Sunday, December 17, 2017

What is a Signature?

What is a "signature," and why would it matter? There are various documents in Florida workers' compensation that must be signed. Signing is mentioned in 60Q-6.102(6), 60Q-6.103, 60Q-6.106(3), 60Q-6.110(5), 60Q-6.113(2), 60Q-6.123(1)(a) and (2)(e), and 60Q-6.124(1). But what does "signature" mean? I have spent a lifetime working in this practice of workers' compensation. I have spent a great deal of time reading, researching, writing, trying cases, hearing cases, and preparing orders. But, the question of what "signature" means never really occurred to me. 

The Florida Rules do define "electronic signature." That is, what is an electronic substitute for signature. Rule 60Q-6.102(6) provides:
(6) “Electronic signature” means that a graphic version of the e-JCC user’s signature or “s/” followed by the e-JCC user’s typewritten name is deemed to be the legal equivalent of the e-JCC user’s handwritten signature.
This allows an attorney to "sign" a document without a pen, pencil or stylus, simply by typing a name. No witnesses or notary required. An attorney types their name and the document is "signed."

Recently, the issue of defining "signature" has arisen in the context of documents people must sign to effectuate contracts in a broad sense, and in Florida workers' compensation cases. There are commercial services that are being engaged to facilitate interactions on behalf of law firms. These services digitally interact with someone, the injured worker or witnesses, and through that remote digital process the service provider documents the person's assent to some document and places an "electronic signature" on a document or pleading. Documents are reviewed, and electronically "signed."

This may seem new to legal practitioners, in the "silo" of their legal experience. Silos are lamented in business, describing how a person in one department or operation becomes familiar with only those operations, and disregards the needs or processes of some other department. However, those same legal practitioners are very likely consistently engaging with similar "signature" services themselves. Legal contracts are being made every moment by people who never "sign" their name in the classic "pen and paper" sense. They just click.


Anyone that has ever installed or updated software, used I-tunes or Pandora, made a purchase from Amazon or WalMart online, or booked a trip on Amazon or Priceline, has likely clicked on a button like these. These buttons have become ubiquitous on the Internet. A recent decision regarding the interactions between buyer and seller on E-Bay illustrates that these "clicks" have legal consequences. Clicking "I accept," or similar buttons on the Internet can form contracts.

One might expect that the meaning of "signature" and signing has long since been resolved. And, that is why the subject perhaps arises so infrequently. In fact, it was not until 1965 that the Florida Supreme Court addressed the meaning of "signature." For 120 years, Florida existed as a state before the subject apparently came up. And, Williams was decided at about the same time that Al Gore invented the Internet in 1962 (at the age of 14), and thus created the various electronic issues and the "accept" and "agree" buttons. 

In December 1965, the Court decided In re Williams' Estate, 182 So.2d 10 (Fla. 1965). This interprets a specific statute on probate, that has nothing to do with workers' compensation. It is important to remember that statutory interpretation is dependent upon the words of the particular statute. So, arguments may be made that similar language in another statute might be similarly interpreted, but if the language is not identical, a different interpretation is also possible. The interpretation depend on what the specific statute actually says. However, Williams may nonetheless be instructive on the meaning of "signature" in Florida. 

The parties in Williams argued over a will, and a judge refused to admit it to probate because it was "signed by the testator with a mark, similar to an X." One party claimed this "X" was a "signature," and the other party claimed "the making of a mark was not sufficient." The statute at issue was section 732.07 Fla. Stat. which required wills to be written and that the "testator must sign," or someone else could sign that person's name "in his presence and by his direction must subscribe the name." 

The Court struggled to find meaning in the statute, and concluded that "nothing in the statute itself" helped the Court decide between the two parties' differing interpretations and arguments. The Court was "surprised" to find that the issue had not arisen before in probate, though it acknowledged a similar dispute regarding a witness signing a deed, which previously allowed the "X" in that context.

The Court examined an earlier Alabama decision for guidance. That interpretation of "signature" edified the Court that the English word "signum (from which our word "sign" is derived) meant no more than a mark." It noted that the "prevailing view in this country" was to give effect to the "X," and not to require signing the "alphabetical name." So, the Florida Court concluded that the person could execute the will by making the mark instead of writing the alphabetic name. 

There was discussion of the potential for fraud from such an interpretation. The court conceded that even a handwriting expert might be hard pressed to distinguish one "X" from another. But, the Court noted that the proof of execution did not rest "entirely upon the identification of the mark or signature," because there was also a requirement that the signing be done "in the presence of at least two attesting witnesses." The Courts' decision was not unanimous, two Justices dissented; they thought the plain meaning of the statute required "alphabetic name."

And, that returns us to the modern age, and the influence of electronics and perhaps "progress." As mentioned, there are companies that are providing notary and signing authentication services over the Internet. The signer visits a website and then uploads a copy of the document to be "signed" and an image of a government issued identification. The person's identity is verified and a video conference is started (sounds like a Facetime or Skype-like experience). So, the person verifying "sees" the signer. 

The notary then witnesses the signer "e-sign their name," which the notary then attests and certifies. This appears to be significantly similar to clicking the now ubiquitous "I accept" button so common in electronic commerce. The uploaded document is then provided to the signer and/or whomever she/he might designate (the signer's attorney, or whomever may have prepared the document). The purported benefits are availability of a notary 24/7 and the lower cost than might be charged by some notary around town. There are also those whose mobility and therefore access to a local notary may be limited. There are those who champion this process, but others harbor doubts. 

Hearing of the process, I recalled the Uniform Electronic Transaction Act (UETA) Since 2000, 49 states have adopted this statute (Washington state is alone in not; you know, the home state of Microsoft). Florida was an early adopter of the UETA, which is now Section 668.50, Fla. Stat. That law defined "electronic signature" a bit differently than the Rules of Procedure for Workers' Compensation Adjudications. The Rules, in 60-Q6.102(6) establishes a graphic representation of signature (above). The statute defines it more broadly as:
(h) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
The UETA specifically does not apply to "a transaction to the extent" it is governed by "rules relating to judicial procedure." Thus, it is arguably not applicable to proceedings in this tribunal. But, it is intended to affect transactions when all participating parties have agreed "to conduct a transaction by electronic means." And, the law provides that "A record or signature may not be denied legal effect or enforceability solely because the record or signature is in electronic form." 

