unnecessary pronouncement[s] on constitutional issues.'" He mentions "the general rule against third-party standing," which is based on the converse that standing (a real and personal interest in the case) is required of litigants. This is part and parcel of the Constitutional restriction of "federal courts to actual cases and controversies.” The concurring decision may be seen by some as a harbinger of future narrowing of the overbreadth doctrine application in American jurisprudence. 

The activism admonition in Sineneng-Smith should be no different for a trial judge. It is for the parties to build their respective cases, develop their evidence, and present claims and defenses. Dan Fogelberg wrote Hard to Say in 1981; among its lyrics "It's never easy, And it's never clear, Who's to navigate, And who's to steer." But in the world of litigation, it is in fact both easy and clear. The parties to the case are to do both. 

The judge's job is neither to substitute her/his judgment for the parties in that regard, to Alexander Haig and simply seize control. Notably, the SCOTUS here was less than absolute in its condemnation, declaring that the takeover in this case was inappropriate while acknowledging that some level of meddling in the right circumstances may instead be acceptable, the grey area. The trial judge's job is nonetheless to keep the game within the rules. It is suggested that a better trial judge rule should be more definite in never designing the parties' litigation. As SCOTUS Chief Justice Roberts once reminded, "nobody ever went to a ball game to see the umpire," see To Do Equal Right. 

Judges afford due process. They are charged with evaluating the allegations and legal interpretations brought by the litigants. Those litigants will periodically be creative, and elect arguments that are novel and uncharted. Those litigants will make choices regarding what evidence and what argument to supply. These are often conscious tactical choices, but at times decisions may be less sentient. In either event, they are the parties' choices and the litigation is ultimately the parties'. It is not the judge's role to make up for a particular party or lawyer's shortcomings in either design or execution. The umpire does not suggest the next pitch, nor otherwise counsel the pitcher. The umpire watches the pitch and makes the call. 

The Judge's job is to comprehend and weigh the arguments presented, not to disregard the parties and substitute her or his own theories or arguments. It should come as no surprise that a judge's own theory or argument may be deemed more attractive or persuasive by that judge. Everyone, universally, likes their own ideas. When judges step outside the role of arbiter, that threatens our system of justice. When courts are perceived as advocates instead of neutral arbiters, the public faith in an independent judiciary suffers. When courts or adjudicators contrive doctrines, public faith in the adjudicator and the justice system may likewise falter. 

Though greeted with little fanfare, United States v. Sineneng-Smith is an important, unanimous, reminder of the role of our adjudication process. It should be a reminder of the critical and venerated role of judges and courts.

Nothing is Over Until We Decide it is!

Picture yourself as a composer. You spend the better part of a year working out the machinations and tribulations of orchestrating a complex and intricate symphony. There are so many moving parts and competing needs. There are many musicians and a variety of delicate balances, nuances, that must all come together in the final product. One can imagine there is satisfaction in looking back on such a product with pride and contentment.

I believe that is how Steve Rissman and Jim McConnaughhay feel every September when they reflect on the success of yet another Workers' Compensation Institute ("WCI") Workers' Compensation Education Conference ("WCEC"). For 75 years, there has been a WCEC. The dynamic duo has produced this program for over three decades, through various venues, as it has grown literally from a quartet to the national workers' compensation symphony. This national conference has become the largest, most diverse, and most pervasive educational effort in workers' compensation. 

On May 13, 2020, the WCI announced it will postpone the WCEC until August 2021. This cannot have been an easy decision. I make my living addressing difficult decisions that are often life-altering for someone; hard decisions. I consider myself blessed to not have had to make this particular hard decision. Having built WCEC 2020 in anticipation of the entire community coming, this has to be a letdown for these two. Let's face it, it is a letdown for a whole raft of people whose efforts in individual programs or segments are equally daunting, and their performance is equally stellar; year after year after year. It is unfathomable, but WCI is a non-profit that produces this incredible program with volunteers; year after year, decade after decade, one breakout at a time. Incredible.

There is significant work required of the Board of Advisors each year. But, there is even more work invested by the Committee Members and the dozens of subject-matter experts who are like the section leaders in an orchestra. They get their group aligned, practiced, and prepared. The conductor and producer have to coordinate the entire production, but the section leaders are critical. Much of the annual success of the WCEC is due to these section leaders. This includes organizations like the National Association of Workers' Compensation Judiciary, the Southern Association of Workers' Compensation Administrators, The Centers for Disease Control, and The University of South Florida.

I ran into a fellow at the WCI WCEC a few years back. "What are you doing here, I thought you retired?" I asked. "Well," he replied, "its August and in August you come to Orlando for WCEC, it is just that simple." It really has become that simple. This national forum is where you hear about the cutting edge in American workers' compensation. The curriculum and conversation are telling, prescient, and comprehensive.  

