Thursday, August 25, 2016

Perspective and Respect

I recently attended a seminar of professionals. An audience member interjected during a program and added to the conversation. The presenter's reaction was unenthusiastic, condescending, and rude. And in the break that followed, speaker and attendee engage further.

The presenter expressed disdain for the attendees comments. The presenter contended that those comments and perspective were born of ignorance, or lack of study. Because the presenter had his own perspective, the conclusion was clear that any alternative perspective was "wrong."

I was reminded of an experience many eons ago when I played in a high school band. No, not the cool kind with the base, a lead, and a drum set. Instead, the old-fashioned kind of made up of and amazingly diverse amalgamation of high school students. 

I played in middle school, a band made up primarily of all of the usual suspects, the traditional trumpets, trombones, flutes, and clarinets. But when I transitioned to the high school band, I was surprised to find that some of my compatriots had abandoned their "normal" (what we were all familiar with) instruments from middle school and ventured into the beyond.

I recall a clarinet player who had taken on the oboe. There was a saxophone player that had graduated to the bassoon. And two of the flute players had taken up a peculiarly small instrument called the piccolo. The transformation was not limited to the woodwinds section, a trombone player from middle school had become a French horn player. And one of the trumpet players had adopted an odd instrument, which looked like a small tuba, called a baritone. The evolution of the percussion section was likewise profound; the high school simply brought access access to a wider variety of objects that the percussionists could strike with sticks.

In fairness, I must admit that I never found the sound of the bassoon soothing. Likewise, there were times when the piccolo players trilling was annoying. As section after section was called upon by the director to play their parts, there were some sections which simply did not appeal to my ear.

But when we all played together, the effect was quite pleasing. There was a combination of various parts, for various instruments, none of which was particularly pleasing played alone (though some of the melody parts were more appealing than others). But played together, the resulting symphonic effect was simply phenomenal. Only more so because it was produced by this ragtag bunch of high-schoolers.

And this morning, as I thought of the disrespect and disdain showed towards the seminar attendees opinions and views by this so-called "expert." I thought of the high school band. Admittedly in the discussion of topics like Worker's Compensation, there are going to be divergent approaches and perspectives. There will be perspectives that are alien to our own. It is also entirely possible that one of us will hit a sour note periodically. Some of us will have more time to practice (study) and because of our background and perspective (sheet music) we will all perhaps be at least somewhat different.

Although I perhaps do not wish to listen to a bassoon or piccolo solo, anymore than I wish to listen to a kettle drum solo, each of these contributes to the symphonic effect. Similarly, every perspective in our worker's compensation world contributes to the symphonic effect of our collective voice.

To appreciate the contribution of the bassoon, we need not necessarily love the bassoon in particular. Nor do we need to enjoy extended solo contributions of the bassoon. But likewise, we cannot bar the bassoon from the symphony. Each instrument has its place in the symbiotic presentation or result. And likewise each voice in worker's compensation has a place in the symphonic presentation of a system in collective balance.

The result of our individual preferences, cannot be to silence a particular instrument, or group. We must respect one another, and strive to grasp the perspectives that each bring to the conversation. There must be listening and contemplation. If our reaction to the view of others is a conclusion that they are ignorant or unstudied, we will lose. We must persevere to respect one another, and recognize that whether we agree or disagree with perspective, that is not an appropriate singular test of whether that perspective contributes.

I used to volunteer with a gentleman who consistently stressed that leadership is learned. He used to tell people "you can learn as much from a bad leader as you can from a good one." In that spirit, I would suggest that perhaps we can learn as much from "bad" (or unrealistic, unattainable, etc) ideas as we can from good ones. Maybe those ideas that are not acceptable still lead us to introspection and intellectual testing of our own ideas and beliefs. As we test and think, perhaps even a "bad" idea leads the conversation forward and in that way alone, serving as a "bad example," perhaps is is beneficial? 

I would suggest that the appropriate task of contribution should be (number one) whether the contributor sincerely believes the perspective being espoused. And two, whether the contributor can successfully support that perspective or contentions with data or science or evidence. And if so, perhaps it adds to the conversation. 

Many years ago, there was an excellent piece written by the chief executive of General Electric, and published in the Wall Street Journal. It was titled "everyone is a snob about something." Here it is, from another website, italics are direct quote. 

Some people know so much about one thing they look down on those who aren’t so knowledgeable. They are snobs. There are wine snobs, literary, fashion, food, even money snobs. "I can change the world,” the politician boasts. “But he can’t even change a tire,” the garage mechanic sneers. Both are snobs because they look down on those who don’t share their special interests. If you’re sure you know more about haute cuisine than your dinner partner, remember she may know about 19th century architecture. Don’t let you knowledge turn you into a snob. Find out what the other guy knows, before you show off what you know.

We must guard against becoming (or remaining) snobs. We must guard against an evolution through which we become so enamored with own knowledge and perspective, that we discount the perspective of others because it is inconsistent with our own. If we are to succeed in the formation and management of this grand compromise, we as its leaders must in these days of great challenge, not become (or remain) snobs. I say "remain" because the exchange I witnessed assures me some of us have become snobs. The presenter's disdain was piteous, weak, and disrespectful. 

