Perspectives on Virtuality

In recent months, the topic of remote work has been in the news. I have also had the opportunity to discuss virtual presence with a variety of employees, customers, and managers. The opinions are diverse and likely reflect some degree of preconception (bias). 

I have spent a lot of hours on predisposition, and it is worthwhile to consider its impact on all of our analyses. See Unseen Influence: Unconscious Predisposition in Dispute Resolution (2025). All professionals would be well advised to spend some time considering predispositions and their potential impacts. 

The trend in our pandemic era was toward virtual work. However, 2025 has brought a significant shift back to the office environment. That has led to worker complaints and dissent, illustrated in a recent Business Insider analysis of one company and its employees' reactions.

The CEO of AT&T addressed the results of an employee survey. He suggested that there will be those who choose to remain with the company and those who seek other paths. He cited a very compelling quote on change:

"If you dislike change, you're going to dislike irrelevance even more."

That is a powerful thought. Change is incredibly persistent. If you have not been career-impacted by it yet, count yourself as fortunate. But also know it is coming nonetheless.  

The AT&T conclusion seems aligned with those I have spoken with recently: a worker who changed jobs after relocating and elected remote work, two who have been mandated from remote to hybrid, and one who has long-term adherence to virtual. Their perspectives have been informative and interesting.

The young person who recently changed jobs and is new to virtual laments the lack of company and camaraderie. Their work seems transactional, and the connection with coworkers and team members is strained despite the generational affinity for digital communications and the raft of platforms that facilitate it. There is some demand for better interaction and collaboration.

One of the recently hybridized worker laments that the work rules in their company are inconsistent and yet constraining. They are back in the office on the premise of collaboration, but none of their team is co-located. They are driving two hours per day to/from work, and yet still interacting with their team and collaborators only by email, phone, and text, just as they might, as readily, from home.

Another recently-hybridized commuter drives less distance and duration each day, but still complains of the wasted commute time. They are adamant that this negatively impacts their productivity and motivation. This worker's team is periodically co-located, but because of self-selected in-office days, it is common to still interact only electronically. There is little coordination regarding selecting the same in-office days. 

One of these related a story of a coworker who has "gone native" in the virtual world. This sounds a bit like Colonel Kurtz (Apocalypse Now, Warner Bros. 1979). This worker produces in sporadic dashes that last many sleepless hours, followed by crashes of similar duration. Their work is not in 8-hour stretches, nor any consistent or repetitive schedule. 

There was some expression of concern for health and welfare in such an environment. That said, some may thrive on an out-of-synch process, driven from project to project with sporadic periods of lethargy. But it sounds a bit like a roller coaster to others. 

Despite these examples, another virtual worker reported no real challenges or concerns with remote work. They have adapted and adjusted to the solitary environment where the only human interaction is digital. They find their day productive and engaging. They communicate electronically, virtually attend meetings, and produce effectively and consistently.

The common theme that draws to the fore seems to be control. The workers are each working in a manner that is largely dictated to them by policy or circumstance. Their affinity for each of the various postures seems influenced by the extent to which each was able to choose their circumstances. Therefore, this may be a significant detriment in the eyes of those being ordered back. It may not be so much the "back" as the "ordered." 

There is likely some generational influence in this debate. The young people today are much more driven by their senses, conclusions, and independence. Like all young generations (and I have now seen a few), they believe they are better equipped and educated to make good decisions than the "old folks" who are hindering them. 

Newsflash - that has always been the case. Every generation feels that way. We have all felt constrained by the old folks, their rules, their paradigms, and their resistance to our new and innovative ideas. The older generations have all felt emotions of "these kids today," and their disconnect from the values of the status quo. 

But, there is reality. The world of work is returning to central office environments. The Great Comeback (c) or Great Inconvenience is here (for most). See Heigh Ho (January 2025). There is an extensive list here. In addition, the federal government and state governments are pushing in that direction as well. 

Those who are still working virtually should be both grateful and focused. Focused on persistently demonstrating their value, resilience, and contribution. I would suggest documentation and reinforcement as important tools. I would suggest that those who are fortunate to work from home remain flexible, engaged, and communicative. 

The world of work is in a constant state of change. The impacts may be disproportionate, disheartening, and disappointing (for some). There is potential for the impacts to be affected by educational achievement, industry, and employer. Nonetheless, this is the present. If you don't like it, stick around a minute and it will undoubtedly change—perhaps in a way you like (maybe not so much). 

