Is Empathy Dead, or Just on Life-Support

A physician recently took to the Internet in a blog featured on Fox, titled In the war on illness, the real Victim is Empathy. 

There has been ample discussion of the "great divides" in America, rich versus not, fat and thin, academic, racial, political, gender; the list goes on and on. Dr. Jame Abraham explains to us in this post that we must also accept that "doctors and patients exist in two distinct worlds: the world of the healthy and the world of the sick."

He likens this to a culture divide. The two groups simply do not understand each other. Like the theme in some Coke commercial, Dr. Abraham says "the only language that connects these two worlds is kindness and compassion." It is this commonality that can overcome the disconnect and communication barrier. He says we need physicians that are "fluent in" compassion. 

Dr. Abraham's analysis resorts to the age-old dispute of nature v. nurture. He contends that physicians are naturally good people, and that the decline in medical empathy is a product of nurture. Our educational process, he explains, is training empathy out of medical professionals. He claims that "studies have shown a sharp decline in empathy by the time students finish medical school."

If that is not alarming enough, he continues, explaining that physician "compassion continues to drop during residency and fellowship." So, by the time the professional "is a physician with patients depending on them," empathy and compassion are at an all time low. Those we look to for guidance and expertise in our times of need are trained not to have empathy for our complaints or situation?

I ran into a physician recently. He lamented his income and complained that his brethren were seeing twice as many patients daily, compared to his practice. He asked me "if you could double your income tomorrow, would you?" I was surprised that his focus seemed to be money and his envy of his brethren was a bit disconcerting. A great many commentators lament that professions like law and medicine have turned into businesses; some degree of the professional motivation lost in the daily grind to meet overhead, and produce profit. 

Dr. Abraham explains that empathy is not the victim of neglect. The medical education process is intentionally eradicating this troublesome emotion from those who will provide us medical care. His contention is significantly in line with the lament of the business of medicine. He says that medical students begin the process with "dreams and aspirations of being a healer of sick." But they are then confronted with "the crucial task of mastering technology." The "good" physician is the one who can best master the data and the equipment that produces it. 

The news is full of intriguing stories of medical technology. It seems a day does not pass without news of a new device, test, or treatment. There really is a great deal going on in the world of science and medicine. They are discovering treatments, perfecting devices, and so many promise great things for our future. Recently this has included new drug approaches to melanoma, electronic skin for measuring oxygen, and a variety of tech tools for management of diabetes. Every day seemingly brings an interesting medical technology breakthrough story. 

But Dr. Abraham says that our medical education now is to "teach students to be, among other things, technicians who treat the human body as a collection of data, and we train them to be proficient in collecting and analyzing that data." Ours has become a data-driven society generally as computers have made collecting and summarizing data increasingly inexpensive. Dr. Abraham concedes that to an extent, "focusing on this type of training makes sense." He cautions, however, that this focus can harm the doctor's relationship with the patient. 

I have written about Watson, and the amazing innovation that is occurring in artificial intelligence. A computer named Deep Blue beat the best humans in chess, and a computer named Watson beat us on Jeopardy. (cue Weird Al, I Lost on Jeopardy). Computers have evolved from performing repetitive and rote tasks. They have begun to think, and while we have not reached 2001 A Space Odysee (in which the computer locks Dave out of the space ship), computers are involving into thinking, learning devices. 

Dr. Abraham says that "if being a doctor was only about having a razor-sharp memory and delivering the right diagnosis, then IBM’s Watson would be the epitome of the 'perfect' doctor." We have seen Hollywood glorify the role of physician, finding the elusive clue or symptom, a la House and others. What if a computer could be engaged in the pursuit of appropriate diagnosis?

It turns out that IBM's Watson is currently attending medical school Dr. Abraham says Watson is "better than any physician at computing, connecting and analyzing data." Watson has "read and memorized thousands of medical books and journals and is much faster than a human brain at conjuring up the right answer." It may be the epitome of the data analyzing, data-driven doctor. 

Despite Watson's great success, speed, and efficiency, Dr. Abraham points out "there are some things Watson simply can’t master." More aptly, perhaps "can't master" yet. But the point he is making is that computers cannot yet form true relationships. And thus, we return to the real theme today, empathy.

To illustrate, Dr. Abraham describes his relationship with one patient who ignored a mass until ultimately presenting with stage-4 breast cancer. This is a serious diagnosis, and the patient "was so unhappy with the doctor who diagnosed her, that she was considering not pursuing treatment." She had multiple complaints about the diagnosing physician. This is not as uncommon as one might expect. I have run into a fair number of patients over the years who eschew regular medical care because of their perceptions of the provider. 

This patient complained to Dr. Abraham that the diagnosing physician “was in my room for less than ten minutes;" that "he didn’t answer any of my questions;” that "he said he cannot cure this." and little more. Dr. Abraham says that she "didn’t feel like she could rely on or connect with" the diagnosing physician. She later presented for care with Dr. Abraham, and described her familial experience with cancer (anyone who has seen a loved one go through chemo will have thoughts on this), and her reluctance for the chemotherapy journey. She expressed only one desire, to live to see a granddaughter's high school graduation. 

Thus began a doctor/patient relationship, with a simple goal, sustaining toward a particular future event. As Dr. Abraham puts it, together they found "the only thing that mattered to" the patient. He feels that despite its incredible access to knowledge and speed, Watson would fail in this setting because it is "emotionally unintelligent." 

Dr. Abraham contends that Watson cannot connect because it cannot (yet) "smile, touch, hug and connect." Though this is an indictment of a computer, the point is clearly directed at humans. As young students strive to amass information, to perfect their data collection and analytics, strive for the right answer, they are emulating Watson. Dr. Abraham suggests that Watson should be striving for more human traits, and the irony is that those who already possess them are instead striving to be more like the computer. 

He asks "is it possible to teach students and young doctors to connect with patients?" He contends that compassion is not easily learned. This seems at odds with his original premise that suggests we all have compassion, but the medical education system is currently training it out of doctors. Perhaps a good start, rather than teaching compassion, would be to stop suppressing or devaluing the compassion and empathy already there? He concludes that "there are key aspects of health care that can’t be reduced to numbers." They require listening to the symptoms, but beyond that to the patient's fears and motivations. 