We must respect other perspectives, even when we disagree, or simply cannot understand them. By no means am I suggesting that we must concede to the belief of others, nor that we blindly adopt their perspective. I'm suggesting merely that we must respect their contribution to the conversation.

I have met and known a great many doctors in my life. But I have never been a doctor. I have met and known a great many engineers, but I have not been one. The same is true for rehabilitation providers, physical therapist, actuaries, accountants, risk managers, insurance expert's, and the list goes on. There are a multitude of shoes in which I have never stood, much less walked. 

I hope that I try to understand what those people have experienced. I hope I strive to understand the trials they have faced in reaching their professional positions. I hope that I struggle to accept their efforts and experiences, and to thereby appreciate how they have become who they are. And from that amalgamation of who they are, they have perspectives, beliefs, and knowledge. They can contribute. 

But I can only test their contribution, personally, based on who I am, at this stage of my journey. They no more recognize how I got here than I comprehend how they did. In the end perhaps it would be simple for me to discount their opinions, knowing what I think I know about the path that they have traveled. From my Pius and lofty perch, perhaps I could (or should) just be a snob and look down upon them? I could just discount their perspectives, feeling that I know more about the path they have traveled than they could possibly know about the path from whence I came? 

But such a perspective would be pompous, conceited, and foolish. I cannot know the path that you have traveled. And by the same token you cannot know mine. What we can know is that we are all here today, dealing with a system that holds tremendous responsibility. This system affects lives each and every day. This system has tremendous financial costs and obligations. It touches every American, every day, and it does so profoundly. The success or failure of entire economies ride on the success of this system. And as a result, the success or failure of the system will mean the success or failure of individuals, businesses, and frankly economies. 

The burden we have taken on it's not light. The burden we have taken on it's only more difficult because the vast majority of people around us neither grasp the significance of workers' compensation, nor care. And against that backdrop, we must, collectively, as a community, respect one another. We must listen to ideas and perspectives. We must be willing to consider what is brought to the table, without ridicule or condescension. I regret not interceding in the recent exchange I described. I should have told the presenter that he was being a snob and perhaps some other well chosen words of guidance. With luck, he may read this and think about his name calling. 

And if we listen to and respect each others views, I believe that we cannot fail. In Southern Cross, Crosby Stills and Nash gave us a great lyric "And we never failed to fail it was the easiest thing to do." Ain't that the truth? Failure is easy. So, I suggest that we not take the easy way out, let's succeed instead. Together, symphonically.

Tuesday, August 23, 2016

An Amazing Monday at WCI

Monday was an amazing day at the Workers' Compensation Institute in Orlando. There are multiple reasons for this conclusion, but a few are worthy of more than a mention. We kicked off the Eighth Annual NAWCJ Judiciary College. We kicked off the third Annual SAWCA Regulator College. I met with lawyers, spoke to a meeting of adjusters, witnessed the announcement of scholarships awarded by Friends of 440 and Kids' Chance of Florida. It was a great day. But my focus this morning is the moot court and an amazing regulator event.  

For 29 years, the WCI has sponsored an amazing competition for law students. Annually, the E. Earle Zehmer Moot Court competition brings students from around the country to debate a hypothetical workers' compensation case. It is a profound opportunity for these students to get a glimpse into the world of workers' compensation. Early in its history, there were some out-of-state victories, but because the program started with the "Florida" Workers' Compensation Institute (FWCI), the victors in recent years have consistently been from Florida law schools. 

The WCI has evolved in the last decade. It has become increasingly national in scope. The program has become increasingly diverse and dense. As Program Chair Steve Rissman said in the opening session on Monday, "If you cannot find something that interests you in this program, you just are not looking." General Chair Jim McConnaughhay noted that this year there are over 7,500 registered attendees from virtually every state, over 550 speakers, and over 800 volunteers. This is simply a gathering of almost unfathomable complexity and breadth. 

As this evolution from FWCI to WCI has progressed, we have seen the volume of out-of-state moot court teams increase. The competition has become more compelling than ever. And that is a profound compliment to all of these students. I have judged in the preliminary round for years. I have witnessed an incredible parade of unbelievably skilled and intelligent people arguing some very imaginative and complex problems. It has been a distinct honor to briefly meet these people and experience their intellect, poise, composure, and determination (if you want to believe in our future as a people, work with young people). But that history has been a parade of Florida law schools. 

I have enjoyed seeing the judges of the preliminary round over the years. In my early involvement, those judges were the Florida Judges of Compensation Claims, with the final round judged by the Florida First District Court of Appeal. From its early days, this competition became known for the distinction of all rounds being judged by sitting judges. In this characteristic the competition at FWCI was unique and special. 

And in 2009, the WCI, Jim McConnaughhay, Steve Rissman, Gerry Rosenthal, and David Parrish had the imagination and the foresight to support the establishment of the National Association of Workers' Compensation Judiciary. A small group was gathered, and the implications of such a group were discussed. Imagine, judges programming educational opportunities for judges. Adjudicators of workers' compensation claims gathering for the purpose of improving their knowledge, ability and perspective. 