Change is constant, anxiety from it is persistent, and whether you like the result or not will be up to you. 

Heigh Ho?

For most of my life (until I wrote this post), I thought the seven diminutive laborers sang "Off to work we go." This was all in that eclectic and entertaining Grimm classic focused on parental (guardian) abuse, treachery, breaking and entering, poisoning, and worse. What a great kid's story, huh?

In fact, though, they do not sing "off to work," but only "It's home from work, we go." There is conjecture on the internet that the "off to" trope comes from a line earlier in the story about heading "off to work." It is amazing that one can become so convinced of falsity.

Nonetheless, the song conveys the challenge of the big commute. Perhaps it is better if we can sing along in route, or perhaps it is the camaraderie of commuting in a group activity, a common experience, a touchstone of commiserative experience? No, nobody really "likes" to commute, though some deal with it better than others.

The main point is that the time seems to have come for "off to work." The age of virtual employment dawned earlier this century and blossomed in the Great Panic. Remember when anyone suggesting that the virus was man-made was derided and insulted by the keyboard cowboys? The CIA now concludes a lab leak is a "more likely" cause than some transmission from animals as so long insisted by the experts. 

Previous posts about virtual work are listed at the end of this post, and Virtual had quite a following. The thought of its diminishment came to me recently when a colleague expressed disdain and disappointment that a family member was being ordered back to the office.

The sentiments there were about

1. Wasted time
2. Unnecessary commuting expense
3. Unwanted wardrobe expense
4. Illogic and unpopularity
5. Maturity and productivity

The bottom line is that every virtual employee believes she/he is more productive, more economical, and thus more useful than if she/he had to commute. Most managers I have spoken with feel that employees are more productive, more engaged, and more useful if they are in the office. This argument has as much chance of an amiable conclusion as one about the relative merits of SEC football between fans of any of those teams and any from the Big Ten, Big 12, or ACC (You could more readily get Gutfeld and Whoopi to agree on something).

But, the "Great Comeback" (c) is on. In 2024 such businesses as Amazon, the Washington Post, UPS, and AT&T abandoned remote work or curtailed it, according to Inc. Magazine, The experts consulted for that story are adamant in their remote-work fandom. Nonetheless, there are some concessions that hybrid work is the majority category of virtual work, and true-blue virtual work is diminishing. There appear to be few truly, fully remote workers out there, but they do exist. True virtual seem to share characteristics - highly educated, very motivated, and self-actualizing.

Then came January and a change of administrations in Washington. The news noted that federal workers will return to the office in significant numbers in 2025. The Independent reported that one of the first executive decisions in the new administration was the end of most virtual work in the federal government. Some agencies have reportedly already begun recalling workers. The pejorative and negative comments about government workers are too frequent and too stereotypical.

Reports on AT&T's return to office in December included various employee complaints. A primary gripe was that "there wouldn't be 'one-for-one' seating" for the workers. This means employees do not have a desk or office assigned to them. There are so many desks and they go to the first who arrive. Those who arrive later may have to use a conference table seat, the breakroom, or other unexpected accommodation. 

Some are arriving very early for the perks; but, do they eschew that next cup of coffee to keep from losing their seat? One report suggested that workers were also therefore banned from putting up pictures or leaving belongings in those workstations.

Some also complained about limited elevator access, vehicle parking, and other accouterments. There is a theme to the reporting, suggestive of some employee dissatisfaction with the return to office policy. The press reporting this seems sympathetic to the workers and the post-Great Panic "Great Inconvenience" (C) of 2025.

The complaints and criticisms may be driving the worker dissatisfaction or may be ancillary to the main issue - money. Some report that the return to the office costs the employee the equivalent of a month's groceries ($504.00). After the last few years of historic inflation, a month's groceries can be quite an investment. My old friend claims persistently that "it's all about the Benjamins." I always thought that was a boy band, but now I get it. (by the way, if you decide to name your band that - (c). If you decide to name yourselves The Great Panic or The Great Inconvenience, or The Great Comeback, same - (c)). 

Some see a drive to collegiality and team interaction. Others see heavy-handed management bent on control over contribution. There are many voices presently in the marketplace of ideas. That said, at the end of the day, there is no mandate on either side. The employer may certainly define the scope and process of the work. The employee is free to engage in that model or to choose other paths. Each side is free to choose.

