Monday, August 21, 2017

For Dignity and Respect

I got an email last week from a judge. As with many I receive, it was broadcast to other recipients. And, thanks to the beloved "reply all" button, it became a conversation. The subject was essentially professionalism, a topic that is eagerly championed, little understood, and too often provided only lip-service. 

This conversation was about the manner in which some attorneys dress to appear for proceedings at the Office of Judges of Compensation Claims. The discussion was inspired by an attorney appearing for a hearing without a tie or socks. Wardrobe is not a new topic, but it has been suggested to me that there is value both in discussing new topics and in periodically returning to reiterate and reinforce topics that are important. 

In 2016, I wrote about judicial robes in Aspire to Apply the Law Fairly. That post revolved around the Florida Supreme Court's decision to regulate robe wearing, and the various justifications it cited. There are Judges of Compensation Claims that advocate robe-wearing, and others that decry it. For the administrative judges in the OJCC it has always been an option and never a requirement. Similarly, the Supreme Court rule does not mandate robes for constitutional judges, but restricts color and regalia of any robes that are worn. 

Aspire also briefly addressed the issue of attorney attire at proceedings. It noted 
we have seen attorneys appear in shorts and flip-flops sometimes (mediation). 
an attorney appear(ing) at a hearing in shorts and golf shoes. 
an attorney enter(ing) our office and ask(ing) the guard "which one of these people is my client?" 
For a great many, appearing for a hearing or trial without a tie or socks would be unthinkable. The thought would not occur. But, it is not necessarily new. I knew an attorney in the 1990s that regularly avoided socks, and only very rarely wore a tie. He was known for his style, with a fair few comparing him to Miami Vice character "Sonny" Crockett. This attorney was talked about and perhaps even ridiculed for the lack of formality, but not confronted. 

There was precedent for more casual attire. In the 1990s we had judges who rarely wore a tie or jacket. One of whom persistently sported boat shoes without socks. When this judge did wear a jacket and tie, it was the "same" blue blazer and regimental tie every time. Some workers' compensation judge's attire was the subject of conversations. There were those who expressed lack of respect for judge's appearance.  

Conversely, I was honored to know an attorney named John Myrick whose wardrobe flair and panache was legend in the Florida Panhandle. He sported southern classics like seersucker and white bucks. I presided over several trials in which he appeared, a true southern gentleman. He was respectful of witnesses and parties, courteous to all, and an effective advocate as a result. He reminded me of the television character Ben Matlock (starring Andy Griffith). Mr. Myrick's pride in his appearance and preparation were obvious; his professional appearance and demeanor beyond reproach. 

Is the manner of our dress critical to our professionalism? There are those who argue that it is.

In 1989 Brendan Frazier starred in Blast from the Past. It was no blockbuster. I have spent many waking hours appreciating movies, but this one escaped my notice until decades later. It involves a young man raised in a fallout shelter (not a "bomb shelter," as Brendan's character Adam reminds), and emerging into Los Angeles at 35 years old. It is another take on Hollywood's recurring fish out of water trope. Adam emerges to confront our modern world with a not-so-modern personal perspective. The movie pokes some fun at Adam's 1960's values, as other characters, including love-interest Eve (Alicia Silverstone), express curiosity at Adam's thoughts, expressions, and behavior. 

In one scene, Eve discusses Adam with her housemate Troy, and is denying having fallen for Adam. She describes how she "does not fall in love" with men possessing certain attributes, one of which is "perfect manners." Troy's reply is a  great quote:
I asked him about that. He said, good manners are just a way of showing other people we have respect for them. See, I didn't know that, I thought it was just a way of acting all superior. 
That is a valid point. Maybe professionalism is all about showing people we have respect for them. What are our actions communicating to the others involved. When a lawyer appears in a Miami Vice outfit, there are those who will perceive it as being more appropriate for a night of disco-dancing than for a legal proceeding. Though some may perceive it as fashion or flair, others may simply perceive it as sloppy, lazy, or worse. 

Does that mean that attorneys must wear formal wear and judges robes and wigs? Definitely not. But appropriate attire should be the goal of everyone appearing for a proceeding. Lacking a fashion sense myself, I am ill equipped to make fashion statements. I do know the difference between clean and dirty, appropriate and inappropriate however. As I pondered this issue, I did some Googling. 

I quickly found an excellent article on professionalism published in 1987, which featured significant discussion of appropriate dress. Lynda K. Hopewell, Appropriate Attire and Conduct for an Attorney in the Court Room, JOURNAL OF THE LEGAL PROFESSION 12, 187-199 (1987). This article focuses significantly on a Florida case, Sandstorm v. State, 309 So.2d 17 (Fla. 4th DCA 1975), in which a judge and attorney disagreed upon the need for, and later definition of, a necktie. The judge's perspective prevailed.

There is also an excellent Pocket Manual of Courtroom Etiquette published by Hon. William H. Burgess, III, of the Circuit Court in Clearwater, Florida. Both make excellent points about appropriate attire in legal proceedings. The Burgess work makes a number of other excellent points regarding trial practice and professionalism generally, and it well worth the time to read it. Judge Burgess even cites a specific example regarding a sockless Indiana attorney

I have not found that Florida has mandated a dress code. However, the Massachusetts Courts have published a detailed website addressing behavior in legal proceedings. As to attire, it recommends:
Dress appropriately. If you dress inappropriately, you may be asked to leave the courtroom. Appropriate attire, whether as a participant in a case, a witness, or an observer, shows respect for the judge who will be deciding the case. As a general rule, you should think of the courtroom as a formal environment. Dress as you would when going for an important job interview or to church.
It provides more specific advice also
Men: wear shoes with socks; long pants (on pants with belt loops, wear a belt); collared shirt (tucked in) preferably with a tie, with or without a jacket.
Women: wear shoes; a dress, skirt (preferably no more than two inches above the knee) or long pants; a blouse, sweater or casual dress shirt.
And, it provides a list of what not to wear:
shorts, hats, halter or tube top, see-through top, flip flops, clothing that exposes your midriff or underwear, ripped or torn jeans, baggy pants that fall below your hips, clothing with an emblem or wording that promotes illegal or inappropriate activity, clothing that depicts or promotes violence, sex acts, illegal drug use or profanity.
There is merit in all of these suggestions. 