Thus, a Florida contract cannot generally be denied legal effect "solely because the record or signature is in electronic form." Furthermore, the law specifically says that is "if a provision of law requires a record to be in writing, an electronic record satisfies such provision," and similarly, "if a provision of law requires a signature, an electronic signature satisfies such provision." Thus, there is perhaps room for debate regarding if such an electronic signature can or should be denied effect before this tribunal.

And, critical to this discussion, the Act specifically contemplates notarizing signatures. 
(a) If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized by applicable law to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record. Neither a rubber stamp nor an impression type seal is required for an electronic notarization.
It might therefore seem that the legislative drafters thought of all contingencies. But, there is always the potential that something was overlooked. The question is whether an injured worker, or other Florida workers' compensation participant or witness, can utilize such a service to notarize an electronic signature. Certainly, there seem to be conveniences and cost savings from electronic signature. However, are there also risks?

Some might argue that Florida workers' compensation proceedings are governed by "rules relating to judicial procedure," and therefore not subject to the provisions of Section 668.50. Others will perhaps argue that those judicial procedure rules (Chapter 60Q) do not address electronic signature of documents in this context, and thus this signature practice is not governed by such rules (though perhaps the Rules could address such issues). They might argue that if workers' compensation is to be different than the UETA, then the rules would clearly say so. 

Some would no doubt raise the fact that "a settlement agreement" is "governed by contract law." Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. 1st DCA 2006). They might suggest that if parties can execute contracts all day long on E-bay, Amazon, WalMart and more, with the click of "I agree," and that perhaps it is logical that other contracts such as workers' compensation settlements could be completed with a similar electronic signature?

Others may note that in litigation, signatures bind parties and their attorneys. And, in Florida workers' compensation, the letter "s/" followed by a typewritten name "is deemed to be the legal equivalent of the e-JCC user’s handwritten signature." 60Q-6.102(6). That rule seems perhaps to run the risk that someone could type and thus "sign" another's name. There might seem to be risks of identity verification and authenticity. And yet, after years of allowing this substitute for the handwritten, "alphabetic signature," can anyone cite an instance of impersonation or forgery?

Some may argue that this digital signature issue is really one for the parties to a case. The court reminded us in Citrus World, Inc. v. Mullins, 704 So.2d 128 (Fla. 1st DCA 1997) that the statute may have dictates (admission of physician opinions), but that the parties to a case may stipulate. When the parties stipulate, those agreements are "normally binding." The court says "that it is the policy of law to encourage and uphold stipulations." So, despite any feeling that a process (notary or signing) is or is not legally sufficient, one might validly ask "have the parties to the case stipulated that it is valid?" In the face of such a stipulation, should the judicial process inquire further?

It may be that some are not ready to accept the digital signature. They may doubt the legal sufficiency, or harbor concerns about mistake or misrepresentation. What if the person "signing" is in fact not actually the person that they say they are? That is a seemingly valid concern. If a worker is waiving all future benefits, it is imperative that they do so knowingly and willingly. It is also therefore important that the person signing the paper is actually the person otherwise entitled to the benefits.

But, is that more easily discernible or verifiable in person? Perhaps.  Can someone commit forgery in the presence of a notary public somewhere, in person? That has happened. Is it less likely to occur in person than electronically? Or, perhaps we are just more comfortable believing that in-person verification is more sure because that is a paradigm to which we have adjusted over a lifetime of experiences?

In other words, it is possible that we may fear "electronic" signing merely because it is different. Recently, in North Carolina Practice of Law, I noted there are perils in both "change for the sake of change" and in "fear of change." But, change is inevitable. The world around us is evolving, and technology is undeniably a significant influence on us all. Technology will change our lives, not an "if" but a "when." It was not that long ago that I was assured by a venerable attorney that this "e-filing fad won't last." 

I would therefore suggest that an entire industry of online sales (Amazon, WalMart, Priceline, e-Bay and more) is thriving on the "I accept" button. Contracts are being made every second of every day, and rely upon a signature that is a click of a button. Courts are enforcing those contracts, effectuating those signatures. To suggest that a document "cannot" be signed in the same manner is perhaps akin to suggesting that an "X" cannot be a signature. The "X" was given effect, because there were other assurances (witnesses) and similarly the signatures described above are "witnessed" over a video call. Is it the same? Is it similarly effective in instilling confidence?

And, in the end, it is critical that these are musings. The issue, of course, is whether the particular assigned judge finds validity in the e-signature or e-notary process. Has the judge been informed sufficiently by the parties about the process? Is there sufficient demonstration of the process providing assurance of assent and/or identity? Is the process stipulated by the parties? Those are all issues for the trial judge to decide. Everyone should remember that judges make decisions based on what the parties to a case provide. Are the parties providing sufficient information to inform the judge and convince her/him of the parties' advocated course?

These issues for the trial judge are undoubtedly challenging. And, in the age of rapidly changing technology they will be issues that may likely become increasingly frequent. 



__________
Rule provisions with "signature" or "sign."


60Q-6.102 Definitions.



(6) “Electronic signature” means that a graphic version of the e-JCC user’s signature or “s/” followed by the e-JCC user’s typewritten name is deemed to be the legal equivalent of the e-JCC user’s handwritten signature.

60Q-6.103 Pleadings and Proposed Orders.
(1) Pleadings. All documents filed with the OJCC shall:
(c) Contain the signature, or the electronic signature if filed electronically, of the party in interest or, if represented, the party’s attorney of record;

60Q-6.106 Consolidation and Venue.
(3) A motion to change venue shall be filed with the judge and shall contain the signature of the moving party, or, if represented, the party’s attorney of record.