A few years after that initial NAWCJ Judiciary College, Jim McConnaughhay spotted a symbiotic opportunity. WCI invited NAWCJ to become a partner in sponsoring the Zehmer Moot Court Competition. The preliminary rounds would be judged by sitting adjudicators from across the country, not just from Florida. It would evolve into a national competition in parallel to the FWCI evolving into the national conference that it has become today. And Sunday this week we had 41 volunteers from Florida, Georgia, Rhode Island, Maryland, South Carolina, Mississippi, Tennessee, Kentucky, Missouri, Maine, Virginia, Louisiana, Arizona and more judge those preliminary rounds. 

And it was historic!

Because of the volume of participating schools, the program had evolved in recent years. the format of Sunday prelims to Monday finals had evolved to include a Monday morning semifinal. And this Monday at lunchtime I got a wink and heads-up. Both of the finalist teams this year were from outside of Florida  I was not told from where they came, just that we would inevitably have an out-of-state champion for the first time in many years. I found the time in my Monday to attend the final round. 

I was flattered and shocked when one of the participants quoted me in her argument. She confidently noted that "chief justice deputy Langham" had commented on a legal issue "in his blog." It is flattering to know that someone read the blog. The presiding judge quickly, politely, yet firmly told this advocate that you cannot really cite to a blog for authority. In a world where appellate courts cite to Wikipedia as if they do not realize it is written by anonymous contributors, I am not sure why. But then no one ever argued that I am the sharpest bulb in the drawer (or is it the brightest knife in the box?). I am sure there is some distinction there, between Wikipedia and a blog, that I fail to grasp with in my pedestrian ways. 

After the judges retired to deliberate, I went to shake the hands of the winners. I did not know who it would be, but two of these four amazing people would walk away with the prize, and I was compelled to congratulate them all. They were amazing. I am sometimes accused of overuse of adjectives in my prose, and so will spare you more. These were simply incredible people and they gave incredible performances. I thanked this particular young lady and told her I was flattered by her quoting me. 

At the conclusion, Presiding Judge Kelsey and associate judges Winokur and Thomas complimented the participants. They were impressed by their poise, their knowledge, their presence, their skill, and their conversational advocacy. I have to say that I predict stellar careers for all four of these advocates. They were inspiring. Judge Kelsey announced the case for the appellee (defending the trial judge's order). And then Jaqueline Steele stepped to the podium to announce that the winning team, the appellees, was from Mississippi College School of Law. 

For most in the audience, this was notable because it was not a Florida school. But 25 years ago, I walked across a stage in Jackson, Mississippi and received my Juris Doctor from Mississippi College School of Law. A little-known institution back when I attended, it has grown and evolved. And here stood the best, the 2016 Zehmer Moot Court champions. It was a proud moment; a proud moment for students and coaches; a proud moment for the NAWCJ, and a proud moment for WCI. 

I rushed from this competition to the Regulator Roundtable, sponsored and produced by the Southern Association of Workers' Compensation Administrators (SAWCA). An amazing assortment of 27 regulators sat around a circular table and prepared to discuss the hot topics of workers' compensation. At the beginning, Steve Rissman and Jim McConnaughhay were introduced. 

Jim complimented SAWCA and the regulators. Then he mentioned that Louisiana has suffered a great tragedy, and presented a $5,000.00 check from WCI to the LWC Employee Trust. Director Sheral Kellar then took the podium and explained that this workers' compensation agency has over 100 employees profoundly affected by the recent flooding. It was a touching moment, and it is heartwarming to see an organization like WCI support people in need. 

Melodie Belcher, Georgia ALJ and former SAWCA President, asked the participants to introduce themselves and mention something of interest about their states. There was much mention of football championships, luminaries and distinctions. But two-thirds of the way through the circle Senior Worker's Compensation Judge Deneise Lott of Mississippi introduced herself. She then proudly noted for the assemblage that Mississippi is "the home of the 2016 Moot Court champions," and there was a well-deserved round of applause. 

Then the Roundtable proceeded to discuss marijuana, medical marijuana, air ambulance billing disputes, attorney fee regulation and disputes, state processes and challenges, formularies, non-subscription and opt-out, and more. This Rountable is the embodiment of workers' compensation perspective and analysis. Only at the annual SAWCA Roundtable does this breadth of regulatory talent gather in a single location to discuss this amazing flow of issues and ideas. As an audience of 100 looks on from the bleachers (literally), this free-flowing conversation epitomizes the national character of the WCI. 

And thus a day ends. A day of information and introspection. A day of flattery and pride. A day of history and achievement. Congratulations NAWCJ, WCI, Mississippi College, and SAWCA! 

And Tuesday there will be more. Much, much more. Thanks to the 800 of you that make all this possible. See you in Orlando. 

Monday, August 22, 2016

The National Conversation Continues

The National Conversation convened in Dallas last May and resulted in an extensive list of topics that people contend are worthy of consideration. The Conversation has been joined. There have been various articles written that are worthy of review: Rafael Gonzalez, Bob Wilson, and others have written on the Conversation and ideas surrounding it. Organizations like the Southern Association of Workers' Compensation Administrators (SAWCA) will continue the conversation at upcoming meetings. 