Some will decry that perspective. They will insist that the employer has a disproportionate influence on the rules of any particular employment. That is simply supply and demand, which fluctuates. During the Panic, many did not work, and wages and accommodations like remote work increased. Labor was clearly in a positive negotiating position.

However, critics will stress that the working person now has little leverage or influence over the terms, space, or pace of work. Certainly, that might be a worthy observation within any workplace, and yet the employee could find other opportunities within an industry or profession, seek a different niche, or change employment entirely. Further, the more skilled the worker, the more accommodating the employer may have to be. Again, supply and demand. 

What is the right answer? What is the real truth? As we so often conclude, the correct answer is "it depends." It will depend on the employer, the employee, and the circumstances. There will unlikely be any commonality or consistency. Some will be virtual, some hybrid, and some on-premises. Some will thrive in this mode or that. Others will struggle in the mode they choose or must adopt. Some will flourish and stay, others languish and merely subsist. The outcomes will be individual, imperfect, and perhaps at times incendiary.

The bottom line is that the trend is turning from virtual work and for now, many workers will have to adapt to the challenges of in-person work. From all of us who persevered through the Great Panic at our office desks, doing the daily business, with our daily commute, Welcome Back! Oh, and Heigh Ho!

Previous posts on virtual or hybrid work:

Loss and Change (May 2020)
Presenteeism and the Coming Divide (June 2021)

Evolving Work Challenges (January 2022)

Remediating (February 2022)

Been Robbed (June 2022)

Too Sick to Commute? (July 2022)

Quiet Quitting (September 2022)

Productivity is Down (December 2022)

Generation Z Osmosis (April 2023)

Quitting Remote? (May 2023)
Virtual Productivity (August 2023)

Hip to Be Square? (August 2023)
Shifting Virtual (August 2024)
The Virtual Reality (October 2024)

Tech is Changing Work

A couple of recent articles on the workplace caught my attention. There are employees seeking better working conditions, and others concerned that their jobs will disappear. The two concerns may be discreet and unrelated, but it is also possible that one might see them related. Business is driven to be interested in the "bottom" line," and that is a financial consideration. In The Coming Automation (November 2017), the cost/benefit analysis of investment in automation is discussed in some detail. 

Reuters recently reported that Walmart to pay $65 million to settle lawsuit over seating for cashiers. The case is Brown v. Walmart Inc, U.S. District Court (Northern Dist. CA), No. 5:09-cv-03339. The workers in this lawsuit were troubled that their cashier jobs involved standing virtually the entire shift. The business allowed "cashiers with medical conditions or disabilities," to have stools to sit on at their workstations. It also afforded store managers "the discretion to provide stools to cashiers on a case-by-case basis." But, as a general rule, the cashiers had to stand throughout their shift. 

Reuters reports that this litigation is not necessarily innovative. It reports that multiple other businesses have been sued for not providing employees with seating. These include "Bank of America, CVS Health Corp, JPMorgan Chase Bank, Kmart, AT&T Corp, and Home Depot Inc." Interestingly, the LawProf blog recently reviewed "new scholarship" regarding the risks of sedentary workplaces. The scholars noted therein advocate increased socialization of health risks associated with lack of activity, including stand-up desks so people can sit less. It is almost dizzying that one might be liable either for making people stand or making people sit. For some reason, the Alan Parson's Project is stuck in my head. 

The cashiers sued, citing a "California regulation that requires seating for employees 'when the nature of the work reasonably permits.'” The procedural tool used is "California’s unique Private Attorney General Act." This appears to be similar to a "whistleblower" statute, that "allows workers to sue their employers on behalf of the state and keep one-quarter of any money that they win." If attorney fees are 25% to 33%, the recovery per employee in this instance might be $400 to $500 each.

Courtesy Kioskmarketplace.com

The self-check-out kiosks that are becoming ubiquitous in retail neither want nor need stools. A search of the Internet did not reveal a single case of such kiosks filing lawsuits against any business regarding the conditions in which the kiosks worked. Some suggest that these kiosks will become more prevalent in the coming days. They are appearing now at fast food, check-ins (airlines, doctor's offices), and even in the rapidly growing dope business. They have long reigned in banking. 