Dr. Abraham has some suggestions for physicians. They bear reiterating. He says it is not about the amount of time a physician spends with the patient, but about the quality. He says "whether a doctor spends five minutes or 60 minutes with someone, each patient should be treated as the most important person to the doctor during that time." That seems simple enough. Be present when you are there. That is good advice for any relationship. 

He says that "every patient is truly unique and we must do our best to understand each one as a whole person." Understanding concerns and motivations is a critical element in helping people with their medical conditions. Why do they feel as they do about their situation, what experiences, fears and concerns are influencing their understanding and expectations?

Dr. Abraham says that the physician has to engage. He claims that success is dependent upon the formation of a partnership between patient and physician. This, he explains, forms trust and confidence. Through that, patients will "open up and truly get on board with their treatment plan." Once again, this element of partnership and trust is valuable to any human relationship. 

In the end, there remains a great deal about medicine that is not science. There is a great deal that is art, and much of that appears to be the art of human relations. Will we strive to make the automatons like Watson more human, or should we find a way to have our human doctors retain more of their humanity and emotions? While we are at it, perhaps attorneys, adjusters, risk managers, and more could benefit with the same advice for their relationships?

Food for thought. 

Safety is Important, what is Effective?

A recent letter in the Jacksonville Times Union caught my attention. The headline read Florida Workers' Have Little Safety Protection. That is a little alarming.

The author noted that we recently marked the "105th anniversary of the infamous Triangle Shirt Waist Factory fire in New York City." That was a tragic event. Despite being so long ago, that fire was the city's worst loss of life until the September 11 attack almost 100 years later. It was a seminal moment in the history of that city and a large impetus to the passage of workers' compensation laws across the nation. 

The author stresses that there were safety issues that led to the 148 deaths that day in New York; undeniably. There was a garment factory in a high-rise building. This arrangement was not uncommon in that era, with manufacturing enterprises sharing buildings with service providers and even residences. The owners of this factory had concerns that led them to lock doors and restrict access. When the fire began, there were doors that impeded escape, minimal fire protection (at best) and a single fire escape (which failed). It was truly a tragic event. 

One outcome of the event was a push for workers' compensation laws. Another was a push for workplace safety. There was a fair amount of involvement by various unions and (later to become) household names in that process. One of the American heroes involved was Francis Perkins. She was the first female United States Cabinet member. She was a pioneer of workplace safety laws and workers' rights. Much changed in America after the Triangle fire. 

The recent letter author laments that "Florida was one of the last states to enact a workers’ compensation law in 1935." This is accurate. Florida was about 25 years behind the states that adopted the concept initially. The "southern" states were the slowest to adopt these statutory constructs. Mississippi was the last state, adopting its workers' compensation law in 1948. 

One of the elements of the Florida workers' compensation law was safety rules. This has been referred to as "an essential element of that law." The author notes that the "the safety rules that were enacted and the Division of Safety to enforce them were paid for by employers, not taxpayers." The process of paying for the Division of Workers' Compensation and the Office of Judges of Compensation Claims remains the same today, no tax dollars are used in running these agencies; that is a source of some pride. 

The author points out that "the state Legislature repealed 'safety' in Florida effective July 1, 2000." He concedes that between Florida's creation of the workers' compensation act in 1935, and the "repeal of safety" in 2000, the Federal Government entered the field of safety. It was 1970 when the Occupational Safety and Health Act created the Occupational Safety and Health Administration (OSHA). So, about thirty-five years after workers' compensation came to Florida, OSHA came to Florida. About thirty years after OSHA came to Florida, the Legislature repealed the redundant state safety provisions. 

As an aside, the safety provisions in state law were not in chapter 440 (the "workers' compensation law") but in Chapter 442, titled "Occupational Safety and Health." This entire chapter was repealed July 1, 2000 by ch. 99-240. Some of the provisions of Chapter 442 had by then been around many years. 

So, some would argue that the Florida Occupational Health provisions were redundant of federal law, and that it made sense to remove one layer of bureaucracy in 2000. The recent letter author disagrees, however. He argues that since 2000 "a great majority of (Florida employees), had no governmental safety oversight." He argues that OSHA regulations do not apply to business with less than 10 employees, and do not apply to government employees. Thus, the contention is that OSHA does too little to protect the safety of employees. 

The fact, however, is that OSHA applies to all businesses. There is a specific exemption for state government. According to OSHA, there are some reporting and inspection exemptions for employers with less than 10 employees. But, it appears that OSHA safety regulations exist even for employers with less than 10 employees. This may suggest that the "great majority" of Floridians do enjoy government safety oversight. 

If the constraints of OSHA safety is not relevant, but we were to instead consider OSHA "reporting," are a majority covered using that definition? Who is "reporting" to OSHA, that is how many employees are working for companies that are above the 10 employee reporting parameter? According to the Bureau of Labor Statistics, Florida had 9,792,900 persons employed in February 2016. Of these, only 1,085,800 (11.1%) were employed by government. So arguably about 88% of Floridians are subject to OSHA safety protections. 

According to Florida's Small Business Development Council, there are over two million small businesses in Florida, and over 400,000 of these have employees. They define "small" as less than 50 employees, and say that 3,000,167 Florida workers work for such "small businesses." Remembering that there is a great difference between the 50 employee parameter used by the Council and the 10 employee threshold for OSHA reporting, the combination of government and "small business" employees (>50) still totals only 4,085,967, or roughly 41% of Florida employees. So, at least 59% of Florida employees are subject to OSHA reporting and about 88% are subject to OSHA safety requirements. It would appear that the "great majority," 59% to 88%, of Floridians are subject to OSHA. 

There is also a voiced concern that OSHA provides too little protection. The author says "the large private employers, the ones covered by OSHA, can expect to be inspected once every 230 years, according to OSHA statistics published by the U.S. Department of Labor." So despite being covered, the author's contention is that "Florida employees are no safer on their jobs today than were the employees of the Triangle Company on March 25, 1911." And so, the natural expectation would be that ever-increasing numbers would suffer accidents and injuries. Without the protections of the State Occupational Safety law and with OSHA so overworked, the result would obviously be less safety and greater frequency of accident and injury. 