On August 21, 2016 the Conversation reconvened in Orlando. A few faces had changed, but the spirit remained. There is a focus on finding common ground where improvements can be made in the way workers' compensation performs. The first subject of discussion on Sunday was the adequacy of benefits. This is a subject that has many facets and perspectives. First among them is the distinction that is critical between macro and micro analysis. That is are the benefits adequate in the system, for the expanse of people potentially entitled, and then are the benefits enough in this particular situation with this particular individual. As the Conversation continues, there will have to be careful distinctions drawn between these two analysis. 

The Conversation turned to the distinctions and difficulties with compensation. A major stumbling block remains whether a system should compensate disability or impairment. In other words, will compensation be based on Functional Loss or Financial Loss? The Conversation will have to include consideration of whether compensation is based on the inability to return fully to a previous occupation or any occupation

The participants asked questions about what "adequacy" means. And discussed a variety of state systems that have established a variety of benefit descriptions, and in some instances benefit combinations that provide for workers. Several comments were added regarding systems that are in the news for being "high cost" or "high complexity." There were also mentions of states that have systems or processes that attract praise. Kentucky and Tennessee were both mentioned in this discussion of systems perceived as balanced and efficient. 

There was lamenting of the failure in discussions of workers' compensation. There is a perception that there is too much discussion about costs and process, definition and delineation. Walt Disney is famous for a quote "I only hope we don't lose sight of one thing, it was all started by a mouse." I was reminded of that as attendees reminded each other that this whole industry started with injured workers. These are not cases, they are people. That is worthy of remembering and of being reminded. It is also worthy to remind ourselves that the system was also built to benefit employers. These are the real parties, the employee and the employer. And the rest of us, yes me, you, all, are just ancillary contributors to the process. 

There was also suggestion that the Federal Workers' Compensation system could be a guide in deciding what is working and what is not. That system is perceived to operate without some of the controversies and disagreements. It is an interesting suggestion. It does not take into account that running a benefit system is probably easier when you have the bottomless bucket of Federal debt behind the process. Given a blank check, it is likely that most controversies or disagreements can be spent away?

There was discussion of medical benefits. Are systems delivering the best? Is there a layer (or two) of bureaucracy in the medical delivery system. One mentioned that employees perceive differences in medical care under group health and workers' compensation. This remains when it is the same patient and the same doctor; when the only variable is the involvement of workers' compensation, there is a perceived difference. That is intriguing. 

One of the critical points that keeps coming up is the mental reaction that we all have based on words. How things are phrased can be very important. We all know that wordsmiths and speech writers and news editors are hard at work every day to get the phraseology exactly as they need it to deliver their message, to affect us as they wish. Advertisers are the best at it, convincing us that we "need" a parade of junk that is of no real benefit, but we buy it anyway. That billboard, magazine, or website just talk us into it. 

In this spirit, there was general consensus that "workers' compensation" would be better perceived if it was called "workers' recovery." The focus, according to various attendees, of the system should be on recovering from injury. The focus should be on getting back to work and back to health, not on how compensation is delivered. This is interesting. Is there merit in changing terminology to change perceptions and motivations?  

The discord between the diverse market participants resurfaced. There is a perception that large employers are engaged and active in the management of the worker safety and workplace injuries. This is compared to the perceived disengagement of small employers. These businesses are the "backbone of the economy," and employ a large portion of American workers. And the Summit attendees lament that these small employers do not engage in the National Conversation, and are not really focused on workers' compensation until an injury affects the business directly.  

There is a consensus that there is too much regulation. There are too many regulations and they are discordant. The various jurisdictions are over-regulated and the various jurisdictions are rife with conflicting desires and needs. There is a feeling that some consistency is both needed and possible in the way that state systems are regulated. The EDI efforts are mentioned in this regard, and there is significant criticism of the data collection and processing efforts of various jurisdictions. There is a call for a critical analysis of what this data is relevant to, and how it could be standardized to make participation in multiple systems and jurisdictions less costly and complicated. 

The issue of penalties for management and processing continues to rate high on the list of critical issues. National Conversation participants are interested in less focus on the minutia of reporting and record keeping. There are descriptions of audits and penalties that distract employers and carriers from providing benefits. The question was asked "does this put benefits in the hands of the injured worker?" And, that is a question that is going to receive more attention.  

The administrative burdens of the medical delivery process were also discussed. There are complaints about the volume of paperwork and intricacies involved in delivering medical care. There was also discussion of the "bad actors in the system." California's Drobot prosecution received some attention, as did the ongoing national opioid issues. The Conversationalists questioned why states consistently attempt to address narrow issues with the addition of new layers of broad restrictions and regulations. Why can states not more narrowly focus on the specific issues and problems, and correct poor behavior of the market with existing regulation?

There is a question about the false claims process available in the federal systems like Medicare. Could states enact such provisions in workers' compensation systems? Would this incentivize insiders to identify and illuminate issues and abuses? Could that bring an effective civil remedy restraint on these "bad actors?" It was also suggested that states need greater cooperation between workers' compensation regulatory agencies and the agencies that regulate and license physicians and other service providers. That suggestion received nods and agreement around the table. 

Finally, the group discussed why there are delays in medical care. The Maine process of expediting care at the expense of group health, with subsequent determination of subrogation has wide acceptance and interest. But, the group health market was not at the table for the discussion. Some suggested that their perspective may be different. 