CBS News recently reported that Striking Marriott Workers Job Concerns Center On New Technologies. The story is from Boston, and reports that there is concern about "robots delivering room service, check-in kiosks with facial recognition technology and 'smart' speakers that serve as an in-room concierge." That last item is perhaps no different than the Siri found on so many phones or the Echo or Alexa. 

It seems that hotels are embracing the digital age, robotics, and artificial intelligence. Employees are not averse to technology, but they want it to make their jobs easier. They do not want it to eliminate their jobs. The potential for implementation of these technology solutions is leading to anxiety among the workforce. They are therefore striking, seeking input regarding the implementation of changes to the workplace. 

There is a desire for employment to continue, whether the business needs particular workers or not. The striking employees are seeking to protect housekeepers as demand for their services diminishes. On a recent four-night trip, I opted out of having my room cleaned on each night. I am capable of picking up after myself and simply do not need the room "refreshed" daily. And, the hotel awarded me "points" on my frequent traveler account in exchange for declining the daily bed-making and straightening (little "cleaning" is done in an occupied room). That trend apparently concerns workers as well. 

Employees are a means to an end for business. There is a great trend toward recognizing the contribution of employees, with some businesses referring instead to "associates" and "team members." But, at the end of the analysis, the question is whether a person or persons bring value to the business and its customers. So long as the customer perceives value, and is willing to consume the business' goods or services, then those businesses will perceive value in the employee. 

However, it is unlikely that employees can force employment for the sake of employment. As kiosks and automation continue their march to primacy, employees will have to bring value to the economic exchange that is being made between customers and businesses. An associate recently recounted an interaction at a somewhat famous fast food outlet that offered kiosks for ordering. This person disregarded the kiosk because "I believe in people and like ordering from a person." But, the person that she/he encountered at the counter turned out to be surly, rude, and slow. The "people" championing customer assured me that the next time around the kiosk would be used instead. 

It recurrently seems that technology takes jobs. The typing pool died at the hands of word processors, many accounting clerk jobs were replaced by spreadsheets, and manufacturing jobs have been replaced by robotics. These effects can be stated in many occupations. The fact is that progress and technology affect employment. 

Employers will likely be influenced by the value that employees bring to the customer. And there will likely be influence affected by cost. The cost of an employee versus the cost of a kiosk. It may be that the ability of a kiosk to work without the need for a stool, or alternatively a "stand-up desk," and the cost savings related to that will figure into decisions as well. Employees may be able to influence through lawsuits and strikes. However, employees' best tool of influence will be in the value that they bring customers (hint, "surly, rude, and slow" is not the right answer). 

The future is coming for us all, and it is really a question of "when" it impacts our occupations, not "if." If change is gradual, then attrition may ameliorate the impact that these changes have on particular individuals' employment, income, and lives. However, the fact is simple: change is coming, jobs will be eliminated, and people need to figure out how to adjust and evolve. Like it or not, we all need to understand change and figure out how we each bring value to our customers.  

Will the Florida Legislature Change the EMA?

The Office of Judges of Compensation Claims has long suggested inefficiency and ineffectiveness in the mandatory operation of Fla. Stat. §440.13(9)(c). It is the foundational complication with the application and operation of the EMA process. This section provides that in the event of any dispute between health care providers, The Judge of Compensation Claims (JCC):

". . . shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer or the carrier, order the injured employee to be evaluated by an expert medical advisor." (Emphasis added). 

The EMA process creates delays in the adjudication of workers’ compensation cases. The Florida First District Court (hereafter “the court”) has concluded that appointment is mandatory even if the result is a continuance of the trial. AT&T Wireless v. Frazier, 871 So.2d 939 (Fla. 1st DCA 2004). 

The court has concluded that if there is no expert certified, then the Judge must request the department (then AHCA) to select a temporary EMA. Broward Children’s Center Inc. v. Hall, 859 So.2d 623 (Fla. 1st DCA 2003). Since the medical services unit moved from AHCA back the Division of Workers' Compensation, this has been changed by rule to require the judge to find, convince and select a provider, and the Division certifies. 

When there is a conflict in medical evidence, the JCC has no authority to examine or weigh the sufficiency of any of the conflicting opinions. Brown v. Vanguard Security, 7 So.3d 572 (Fla. 1st DCA 2009). If a Board Certified, world-renowned orthopedic surgeon opines that surgery is medically necessary, and a first-day-of-practice family practitioner, without the advantage of even viewing the diagnostic testing or performing an exam, opines that surgery is not necessary, the court’s interpretation of the statute is that the JCC shall not consider this factually, but “shall” appoint an EMA.