But, according to the Bureau of Labor Statistics, workplace injuries are decreasing. In fact, the evidence supports that "with the exception of 2012" there have been annual decreases in frequency of injury "for the last 11 years." As reported by Risk and Insurance, the "reduction in the rate was significant." Some might question why the frequency of injury is decreasing, and how that can be reconciled with the author's argument that OSHA oversight is nil, and with the deleterious effects of the repeal of Chapter 442? 

Some prognosticate that there is a disaster coming. They say that Florida will suffer a Triangle Fire disaster and that this hypothetical event might be enough to spur the re-adoption of state Occupational Health laws to supplement or augment the OSHA regulations. Others disagree and believe that the frequency of injury will remain stable or may even continue to decline despite the absence of these regulations. 

Time will tell where the actual path lies. 

“Psychosomatic” Illnesses

The British Broadcasting Corporation (BBC) recently published a piece titled The Very Real Pain of Imaginary Illness. The headline caught my eye. A great many of the cases that appear in workers' compensation venues around the country involve deciding the extent of disability or impairment. Those decisions are deeply dependent upon the opinions of various medical care providers, diagnostic tests and medical procedures. And, a great many of those cases involve someone that is complaining of pain and other symptoms. 

The medical process is driven, in large part, by symptoms. This is why the doctor asks the patient "what hurts," or "where does it hurt," or "what does it feel like," or similar questions. This is why the doctor, armed with that information, then touches, palpates, various locations, moves the body part in an effort to identify exactly what tissue is injured. There is a method to the process, in which various potential causes are serially ruled-out, ultimately leading to the conclusion that some particular tissue is responsible and thus that treatment for that tissue is appropriate. 

This is referred to as the "differential diagnosis" process. Through it, various distinct disease or injury processes can be distinguished from others that present similar symptoms or complaints. In some instances, treatment may be part of the process. The physician may try a treatment, and the success or failure of that treatment may provide information as to what the injury or illness is or is not. In the process of diagnosing and treating injury or illness a physician is highly dependent upon the perceptions and reporting of the patient. It is critical to remember that while medicine is a science, it also involves a significant degree of art, and this it is called a "practice" of medicine.

The BBC article follows some thoughts and prognostications of a physician named Suzanne O’Sullivan. She has decided she is an expert in "psychosomatic illness." There are always those who express curiosity or doubt about self-proclaimed experts. Dr. O'Sullivan purports to have studied these illnesses, and asks us to reconsider our perceptions and beliefs. There is always benefit in re-examining our thoughts and perspectives. 

Dr. Sullivan outlines the subject for us by describing a patient who was involved in a work event. The patient "had been stacking the fridges in a supermarket" ("stocking?), "when a colleague had accidentally sprayed a fine mist of window cleaner in her face." This is the sort of thing that can easily happen in almost any retail setting. There are window cleaners, floor cleaners, air fresheners, and a variety of other substances in use in most such stores. 

The patient washed her eyes and left work. When she awakened the next day, she complained that "her vision was worse." Twenty-four hours later, "she could not tell night from day." Complete blindness with an almost instantaneous onset. Dr. O’Sullivan’s "colleagues assumed (she) was faking it, perhaps for some kind of lawsuit." And six months later, the patient remained blind, but "doctors could find nothing wrong" with her eyes. In fact, "it certainly seemed like her eyes were responding to her surroundings, yet she continued to claim that she was enveloped in an impenetrable darkness."

Dr. O'Sullivan described this in a recent book It’s All in Your Head. She claims to have "become an expert in 'psychosomatic' illnesses." Her cases have included "people who are paralyzed from the waist down, or who have such severe cramp in their fingers that their hand has become little more than a claw; one woman could not even empty her bladder without a medical catheter." In all of these cases, physicians have been unable to find any "physiological cause." So, Dr. O'Sullivan concludes that "the problem originates in the mind, not the body."

Such cases would be difficult from the medical perspective. The physician process described above is dependent upon finding the right tissue to treat. When there is no injury or illness found to treat, the physician may be discouraged. The law and medicine do not always coexist as cordially as one might expect. The two are not adversaries in the true sense of the word, but one might accurately think of them as siblings. And as with all sibling relationships, there are times when they do not agree with each other, struggle with each other, miscommunicate with each other. 

The law has struggled with the "subjective" nature of some medical complaints. The Florida legislature has required that objective evidence support a diagnosis in Florida Workers' Compensation. Fla. Stat. 440.09(1) includes the following (italics are direct quote) requirement of "objective relevant medical findings":

The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. (emphasis added)

In Florida workers' compensation, there must be something "objective," that is, observable by someone other than the injured worker/patient. This might be visible to the physician, such as a bruise, inflammation, or dislocation. It might be something the physician can feel, such as a "pop" or "click" or "spasm" when a joint is moved. It might be the result of a x-ray, magnetic resonance image (MRI), or computerized axial tomography (CAT) scan. It might be a multitude of things that a physician or technician can observe, independent of the perceptions and reactions of the injured worker/patient.

The existence of an objective injury is a foundational element of Florida work injuries. Dr. O'Sullivan argues that the lack of objective evidence does not make the injury less real. She asserts that symptoms which exists only in the patient's mind are nonetheless real. She says that "patients often struggle to understand how their real, physical symptoms could originate in the mind." She discounts at the outset, apparently, any suggestion that these symptoms might not be real.

There is evidence that the human mind can accomplish some interesting results. For example, scientists have documented "the placebo effect." When testing medications, doctors often provide the new medication to half of a test-group, while the other half of the group receives an inert (the old "sugar pill") substitute. This process allows them to measure the effectiveness of the medication by comparing the progress of those who receive the medication to the progress of those receiving the sugar pill. 

Incredibly, however, multiple studies have documented improvement in the group receiving the sugar pill, called the "control group." That is, some of the people receiving the sugar pill get better. As interesting, there have been documented instances in which members of the control group also sufferred side-effects from taking the inert, fake medication. In this method, scientists have proven that the human mind is involved in perceptions of symptomatology. They conclude that patients sometimes enjoy better response when they believe they will enjoy better response. 

Some of the patients documented by Dr. O'Sullivan are actually fraudulent. Dr. O'Sullivan describes one instance in which a patient was "suffering seizures as the side-effect of chemotherapy for leukemia years before." A camera surveilled a hospital ward into which she was admitted. The patient later described a seizure with a fall "so hard that she had apparently fractured her hand." But the video showed the patient "simply raised her hand and hit it hard against the wall four times, before lying down gently on the floor, pulling down a plate with her to attract the nurse." The doctors later discovered that the patient "had never suffered from leukemia, either."