60Q-6.110 Mediation, Generally.
(5) . . .The appearance of an attorney for a party does not dispense with the required attendance of the party. No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report.
(b) Any person attending mediation telephonically shall provide an e-mail address for use in exchanging documents during the mediation unless good cause is shown to the mediator at least five days prior to the mediation. Any mediation attended telephonically is not concluded until the signed report is returned to the mediator. The signed report shall be returned by the end of the business day unless excused by the mediator.

60Q-6.113 Pretrial Procedure.
(2) . . . The judge may excuse any party who has complied with filing their completed and signed portion of the pretrial stipulation from live or telephonic attendance at the pretrial hearing. The judge may cancel the pretrial hearing if the stipulation is timely filed. In pretrial stipulations and at any pretrial hearing, the parties shall:

60Q-6.123 Settlements Under Section 440.20(11), Florida Statutes.
(1)(a) When a joint petition signed by the parties is filed pursuant to Section 440.20(11)(a) or (b), F.S., it shall be accompanied by:
(2) (e) . . . it shall be signed by the claimant and the claimant’s attorney, furnished to all other parties, and contain:

60Q-6.124 Payment of Attorney’s Fees and Costs Other Than Pursuant to Section 440.20(11), Florida Statutes.
(1) . . . include a statement that claimant’s counsel has not previously secured or received a fee on the benefits for which a fee is now being sought, the claimant’s signature, and an attorney’s fee data sheet setting forth the benefits secured by claimant’s counsel and the value of the benefits.

Thursday, December 14, 2017

Misclassification, Expectation, Federalization (8)

People are talking about workers' compensation, perhaps more today than ever. This is the eighth in an 11-post series (links to the first seven are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

Misclassification 

Workers’ compensation insurance is generally valued by calculating the financial risk associated with a particular employer in a particular employment. Riskier employment is more likely to result in accidents and thus workers’ compensation is generally a more expensive proposition in those employments. Because of this economic reality, workers’ compensation insurance is more expensive for riskier occupations. 

Similarly, some employers are more safety-conscious than others. Those who are less safety conscious may experience a greater frequency of workplace accident or illness. In industry parlance, they are deemed to suffer greater “frequency.” As a result, many systems calculate insurance premiums allowing insurance carriers to charge additional premium based upon these “experience” factors. 

Workers’ compensation systems generally affect employers and employees. The remainder of the systems is comprised of a vast assortment of vendors and service providers. Most systems require participation of both. A historic exception has been for non-employees, “independent contractors.” As this classification of labor is not included in “employee,” those who labor within it are not covered in most workers’ compensation systems. As such, the cost injury or illness suffered by contractors is not borne by employers. Some perceived this as another form of “cost shifting." Such contractors are not typically insured for workers’ compensation and therefore the cost of their care and treatment will be borne by themselves, health insurance, providers, or federal programming. 

Alternatively, costs for these workers may be shifted to insurance companies otherwise engaged in the systems. A business may employee people and appropriately secure workers’ compensation payments through insurance. Concurrently, the business may engage the services of various independent contractors. When a contractor is injured, she or he may seek to retroactively evade the label of “contractor” and instead ask for the system protection afforded for an “employee.” There are instances in which business is deemed to have misclassified these workers, and they are deemed to be employees. This designation renders the employer’s insurance carrier financially responsible for the various impacts of such illness or injury, for which no premium may have been collected.

Misclassification may also occur more subtly. A business may misrepresent the nature of work performed by an employee in order to avoid premiums related to more hazardous employment. By labelling creatively, the employer appears safer and obtains employee coverage at a more modest price. There is an anecdotal example repeated of roofing company that classified all of its employees as "clerical" employees.

Either misclassification may weaken the insurance marketplace. Insurers contractually assume risk based upon employer representations. Premiums are collected and invested in anticipation of reasonably expect-able loss probabilities. If such contracts present more significant risks, hidden from the rate-making process by misrepresentation, then the probability and degree of risk assumed may be significantly greater than the risk for which premium was collected. As a result, losses may outstrip revenue and insurance carriers may be disinclined to writing coverage within a particular system or industry. Those who consistently practice misclassification or other inappropriate premium avoidance may also be accurately included in the population of “bad actors.” 

Unrealistic expectation of full recovery and youth 

Medical science has made miraculous advances in the last century. The success and progress has fueled expectations for miraculous results in all instances. However, evidence supports that medicine remains challenged regarding remediation of a great many conditions. Further, there is evidence that some medical “advances” have provided little in aid to patients. For example, surgical intervention for spine pain complaints, “fusions,” have demonstrated a documented history of increased frequency and unfortunate lack of efficacy. Patients have complained of minimal benefit, and often detriment, from these expensive procedures. Another tragic example has been the rapid growth in opioid prescriptions. Long-term use of such pain medications has proven spectacularly ineffective and has been accompanied by side-effects and addiction complications. 

Science accepts that youth is often advantageous for injury recovery. The body’s ability to recover from injury or illness is considered compromised with time. Older bodies are more prone to injury and more likely to incur significant injury from a given insult. Older bodies may recover less rapidly and less extensively, thus effecting a greater “impairment” or loss of function. 

However, most injured workers are not scientists and have limited information regarding injury or workers’ compensation prior to an accident. Injured workers are perceived as expecting favorable outcomes following work injuries. These may include “full recovery,” a return to “100%,” an absence of dysfunction or disability, and an absence of impairment. Such may be encouraged or caused by similar personal experiences when younger or the experiences of others known to the worker (friends and family) with similar complaints, but perhaps significantly different actual diagnoses. 

Despite the foundation or source of expectations, workers are perceived as having high expectations of full recovery and return to full function following injury. Some believe that these expectations are partially responsible for the perceptions of vocational rehabilitation ineffectiveness. Age is potentially life-changing, as are accidents, injuries and illness. Unrealistic expectations regarding minimization of injury or illness effects impacts both workers and employers. 