The disagreement need not be between doctors of the same speciality or experience. AA Gutter Cleaning and First Commercial Claims v. Nicholas Cesario, 49 So.3d 281 (Fla. 1st DCA 2010). The appropriate consideration regarding whether to appoint requires no analysis according to the court.

The court has interpreted the mandatory “shall” of this provision to require the appointment of an EMA, on the JCC’s own motion. So, if no party asks for or suggests the need for an EMA, the JCC is supposed to appoint one. Or, if either party "suggests" any conflict in medical opinions, then the JCC is supposed to appoint one. See Banuchi v. Department of Corrections, 122 So.3d 999 (Fla. 1st DCA 2013). This interesting interpretation renders Fla. Stat. §440.13(9)(f) meaningless in two regards. Statutory construction is generally supposed to give full meaning to the entire statute where possible.

The critical element of Fla. Stat. §440.13(9)(c) is the mandatory nature. The italicized “shall” in the section quoted above, removes any discretion of the JCC in whether to appoint. If a conflict is identified, the JCC “shall” appoint an EMA. The intent of this statutory provision is not clear. It is possible that some parties or legislators perceive(d) that JCCs cannot be trusted to resolve conflicts in medical opinions. If the provision were intended to provide JCCs with resource, for occasions in which she or he is in doubt, the provision would be permissive, using “may” order, empowering the JCC, rather than “shall.”

If there is a distrust of JCCs, as this mandatory provision suggests, it raises a pertinent question. If the JCC is not trusted to resolve these medical conflicts, why then is the JCC trusted to select the medical professional who will resolve these medical conflicts? The statute precludes the judge from resolving/deciding the conflict but allows the judge to pick the referee that will resolve it. 

As curiously, why is the JCC trusted to select the specialty to perform the EMA? In the example above involving a dispute between the opinions of a family medicine practitioner and a world-renowned surgeon, the law leaves the JCC discretion as to which EMA to appoint. Should the EMA be a family medicine physician or a surgeon? Orthopedic surgeon or neurosurgeon? On what foundation, in light of Brown, would this determination be made? 

This may be an even harder decision when the conflicting opinions are from one neurosurgeon and one orthopedic surgeon. What specialty should decide that dispute? And the desired effect of finality, with the presumption of correctness afforded the EMA, may be tempered by the parties ability to question and litigate over the selected specialty and who was in fact in the best position to render an opinion. 

There has been legislative discussion in 2016 of removing the requirement that EMA providers be "certified." Some suggest that this will alleviate system pressure and delay resulting from a small and diminishing list of certified EMA providers. The motivation of this amendment is not clear, but if it is passed, the JCC will be further empowered to select a provider of his or her choosing to resolve medical disputes. That is, empowered to select providers without regard to their Board Certification or other qualifications. 

The judge, who is apparently distrusted to make decisions resolving medical conflict, who is compelled (“shall”) to appoint an EMA, is empowered by HB 613 to appoint whomever she or he deems appropriate, regardless of credentials or certification. Hypothetically, a judge might select a practitioner with a significant malpractice history. Beyond searching for and cajoling participation from providers, will the judges now need to check databases to determine things like malpractice? 

There is a perception that the current list of Florida EMA providers is insufficient. There are complaints that recruiting providers for that list is difficult. Perhaps a solution to the lack of willing and qualified EMA providers is to remove the requirement of qualifications? But, perhaps a better solution would be to change the “shall” to "may" and leave the discretion to the judge to decide when it is or is not appropriate to appoint an EMA?

IMR and Due Process

The Florida workers' compensation marketplace was recently introduced again (This blog introduced the concept in July 2015: Another Unconstitutional Statute - and it's not Florida) to the idea of Independent Medical Review (IMR) by the publication of a report by Florida Tax Watch. The fundamentals of the IMR process are discussed in IMR in Florida? Beyond the overview of IMR, however, is the oft-noted "due process concerns" of the IMR process. Though IMR is reasonably recent, having been enacted by the California Legislature in 2012, there is some California decisional authority on that precise point. 