There is concern that the best doctors and providers are not participating in the system. Some contend that the various regulations and bureaucratic roadblocks may discourage physicians and others from participating as care providers. Telemedicine was discussed as a partial solution to provider availability issues. It is an interesting extension of efforts, and leverages technology. But there is a perception that more providers are needed. The perception is that systems have to encourage more providers to participate in delivery of care. 

The Conversation continues. The market is engaged and with continued talks and refinements, this effort will bear fruit. Everyone involved deserves our thanks and appreciation. 

Sunday, August 21, 2016

The #WCI2016 is off and Running!

The 2016 version of the Workers' Compensation Institute got off to a running start today in Orlando. The opening session is tomorrow morning, complete with keynote speeches, special guests, Steve Spurrier, the inaugural Kids Chance of Florida Scholarship presentation, Third Eye Blind and more. It will be a vast assortment of speakers, subjects, and curricula. It will be an amazing opportunity to learn and to teach. 

But today, the Professional Mediation Institute kicked off their program. This has traditionally been a Wednesday program, but moved this year to a Sunday afternoon and Monday morning format. There was a great turnout for this program, with some of the best mediation speakers available. 

Perhaps the best part of the #WCI2016 is the annual E. Earle Zehmer Moot Court Competition. In this event, in its 29th year, law students from 15 schools participated. They brought their "A-game" to Orlando. This is the only workers' compensation moot court competition in the country that is judged entirely by sitting judges. We had 41 volunteer members of the National Association of Workers' Compensation Adjudicators (NAWCJ) volunteer to judge this incredible assortment of bright and focused law students. 

The problem this year was centered on issues surrounding Florida's expert medical advisor (EMA) law. And, the law students brought a wide variety of legal research, poise and practice to the fore. Congratulations to the teams, their coaches and supporters. Tomorrow, this conference starts in earnest. But today was a great start. 


Barry University School of Law
Baylor Law School (Texas)
Charleston School of Law (South Carolina)
Charlotte School of Law (North Carolina)
Florida A&M University College of Law
Florida Coastal School of Law
Florida State University College of Law
Mississippi College School of Law
Nova S.E. University Shepard Broad Law Center
Stetson University College of Law
St. Thomas University School of Law
Thomas M. Cooley Law School
University of Florida Fredric G. Levin College of Law
University of Miami School of Law
University of Pittsburgh School of Law (Pennyslvania)

And, the Sunday afternoon included a continuation of the National Conversation on workers' compensation. There were some fresh faces, and some fresh perspectives. There is a growing consensus that the challenges of American workers' compensation are within the expertise of those gathering and striving for solutions. Bob Wilson led a four hour conversation focusing on the three issues that the Summit has identified as the most critical:


1. Benefit adequacy
2. Regulatory complexity
3. Delays in treatment even if injury is compensable 


The conversation was encouraging and inspirational. This conversation is leading to more understanding of perspectives. It is leading to communication and sharing. There will be more from the National Conversation in days to come. but this second chapter was a great step forward in identifying common ground and framing issues. The National Conversation was fortunate to have this opportunity for a second meeting, further conversations, and further progress. 

The Safety Challenge to us All

I was in a mediation years ago in a somewhat distant city. The adjuster and I had ridden together. The mediator apparently was experiencing a bad day, and the mood was anything but encouraging. Following brief opening statements, we had separated into caucus. The mediator waited for the door to close behind the others, looked my client in the eye, and related negative perceptions and feelings based on a mediation in which the two had participated months before. It was not the epitome of unbiased and balanced mediation. I remember that afternoon like it was yesterday; it is seared into my memory not because of the mediator's performance, but because the afternoon got worse. 

After several rounds of offers, a lull had settled in our room. We were quietly discussing something other than workers' compensation when my client's cell phone rang. By the second ring, my phone had begun to ring. Each call was from one of the adjuster's co-workers; there had been a fatality with their insured, which happened to be a client of mine also. I knew from facial expression the adjuster was simultaneously receiving the serious news. As we drove north that afternoon, we contemplated going to the scene. But we concluded that we would only be in the way.

Weeks later I received photographs from the scene. With the multitude of vehicles and personnel reflected, we made the right call. There were fire trucks, rescue trucks, ambulances, police cars and more displayed. The worker had been working at a significant height. I remember thinking that it was more than seven stories, but it has been many years. There was a cable stretched across the worksite, secured on each end. The employer explained to me that all of the employees were issued a safety harness, with a wire/clip with which they could attach themselves to this long cable. Thus a stumble or trip would be an abrasion or bruise, but hopefully nothing worse.

The police report said that the employee was wearing the vest at the time of his fall. It was undamaged and intact. The wire and clip in like-new condition. No one could ever explained why his harness was not connected to that cable, that day, at that moment. The coworkers all testified that each had such a vest and that each regularly used it, including the dead employee. Why it was not connected at that critical moment bothered me for years after the case was closed. 

I was reminded of that cable recently when WorkCompCentral published a story regarding a roofer in Tennessee. The employee was working on a rooftop back in 2013. Like the gentleman in the story above, this employee was required to use a safety cable. As soon as I read that, the incident from so many years ago came back in vivid memory. 