It’s not just the organizers. Certainly, I feel empathy for their composing, editing, and more. I appreciate and respect the many section leaders and their labors. But it’s also the musicians. I suspect something around 500 of the best and brightest of American workers' compensation had practiced their individual assignments, and devoted countless hours to preparation for this orchestral debut. Their efforts are not in vain. This is, after all, a delay not a denial. However as one of those musicians who has taken the stage over 1000 times in my career, I know the preparation, the focus, and frankly I commiserate with their obvious disappointment. There have been so many disappointments from COVID-19.

But, as brother Bluto so eloquently reminded us so many years ago: 

"Over? Did you say over? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor?  (insert his brothers here, questioning the "German" reference). . . NO!! And it ain't over now. When the going gets tough (pause for effect) the tough get going! Who is with me, come on, let's GO!"

That perhaps is the real call of the entire COVID-19 crisis. The going is undoubtedly tough, but so many have kept going! I see you out there on social media. And, I have spent hours discussing individual's personal challenges over the last 60 days. They have ranged from the serious (contracted this disease, cared for a family member with it, had a family member with it hospitalized), to their fears, to the impact on their work, business, family, and emotions. If you have escaped COVID-19 without direct impact and escaped without even knowing someone directly impacted, you are truly blessed. If you have that measure of luck and fortune, that is simply unfathomable to me (you should get a lottery ticket this week while the getting is good).

Over the last (too many years to count) I have made an annual trek to Orlando each August. Trip duration has differed, sometimes five days sometimes only one. I’ve done my best to both partake of the educational opportunities of the Workers' Compensation Institute and to steadfastly contribute where I have been able. I’m certain there are a fair few of those 500 speakers for 2020 whom I do not know. But, over the course of decades, I have met and interacted with literally thousands of fantastic presenters, orators, logicians, physicians, adjusters, managers, injured workers, and more. They are virtuosos, maestros, and artists. I will eagerly anticipate their postponed performances.

I can tell you this, without reservation, the quality of speakers that we attract to this conference is stellar. In that regard, I am proud to note that the quality of speakers we attract to a variety of conferences around this country is likewise stellar. Without exhibiting too much hubris, let me emphasize that a great many of these are from right here in the state of Florida. I am proud of our many presenters who are judges, OJCC mediators, local attorneys, doctors, risk managers, and more. I have been so blessed to have been associated with such outstanding and distinctive scholars, thinkers, doers, and presenters. 

But the critical point remains: IT'S NOT OVER! Delayed? Granted. Disappointed? Certainly. Committed to returning to the critical effort of providing exemplary education, and intellect? Absolutely! It is not over, it is merely delayed like so much in our lives recently. And, perhaps as Francis Davison or Thomas Haynes Bayly started so long ago "Absence Makes the Heart Grow Fonder." Perhaps the gathering, socializing, camaraderie, collegiality, and education will simply be all the better in 2021 after we have had 2020 to lament its postponement, to miss it all, to yearn for it?

We will be back in Orlando. It will be excellent to find ourselves at WCI WCEC 2021. We can debate whether that will be the 75th (as this year was supposed to be), or is it the 76th because an element or two will yet proceed this August as scheduled? Did I forget to mention that an extensive program was planned this year in cybersecurity? That is a hot topic, likely to impact everyone who has a computer and does business. Our dependence on computers, networks, and remote work has only been highlighted by COVID-19. We really do depend on technology in amazing ways and extents. There are cybersecurity requirements coming from the government. Those who do business with the government will be forced to produce certification of computer and network security.

(Sigh of relief? that's not you?). Well, think again. The government is going to require those who do business with those who do business with the government to also be certified in cybersecurity. This is a big deal! it will affect law offices, physicians, hospitals, case managers, carriers, employers, and more. The implications are mammoth, and they touch everyone in the workers' compensation community. It will touch anyone that has (1) data and (2) a computer. The time to get ready is now. It is so critical, that the 2020 WCI cybersecurity program remains un-postponed. This is a show that must go on. More details will come soon. 

Get over the postponement. Push down that disappointment and persevere. We all must. We will all get through 2020, and find ways to supplement our education, communication, and interaction in this short term. WCI will be there for that too, but more on that later.

And then, in 2021, we will descend on Orlando once again and find our community waiting for us, cheering us, and celebrating us together. For, perhaps a lesser poet, Charles Schultz (Author/Artist of Peanuts) had his own take on absence noting "Absence makes the heart grow fonder, but it sure makes the rest of you lonely.” Yes, we will be lonely at times before then. We must support and engage each other until then. But we will strive to connect and continue. Let's do this together like a community should. "Who is with me, come on, let's GO!" (running out of the room and hoping you will follow me and share my enthusiasm!).

COVID and Workers' Compensation

One of the topics of great interest recently in workers' compensation is occupational disease compensability, and the marketplace perceptions of the questions that presents in our present "pandemic world." What are jurisdictions doing to react? Is the reaction prospective or retroactive, legislative or regulatory, measured or not? There is much to consider. 

The Workers' Compensation Research Institute (WCRI) is sponsoring a Free WCRI Webinar on COVID-19 Compensability. There are questions about what states are doing regarding this complex analysis of compensability, as well as about how changes are being accomplished. The long-term effect of patches, reactions, or responses may or may not have been considered, and bear discussion. 