In 2015, the California First District Court of Appeal decided Stevens v. Workers' Compensation Appeals Board, 241 Cal.App.4th 1074 (Cal. Ct. App. 1st 2015). It includes some history of California statutory changes in 2004 and again in 2012. The 2004 changes created a process called "Utilization Review," (UR) and established that "a request for treatment cannot be denied by a claims adjuster and must be approved unless a clinician determines that the treatment is medically unnecessary." The 2004 law also required the adoption of treatment guidelines, titled the "Medical Treatment Utilization Schedule," (MTUS).

California UR, the Court noted, is not bilateral. The UR decision can be challenged by the injured worker, but not by the employer. For employers, the UR process is binding. If the UR determines the requested care to be appropriate, it must be provided, and the employer has no recourse except to provide it. The Court explained that thereafter the 2013 statutory changes "built off the 2004 legislation and established a new procedure, 'Independent Medical Review,' (IMR), to resolve workers' challenges to UR decisions."

Ms. Stevens challenged "the constitutionality of the IMR process." The arguments included violation of separation of powers, the state Constitution's requirements that workers' compensation decisions be subject to review and the system “accomplish substantial justice,” and principles of due process. The Court was not convinced of any of these grounds and concluded that California IMR is constitutional. 

As to the challenges related specifically to the California Constitution, the Court noted that "the Legislature has plenary powers over the workers' compensation system under article XIV, section 4 of the state Constitution." Furthermore, the Court concluded that IMR affords the injured worker with sufficient due process as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution. Essentially, the Court concluded that the ability to provide written arguments to the physician throughout the IMR process was sufficient. 

Ms. Stevens' July 2013 claim was for four medications and the provision of a home health aide following a work accident. Notably, this case discusses "compensability" as it relates to the claimed benefits, but there was no dispute regarding "the general proposition that Stevens suffers from pain and other ailments and is entitled to receive" medical care. The UR process involved review by "a board-certified anesthesiologist," who denied the requests in "an extensive, nine-page" decision, sent to Ms. Stevens. 

The Court's recitation of the grounds for denial focuses on the medical purpose and efficacy of the four medications (Ativan, Flexeril, diclofenac cream, and hydrocodone). The UR physician's conclusions and denial were essentially that other alternative treatments would be better, or at least should be tried before the claimed medication. Ms. Stevens disagreed and asked for a UR evaluation with "a different 'Physician Adviser,'” a re-review. Stevens was afforded and took "the opportunity to submit additional evidence for the (second) internal review." 

A second "board-certified anesthesiologist" reviewed the request for care. For it, Ms. Stevens submitted "a seven-page report by Dr. Jamasbi dated August 14, 2013, addressing" the first UR decision/denial. The second UR physician nonetheless also denied "the request for the four medications." That was similarly provided to Stevens in a written, nine-page report. This illustrates how the UR process affords the injured worker two opportunities to submit evidence, the initial UR and an "internal review" that involves a second physician and can include additional documents. 

On the basis of the second UR denial, Ms. Stevens sought an IMR. She was allowed to, and did, again submit additional medical documentation for the IMR review. Thus, there were a total of three opportunities to submit documentation. The IMR "final determination" was issued "in February 2014," and upheld the UR denial of home health aide and the four medications, based on the MTUS. 

The denial did not identify "the IMR physician," but stated "the IMR reviewer was “Board Certified in Pain Management, had a subspecialty in Disability Evaluation, was licensed to practice medicine in California, . . . had been in active clinical practice for more than five years, and was currently working at least 24 hours a week in active practice.” The IMR determination "became" the determination of the Director of the Division of Workers' Compensation (director) as a matter of law. (§§ 3206, 4610.6, subd. (g)). That legal function made the IMR decision "state action" for the purpose of the due process discussion and analysis. 

The injured worker appealed the IMR/Director's decision to the Workers' Compensation Board. The Board denied that appeal and affirmed the IMR/Director, noting Stevens had not proven "one or more of five grounds for appeal listed by the Legislature in section 4610.6(h) by clear and convincing evidence.” The Legislature provided specific reasons for which the IMR could be disregarded by the Board. As regards the "clear and convincing," there are those who find the California IMR similar to the Florida Expert Medical Adviser process in Section 440.13(9). 