The Tennessee employee's cable became "tangled around his leg." He therefore "unhooked the cable to untangle it." In a tragic coincidence, at that moment, he also "accidentally stepped off the roof and fell 8 1/2 feet to the ground." Eight feet does not sound like much. But experience has taught me that a fall from eight to ten feet is significant. As the old sarcastic saw goes, the fall will never hurt you, but the sudden stop at the end can be painful or even deadly. 

The Tennessee employee fractured a hip socket, broke an arm, and broke the pubic bone. Though it does not sound like it, he was lucky. I knew a young man that suffered a similar fall and happened to land on his shoulder and head. Head trauma can be quite troublesome; that young man had to have his skull sawn open to relieve cranial pressure and spent years in medical care and rehabilitation.  Falls from ladders are a significant cause of occupational death

But the Tennessee employee injuries were certainly serious. He was eventually placed at maximum medical improvement and assigned a significant 25% permanent impairment. His employer sought to avoid paying benefits because he failed to "use a required safety device." The trial judge declined to enforce that law, concluding that this employee "had a valid excuse for unhooking his safety harness," and benefits were awarded. 

The appellate court reversed, concluding that the safety equipment was required and that the employee knew this. The court concluded that the worker had not demonstrated "a valid excuse for violating a known safety rule when safer alternatives were available." And so the court ordered that the injured employees claim be dismissed. 

The testimony discussed in the opinion made me return to that fall in Florida so many years ago. Did that man remove his safety cable because of a tangle or other momentary problem? Did he find that wearing such a cable slowed him down and, and so he elected to simply ignore the requirement to wear it? Unfortunately, his unwitnessed death that afternoon forever foreclosed the chance to know why he fell, and why he was not clipped to that cable. 

It is a poignant message, however, for the rest of us. Safety equipment is there for a reason. And its use should be persistent, consistent and insistent. Although we would all hope not, it seems that the planets can align against us and it is just at that moment that we allow ourselves to be vulnerable that the accident happens. It is worth thinking about. 

I thought about it again yesterday afternoon driving to the workers' compensation conference in Orlando. Having drafted this post recently, I had put it and safety out of my mind. Reaching for an object, I momentarily unfastened my safety belt. Afterward, I drove a few miles before my rental car began beeping a reminder and I reconnected the belt. Thankfully, no accident occurred in that brief moment, but the fact remains it could have. Unbuckling was unwise (at best) and in retrospect not really necessary. Anything can wait a few moments. 

Safety is worth remembering. And that safety equipment is worth using; first so that one does not suffer a reduction of benefits under the law. That is important. But more important is that without it our odds increase of ending up in a hospital suffering or even fighting for our life. These instances should remind us all that safety rules and equipment is there for a reason. Rules and equipment are there for us. Buckle up, and stay that way. As Sergeant Phil Esterhouse reminded us all at the end of each Hill Street Blues officer meeting "hey! let's be careful out there." After all, the best safety equipment any of us have is between our ears. We just have to use it. 

Tuesday, August 16, 2016

Cancer Presumption in Australia



An opinion piece from Australia recently caught my attention. I have spent a fair amount of time studying workers' compensation presumptions over the years. There is a push recently (some will quibble with how recently, say the last 30 years) for first responder's cancer to be presumed work related and covered by workers' compensation. The National Association of Workers' Compensation Judiciary addressed the subject in its Comparative Law Project, spearheaded by Judge David Torrey of Pennsylvania. 

That summary provides a reasonably comprehensive look at the existing presumptions as of 2013. There has been more discussion of the topic since then. Several states considered enacting cancer presumptions for firefighters in 2016. It is a subject that has therefore been reasonably common in our news and so the Australian story was notable. 

The title of the July 8, 2016 article was somewhat pejorative Insurers are there to take your money and then they employ people to make sure you don’t get it. It ran in the Northern Territory (NT) News.

There, a "71-YEAR-OLD firefighter on the brink of retirement" complains that the existence of a cancer presumption in the Northern Territory has not produced results for him in the manner he expected. His experience led him to complain that insurance companies "are there to take your money and then they employ people to make sure you don’t get it." The story says that this is a sentiment or conclusion shared by a significant population of people. 

Apparently, this firefighter is a bit of a legend, up north, but down under. He has worked in the profession for 49 years. How many people do you know that have worked that many years in any profession? He has been a firefighter longer than a fair number of my readers have been alive. 

In 2013, he was diagnosed with bladder cancer. This is said to have been a "direct result of almost half a century of exposure to toxic hydrocarbons in fire fumes." He describes "fighting grass fires back in the 60s and 70s with nothing more than a T-shirt and cotton trousers." He says that "Breathing apparatus was nothing more than a bit of silk cloth to cover his nose and mouth." There was not, apparently, much focus on workplace safety back then. 

So, following his diagnosis in 2013. He sought a determination that his disease was compensable, but the employer and carrier defended the causation. The law did not afford him any presumption and so he struggled to prove that the workplace exposures resulted in his condition. The writer says "it was a case of Jock having the arduous task of proving he got cancer on the job, rather than TIO having to show he didn’t." The consensus seems to be that it was a compensability claim in which such proof was either impractical or impossible. Possibly the science does not exists to make such a demonstration. 