As hard as it may be to believe now, COVID-19/Wuhan/SARS-CoV-2 was not in our general lexicon in March 2020. It has been a short and frenetic couple of months meeting and getting to know the "new normal." The disease, it seems, has been around longer than that. In retrospect it was spreading in the U.S. at least in early February. There are those in the United Kingdom that believe the disease has existed in humans since September of last year. There has been discussion of how it spreads, the telltale symptoms, and treatments. Each day seemingly brings more news and revelation. COVID-19/Wuhan/SARS-CoV-2 has disrupted the scientific community, national economies, our personal plans, and workers' compensation systems. 

The disruption has been significant legally as well. While the term COVID is a recent addition to our vocabulary, a search of WorkCompCentral returns 271 results (as of May 4, 2020). A search on WorkersCompensation.com yielded 418 results. In roughly 60 days, the workers' compensation news has produced an average of 4 to 6 article mentions daily in this little corner of the economy.  Everybody is talking about this pandemic and its effects. 

Some analysts suggested early that the risks associated with COVID might mean that workers' compensation would end up paying costs associated with the disease. By early March, Washington state had begun the process of providing benefits to "quarantined health workers and first responders." A dichotomous reaction had begun (some argue disparate treatment) in which prejudice in favor of some occupations has been discerned. And, a panoply of various reactions followed. Thomas Robinson penned an overview more recently. 

One of the great curiosities of workers' compensation is that it (more aptly "they" as each state is different) remains a largely state-centric system. For decades, the federal government has sought to influence these systems, beginning with the 1972 National Commission report and recommendations. That has produced discussion, but historically minimal state legislative changes. There are many workers' compensation systems in American, not one. 

In 2015 some reporters found fault with workers' compensation, leading to a call by ten members of Congress for more federal influence and control. Because one of the proponents was Bernie Sanders, then in the midst of a run for president, there were prognostications that change was imminent. There were predictions of a resurgent American socialism, and that was seen of particular  import since workers' compensation is effectively a social program, a collective safety net. 

The workers' compensation community was alive with discussions then of "what if," and much industry focus shifted to potential federal influence. A national conversation evolved, and led in 2016 to documentation of multiple concerns of the marketplace, including federalization. But, Senator Sanders did not become President. The interest in a workers' compensation national conversation and federalization waned. Previously vociferous organizations abandoned commitments for studies, discussions, or papers. As the young might colloquialize, the "conversation died." 

Today, we still have great jurisdictional variety within workers' compensation in the United States. Certainly, there are similarities from state to state, some very basic and even profound. But, there are differences, equally profound in some instances. The reactions of jurisdictions to the COVID-19/Wuhan/SARS-CoV-2 have been similarly varied. In part, that may have been driven by whether a particular jurisdiction's legislature remained in session as the situation evolved. For example, Florida's legislature started early in 2020 and thus concluded March 19, 2020 just as the COVID-19/Wuhan/SARS-CoV-2 repercussions began in earnest. 

The Claims Journal recently characterized the state reactions as "sympathetic," but warned that COVID-19 may be "a major cost driver for workers' compensation insurers." It aptly noted that most regulatory or statutory response thus far is limited to "first responders," but noted this was not perceived as uniform. The USA Today reported recently that there is generalized anxiety of COVID-19 among those who will return to work following the various lock-down, safer at home, and other state activity restriction orders. There is the potential for disease, and the fear of that potential. Truly COVID-19 is a double-edge sword. 

Workers' compensation systems are statutory. By their very nature, they are defined through legislative enactment that alters employer and employee rights and duties under the common law (tort systems). Everything that is workers' compensation starts therefore in a statute or code. Each system in America also involves rules promulgated by regulators; there is Executive branch influence on the implementation of those statutory changes. Thus, change can come legislatively or regulatorily. Change can be profound and abrupt or evolutionary. The COVID-19 worker' compensation reactions can be considered from these perspectives. 

Where are state compensation systems as regards occupational disease? For the most part, these systems that were envisioned and enacted to compensate and treat accidents have expanded to include coverage for occupational disease. Some lament that when business was burdened with this expansion, there was no corresponding quid pro quo. Some argue the "grand bargain" was impaired by that evolution. 

Though there is generally coverage now for occupational disease, various statutes today exclude such coverage for everyday illness. Thus a statutory distinction between disease such as pneumoconiosis (asbestosis, silicosis, or black lung disease) and the common cold. Through a variety of definitions and constraints, compensability is dependent upon proof of workplace exposure and thus causation. In Florida, the Courts established a requirement for such maladies that:

"if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public."

Lake v. Irwin Yacht & Marine Corp., 398 So. 2d 902, 904 (Fla. 1st DCA. 1981). Such parameters or interpretations suggest a disinclination toward compensability of something like a cold, the flu, or even COVID-19. 