The Appellate Court reiterated that the California Constitution "gives the Legislature 'plenary power ... to create ... and enforce a complete system of workers' compensation.'” The use of "plenary" suggests "absolute or unqualified" power. Some suggest that is a distinction relevant to Florida's consideration of IMR, as there is no similar Florida grant of "plenary" power, affording such unfettered authority regarding workers' compensation. 

Notably, in enacting the "IMR process," the California Legislature made specific findings as to the "then-existing system of resolving disputes about treatment requests." It concluded the process

"was 'costly, time consuming, and [did] not uniformly result in the provision of treatment that adhere[d] to the highest standards of evidence-based medicine, [and this] adversely affect[ed] the health and safety of workers injured in the course of employment.'” 

It reached similar conclusions regarding the pre-IMR process for the appointment of "qualified medical evaluators (QME) to examine patients and resolve treatment disputes. 

The Stevens Court stressed the independence of the IMR providers, the requirement of adherence to the MTUS, and the requirement for detailed decisions regarding requested reviews. The availability of appellate review by the Board, for specific grounds, also affords a level of due process according to the Court, although its power is limited to ordering a new IMR. And, ultimately, the decision can be reviewed "in the Court of Appeal" as in Stevens, but notably, the record may not include all of the documents involved in the various medical reviews. Each of these was found to include elements of due process. 

The Court concluded that "both workers and employers benefited from the 2004 and 2013 reforms." Primarily, the Court noted the speed and efficiency of decisions, the UR finality if in favor of the employee, and the reduced "insurance costs by creating uniform medical standards and reducing litigation." Thus, at least arguably, the benefit of "standards" is perhaps less about IMR than it is MTUS, UR, and perhaps the California pharmacy formulary. 

The Court concluded that Stevens' California Constitution challenges failed because of the plenary authority granted to the Legislature. That grant of power was intended to "remove all doubts as to the constitutionality of then-existing [workers'] compensation laws.” The Court concluded that the evolution of this "plenary power" clause "compels the conclusion that Section 4 supersedes the state Constitution's due process clause concerning legislation passed under the Legislature's plenary powers over the workers' compensation system. 

The Court was equally unmoved by the "principles of due process under the federal Constitution." It noted that "to prevail on a federal due process claim, plaintiffs must show that the state deprived them of a property or liberty interest without affording sufficient notice and opportunity to be heard." The Court expressed some doubt that such a decision as to the appropriateness of medical care either "constituted state action" or "implicated a protected property interest." 

It conceded that the due process issue is not settled by the United States Supreme Court, and discussed some similar factual medical necessity determinations in other cases, as well as some distinctions. In light of that uncertainty, the Stevens Court proceeded assuming that both "state action" and a "protected property interest" were present, so as to implicate the due process clause (of the Fourteenth Amendment by direct application, or potentially the Fifth Amendment subject to selective incorporation). 

The Court concluded that Ms. Stevens was "afforded ample process." It noted this included the IMR process, but more. It found the ability to submit documentation and written explanations through UR and IMR persuasive. And, the Court balanced the constraints (seemingly "confrontation" and "cross-examination" against a "governmental interest" previously determined to be "strong," as regards other medical decisions (in group health) IMR processes in California. It noted that ultimately, "the risks of erroneous deprivations under the workers' compensation system appear to be fewer, and certainly no more, than the risks under the" other California IMR process previously upheld. 

The Court specifically rejected the argument that due process was violated by the anonymity of the IMR physician. The physician is a "decision maker" and not an adversary. The Court found no legal protection for a party "to cross-examine such decision-makers." The person making an "initial decision" ("a clinician [that] determines that the treatment is medically unnecessary") might be subject to such examination, "to discover what that basis was." But, the Court explained, in California workers' compensation, patients "are given detailed explanations of the reasons for a denial" and "given multiple opportunities to submit evidence and challenge those decisions." 

The Stevens Court also rejected due process concerns centered on the limited nature of available appeals. First, it noted that whether the "due process clause" guarantees "any review" is unclear. There may be no constitutional right to appeal. Furthermore, the Court concluded that "the IMR process is itself a review." And, furthermore, it found efficacy in "the Board's authority to review an IMR determination," despite the statutory limitations. The real limitation on the patient, according to the Court, is "the MTUS." (There was no challenge to the MTUS or formulary in Stevens). 