Despite the demonstrable existence of some such outright frauds, Dr. O'Sullivan claims that she has "often" seen cases of "debilitating seizures" that left patients "writhing around on the floor, limbs flailing, helpless." These patient's examinations "showed none of the signature brain activity of epilepsy." She described them therefore as "psychogenic seizures." She suggests that medical journals need to spend more time on studying these patients, whose symptoms, which she believes are genuine, are coming from their brains. 

Her diagnosis is not always popular, even with the patient. Dr. O'Sullivan says that patients resent the "psychogenic" label, finding it stigmatizing. She says that they perceive that this label accuses them of "doing it on purpose" or that "it’s not real." The answer, she contends, is to "refer her patients to psychiatrists or to a cognitive behavioral therapist (CBT)." The ultimate goal she advocates is to "unknot the distress or trauma that is leading to the illness." She concludes, that the absence of any objective finding does not mean it is not an "illness." 

The article is not clear as to whether it would be accurate to refer to such "illness" as a mental illness. Dr. O'Sullivan prognosticates that one root common to several of her patient's complaints have been stress-related. The suggestion being that stress results in a load on the patient's systems or ability to cope, and that their mind resultingly reacts in a manner that produces the perception of, or presentation of, symptoms that are seemingly inexplicable. 

Dr. O'Sullivan encourages us to confront the existence of difficult-to-believe symptoms with what we know about ourselves. She claims there are a multitude of "psychosomatic phenomena" we all experience. She contends these include "every time we cry, or laugh, or shake with anger, if we feel so sad that it is hard to lift ourselves from our bed, or queasy with nausea after we hear of a friend’s food poisoning." She essentially seems to conclude that the difference between these mental/emotional reactions and the "psychosomatic illnesses" in which she is a self-prclaimed expert, are a matter of degree. 

Dr. O'Sullivan claims that "30% of people visiting their family doctor or GP (and 50% of women seeing their gynecologist) are enduring symptoms that cannot be explained with a physical cause." And, if not explainable, then arguably "psychosomatic in origin." The article seems to concede that some of these might also arguably be explained physically if there were further exploration of the symptoms, but that they are simply not explained by a "physical cause" at the time of the doctor visit. 

The real emphasis of Dr. O'Sullivan's writing is her contention that these "psychosomatic illnesses" are disabling despite their "psychological origin." She argues that despite the absence of physical, scientific evidence to support the existence of disease process, the patients "really are disabled. They are more disabled than most people with a physical disease.” The article is unclear how one with "psychosomatic symptoms" is more disabled than one with physical symptoms, but perhaps that is detailed elsewhere. 

Dr. O'Sullivan stresses that the lady with exposure to window cleaner, "after psychiatric help," was able to learn "to see again." Her theme appears to be a belief in and reliance upon therapeutic psychological care not to treat the "psychosomatic symptoms" themselves (blindness) but to treat the underlying mental illness or emotional impairment from which the symptoms result. The suggestion is that psychological care for the underlying stress will alleviate that malady, and then the "psychosomatic symptom" of blindness will resolve. 

Dr. O’Sullivan also argues that physicians misdiagnose these patients, ignore the lack of physical findings, and proceed "prescribing the patients drugs, or even admitting them for harmful surgery." Her argument is that physicians are inclined to believe the patient's complaints, even when the objective evidence does not, or does not yet, support a physical diagnosis. Then, they proceed with unsupported physical treatment. 

She contends that when the lack of physical findings fails to support the diagnosis, the appropriate response is to provide treatment, but not the physical symptom treatment to which the medical doctor ordinarily defaults. She contends instead that treatment rendered for physical complaints that do not exist can themselves be harmful to the patient. Thus, her conclusion is that treatment for complaints that cannot be diagnostically verified should be treatment of a psychological nature. 

In the realm of workers' compensation, this may be a difficult path. The law does not seem to contemplate the existence of psychiatric issues that themselves result in physical symptoms. If the supermarket stocker was sprayed with window cleaner in an American workers' compensation accident, would her seemingly resulting industrial blindness be compensable? Should it be?

Aspire to Apply the Law Fairly

What is appropriate dress for a day at the workers' compensation office? We see a great variety of wardrobe. Does the way we dress speak to the respect we have for the system and those we represent each day? I have seen attorneys appear at our offices in casual dress. In the interest of full disclosure, you will rarely see me in a tie at the Judge's office. However, you will never see me at a hearing without a tie or jacket. 

But, we have seen attorneys appear in shorts and flip-flops sometimes (mediation). I once saw an attorney appear at a hearing in shorts and golf shoes. I suggest that level of formality does not respect the process, and certainly does not respect the recovering workers whose cases are being addressed. As an aside, we periodically have an attorney enter our office and quietly (sometimes not quietly enough) ask the security guard "I am here for ______v. ______, which one of these people is my client?" That is no more respectful.

We are all used to the process and often we are used to each other. Attorneys and adjusters and judges see lots of cases. But we have to remember that the one we are each working on today is that particular recovering employee's only case. Today is likely to be her or his only perception of the Florida workers' compensation adjudication process. This may be true for a particular employer representative who appears for proceeding also. 

On April 25, 2015, The Florida Bar News reported that the Florida Supreme Court had proposed a new rule for Florida Judges. If adopted, Rule 2.340 of the Rules of Judicial Administration would say "during any judicial proceeding, robes worn by a judge must be solid black with no embellishment." Numerous Internet searches thereafter failed to reveal what embellishments might have been causing the concern or the drafting of a new rule. 

I did find articles detailing how, years ago, Chief Justice William Rehnquist adorned his judicial robe with stripes. According to a 2007 article in the Chicago Tribune, Chief Justice Roberts has declined to follow that precedent. What embellishments might some judges be wearing? In September 2015, the Florida Supreme Court adopted the rule change. This rule change was momentous enough that the Wall Street Journal documented it. 

According to the Court, judicial attire "is a crucial indicator of the seriousness of the judicial office and of the proceedings." The adoption of the rule is in furtherance of the Court's "major responsibility to provide leadership and direction to advance the judicial branch's ongoing effort to enhance public trust." As Fernando (Billy Crystal) told us in 1985, "it is not how you feel, it is how you look, and you look Mahvelous!" 