The other end of the spectrum is Hawaii, featured just this week in Bob Wilson's We Don't Pay for Viruses Do We? There, he details Tom Robinson's recent scholarship on compensability of infuenza in the Hawaii system. That describes a very broad and encompassing acceptance of virtually any illness under workers' compensation. 

COVID-19 has challenged the status quo. The news has been an uninterrupted parade of impacts and imports of this for weeks. Virtually every type of business has been impacted. Government operations have been impacted in a variety of ways. Workers' compensation systems have not been immune from those changes. Those systems have seen change as government struggles to respond to our first pandemic in years. 

Seemingly the broadest recent intervention came in Illinois in Emergency Amendments filed April 16, 2020. These changed rules regarding workers' compensation in the Prairie State, founded on the COVID-19/Wuhan/SARS-CoV-2 response. Citing "unprecedented and extreme exigencies," the Workers' Compensation Commission enacted a "narrowly tailored" presumption of compensability for certain workers: if the petitioner is a: 

"First Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner's injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner's COVID-19 First Responder or Front-Line Worker employment." 

This is regulatory reaction. Certainly, the time period is narrow ("during the Gubernatorial Disaster Proclamation 2020-38"). Some took issue, however, with the breadth of the "front-line worker." Politico reported on the "challenge" of otherwise proving compensability in this viral setting. The Illinois rule was interpreted as including "grocery store employees as "front-line." A constitutional judge issued a restraining order regarding the rule. There were allegations that the Commission exceeded its authority. The Commission retreated by withdrawing the rule on April 27, 2020, according to the Chicago Tribune. 

Politico likened the breadth of the Illinois action to Kentucky. It noted that there Governor Beshear issued an executive order April 9, 2020, which "presumed that removal of (certain) workers from work by a physician is due to occupational exposure." The covered employees included: 

"employees of a healthcare entity; first responders (law enforcement, emergency medical services, fire departments); corrections officers; military; activated National Guard; domestic violence shelter workers; child advocacy workers; rape crisis center staff; Department for Community Based Services workers; grocery workers; postal service workers; and child care workers . . .."

Some have made mention of their perception that this is an appropriately broad inclusion of occupations. Others have noted various perceptions of occupations excluded from the list. 

Not to be outdone, however, California issued a mandate bringing its workers' compensation compensability in line with Hawaii's, but specifically for the COVID-19. The California Executive Order applies to all employees there that report to their place of employment, and then tests positive within 14 days. The presumption is rebuttable (disputable) and an employer could set out to prove that the disease was contracted somewhere outside of work. The fact is that proving where you were exposed to some germ or virus may border on the impossible. In that regard, it may be that the operation of law in assigning the burden of proof will be the determinant of compensability or deniability in such claims of disease. 

California's executive action is clearly the broadest thus far. Unlike orders in other states that have focused on the first-responder or the front line, or specific roles, this order impacts every employee that presents to a workplace outside of her/his home. It is not without limit. Paid sick leave must be exhausted before workers' compensation indemnity entitlement begins. The effect extends only 60 days from its issuance on May 6, 2020 (July 5, 2020). It is retroactive to March 19, 2020. Effectively, it changes the law in California for a period of 108 days. While it proclaims that it does not impair the ability of insurance carriers to "adjust the cost of their policies," there has nonetheless been concern expressed about cost and premium. 

On March 20, 2020, Michigan's Governor created an Executive presumption of compensability for "first response employees." The presumption is rebuttable ("unless proven otherwise"). The order says that "denial of a claim by a first response employee" is a violation of law and "subject to the penalties" provided in the workers' compensation law. The Order defines "first response" to include "state police," "correctional officer," "police officers, fire fighters, medical techicians," "members of rescue teams," "physicians, physician assistant, nurse, emergency medical technician, paramedic, respiratory therapist," home health aid, ambulance operator, and those working in care services, care facilities, homes for the aged, hospices, hospitals, or nursing homes." 

Arkansas similarly acted through executive order in mid-April. The Governor suspended various broad portions of the state's statutes regarding occupational disease in workers' compensation. Previously, "compensation for exposure to disease to which the general public is exposed" was not compensable. The executive order changed that for "first responders and front-line healthcare workers." Neither of those terms is defined in the order, and thus potentially subject to some debate (it is possible those terms are already defined elsewhere in the statute). The order removes a prohibition on such disease claims, but leaves the burden of proof on the individual seeking compensation, requiring that she/he "demonstrate a causal connection, as required by law." Describing this as a "presumption" might thus be inappropriate. 

Similar "first responder" executive orders were published in Missouri, New Hampshire, New Mexico, North Dakota, and Washington. 

There has also been legislative action. Alaska introduced a new statute March 22, 2020; it became law April 10, 2020. This is a broad statutory approach to various challenges presented by COVID-19/Wuhan/SARS-CoV-2. To illustrate the broad nature of the law, it imposes various legislative impairments to various existing contracts precluding eviction and repossession of automobiles. For workers' compensation, the law creates a conclusive presumption that the cause of COVID-19 is occupational for someone who is a "firefighter, emergency medical technician, paramedic, peace officer, or health care provider." Most of the law is effective only after April 10, 2020. The workers' compensation presumption (Section 15) is retroactive to March 11, 2020.