The article makes some inconsistent points on this issue. It states that before the presumption the firefighter was fighting for a claim that was hopeless, saying "It was never a claim that was going to be won." Despite that characterization, the author says that this is a "disease medical specialists have consistently linked to his employment." So there was apparently scientific proof in this specific instance. Additionally, there was apparently evidence of high rates of disease among firefighters, with the author asserting that bladder cancer has "taken the lives of 35 Territory firefighters in the past two decades." 

So, does the evidence exist, in which case the claim might well have been proven without a presumption? Or was the claim futile, and "was never a claim that was going to be won?" The reader is left to wonder. 

This firefighter's story had strong public appeal though. Apparently his "high profile bid to be compensated by the NT Government" resulted in "intense public pressure" to amend its workers' compensation law. Now, there is a presumption of compensability for firefighters who suffer from "12 specific cancers. Including bladder cancer." So, legislative intervention altered the rights of the two parties, creating relief for the firefighter and imposing previously unexpected and unpredicted liability for the employer. 

This legislative result switches the burden of proof. A presumption does not mean that anything is predetermined, it merely sets forth who has to prove something. So, without the presumption the firefighter had to prove that the disease was caused by work. With the presumption we assume the disease was caused by work, and it is up to the employer to prove otherwise. Possibly, the presumption may be conclusive. If proof of causation was either impractical or impossible for the firefighter without a presumption, might it be equally impractical or impossible for the employer? 

If the science does not exist, then it does not exist. But, then there is another question. If the science does not exist to make these proofs in a case, then on what basis do legislatures determine that a presumption is appropriate? Possibly, from a legislative standpoint it is less about science than it is about policy, and "intense public pressure?" In the end, this leaves us with questions 

So, now legislative intervention has rendered this firefighter's condition compensable. But, the firefighter next learned that he has not suffered "enough impairment to deem him worthy of workers compensation." His claim for financial benefits has "been rejected." 

The reason for no financial benefits? Because the firefighter, who presumptively has compensable cancer, "has been assessed to have no “permanent impairment.” This may strike some as incongruous. How workers' compensation systems calculate the entitlement to indemnity benefits can be complicated and intriguing. To begin to understand this, a quick read of Functional Loss Versus Financial Loss may assist. Another perspective on disability is in The Own-Occupation Any Occupation Debate.

So, the author concludes that "none of this is fair" because there is no financial payment. The author says "these faceless pen pushers have 'accepted' his claim because they have had" to because of the presumption, but the law is ineffective because he receives nothing "meaningful."

The author says "it’s no wonder insurance companies are viewed with such disdain by the wider population." The author concludes that insurance companies "push and they push, and they break people." They make profits that are significant. And, the author calls for change. 

It is an interesting perspective. The science discussion leaves me with questions and curiosities. The impairment and disability issues leave me with questions, in this context and beyond. And in the end, it is probably a good thing that there is a conversation about what is right in workers' compensation, and what may need some attention. It is an interesting time to be in this system.

Sunday, August 14, 2016

Filing a Response or NOT?

The Florida Office of Judges of Compensation Claims is responsible for adjudicating workers' compensation disputes throughout Florida. As the state's population has increased, the resources of this agency have remained virtually static. Of course, there was an expansion of personnel and resources in 1994 when the legislature added a mandatory mediation process. Positions were added for 31 state mediators, and 31 staff to support the mediation process. 

In 2006 the Legislature added one judge to the FLJCC, and that position was deployed to Ft. Myers. That "addition" was retracted in 2012, when the legislature eliminated a judicial position and three mediator positions in the FLJCC. This office is staffed today with fewer professionals than in 1994 (22 years ago).

But Florida has grown. The U.S. Census Bureau estimates that in 1994 Florida's population was 13,870,000. National and State Popluation Estimates, 1990-1994, Table 3.  The Florida population is currently estimated at  20,085,000. Over twenty-two years, a significant increase of 6,215,000, forty-five percent. 

In the 1993 special session,  the legislature made significant changes to the Florida workers' compensation law. An intent of that reform was to decrease friction in the delivery of benefits, to decrease both the need for and prevalence of litigation. The effort was not successful. Litigation blossomed and filings increased dramatically thereafter. 

In 2001, there were revisions to the statute, followed by more in 2003. An intent of that reform was again decreasing litigation. The effects were profound. Petition for Benefit filings decreased dramatically over the years following 2003. Simultaneously, the FLJCC and the Division of Administrative Hearings heeded an instruction issued by the 1994 legislature: draft administrative rules of procedure for workers' compensation. For decades, the Supreme Court had inappropriately and improperly provided procedural rules, and the legislature wanted that to end. 

The Rules of Procedure for Workers' Compensation Adjudication (Fla.R.Pro.Work.Comp.) were enacted. Following unsuccessful efforts by the Bar to prevent those rules from becoming effective, the Supreme Court admitted that it had no authority to make rules for executive branch agencies. The Court noted that it had never had such authority. The Supreme Court's Rules of Workers' Compensation Procedure, used for decades, were never legal, a violation of separation of powers. They have been repealed for over 12 years, and yet some attorneys still cite them. It is unclear if this is through inadvertence, artifact forms, or some other cause. 