Federalization 

Participants in the 1972 Commissions suggested that state systems effect a number of changes in favor of injured workers. Its report suggested that if such “reforms” in favor of labor were not accomplished, that intervention through federal legislation might be the only method for rendering workers’ compensation systems acceptably uniform or consistent. In the decades following that report, the structure and findings of the commission have meet with criticism. Most perceive the state systems’ responses to the commission recommendations as inconsistent and incomplete.

In 2016 ten Democratic United State legislators (Senators Bernie Sanders, D-VT; Patty Murray, D-WA; Sens. Patty Murray, D-WA; Ron Wyden, D-OR; Al Franken, D-MN; Sherrod Brown, D-OH, and Representatives Bobby Scott, D-VA; Chris Van Hollen, D-MD; Sander Levin, D-MI; Frederica Wilson, D-FL; and Xavier Becerra, D-CA) signed a letter asking the U.S. Department of Labor to examine workers’ compensation. Lamenting recent news coverage and perceptions of disparate benefits and procedures, these officials advocated federal intervention in the various jurisdictional systems. Workers’ compensation has been a non-federal group of systems for over 100 years. 

However, over the Twentieth Century, the general trend has been toward expansive interpretations of the U.S. Constitution’s Interstate Commerce Clause. The result has been greater federal involvement in subjects once deferred to the states in the American federalism construct. There is general consensus that federal intervention in workers’ compensation would be upheld as a valid exercise of federal authority. The United States Supreme Court decisions in Wickard v. Filburn, 317 U.S. 111 (1942) and National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012) are seen as supportive of such intervention. 

Some voice concerns with federalization of workers’ compensation, either through direct appropriation (nationalization) or through legislated standards or parameters for state systems. The concerns included doubt of the efficacy of a “one size fits all” solution, concern of costs associated with a federal bureaucracy, and federal interference with insurance markets. Potential benefits of federalization included consistency in benefit calculation, duration and extent, and elimination of competition between states. 

Other posts in this series:

Tuesday, December 12, 2017

Florida OJCC is a Cost-Effective Service

The OJCC budget, divided by the number of petitions for benefits (PFB) closed, reflects that the overall cost per PFB closed fluctuated in recent years, due in large part to the significant fluctuation in PFB closure rates. These figures demonstrate relevance when considered in comparison to filing fees in Florida’s Circuit Courts. For “small claims” filings, the Circuit filing fees may be as low as fifty-five dollars ($55.00), but for civil claims with a value over $2,500.00, the filing fee is three hundred dollars ($300.00); for larger claims the Circuit filing fee may be as high as four hundred dollars ($400.00).

The OJCC is demonstrably more financially efficient, with a per-petition cost well below the Circuit Court filing fees. Additionally, in the majority of instances, the OJCC cost is inclusive of mediation services, which generally are an additional cost to the parties in other civil litigation. Over the last fifteen fiscal years, the average cost per petition closed was $232.00, just above half the comparable Circuit Court filing fee. 


Another illustration of the cost-effectiveness of the OJCC is the volume of child support arrearages collected through the judges’ efforts. The Judges of Compensation Claims are statutorily required to ensure that the rights of child support recipients are considered when support payers settle their workers’ compensation case.

Each judge devotes considerable time and effort to the investigation and verification of child support arrearages when cases are settled. The significant amounts of child support collected through these efforts for the last fifteen (15) fiscal years are represented in this table, which total over $160 million ($162,740,517). When the judges were given the responsibility for recovering these arrearages, no staff or budget was added to the OJCC to accomplish this task. 

The volume of child support arrearages collected is particularly interesting when considered in light of the overall OJCC budget. Over the last fifteen (15) fiscal years, the OJCC has collected an average of 63% of its overall budget annually in past-due child support to the benefit and advantage of support recipients throughout Florida.


In 2012-13, the OJCC undertook the duties associated with reporting arrearage information on behalf of the Department of Revenue (DOR). In 2013-14 the OJCC integrated the process of reporting Circuit Clerks’ arrearage information. This combination eliminated redundancy and waste across the process for all Florida workers’ compensation litigants. Litigants in Florida’s workers’ compensation adjudication system now get all of their required child support arrearage information from the OJCC instead of DOR and the Circuit Clerks. 

These tremendous child support services on behalf of support recipients have been delivered without any additional staff or funding for the OJCC operations. Because of the sensitive nature of this data, the burden of investigating these support inquiries has fallen primarily on the OJCC mediators and Commission Clerks. 



Sunday, December 10, 2017

The First Hotseat Webinar

In workers' compensation, marijuana has been a hot topic for the last several years. Seminar after seminar, and expert after expert have addressed the legal, social, and medical implications of this subject. I have even written about the substance a few times, such as Marijuana May Be a Problem, You Think? Measuring Marijuana Intoxication, and So Federal Law Matters in Colorado


Back in September, I participated in the inaugural "Hot Seat" webinar, and it was a discussion of issues regarding workers' compensation and the implications of drug formularies, marijuana and more. That program was prefaced in The Hot Seat, Opioids, Marijuana and More. As noted, a major distinction in the Hot Seat is that it is unedited, unscripted and unrehearsed. The guests know the topic before hand, and the program title might suggest some lines of inquiry, but once the cameras come on it is just a free-flowing conversation about important workers' compensation issues. 

The actual program on September 29, 2017 was a great success. Hundreds tuned in. Bob Wilson wrote about it on October 1, and noted I would "soon" be following up as well. Ahem, that took a little longer than I perhaps intended; this post results from long reflection and contemplation, I have visited the "play back" and digested the comments of both the guests and the viewers.

Marijuana is a subject on which there sometimes seems scant middle ground. It appears that many people have their feelings and have reached their conclusions regarding marijuana, either pro or con. As with any issue though, perhaps there is also a population on more of a "middle ground." Some express ambivalence about the subject, and others perhaps care but have merely not arrived at a conclusion as yet. It is a struggle to understand whether there is in fact polarization and conflict, or whether that merely attracts the attention. 