Utah passed a bill to create a presumption for workers' compensation compensability for "first responder(s)," but the disease must be "contracted" "by accident" "during the performing of first responder's duties as a first responder." The law defines first responder to include physicians, health care providers, and "emergency responders" as defined by federal law. Minnesota passed a similar new law providing for a presumption of COVID compensability for: 

"a licensed peace officer . . . firefighter; paramedic; nurse or health care worker, correctional officer, or security counselor . . . at a corrections, detention, or secure treatment facility; emergency medical technician; a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting . . .." 

Louisiana, Massachusetts, New York, Ohio, Pennsylvania, and Vermont saw presumption language in bills filed during their legislative sessions. Business Insurance provided a May 5, 2020 update on the progress of some of these. As a rule, legislative change is the subject of much debate and compromise. Generally, legislative reaction will be less rapid than action by the Executive Branch. 

Not to be outdone, there is an expectation reported recently by WorkersCompensation.com for Congress to consider legislative change regarding federal workers' compensation benefits for employees of the Transportation Security Administration (TSA). The article notes that more than 500 such employees have been diagnosed with COVID-19. There is a perception exhibited that if such an employee contracts the virus, it must be from the work environment. It is noted, in explaining the risk, that many travelers do not wear masks. There are a fair few customers at the local supermarket that likewise do not wear masks. When one becomes ill, how can it be determined to have been a risk at work versus a fellow customer at the store, a pedestrian on the street, or other mere happenstance that is the cause? 

In late April, as California's Governor was contemplating his executive order, there were also two bills pending in the California legislature, according to CalMatters.com. The article predicts that "a wave of workers' compensation claims . . . could top $33 billion" there. By mid-April there were already a significant volume (1,527) of "COVID-related claims" in California. The article notes that one insurer, a state fund, had already elected to accept COVID claims regarding those it insured. 

In late March, the Florida Chief Financial Officer issued a Directive, citing the onset of the virus, and Executive Orders declaring an emergency. This Directive describes the Division of Risk Management, which provides workers' compensation coverage to Florida state agencies. It concluded this Division "shall process Workers’ Compensation claims submitted by Frontline State Employees who have tested positive for COVID-19, through a reliable method, as compensable claims." This directive implicates state employees directly. However, some have queried the meaning and definition of "frontline." Attorneys have expressed varied views as to whether this Directive will influence decisions of counties or municipalities regarding compensability decisions involving "first responders"; it is valid to discuss similar voluntary decisions of all employers. 

A common sentiment from employees regarding workers' compensation reaction was expressed by a first responder in the CalMatters.com article: making employees prove compensability of the virus is "a ridiculous burden on people protecting us." The perception is that this virus presents risk and instills fear. There is prediction that some may decline to present for work out of fear of exposure. Others may miss work secondary to the mandate of self-quarantine (as an aside, the origins of quarantine were recently discussed on the BBC). To some extent, there has been recognition that actual occupational roles and perceived risks may influence such governmental decisions. Some might argue that requiring an employer that is similarly protecting us to disprove an employee caught a virus at work is similarly disconcerting. 

The discrimination in favor of first responders is noted in various perspectives and commentary. The broader impact of reaction in Kentucky is noted. However, the broadest impact is in California. The time limitation of executive reaction is compared by some to the more permanent change of legislative reactions elsewhere. There are numerous impacts and implications. And, there are a variety of lawsuits underway across the country as individuals and industries seek determinations that various executive orders exceed constitutional or statutory authority. It is possible that the workers' compensation orders, presumptions, and expansions might face such challenges and may suffer the fate of the broad Illinois expansion of liability. 

There has been discussion of the financial impact of coverage changes in workers' compensation. By its nature, workers' compensation operates through the collection and setting aside of funds from a large pool of employment. Those funds or premiums fund the cost of losses that are suffered (hopefully) by a comparative few. The balance is similar in all insurance; many buy auto coverage but relatively few have accidents; many buy health insurance but relatively few require treatment. Those who cover those risks make educated decisions or predictions about the probable liabilities, and they set their prices accordingly.

When the landscape changes unexpectedly, the actuarial predictions change, and then the potential exists that those prices charged (premium) will have been insufficient. The landscape change could come in the form of legal definitions or statutory delimitation of what is or is not covered such as the executive and legislative reactions discussed herein. Landscape change could come in the form of financial markets not performing as predicted, and thus affecting the investment return of those premiums collected. A variety of potentials exist that may lead to uncertainty. 

That may be less true of public workers' compensation. A municipality, county, or state may be self-insured (paying the losses itself rather than purchasing insurance). The workers' compensation liabilities of that entity may be thus backed by its ability to impose and collect taxes. In that setting, if losses are greater than anticipated, the entity might adjust other spending or increase taxes in response. The risk, through those decisions, is spread to the population of that jurisdiction.