According to the Court, attire worn by judges "must promote public trust and confidence in the proceedings." While the rule was pending, the Court accepted comments; there were reportedly few. some questioned the need for a rule. Others saw the rule as an expression of the Court's distrust of judges. The Court pointedly contradicted that in its September order saying "this Court holds the judges of this state in the utmost esteem and is confident the vast majority of judges fully fulfill their responsibilities." (Emphasis added). This may suggest the new rule therefore speaks to a small minority

But, "judges wearing different colored robes or robes with varying embellishments" might confuse the public, the Court concludes. It fears that one might wonder if "there is a 'status' attributed to the varying colors or embellishments worn by different judges." The public could wonder if rank or tenure or status is denoted by variations. Some people might even "wonder whether the presiding judge is a 'real judge' or whether the judge will take the proceedings seriously," if diverse robes were worn. The uniformity of judicial attire, the Court concluded, "will no doubt avoid these concerns and promote public trust and confidence." 

According to a Mr. Feldman writing for Bloomberg, the whole robe issue was the result of "a judge who wore a camouflage robe, which some litigants thought signaled his identity as a good ol' boy." Mr. Feldman disagrees with the Court, and contends that "the public is in fact sophisticated enough to understand that judges are humans, not automatons." According to his analysis, "Judges almost universally aspire to apply the law fairly, without favor or partiality." 

I think that is a fair characterization of the "vast majority" of the judges I have known. Further, Mr. Feldman contends, it is this characteristic of judges, aspiring to be fair and impartial, which "is the source of their authority, not how they look or what they wear." He might contend that we should long for a day when judges would "not be judged by the color of their (robes) but by the content of their character?" 

Mr. Feldman argues that judges wearing pink robes or "no robes at all" would be "acknowledging their individuality." This, he contends might make judges "less mysterious. And for some this might be a good thing." He seems to suggest that the presence of robes in any event may detract from the public's experience in judicial proceedings.

Notably, the Office of Judges of Compensation Claims (OJCC) is not a Court. There are those who desperately cling to the notion that it is. I frequently see pleadings in which reference is made to this Office as "this court" or "this honorable court." But, as clearly as the Court has said judicial branch judges must wear only black robes, it has also stated "the Office of the Judges of Compensation Claims is not a court of this State." Short of an amendment to the Florida Constitution, the OJCC will never be a "court." Because of this distinction, the Supreme Court's rule regarding black robes does not apply to the judges of the Executive Branch, including the Judges of Compensation Claims (JCCs).  

So, what is appropriate attire at the OJCC? A robe or a suit certainly shows respect for the process and the participants. It is curious that we need a rule to remind judges to keep decorations in check (might a particular lapel pin be distasteful to some?). But in the spirit of Rule 2.340 of the Rules of Judicial Administration, despite its inapplicability to the OJCC, perhaps judges and attorneys should periodically ask themselves whether they are dressing respectfully? 

Since the rule amendment was adopted last fall, I have repeatedly been asked about it. The simple answer is that the rule does not change the OJCC. Some have suggested that the OJCC should enact a similar rule, require JCCs to wear robes, and define the parameters: "black robes without adornment." The OJCC has not, however. Judges here may or may not wear robes, that is a choice subject to their individual discretion and independence. I would hope, however, that whatever her or his choice, that the Judges of Compensation Claims do elect to dress respectfully for proceedings. 

But how much should we focus on participant dress? This may be a difficult subject. The Law Society Gazette reported on a case in the UK in which a judge reprimanded an attorney for "dressing like something out of Harry Potter." The judge was investigated for the comment and eventually cleared. Commenting on the appearance of a litigant led to the Judge's embarrassment. Perhaps commenting on how others dress is not the best course? However, whether we dress neatly and professionally probably matters to the clients and to the public.  

I would suggest this, appear at our office for mediation or trial dressed neatly. A suit and tie is perhaps not necessary in every event (particularly hard to suit-up in the most hot and humid Florida months), but shorts and flip-flops are as likely never appropriate. Be respectful of the process and those who engage in it. Showing, not just giving lip-service to, respect for the people and the process will do much for your professionalism, and our collective professionalism. 

And, know that whether your Judge of Compensation Claims wears a sports-coat, a suit, or a robe, their ultimate goal is "to apply the law fairly, without favor or partiality." That is what we do, and we do it to the very best of our ability no matter what we wear. 

New Testing for Marijuana

Years ago, Alka Seltzer had an ad campaign in which people proclaimed "I can't believe I ate the whole thing." That came to mind last summer when I read about a college student who died in Colorado after eating more than recommended, "an entire marijuana cookie." As an aside, I cannot think of a single time I have ever eaten a partial cookie, and several times I have eaten an entire box (those Girl Scouts are out to get me!). Perhaps expecting anyone to eat a partial cookie is not realistic?

There is scientific progress in the marijuana debate recently though. Much has been said about the strength of marijuana in the modern marketplace. I have touched on the subject in Marijuana May be a Problem and Measuring Marijuana Intoxication. Essentially, there are challenges presented by marijuana consumption that are not currently presented by alcohol. This struggle to determine strength will be an issue for those who smoke it and those who eat it. 

Recently Fox News reported on a new process for measuring edible content, and it illustrates the ingenuity that perhaps we take for granted. The success and innovation we see from science is truly amazing sometimes. 

The fact remains that marijuana is illegal. Some states have elected not to criminalize its possession (within limits in some cases) under state law. This year, Florida joined the path to that posture with medical cannabis, passing HB 307. 

But marijuana remains illegal under federal law. That gets confusing, because the federal government has proclaimed that it will not enforce these particular laws. Physicians who believe in its properties cannot prescribe it due to the unenforced federal prohibitions, which remain the law and thus could lead to prosecution later, should an administration elect to enforce the law in the future. 

And thus, marijuana exists in our society in a murky grey-area of semi-acceptance. But don't necessarily look for the Food and Drug Administration to play a huge role in dealing with marijuana safety anytime soon. Late last year, the Food and Drug Administration apparently recommended changing the Schedule I categorization of marijuana. Some outlets suggest that the Drug Enforcement Agency may make a Schedule change this year. This trend suggests that the conundrum of testing and disclosing strength of cannabis may become increasingly important. 