Mr. Pew stated that most of us come to marijuana with a bias, perhaps from our own experiences with it or from our perceptions of people we have known (or suspected) that used it. Hollywood portrayal of users was mentioned in that discussion. One attendee disagreed: "I don't agree that everyone comes in with a bias. The real issue is whether the studies show that there is a true benefit for the treatment of chronic pain etc." 

The main take-ways from September were essentially that marijuana is not going away, and that it will become increasingly pertinent in workers' compensation. The financial issues are perhaps becoming less threatening as vendors and payers seem to be adapting to the complications of federal banking laws. There is apparently no fear of federal law enforcement having any significant effect. There is perception that pot is cheaper than opiods, and that money spent on pot is not included in the calculation of Medicare set-asides. Those are interesting financial points. 

Mark Pew, the @RxProfessor, concluded that there are six documented cases of marijuana being provided by workers' compensation jurisdictions. One attendee commented to add a seventh. That is an interesting aspect of the live webinar format, attendees can be part of the discussion. The marijuana development began with a New Mexico claim that received significant discussion and publicity thereafter. 

Though there are only the seven discussed jurisdictions, Mr. Pew said "I'm convinced that there are other states with pears paying for marijuana already." He concluded that the analysis leading to that decision was one of "reasonableness" and not so much a conclusion of efficacy. In this regard, it seems that both Mr. Pew and Commissioner Brannen find common ground regarding non-anecdotal proof of patient efficacy. 

The discussion became intertwined with vocabulary distinctions and some seemingly interrelated emotions. There are those who take umbrage at the use of terms like weed, dope and even "marijuana." They contend that this substance must be referred to only as "cannabis." While news outlets such as the Baltimore Sun, Reuters, and U.S. News and World Report refer consistently to "medical marijuana," there are those who have seemingly visceral reactions to "medical marijuana," and insist instead that any discussion be about "cannabis." The Rolling Stone prefers "medical pot." In this regard, one commented "Stop calling it pot or marijuana, if its medicinal its cannabis and not smoked." 

Despite this seeming war about what words are acceptable, it seems that the media has accepted "marijuana" as the description of choice. It seems doubtful that any effort will succeed in walking that back to adoption of the "cannabis" preferred by those commenting during the Hot Seat. It seems instead that "marijuana" is a term in the debate to stay, although individuals will certainly make their own word choices. 

Mr. Pew noted that marijuana acceptance seems to be growing, with 93% of respondents in a recent survey favoring medical marijuana. However, he cautioned that most medical cannabis does not include a product that is smoked (consistent substantively with the vocabulary debate, but still using "marijuana"). He says the "medical marijuana" tends instead to be either edible or an oil. 

Some of these products with "derivatives" provide effects of marijuana constituents (like THC) without the "high" associated with smoking. Mr. Pew expressed that the associated "high" and concerns about a "secondary gain" have impeded acceptance of medical marijuana. In light of the vocabulary discussion above, that term itself may be an impediment to some. One Hot Seat comment addressed this "my understanding if cannabis it is not smoked thus does not screen through urine as does not generate a high like smoked."

The smoking may be a valid concern. Is it practical to worry that people might consume a prescribed substance for effects beyond the original purpose of the prescription? The federal government thinks that is a potential, and claims that medicinal misuse has increased in recent years. If misuse can be an issue with opioids, depressants, and stimulants that are already in the legal market and prescribed, there seems some validity to concerns that a new market entrant like medical marijuana could raise similar concerns. It seems likely that there is at least merit in discussing the potential of secondary gain. One Hot Seat comment noted that "If recreational marijuana is legalized, does that make the medical argument moot? Kinda like medical scotch."

At a seminar in the spring, I challenged the audience to name any other medical treatment that is also used for non-medical, recreational, reasons. An attendee proudly exclaimed "Viagra." That example fails, of course, as the drug is administered for a medical reason, which has the effect of restoring function, which in turn allows or enhances engagement in a non-medical activity. However, the same could be said of a patient taking Flexeril, which loosens inflamation, and allows the patient to engage in a flag football game. Examples abound in this regard, and the Viagra example simply does not hold.

Perhaps a valid example is "massage therapy." That is a modality that is prescribed for people with soft tissue injury, and it provides relief of particular symptoms. The same modality is also used by people without injury, who nonetheless enjoy some relief and relaxation from the process. There may be other modality examples. However, it is rare that any substance available without a prescription is also used by prescription. The "medical scotch" point is perhaps illustrative of perceptions in this regard. 

Mr. Brannan, @wrbrannen, noted that there is no medical proof demonstrating the efficacy of marijuana. There has been much discussion of the absence of science. Some claim that this absence is due to the government's prohibition stance, and the resulting lack of availability of various marijuana strains for testing, study and publication. 

The medical proof versus anecdotal belief is also perhaps consistent with scientific conclusions that reasonable volume of the relief afforded by any modality may be influenced by whether a patient has faith and belief in it. In other words, if the patient does not believe something will help, it likely won't, and vice-verse. This so called "placebo effect" has been documented over the years. 

In that vein, some workers' compensation experts have voiced the argument that they do not care if any modality "works," but only if the patient believes it works. That has been applied to a variety of modalities that employers have provided despite perceived equivocal scientific proof of efficacy, or their own skepticism regarding a modality. 

The Hot Seat focused on this efficacy issue with discussion of the New Mexico decision ordering workers' compensation to reimburse the patient for his marijuana purchases. The conclusion seemed to be, in large part, that the pot (this was smoked) provided relief for that patient, according to his subjective reporting, and therefore it must be medically necessary for that patient. On that anecdotal conclusion of efficacy, a system change occurred, and it has begun to spread. The Hot Seat discussion focused on the establishment of workers' compensation system responsibility without scientific proof, per se. 