Similarly, the cost of insurance premiums may increase in the commercial market in reaction to these changes. Those costs will be included as restaurants, hotels, manufacturers, law firms, and more set their prices for goods or services. Those costs of workers' compensation will be incorporated into the costs that American consumers pay. In some ways, that inclusion is no different from, though perhaps less visible and more regressive than, taxation in the public sector example. 

Ultimately, when there is injury or illness, there is loss. Someone has to Pay the cost of that loss, as I wrote in 2016.  Professor Duff was recently quoted, regarding the California executive order, saying "costs never go away, they shift." His sentiment is the same. The actions and reactions to COVID do not change costs, but merely who will pay them. As states contemplate socialization of risk, there has been a demonstrable sentiment to shift cost to workers' compensation, a relief in the short term to employees and insured employers alike. In the long term, however, whether the socialization of such costs is sustainable as regards "ordinary diseases of life" remains to be seen. 

Case Management Hot Seat Style

The WCHotSeat returns for lucky Episode 13 on May 13th at noon Eastern. That seems well-designed, but I think it was a mere happenstance. The various Hot Seats have addressed pharmacology, treatment delays, regulatory complexities, the changing workforce of workers' compensation, and more. They are free to attend and all the prior episodes are available for re-viewing at WCHotSet.com. There is some binge-worthy watching during this time of social distancing. Episode 13 will address case management, perceptions, and realities (Friend or Foe). 

There is an inherent friction in the delivery of case management services in workers' compensation. Back in the day, claims were managed almost exclusively by adjusters. There would be appointments scheduled, care rendered, and questions asked. One of the challenges in that paradigm was the second-hand communication that it fostered. The adjuster was dependent upon the doctor appropriately documenting, the doctor's staff interpreting and relaying, and the patient understanding. There evolved from that paradigm a more involved and hands-on process of managing the interactions between patient and care provider. 

The role of case manager, according to myamericannurse.com, is 

"a collaborative process of assessing, planning, facilitating, coordinating, evaluating, and advocating for options and services to meet an individual’s and family’s comprehensive health needs and promoting patient safety, care quality, and cost-effective outcomes."

That is a long sentence, which bears reading through more than once. The focus is on the health needs and yet has the caveat of "cost-effective." The case manager role is described in various publications to include "advocate," "collaborator," "influencer" and more. 

Thus, the case manager is in the midst of an age-old conflict through which patients have long struggled: cost and efficacy. This is often part of our individual decision-making process. We regularly struggle with the cost/benefit analysis in making personal or family purchases. We are familiar that we might struggle with the conflict between the television or vacation we want to have (versus can afford), our desire to have it sooner or later, and our rate of accumulating or borrowing the funds for such a purchase. That such a conflict would be a part of medical decisions we undertake might seem alien. It is, however, part of what we do. And, it is applied in the larger context of workers' compensation as well. 

The Centers for Disease Control (CDC) explains that both cost-benefit analyses (CBA) and cost-effectiveness analyses (CEA) are part of the process of measuring the "net benefit" of any particular "intervention." In a systemic analysis, the example used by the CDC is "an intervention to reduce trans fats in the food supply." This change would lead to cost savings in the overall delivery of medical care by affecting the need for medical care (demand). The overall evaluation includes assigning monetary value to avoid "direct medical costs," to the gains in "quality of life," to averting "fatal heart attacks," and the value of years of increased life expectancy. 

Similarly, the efficacy of care may likewise present an issue in a micro sense. For a particular patient, there may be benefits attributable to some surgical procedure over another, some surgical specialist over another, some therapeutic intervention over another, the efficacy of care now versus care delayed, and more. The care that is sought, from whom, and when may all play a role in recovery and perceptions of quality treatment, by patient or payer. Thus, the cost/benefit analysis may well be a factor in the case manager's contribution to decision-making. 

The Annals of Internal Medicine note that there are various views on the quality of medical are in America. Some perceive that recommendations may be driven by factors other than patient needs ("7 in 10 respondents believed that physicians are more likely to perform unnecessary procedures when they profit from them"). There are perceptions that the delivery of medical care here is not efficient ("approximately 30% of the $2.5 trillion the United States spent on health care in 2009 (or $765 billion) was waste"). There is a call for abandonment of the "fee for service" model of care delivery. In some developing compensation models. provider fees may perhaps be tied to the success of the care, measured by the patient or others. In such a transition and new paradigm, the role of case management may be increasingly critical. 

The fact is, there is room for discussion about both the cost and the benefits of medical care in America. 

There is also a perception that some medical decisions are affected by fear or uncertainty. What a medical professional may opine is in the patient's best interest may not be what the patient wants or something in which the patient believes. There are a remarkable number of influences that may color our personal judgment as regards undergoing a medical procedure. Examples might include the severity of injury and discomfort, our perceptions as to the probable success of the proposed intervention, information gathered from the internet, and recommendations of our acquaintances or relatives regarding the care proposed. 