Fox reported recently that "the murky laws surrounding the world of cannabis laced goodies means that those who eat them often have no idea how much marijuana they are really consuming." This is not a complication isolated to marijuana. We are faced with a vast volume of label claims on our grocer's shelves. Label claims may be made through loopholes or "blatantly false or misleading claims," according to USA Today. And, that is on the foods/ingredients the FDA is addressing. At the current time, label expressions about cannabis may or may not meet FDA standards. 

The essential ingredient for a "high" is the cannabidiol that comes from marijuana. The volume present in a product is of interest to the user. So far, the practice has been to use a "high performance liquid chromatograph" or "HPLC" (as an aside, remember My Cousin Vinny, discussing the "dual column gas chromatograph" used to test the tire rubber? The prosecutor asks "does that thing come turbo-charged?" The state's witness, deadpan, "only on the floor model." Priceless).

Fox reports that a more accurate method of measurement has recently come to the marijuana edible business though. Critics complain that the previous state-of-the-art practices of using the chromatograph leads to highly inconsistent results. In fact, "producers of cannabis edibles complain that if they send off their product to three different labs for analysis, they get three different results." Sure that is a problem for the producers, but in the end, the problem is really for the people who ingest the product. For them, knowing the strength might be critical (eat the whole cookie and it could potentially kill you).

So the American Chemical Society has been working on a solution. They concluded that the "HPLCs don’t actually give accurate readings for food stuffs;" In fact these machines "were never designed for you to inject a cookie into them." Apparently, the issue is that the "sugars, starches and fats will wreak havoc on HPLC equipment." The machines are not designed to deal with these compounds and as a result do not deal with them consistently. 

The new process recently announced starts by freezing food like marijuana cookies or gummy-bears using dry ice or liquid nitrogen. Then sand is introduced into the food and the whole mixture is ground up. This creates "a homogeneous sample." Scientists are calling this process "flash chromatography." Using it, "scientists were able separate the various chemical components of the sample." This is then analyzed by the HPLC.

The scientists claim this methodology "could yield far more accurate and reliable measurements of THC and/or CBD levels in an edible product than was previously possible.” Their research has been determined "accurate" with "gummy bears, brownies, cookies and certain topical lotions." The article does not explain how "accurate" is measured. 

Having admitted that the old method ("inject a cookie into" the chromatograph) does not produce accurate results, one wonders what method is used as a standard, against which this new method is measured for accuracy. Hopefully "accurate" means both that the results are now replicable; to be "accurate," one would hope that three samples to three labs should produce significantly similar if not identical results. Hopefully "accurate" means that the content is really reflected so that overdose is preventable.

But, this new method is seen as an important breakthrough with "far reaching implications for dispensary standards." The article suggests that legalization of marijuana is an eventuality that will spread across the country. In the evolution of marijuana availability, "for both recreational and medical purposes," accurate information about strength and probable impairment is seen as critical. 

Just as we have become tuned to interpreting our food labels to understand fat, carbohydrates, sugar, sodium and more, this will be an education. Perhaps it is more critical however, as illustrated by outcomes already associated with marijuana overuse?

Remembering a Legend from Trenton

I attended the Florida Worker's Compensation Institute Hall of Fame in January. This was an incredible gathering, with more than 1,000 years of Florida workers' compensation experience gathered in one room. I was privileged to sit between Richard Sicking and Al Frierson, clearly the deans of Florida Worker's Compensation. Each has been practicing more than 50 years.

This year marks the induction of new members. The opportunity to bear witness to the honoring of Claude Revels (formerly with JM Family Ent.) and Tom Koval (FCCI) was heartwarming. The Hall is divided into an "active" membership and a "Legends Division," which honors those who have retired from the industry. Honorees include adjusters, attorneys, judges, managers, and more. 

The legend induction this year was for the Honorable Elwin Akins, posthumously. Judge Akins was based in Trenton, and the later Gainesville. He is said to be the last Florida judge of compensation claims to regularly "ride a circuit." Judge Akins had specific days of the week in specific counties around the Gainesville District, or as it was once known: "District B." These were not sporadic stops, but weekly adventures. 

When Judge Akins left the bench in 1992, Judge Ohlman was appointed. I had many cases before Judge Ohlman in Gainesville. I never had the opportunity to appear before Judge Akins in Gainesville, or District B. However during one of the transitions between judges in Jacksonville, I had the opportunity to appear before him as a pro hac vice judge. That is a judge appointed temporarily to cover a docket. That practice has waned. I think the last pro hac vice in Florida workers' compensation was in Miami back in 2005. As I remember it Judge Akins served pro hac in Jacksonville after Judge Adams transferred to Orlando, and before Judge Harris was appointed to fill the resulting vacancy. 

Judge Akins was "folksy." All who reminisced about him at the Hall dinner in January remembered his keen intelligence, and no-nonsense approach to the adjudication process. More heartwarming, though, was the repeated iteration that "Judge Akins was like a father to me," from various Hall of Fame members. Those kinds of sentiments are likely not uncommon in the practice. Many lawyers have been blessed with exceptional mentors over the years. But these sentiments were expressed by THE giants of the Florida workers' compensation market, and as they say "consider the source."

To appreciate the magnitude of such complements, one needs to understand the Hall of Fame is an incredible collection of individuals. Each has been dedicated to Worker's Compensation on a professional, intellectual, and even academic level for decades. These are the people upon whose backs Worker's Compensation has survived and thrived over the last 40 years. They did not write the workers' compensation law necessarily, but many of them influenced its writing and revisions over the decades. It is an indescribable honor, and humbling, to be included in such a group. 

I think the only thing I might have changed would be for the Hall to have existed when Judge Akins was alive. He passed in 2009 at the age of 81. I wish we could have inducted him then. I wish we would have had the opportunity to tell stories of his exploits to his face; to honor him in person instead of in retrospect and abstentia. I sure enjoyed my hearing with him back in the day. He was no-nonsense, sure of himself and decisive. You knew where you stood, and for the most part stood wherever he told you to. I learned some lessons on being a judge from him. 

As I drove home after the Hall dinner that night, I reflected on the comments. I was fortunate to have company as far as Lake City, Claude Revels had ridden with me from there. By the time I turned onto I-10, though, it was dark and it was quiet. I reflected and thought a great deal. It occurred to me that there have been a handful of people in my life that I would call a mentor. Some would not even know it. But, I have studied them and tried to emulate them. 