While Mr. Pew sees this course as inevitable, Mr. Brannen returned to the dearth of scientific proof regarding efficacy. The lack of science, he says, means that it is too early to make decisions regarding medical marijuana. He noted that increasingly workers' compensation systems are governed by medical treatment guidelines and prescription formularies. Mr. Brannen notes that even if the products are legalized (a change in the federal posture), that those guidelines and parameters may nonetheless exclude (or inhibit) the products from workers' compensation. 

Bob Wilson noted presentations he has seen regarding administration of the "oil." He says he has witnessed video evidence of patients being administered the derivatives (oil), and visible improvement in appearance." Mr. Wilson concedes these are likewise anecdotal, and not necessarily scientific outcomes, but notes that they are powerful, visual examples and that they may influence the ongoing debate.

Throughout the discussion, I persistently suspected that a great deal of the ongoing debate comes back to vocabulary. Mr. Pew pointed out that there are already FDA approved medications that use marijuana-derived substances. There seems to be significant acceptance of the efficacy of the "oil" that has generated significant publicity (and was apparently what Mr. Wilson witnessed). But, these are not "marijuana," "dope," "pot," or even perhaps "cannabis." Would the public perception be different, would the debate calm, if the smoking and the "high" were off the table? Would the analysis be simplified if constituent derivatives were incorporated into non-smokable, non-high-producing forms, which had different names?

Admittedly, FDA approval of the use of derivatives in medication seems at odds with the government's listing of marijuana as a Schedule I substance, which includes marijuana, heroin, ecstasy, and meth, according to the DEA. But heroin is similarly an opium derivative, an "opioid." and seemingly not absolutely distinct from the plethora of other opium derivatives, natural and synthetic, that are prescribed by physicians daily. Is that derivative nature a distinction that might quell or just modify the debate? 

Thus, perhaps is it possible that some products may be appropriately constrained ("marijuana" meaning something smoked and producing a "high"), while the other might be approved ("cannabis oil" meaning something consumed and producing no "high")? Perhaps that would be a distinction as logical as the Heroin ban compared to opioid prescription availability? 

At the end of the day, the real point of the Hot Seat was the exchange of ideas. While I feel that I have invested significant effort in understanding the American drug crisis and the marijuana debate, the fact is I learned from the Hot Seat. There was no PowerPoint, no rehearsed speeches, and no handouts. But this unedited, unscripted, and unrehearsed discussion was interesting. 

Oh, there were some notable issues with the platform. Some attendees' companies would allow access to YouTube, which blocked their participation. Some also had issues with the browser selection. But, we live and learn. The next Hot Seat will be presented on a different platform. Stay tuned for details on that change, and the greater accessibility it promises.

But overall, the reactions seemed positive. Some said:

Actually, really like this format. Great job, guys!
 Maybe next time we could have a q&a format
Good job - enjoy the weekend!

And, the conversations continue. On January 5, 2017 two workers' compensation attorneys Robert Rassp and Stuart Colburn will join us to discuss the ethical issues in workers' compensation relationships. Questions will be asked, and perspectives explored. Click here to register. I have seen these two on stage before, and they definitely have their opinions and positions. Whether you agree with either, it is likely that they will make you think. And perhaps that is what this system of systems needs the most, honest discussion, debate, and expression of thoughts.



Thursday, December 7, 2017

Medical, Critical, Inappropriate (7)

People are talking about workers' compensation, perhaps more today than ever. This is the seventh in an 11-post series (links to the first six are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

Medical ignorance

Some perceive that recovery from injuries and illness is more challenging in workers’ compensation than in other settings, including those covered by health insurance. This disparity is blamed in part on medical ignorance. In some manner, this is interrelated with system failures, incentives, beliefs, perceptions, and expectations, which are all discussed in other posts.

There is a perception that relatively minor injuries and illnesses may fail to resolve in workers’ compensation. Instead, despite delivery of appropriate care and treatment, injuries escalate or lead to a cascade of tangentially interrelated maladies or complaints. Through these evolutions, work-related injuries proceed in a downward spiral toward dysfunction or disability. Some perceive that the benefit structure system of workers’ compensation contributes to this phenomenon. Some believe that attorney involvement, staffing and training, and benefit structures have the potential to contribute to poor recovery outcomes in work accident and illness.

Some perceive that the path to dysfunction or disability is intended in some population of injuries and illness. They believe that some portion of the population inappropriately seeks to enhance delivery of benefits or services. The motivations may be related to attention, compassion, financial, or otherwise. In its most blatant, or intentional form this is referred to as malingering. Regardless of motivation, the additional care, referrals, testing, and dysfunction/disability are seen as increasing costs in a micro-sense, that is in a particular claim. However, there is some sentiment that system complexity and regulation can be driven by the actions, well-intentioned or otherwise, of those who magnify symptoms, complaints, or dysfunction.

Some perceive workers’ compensation systems as losing sight of appropriate priorities. They note the focus on metrics, data, and measures. They describe decision-making based upon protocols and procedures. However, they lament a perceived trend toward the “business” of medicine and away from the “practice.” As systems and payers require more documentation and data, they perceive a detrimental effect on provider/patient relationships and deleterious effects on both care,  recovery, and restoration. The suggestion is that a patient, in any medical situation, must remain the center of the medical process. The purpose of the care, i.e. this particular patient, must remain the primary focus. Communication needs to be facilitated to enable and encourage recovery and restoration.

Methodology has to be developed and deployed that will engage injured workers in their recovery. The population that are disheartened or discouraged because of injury, its severity, their progress, or their preconceived notions or expectations of recovery must be engaged and invested in their recovery despite the challenges, physical or emotional, that present. There have been successes with patient-focused, motivated recovery, and return to function and employment. Those programs should be identified and replicated for application to greater populations of injured workers.

The critical point in a claim

In an analysis similar to medical ignorance, some note that there are a multitude of challenges in the path from injury/illness to recovery. Each of these challenges has the potential to either reinforce the course to success or to derail the recovery. In some part, these challenges are mentioned in these posts. However, there is also acknowledgement that it is impractical to attempt to list each and every potential pitfall o medical care or workers' compensation generally. 