There are those who lament that the workers' compensation systems do not include compensation for pain, discomfort, and diminished capacity for the enjoyment of life. Anyone who has ever suffered a serious accident or illness might recount that such effects are possible. Workers' compensation generally provides only medical care and disability/impairment benefits. Thus, the benefits (damages) that are received may be limited to time missed from work. Some have suggested therefore the potential for some patient disincentive to undertaking some medical interventions. If that exists, others would argue that this is merely one of many factors in the patient's cost/benefit analysis. 

A patient may logically and rationally ask whether the care will bring improvement. There may be some tendency to postpone a risk, such as surgery, in hopes that some other, less invasive or serious, modality (physical therapy) will bring about notable improvement. That tendency might be driven in a patient based on the outcomes, predictions, and risks. Likewise, a payer (employer or insurance agent) might similarly weigh the chances based on the potential to avoid the more expensive care (surgery) and the cost of a recuperative period that would accompany it. 

The case manager came to be seen as the "hub of communication and information" in the treatment process, as noted in the September/October 2016 edition, Volume 21, Number 5, of Professional Case Management. This described the involvement of case management in participating in "interdisciplinary teams, . . . tracking outcomes" and thus being, again, in the "hub" of the wheel with the patient who is experiencing care and treatment potentially from a variety of specialty and sub-specialty providers. 

It is apparent that the goals of the patient and the payer may have both coincidence and distinctions, as do the interests of the patient and the payer. The case manager is in the midst of conflicts both external (patient v. payer) and internal (doctor v. doctor, modality v. modality, probability v. probability). The decisions may be monetary or personal, and in the end may not be the easiest decisions to either evaluate or conclude. 

And, through it all, there is the likelihood of the presence of a case manager. The case manager is part interpreter, part information gatherer, part translator, part evaluator, and part advisor. The website nurse.com published a post in 2014 Legally Speaking: Case Managers and Liability. It provides a reinforcing perspective on the varied and difficult roles of case managers and suggests that the role presents the potential for conflict of interest. Particularly, this might arise from "basing a decision concerning a patient's care on cost savings alone, without regard to the quality of the treatment regimen." Not to say that cost is not "a" factor for consideration, but a caution against it being "the" consideration. Might the same conflict exist for the patient, payer, or others in the equation? 

The article cautions managers to know and understand their own "personal values" that might influence performance. It suggests knowledge of "ethical principles required in healthcare." And, unsurprisingly, it suggests the value of knowledge of the "many laws that impact" the case manager role. Though each of these might be narrow and specific in any particular case, they are each likewise potentially reasonably broad and systemic in the overall role perspective. 

Thus, there may be conflict in the analysis of what is right for a patient. The case manager is asked to play a diverse and intimate role in such analyses and to do so in the midst of competing interests or concerns of the various individuals involved (patient, provider, payer, and more). This may be a precarious position of trust with multiple principles and principals. 

In various discussions at professional events, I have had opportunities to discuss patient care with a great many attorney advocates, medical professionals, payers, and case managers. A common thread is that there are diverse perspectives from which to view decisions regarding care. Thus, I have met payers, patients, advocates, and providers who laud the case manager, and others who deride them. This may come down to the particular case manager in a setting, or perhaps the particular payer, patient, provider, or critic. The permutations of personality and potential conflicts is noteworthy.

Tune in to the next WorkersCompensation.com HotSeat for an in-depth examination of the case manager's function and perceptions. The guests will be Rosalie Faris, a nationally known case manager, and Phyllis Phillips, a former adjudicator and litigator now serving as a mediator in the resolution of workers' compensation issues. They bring decades of experience, a national perspective, and a critical eye. It will be an intriguing exploration of the role and challenges.

COVID-19 Effect on Florida Litigation?

There is a tendency we share. We all seem to question where we are, and how we are doing. I have gotten a fair bit of recent feedback from OJCC customers. Some feel they are adjusting well to the COVID-19 world. Some see challenges, and others opportunities. Some perceive that their workload is increasing, others not so much. These conversations have led to questions like "How is the OJCC dealing with the increased filings?" That led to running some numbers.

In short, the Florida OJCC has yet to see filing increases that are susceptible to being chronologically related to COVID-19. While there are those in the marketplace who expect filings and claims to increase, the data at this time does not support that such an expansion has begun. The analysis that follows looks at only three metrics, the rate at which petitions for benefits are filed, the overall rate of documents being electronically filed, and the rate of new cases coming into the litigation system. And, for the sake of simplicity, I provide pictures to illustrate the trends. 

Petition filing volumes decreased markedly after 2002-03. That downward trend continued, with a slight increase interruption in 2008-09, through 2015-16. Since 2016, petition volumes have been increasing generally, as illustrated in this graph.

Similarly, the efficacy and convenience of the e-JCC electronic filing system has facilitated easy filing. The expense of postage and paper is largely behind us in Florida workers' compensation litigation. Though not illustrating marked increases, the volume of electronically filed documents has also trended generally upwards in recent years. As electronic filing has been mandatory for a decade, that growth is not from increasing acceptance of the electronic paradigm, but represents growth in activity. 