There are people who have some defining characteristic, a scholar, a worker, a friend, a lecturer, an advocate, a professional. I am so blessed to know these people, and grateful for their influence. I am hopeful that somewhere out there Florida is blessed to have some lawyers (or other professionals) to whom maybe I taught a thing or two at some point. I am hopeful that my years in this industry and on this bench have been meaningful to some. 

April 25, 2016 will be a momentous day in District "B." Judge Renee Hill will host a gathering in that office space, where the District has resided for more than 20 years now, and some words will be said. The plaque that I wish we had handed to Judge Akins years ago will be presented to Judge Hill, and she has promised it will be displayed there for everyone. There, in District "B," Judge Akins devoted his life to this system and the people ensnared within it. It seems appropriate that a little reminder of him comes to rest in that office. But, it will be a grey-haired bunch that remember him, some 24 years hence (sorry folks, I call 'em like I see 'em). 

I am proud of our workers' compensation bench in Florida. I think it is unequalled anywhere. But, I do miss some of the "old timers" and I enjoy reliving their contributions through a story or two at a dinner once a year. Perhaps this comes more acutely as you near "old-timer" status yourself? Here's looking at you Judge, and thank you to all who worked to make this presentation and honor come about. 

I hope you have a mentor or two. Perhaps today is the day to let her or him know. Pick up that phone and reach out while you can. Time keeps teaching me that it's never too early and often too late. 

An Interesting Analysis of Compensability

In the 1985 board game-inspired movie Clue, we are treated to a summation of the crimes by Wadsworth (Tim Curry, who may or may not have been the butler). The movie is known for its four alternative endings, each as plausible, and ridiculous, as the last. In one, Wadsworth notes "communism was just a red herring," a line similarly uttered by Ms. Scarlett (Leslie Ann Warren) in an alternate ending. 

The Florida First District Court of Appeal last year rendered Esad Babahmetovic v. Scan Design Florida Inc. The Court's original opinion was published last May, but a motion for rehearing was filed. The Court denied a motion for the entire Court to hear the case (called en banc), but the panel of three judges did rehear the case, releasing the revised opinion on October 8, 2015. 

The case delineates distinctions between "compensability" and the need for "treatment." Compensability is a conclusion(s) regarding the "existence and cause of the injury." The Court explained that "compensability is a concept used to convey the idea that the Florida Workers' Compensation Law applies." Compensability "requires the presence of certain elements described throughout chapter 440" by various terms of art. If an injury is not compensable, according to the court, the workers' compensation law does not apply. 

But, the court noted, the "existence and cause of the need for treatment" is not the same analysis. Whether there is a need for treatment and whether that is "caused by work" is not dependent upon whether there has been a "compensable" accident/injury. That is, the court explains, the analysis of the need for medical care and treatment is independent of whether "the Florida Workers' Compensation Law applies." 

Some may see that analysis as confusing. Some might have erroneously concluded that the care and treatment provisions of Fla. Stat. 440.13 would only apply if "the Florida Workers' Compensation Law applies." The Babahmetovic decision seems to suggest a clarification to some. They suggest that this case seems to indicate that the law applies in some instances in which the law does not apply. 

The Court noted that "there must first be a compensable accident and injury before an employee is entitled to any benefit allowed in Chapter 440." The Court then clarifies, that there is "one single exception" to this rule. That is, people are entitled to an advance payment "under section 440.20(12)" regardless of whether there was a compensable accident and injury. Florida appears to be alone in providing advance payments to whomever asks for them, regardless of whether they were an employee, had an accident, or suffered an injury. 

Despite the characterization that the advance is the "one single exception" to a requirement that "there must first be a compensable accident and injury before an employee is entitled to any benefit allowed in Chapter 440," the Court explains in Babahmetovic that the employee is entitled to a one-time change of physician (arguably one-time change is a benefit afforded by Chapter 440), regardless of whether "compensability" has been established. Some have expressed confusion at this point, asking if that is a "second single exception," perhaps a fair question perhaps in light of the "one single exception" preface. 

In part, that is because the Court opinion recitation of the "compensability" analysis and its discussion of the trial Judge "conflating the existence and cause of the injury - compensability - with the existence and cause of the need for treatment" itself creates confusion for some. 

The issue in Babahmetovic is far simpler, and perhaps deceptively so. The worker did suffer an injury at work. Everyone in the case agreed with that. The result was a sprain to the back. The worker also had a pre-existing "degenerative disc disease" in the back. The question for the Judge and then for the court was deceptively simple: "was the work accident the major contributing cause of the need for treatment of the back sprain?" The answer to this was yes. As such, the workers was entitled to medical care for the back sprain. As such, the worker was entitled to a "one time change" in physicians for the back sprain. It seems that simple. 

The discussion of the "compensability" analysis, the inclusion of the curious precedent that an advance is appropriate regardless of employment or any other provision of Chapter 440, the "conflating the existence and cause of the injury" and the "existence and cause of the need for treatment (in broad context)" led to confusion in the opinion, and that seems to have lingered since. To some, the resulting discussion that the need for medical care and treatment is a question somehow independent of whether "the Florida Workers' Compensation Law applies" is also confusing. 

As Tim Curry and Leslie Ann Warren might say, "compensability was just a red herring." 

The confusion arguably results from terminology. Different wording, more specific wording, might help resolve the conflict. This is not about compensability of a "back injury" in its broadest context (within which there might be analysis of various factors, elements, and causes). The question here is about the compensability of the “back sprain,” which everyone in the case conceded is work-related and compensable. Once this distinction is drawn, some feel the issues is clarified. 

They suggest that the appropriate question was not “was the work accident the major contributing cause of the need for treatment of the back?" Instead, perhaps it would better have been: "what is the major contributing cause of the back sprain." When such a case reaches a point of determining indemnity benefits, there may be questions as to whether the back sprain or the disc disease is the major contributing cause of the disability. But that discussion would be for another day. In a medical care claim like this, the sprain admittedly occurred at work, the injured worker is therefore entitled to treatment for that sprain. That includes the change of physician for that sprain. This is because that sprain is compensable, and not because care is appropriate through some route (second single exception) alternative to compensability. 