However, medically, emotionally, vocationally, or otherwise, it is believed that analysis could help identify the points at which critical decisions are made by the multitude of individuals involved, such as the patient, providers, representatives, and the system itself. The goal would be better decisions at these critical points. With better understanding of when and where recovery can be potentially derailed, With recognition of  when these likely occur, perhaps missteps and mistakes might be diminished, perceptions adjusted, and favorable recovery outcomes maximized.

People who are acting inappropriately

There is some frustration that the various systems are populated by some proportion of providers that are “bad actors.” Some express frustration that workers’ compensation systems invest significant effort and resources in the establishment of regulation, restriction and reporting ostensibly aimed at assuring minimal inappropriate behavior by those who provide services to or on behalf of injured workers and employers. However, there are perceptions that these efforts are ineffective and inefficient. 

Some voice concern that the “bad actors” are too often not punished or not punished sufficiently. Some contend that these entities are known to the community, and that their behavior is distrusted or lamented, but that they remain engaged in the industry. There is a belief that regulatory agencies react to bad or inappropriate behavior by increasing the volume of broad regulation rather than effectively enforcing existing regulation to address these “bad actors.” Some perceive this as driving an ever-increasing volume of regulation that results in additional cost and inconvenience to the entire marketplace, while making no effective change in the deterrence of the admittedly poor behavior by the  minority of “bad actors.”

A noted element of concern in this regard is the silo nature of government in which responsibilities for regulation may be divided among specialized agencies. An example cited is that each state has an agency for licensure of professions like legal, medical, and insurance professionals. However, there may also be separate agencies for the regulation of insurance companies, hospitals, outpatient centers, and ancillary professionals such as therapists or rehabilitation specialists. In addition, specific activity such as fraud, overutilization, and regulatory compliance may be delegated to still other agencies. There is a perception that the variety of agencies and seeming overlap of responsibility may contribute to the ineffectiveness of both regulation and compliance.

There is also a perception that the very nature of America’s federalist system contributes to a frustration of regulatory efforts. Examples have been cited in which professional providers of services have been charged in a particular jurisdiction. In lieu of prosecution some may voluntarily consent to cease practice in that jurisdiction. Others may be convicted in a jurisdiction, similarly resulting in loss of licensure. 

However, examples are cited of these same providers relocating to other jurisdictions, obtaining new licensure, and continuing with the same behavior addressed in the former jurisdiction. Some refer to this progression by analogizing an arcade amusement “whack-a-mole.” (an arcade game in which players use a mallet to hit toy moles, which pop-up seemingly at random, and drop back into their holes. The object of the amusement is that the player’s attention can be effectively directed at only one mole at a time, and while one is being “whacked,” others are escaping attention of the player who possesses but one mallet).

There has been discussion of some methodology for clearly communicating state perceptions of “bad actors” in the various marketplaces. If a database existed, from which a state might discern a provider’s history of behavior prior to issuance of a license, that might work to prevent re-occurrence of unacceptable behavior. Some contend greater attention by federal licensure officials (Such as the Drug Enforcement Agency, which authorizes medical providers to prescribe controlled substances) might forestall some inappropriate activity. Similarly, federal officials determine who may approve providers receive reimbursements from Medicare and similar agencies could perhaps be more vigilant, regarding poor performance or behavior. 

More effective and uniform enforcement of existing regulation is likely appropriate. The viability and vitality of workers’ compensation is dependent upon regulation being comprehensible and appropriately enforced. Those who consistently disregard legislation and regulation should be removed from the system and consistently punished. It is noteworthy that in 2017 California appears to be on this track regarding removal of physicians from the pool of available providers. 


Other posts in this series:

Conversations

(2) Benefit adequacy, Regulatory complexity, Delays in treatment even if compensable

(3) System failures, Incentive is different in WC and group health, Systems are persistently adversarial

(4) Staffing and training of the workers’ compensation professions, Permanent partial compensation, Opt out movement

(5) Injured workers beliefs - not informed or uninformed assumption, Treatment protocols, a benefit or a burden, Perceptions and education

(6) Vocational rehabilitation, Ability versus disability, Methodology of claims handling

(7) Medical ignorance, The critical point in a claim, People who are acting inappropriately

(8) Misclassification, Unrealistic expectation of full recovery and youth, Federalization

(9) A new national commission?, Employee participation in the conversation, Occupational disease

(10) Lawyers in the system, Competition between states, Roles and delineation

(11) Single payer, Outliers, Conclusions




Tuesday, December 5, 2017

The OJCC E-filing Story Continues

Having led the way into the twenty-first century in 2005-06 with deployment of electronic filing (“eFiling,” or “eJCC”), the OJCC has continued to revise and leverage this process. In 2011-12, the OJCC began to enforce the mandatory use of electronic filing by represented parties. In 2011-12 programming was added to afford eFiling access to all users, represented or not. In 2012-13, programming was completed to allow electronic service of pleadings among and between lawyers and insurance carriers. The result is a neatly integrated electronic filing and service system that is exemplary. 

In 2016-17, five hundred eighty-three thousand four hundred eighty-five (583,485) documents were e-filed with the OJCC. The filing volumes are described in this chart.


To measure the success of e-filing, parameters were developed to assign value to the inbound filings based upon postage and supplies saved by the filer. There is also an associated savings to the state because staff no longer has to open envelopes, remove and straighten documents, and then file the paper documents for future use. Using those parameters, first described in the 2006-07 OJCC Annual Report, the cumulative end-user savings to date generated by this eFiling system, by the end of fiscal 2016-17, were at least three million one hundred fifty-eight thousand nine hundred dollars ($3,158,900). 

That is money in the pockets of the OJCC customers. The total savings to the state is four million nine hundred sixty-seven thousand nine hundred sixty-eight dollars ($4,967,968). The combination is over eight million dollars in savings, and the total OJCC investment to date is only approximately 1.2 million dollars. The eJCC return on investment from eFiling is about 760%.