There are those who anticipated and even expected the litigation filings to increase in the course of COVID-19. Some speculated that job uncertainty, challenges with a return to work, exposure, and more would drive increased filings. There is no knowing whether any of this will cause future filing changes. It is noteworthy that the OJCC is s litigation system, not a claims system. Thus, there might be a delay between any changes in claims, and the effects on the litigation of those claims. But, what does the data available today tell us?

The filing rate for petitions demonstrated a continuing upward trend in the third quarter of 2020 (the State operates on a fiscal year that begins July 1, so the third quarter of 2020 is January, February, and March). While the rate of increase in 2020 is not as notable as in 2019, the trend over the third quarter was to increase. 

When only March is considered, however, the filing rate for that month in 2020 is decreased about 2% compared to 2019. This is noteworthy because the world was "normal" to a large extent in January and February. The first U.S. diagnosis was not until late January, according to the New England Journal of Medicine. 

The petition filings for April 2020 demonstrate a much more pronounced decrease. The total for that month is well below that of the same month in 2018 or 2019, and antithetical to the previously identified trend upward for the third quarter. The red trend line in the graph below projects where growth might have been anticipated to be, if not for the 23% decrease in petition filing in April 2020. Fewer petitions, not more, have been filed recently. 

A similar analysis of the total volume of electronically filed documents in e-JCC demonstrates similar results. The overall filings for the third quarter of 2020 demonstrate continued increases in electronically filed documents. The red trend line is very similar to the predicted growth for the quarter. One might conclude the third quarter overall filing rate is consistent with growth one might have predicted based on the consistencies of prior year growth. 

But, in March, as with petitions, the overall filing volume is not quite that which might be expected or anticipated. The filings do not demonstrate a decrease per se for March, but a "flattened curve," if you will. The volume did not decrease, but March did not see the growth rate that would have been predicted. 

In April, similar to the petition data, the overall document filing rate was markedly lower than expected. The change in Petition filing was a downturn of 23% for April. the overall filing downturn is only -11%. This suggests that while fewer new issues (petitions) are coming into the litigation system, the litigation pace and volumes are more consistent overall, despite showing a decrease in overall volumes. 

Thus, the third quarter (Jan, Feb, Mar) PFB filing volumes are up but at a lower rate than they increased in 2019. The figures for March indicate a small decrease that must be considered in light of the growth in January and February (demonstrated in the increase for the Third Quarter overall). The filings for April demonstrate a marked decline against 2019 and even 2018. Work pace is thus, likely slowing overall.

Petitions may be a valid measure of the intensity of litigation. That conclusion must be tempered with the fact that any petition might contain a single issue (e.g. "change in physician") or multiple issues (thus, PFB volume cannot be said to be a perfect barometer of activity). Another valid measure of litigation is the rate at which New Cases enter the litigation process. The figures for the third quarter (Jan, Feb, Mar) 2020 demonstrate growth in the filing rate for new cases. The increase to 8,202 is not quite consistent with the 4% growth rate in 2019, but is an increase nonetheless. 

The New Case volume in March alone was also below the expectation based upon 2019. The New Case volume is, in this regard, similar to the illustration of PFB rates and overall filing rates. However, the trend remained "increase" albeit at a mere 1%. 

Also similar to the petition filing rates, the New Cases in April 2020 are markedly below the 2019 figures, and well below the projected increase (red trend line). The decrease of 24% in New Cases is noteworthy because it is unexpected and as yet unexplained. 

There is always room for discussion as to statistics and metrics. What the numbers seem to show is a notable change in filing rates over the last 60 days. The easy tendency will be to point at COVID-19 as the precipitating cause. 

Some will note that lawyers and staff are currently striving (struggling?) with telecommuting. Others may understand the slackened pace by noting that the meetings with clients are harder to arrange (to obtain signatures or discuss claims). Still others may note that, at least anecdotally, they have struggled in some instances to obtain or keep a medical appointment (no doctor recommending specific treatment, no petition seeking to have a judge order that treatment). We are receiving reports of some workers unwilling to leave home secondary to the COVID-19 virus. Though those are anecdotal descriptions, it is possible that is a driving cause.  In short, the decreases may be from effects on law firms, on clients, or both.

There may be other causes or contributors to the reduction in filings. It is possible that some may be utterly unrelated to COVID-19. However, the figures today support Florida workers' compensation litigation is slowing, regardless of the metric selected for analysis. The figures are suggestive that the first half of 2021 (July through December) may likewise demonstrate diminished activity. The petition hearing deadline is 210 days, roughly 7 months. With fewer petitions and new cases entering the system in March and April, the activity six to seven months in the future (October-November) may be impacted. 

More data is available in a recently produced video on the OJCC YouTube channel. This includes the volumes of settlements, stipulation orders, evidentiary hearings, continuances of mediation and final hearings, other hearings, and other orders. There is also indicia in these figures to support that telephonic mediation is answering the needs of our customers.