There are those who suggest that the references to the advance statute, the "one single exception," or second "single exception," are simply confusing. What say you?

Giving it Back

There are ample opportunities in workers' compensation to feel bad about the system, or the people involved in it. There are many stories in the news about bad actors. There was a recent piece from the Center for Investigative Reporting. It illustrates avarice, and may make you angry. WorkCompCentral describes the report's perspective on "rampant fraud." With each day, there are stories that remind us that there is work to do in workers' compensation. Some of them anger us, others merely depress us. We can do a better job.

In the midst of this "bad news" parade, there are a few promoting the positive aspects of this industry and the incredible people that are involved in it. I pause specifically today to let readers know about two of those efforts. 

The WorkCompCentral team out in California is sponsoring the Comp Laude Awards again this year. It is a little hard for me to believe (time flies), but this will be the fifth annual. The awards will be presented at the annual banquet in Burbank, California next November 4-5. I know, Thanksgiving 2016 seems a long way off to me also, but believe it or not it will be here before you know it. The nomination process is already underway. 

The Comp Laude awards are intended to recognize inspirational participants in the workers' compensation world, from coast to coast. Nomination categories include "Injured Workers, Doctors, Claims Adjusters, Employers, Insurance Companies, Brokers, Vendors and nearly any other person or company that has been a positive influence in work comp!" The website encourages you to nominate inspirational and exceptional people even if they do not seem to fit a particular category. 

We all know exceptional people in this industry. There are employers who have gone the extra mile. There are employees who have fought back to functionality and success against the longest odds. There are doctors, therapists, adjusters, risk managers, company owners and more who have refused to let their role be defined by others. They have engaged this industry and made it work for the injured worker and employer. They have zealously pursued the ultimate goal of returning the injured worker to gainful employment. 

A second recognition effort is underway a continent away in Florida. The WorkersCompensation.com team has undertaken revival of the "Best Blog" awards. There was a period when Lexis recognized the workers' compensation blogs it perceived as exceptional. Many of the sources I have used for workers' compensation news over the years were among the honorees. In my opinion, there are but a handful of blogs that are authoritative on a particular topic critical to workers' compensation. There are another handful of blogs that provide important national commentary, and a few others with consistent and valuable state-specific import. 

A couple of years ago, the Lexis team decided to discontinue its recognition process. Without the WorkersCompensation.com team, the story of Best Blogs would have ended there. Following a short absence, however, the Best Blogs awards are back. WorkersCompensation.com has been working through March to publicize the existence of the recognitions, and to solicit nominations. Their nomination process closed March 31, 2016. 

It is not an easy task to write a blog. I publish only three days a week, and that is a great effort. For me, it is an outgrowth of the hours I spend each week trying to stay current on the law and the news. But there are those bloggers who post daily, and still others only post sporadically. What they all have in common is that they are making an effort to inform us. The bloggers bring perspective, information, and often much-needed criticism. 

There is no way that we can read all the bloggers. But, we should appreciate the opportunity to read them. We should be grateful that, when we Google topics and questions, we are often blessed with multiple perspectives on a given topic from the inside of workers' compensation. I run into many of these bloggers at programs and conventions. They are bright and focused. We are fortunate to have their perspectives and expertise. The WorkersCompensation.com effort to recognize them is positive and recognizes their contribution to our professional lives. 

These two efforts, Comp Laude and Best Blogs, admittedly have benefits to their sponsors. Both WorkersCompensation.com and WorkCompCentral are news outlets. Both certainly desire people visiting their websites for information, news, data, and more. But at the same time, they could obviously deliver their commercial products without these efforts to recognize positive contributions to the workers' compensation community. I am careful in this post not to promote commercial organizations. And today's post is not promoting these companies, but merely noting two significantly altruistic opportunities for you to recognize others in the workers' compensation industry. These recognition programs are worthy of consideration because there are many in our industry that are worthy of recognition. 

And it is critical that we remember that these efforts have real benefits to the community we call workers' compensation. In recent years, I have been privileged to expand my focus to a national level after spending decades in Florida workers' compensation as a career. 

I have met national leaders in the workers' compensation industry. I have been privileged to be involved in the premier American workers' compensation groups: The National Association of Workers' Compensation Judiciary (NAWCJ), the Workers' Compensation Institute (WCI), the Southern Association of Workers' Compensation Administrators (SAWCA), the College of Workers' Compensation Lawyers (CWCL), the National Council on Compensation Insurance (NCCI), the National Academy of Social Insurance (NASI), the Workers' Compensation Research Institute (WCRI), the Workers' Compensation Claims Professionals (WCCP), SEAK, and others. There are also a multitude of state groups in Florida such as Florida Association of Self-Insureds (FASI), Florida Workers' Advocates (FWA), The Florida Bar Workers' Compensation Section, and more. We need to be thankful for these groups, their leaders, and their efforts. They are striving to build knowledge and share prespective. 

These are merely examples. But the fact illustrated is that there are a great many focused and exceptional people serving this industry. Through their individual efforts and their contributions to these groups, they are moving the industry forward. They are leading, improving, commentating, and more. They may disagree on the specifics of what would make workers' compensation better. That is fair; perspectives can differ. But they all believe that they can make the system and process better. They are striving to promote their own perspective and to make improvements. 

Do you know someone or some company that is doing an exceptional job? Do you know an injured worker that inspires you with her/his resolve, attitude, or accomplishments? Do you know an innovator, leader, motivator, or inspiration? I encourage you to consider nominating them for a Comp Laude award in 2016. We are all better when the best among us receive appropriate recognition for their dedication and efforts. I spoke last year to a nominee. He related to me that it was humbling to have been nominated. A nomination is a great way to tell someone that you respect and value their efforts. 

It is too late to make nominations for the 2016 Best Blog. That deadline was March 31, 2016 and the honorees will be announced in April (my purpose here is not to self-promote either, thus my decision to publish this post-deadline). But now you know about the process, and you know that when the calendar rolls around to the annual "March Madness" of college basketball 2017 it will once again also be time for the annual Best Blogs awards on WorkersCompensation.com. In the meantime, you can always leave a comment on a post and let the author know you appreciate their effort in bringing you a perspective or insight. 

There may be other appropriate ways we can recognize the best and the brightest of the industry we call home. If you know of such a process or opportunity, email me details for inclusion in a future post.