Electronic service was added to the eJCC platform in January 2013. This feature allows significant volumes of documents to be served electronically upon opposing counsel and insurance carriers in conjunction with electronic filing. This process change has enabled an additional annual savings to practitioners and carriers in excess of one million dollars due to the ability to serve each other documents electronically. The eService savings, combined with eFiling savings is thus well in excess of ten million dollars. 

This achievement is particularly gratifying in light of issues and complications experienced by other states’ systems that have expended large special fund allocations building and deploying electronic filing. According to Workcompcentral.com, these states have spent far more developing their case management and litigation platforms. Notably, their systems are for all workers’ compensation claims in their respective states, while the OJCC system is for litigated claims only. 

Pennsylvania is reported to have spent $45.1 million initially, and contracted for three years of support and maintenance at $5.1 million per year. California has reportedly spent $61 million to deploy their case management and electronic filing platform. The OJCC has deployed its eFiling, eService, and case management platforms using existing budget funds. The total expenditures to date are approximately $1.2 million.

If current trends in electronic filing growth continue, the annual document volume can be expected to exceed one million documents in about ten years. The OJCC is focused on bringing electronic service to employers, and developing the resources to accommodate the expected growth in both filings and system use. 


Sunday, December 3, 2017

Identity Theft Sympathy

Recently, police arrested man in Hillsborough County, alleging that he "used the stolen social security number of a child to get a job and collect $21,000 in workers compensation." The accused is 44 years old and worked for about 5 years at a local roofing company, "according to arrest documents," although the business would not confirm the employment.

A police official interviewed by ABC news encouraged parents to be vigilant in safeguarding children's personal information. He says that police "see cases of identify theft involving children on a fairly regular basis, although statistics were not immediately available." The police warn that parents and children may not learn of such theft and appropriation for years. Then, when the "child goes to apply for their first credit card or loan," the theft of her/his identity becomes apparent.

According to the Social Security Administration, a social security number (SSN) can be obtained by "thieves" in a variety of ways:
Stealing wallets, purses, and your mail (bank and credit card statements, pre-approved credit offers, new checks, and tax information); 
Stealing personal information you provide to an unsecured site online, from business or personnel records at work, and personal information in your home; 
Rummaging through your trash, the trash of businesses, and public trash dumps for personal data;
Posing by phone or email as someone who legitimately needs information about you, such as employers or landlords; or 
Buying personal information from “inside” sources. For example, an identity thief may pay a store employee for information about you that appears on an application for goods, services, or credit.
None of these seem very likely for children, except perhaps the "rummaging through trash" example. But, the threat is said to exist. The report notes that the Federal Trade Commission has specific warnings for parents regarding detriments that are possible following the theft of a child's SSN. These are said to include "being denied certain federal benefits, receiving bills and collection notices in the mail and notices from the IRS that a tax return has already been filed with your child's SSN." It appears that people can suffer detriments when they are the victims of fraud. 

And, if someone "misuses" your personal information, including SSN, the Social Security Administration "can’t resolve these problems." There is no remedy from the Federal government agency. Recently, noted in Kansas Cannot Prosecute Identity Theft, there have been those who conclude that state criminal prosecutors likewise cannot resolve these problems. Thus, the innocent victim of the theft is left to deal with the outcomes and effects perpetrated by the thief.

The Federal Trade Commission (FTC) provides advice regarding what can be done when your identity is stolen, at identitytheft.govThe FTC recommends that you contact all the companies that have been involved by the thief, that you report the theft to the FTC, and that you obtain credit reports the thief may have affected. It recommends that you do this "right away," which may be difficult if you learn of it when your child is later applying for college, and the theft was a decade before. The FTC even recommends filing a local police report, ignoring that your state may refuse to take legal action, like Kansas.


The FTC next recommends that you close accounts, remove "bogus" charges, correct your credit report, and expend your resources to protect your credit. 

But none of these seem to focus on prosecuting the thief that stole the identity to begin with. These are all actions to repair the barnyard gate, after (perhaps long after) the livestock has escaped through it. What will or can the state do to prosecute the thief?


The Washington Times reported this year that
Most illegal immigrants who pay taxes have stolen someone else’s legal identity, and the IRS doesn’t do a very good job of letting those American citizens and legal immigrants know they’re being impersonated.
This can allegedly "cause significant burden to innocent taxpayers," but the IRS is seemingly ambivalent. 

In 2016, Forbes reported that Internal Revenue Service Commissioner Koskinen was questioned by Congress regarding the use of stolen SSN. The Commissioner "suggested that as long as the information is being used only to fraudulently obtain jobs, the IRS was OK with it." That is, the IRS has no interest in criminal activity in general, fraud generally, only in the criminal activity of tax fraud. So, if the taxes are being paid, no harm?

The Commissioner said "the IRS actually had an interest in helping the illegal immigrants" with the filing process, despite them using stolen identities. Apparently, a thief's tax payments are facilitated by this identity theft, and so the IRS' job is simplified if these individuals steal identities. Essentially, Forbes characterizes this as the "not my department response that abounds in big government." 

That leaves the rest of us to perhaps wonder "whose department is it?" People are being penalized and damaged by identity theft. They are left on their own to discover the theft and to fix the damage done to them by thieves, at their emotional and financial expense. And, there appears to be a reluctance or at least ambivalence about taking any action to hinder or stop the thieves. But, there is Criticism of Enforcing the Law

Those who criticize seem quick to find fault with the effects and implications that attach to stealing. There is sympathy for the person that steals the identity and is punished for breaking the law. People perceive outcomes that affect thieves, and lament that repercussions upon the thieves. But, there seems little attention on the thieves' victims, the people whose identity was stolen. Do those people deserve consideration? Do they deserve the protection of the law?

Should the sympathy lie with the thief or with the victims? Or, can there be sympathy for circumstances that lead people to poor decisions, and still sympathy for those they hurt? And, whose department is that?