Notably, one ground of the due process challenge was that the IMR statutory time limits are not subject to any "meaningful enforcement procedures." The process is intended to be completed within 30 days. However, the Court concluded that the failure of the IMR to comply with such a time constraint did not invalidate the IMR outcome. The 30-day limit is instructive, and directory, but not mandatory. That suggests that while IMR is intended to be more rapid, its promise may be illusory in some situations. 

Of note, the Florida Courts have repeatedly concluded that the time constraints upon Judges of Compensation Claims holding hearings and making decisions are similarly "directory," see AT&T Wireless v. Frazier, 871 So. 2d 939 (Fla 1st DCA 2004); Brown v. Pumpian, 504 So. 2d 481 (Fla. 1st DCA 1987). See also Miller v. Oolite Industries, Inc., 336 So. 2d 1152 (Fla.1976); Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150 (Fla.1976). 

Stevens is not the last California word regarding due process concerns. In September 2018, the California Fourth District Court of Appeal rendered Barri v. Workers' Compensation Appeal Board, 28 Cal.App.5th 428 (Cal. Ct. App. 4th 2018). This is not an IMR analysis or decision, but it refers to Stevens in the context of due process. In Barri, the challenge instead involved a medical provider seeking payment (in California that is called a "lien"). The government cited Stevens and the "plenary power" in support of its actions. 

Though the Court ultimately concluded the government action was appropriate in Barri, it expressed reservations as to the extent of the "plenary power." It noted:

"The Legislature cannot carte blanche exercise its plenary powers and create legislation (1) unnecessary to the workers' compensation system or that (2) conflicts with the federal due process clause." 

Thus, while the concerns raised in Stevens and Barri were not found violative of due process, the Barri Court suggests that due process remains a factor to consider even in light of the "plenary" provision of California's Constitution. What that would require or preclude precisely remains unclear. However, there is the suggestion that "plenary" is perhaps not altogether unrestricted. 

Some now advocate Florida adopt the IMR process. Others will argue that California first instituted UR and the MTUS. Though Florida has heard debate of treatment guidelines over the past decade, neither such guidelines nor a medication formulary have been adopted (or some argue even seriously considered). IMR would ultimately be dependent upon the existence of each of these critical elements. California's course was to adopt those changes first, in 2004, followed by IMR eight years later, in 2012. Some will argue that if IMR is the goal ultimately adopted by the Florida legislature, a similarly sequential process would be appropriate or even necessary. 

There will likely be a debate on the importance of "plenary" authority. Some will find the presence of that language critical in the Stevens analysis. They may argue that without that authority, the IMR process fails to satisfy the other protections of the Florida Constitution. Notably, Florida does not have such a "plenary" power provision. Others may argue that the Stevens Court focus on Section 4610.6(h) occurred only because that section exists in California, but that the Court could have (or would have) reached the same decision if "plenary power" did not exist, merely upon other grounds. 

There will also likely be some discussion of the persuasiveness of Stevens as an appellate decision. Some will argue that this is not a decision of California's highest court. The California Supreme Court did not review it. The United States Supreme Court was asked to review but declined. Stevens v. California Workers' Compensation Appeals Board, 137 S.Ct. 384 (2016). Proponents of this argument may point to the many Florida District Court decisions that concluded attorney fee constraints in Section 440.34 were constitutional in the years leading up to the Florida Supreme Court decision to the contrary in Castellanos v. Next Door Company. 

In response, there will also likely be those who find the Castellanos argument unpersuasive. Some find that decision an unsupportable deviation from the standards of constitutional review. Arguably, the Castellanos Court did not address constitutionality following the expected precedential process, but inferred a "presumption" neither stated nor, they argue, appropriately demonstrated there. The Castellanos critics may perhaps argue that the dissent there was more persuasive and that a different result might well come from the Florida Court having a second chance in the future to review such a case. In that regard, the argument may be that the string of District Court cases were in fact correctly decided, and the Castellanos Supreme Court majority conclusion is atypical or aberrant, and therefore an erroneous, result.

Any or all of these arguments might be worthy of consideration or at least discussion. And, the arguments would likely require years of litigation and consideration. The constraint on Florida attorney fees passed in the 2003 reforms was litigated for years. The provisions of section 440.34 were again legislatively amended in 2009. The Supreme Court eventually decided Castellanos in 2016. Potentially, therefore, the next decade of Florida workers' compensation could be as interesting as the last, in the event that IMR is elected as the Legislature's chosen path.