The Fla.R.Pro.Work.Comp. rules are now applicable (there is debate on this abbreviation). Some believe that although the Supreme Court cannot make executive branch rules, it can dictate how they are cited. They therefore believe the appropriate abbreviation would be the one stated in the Court's Rules of Appellate Procedure, "Fla.Admin.Code.R. 60Q______." An interesting perspective.


One of the major changes that came with executive branch rules in 2004 regards the handling of motions. Essentially, the FLJCC is an adjudicatory body. Its mission and focus is to either resolve (mediation) or adjudicate disputes about workers' compensation benefits. The substantive issues are most often brought to the table through a Petition for Benefits, which states known facts about a case and details what benefits are requested and why. The law then affords the employer/carrier an opportunity to respond to those allegations, through a Response to Petition. 

The paradigm is relatively simple. One side says that it is entitled to something, by filing a petition. The other side then responds and either provides that benefit(s) or states why it is not. This defines and refines the dispute. Both sides should be comfortable with where their positions differ. They should understand what is the nature of, the foundation of, their disagreement. Armed with this knowledge, each may prepare to seek their desired outcome, to accumulate and authenticate the evidence that will prove their respective arguments. 

In the midst of such substantive disputes, it is too often the case that these parties have other disagreements. They disagree over whether various documents should be provided to each other, whether various evidence is admissible, whether certain evidence should be procured, when the trial or mediation should occur, and much more. These disputes, like those in the Petition, need to be decided by the Judge. 

These are brought to the attention of the judge by filing a "motion." The Fla.R.Pro.Work.Comp. require that "any request for an order or for other relief shall be by motion and shall have a title describing the relief requested." Rule 60Q6.115(1). Stated simply, the way to have a procedural dispute resolved is to file a motion in the case. Calling the Judge's office to describe issues, disputes, and conflicts is not the appropriate method to get help. Writing a letter to the Judge is not appropriate. The right tool is a motion, clearly stating the problem and requesting a solution.  

To simplify things for those who do not have an attorney, the requirements are somewhat relaxed. The Rules say that "the judge may treat any request for relief from an unrepresented party as a motion." Rule 60Q6.115(1). Thus, letters from unrepresented parties might be considered a motion and adjudicated. The fact is that letters from uninformed attorneys, who lack an understanding of motion practice, are often treated like motions, just as they would be if filed by an unrepresented party. Some attorneys simply do not grasp the motion concept. 

The point is that the party tells its story by filing a motion. Similarly to the Petition process, this will put the other party on notice of the dispute or issue. It is hoped that these issues will only be brought to the Judge's attention if there is a real dispute. To discover whether there is a real disagreement or just a misunderstanding, the parties need to talk about the motion and the issue. This communication is required: "prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion." This means having a "conversation" (from the same latin root as the word "confer"). Rule 60Q6.115(2).

Then, there is the opportunity to reach an even better understanding of the procedural dispute that has led to this motion. The Rules allow that "the other parties may, within 15 days of service of the written motion, file a response in opposition." This is the chance for the "other party" to tell her/his/its side of the story. In a funny sports parody movie, Dodgeball; A True Underdog Story, a commentator played by Jason Bateman provides nonsensical "color" to the ongoing play-by play. When the announcer notes that one team has forfeited (given in, given up, withdrawn) the championship, Bateman vacuously notes "an interesting strategy, let's see how that works out for them." 

I am reminded of that quote when motions are filed, but no response. The "other party" was consulted; there was a conversation. That process did not lead to resolution. The parties have a real disagreement. The motion says so (the rules require that the moving party state in the motion that she/he has conferred as required and that the other party objects). So, from the motion the judge knows there is a real dispute. One party wants something and the other side objects. 

But what is the real dispute? With one side presented in the motion, the other side elects not to file a response as allowed by the rule. They have forfeited, and then we perhaps hear Bateman's voice "interesting strategy, let's see ho that works out for them." Certainly, there is no requirement that a response is filed. But, if there is a reason why the judge should not grant the motion, what is it? If the "other party" does not want to see an order granting the motion, why don't they say why? Why don't they explain their argument? Why don't they tell their side of the story?

It is possible that some believe that they can just wait and make her/his points at a hearing on the motion. But this is naive and uninformed. Most motions in the Florida workers' compensation process will never have a hearing. There will rarely be an opportunity to sit with the other attorney and the judge and voice positions and arguments. Why? Simply because the rules say so, and most of the judges follow the rules.  

The normal process will be for the judge to "rule after the response is filed or after the response period (15 days) has expired, based on the motion, together with any supporting or opposing memoranda." So, the default is for the ruling to be made on the written documents filed. Rule 60Q6.115(4). In fact, the "judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response." While there are a few judges who nonetheless regularly schedule hearings, a party cannot count on a judge breaking the rules for them. With growing litigation and growing state population, there is simply not time for a hearing on every motion. 

The ultimate conclusion of all of this is simple. The judges have their respective hands full. The population of Florida is expanding, and there is significant litigation in this system. In the vast majority of instances, there will be no motion hearing, no oral arguments. Therefore, the "other party" is well advised to take full advantage of the opportunity to file a response to any motion. Tell your story, make your argument. Forfeiting, while perhaps interesting to Jason Bateman, is not likely the best practice to prevail on your opposition to a motion.