Some tribunals mandate a local dress code. Florida's Second Circuit has a dress code for jurors. The Federal Court in Ft. Myers has similarly published a broad parameter:
When appearing in the courthouse, you must dress appropriately to preserve the dignity of the court. Business attire, such as suits and dresses, is not required; however, more informal attire, such as beach wear or shorts should not be worn
Notice that these, and many similar statements on the Internet, are directed at those who either participate in or just attend legal proceedings. They seem both to be appropriate, and well-intentioned (for the "dignity of the court" or as demonstration of "respect for the judge"). 

Some will find the suggestions unseemly. Why, for example, should men be told to wear socks, but not women? For that matter, why should women be permitted to wear a skirt, but not men? This is not facetious. I knew two young men in a high school debate club that became well known for competing in kilts. 

The gender issue is not new. It is reiterated in a recent protest of school dress code and the "off-the-shoulder" top, which made national news. After several girls were counseled or disciplined this year for such tops, several boys attended school similarly dressed, to "protest sexism against female students." They make several arguments, but one regards the difference between what is permissible there for men versus women. There are questions raised about the propriety of such distinctions. 

It is worth noting that respect is not always an objective process. None of us are "respected" or "disrespected," but instead we individually "feel" one or the other. In other words, respect or disrespect is not necessarily something that needs to be intended. In fact, one's actions or words may mean no disrespect, and yet be perceived as such. In that regard, there is perhaps a conflict between one's intended "expression" by wearing some outfit, and the "perception" by others of disrespect. One might intend a fashion statement by the absence of socks, and yet communicate instead a lack of respect. 

A wise judge once told me that the number one rule of trial practice is to attract attention for the right reasons. The explanation was that an attorney or witness wants the finder of fact (judge or jury) focused upon what is being said, what was felt, what is important. The worst thing, according to this judge, is to distract the finder of fact from what is important. While making a critical point, the speaker wants the judge or jury listening intently, not thinking instead "I wonder why he's not wearing socks," or "I wonder what that stain on her lapel is." 

There is currently no rule as to appropriate dress in Florida workers' compensation proceedings. Should there be? Should there need to be? Should there be a specific OJCC proceeding dress code, with specifics and a statement of purpose as published in Massachusetts? Or, should this system accept that people have different perceptions of fashion, and ignore the resulting feelings of disrespect and lacking professionalism? There is a third alternative, perhaps a rule that simply states that "professional attire is expected and required at all events in the OJCC offices." Such a rule might leave enforcement to the Judge's or mediator's discretion? 

Is it appropriate, as in the high school noted above, to simply send someone home who is not appropriately dressed? In a perfect world participants would perhaps dress appropriately out of respect for the judge, the mediator, their client, or the process. But, perhaps we have reached a point in time where such lofty aspiration cannot be reasonably expected or anticipated voluntarily any longer. Perhaps we have come to the time when decorum, respect and professionalism must be mandated and enforced?

This is a topic upon which I would like to hear from judges, mediators, attorneys, risk managers, adjusters, injured workers and more. What, if any, policy should this Agency have regarding appropriate dress?

Sunday, August 20, 2017

Criticism of Enforcing Law

The nation's public radio, NPR, and ProPublica recently published a story critical of the application of Section 440.105 Fla. Stat. The almost 6,000 word story, They Got Hurt at Work. Then They Got Deported, does not cite this statute specifically, but makes references to it. The article is somewhat critical of Florida's Division of Investigative and Forensic Services for enforcing the state's law.

The focus of the story is "how insurance companies use a Florida law to get undocumented immigrants arrested and deported when they get injured on the job." And it alleges that one particular employee leasing organization, workers' compensation insurance carrier, and servicing agent essentially manipulate premium charges with expectation or anticipation of avoiding future claims, with knowledge that the workers hired are illegally in this country (referred to by the story as "unauthorized"). 

The story outlines the story of one man arrested for lying and providing the employer with a false Social Security number. Propublica/NPR characterizes Nixon Arias as "similar to many unauthorized immigrants." He had been in the U.S. for about 9 years, when he was injured in Alabama. For whatever reason, he was apparently provided Florida workers' compensation benefits, and struggled to recover. Eventually surgery was recommended. Then, according to Propublica/NPR, "the insurance company suddenly discovered that Arias had been using a deceased man’s Social Security number and rejected not only the surgery, but all of his past and future care." Arias later was "pulled over and arrested," and "charged with using a false Social Security number to get a job and to file for workers’ comp."

The relevant Florida Statutes might have included any of the following, though not cited specifically in the story:

Section 440.105(4)(b)1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.
Section 440.105(4)(b)2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
Section 440.105(4)(b)3. To prepare or cause to be prepared any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
Section 440.105(4)(b)9. To knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits.
Mr. Arias was jailed for about 18 months and then deported. The story cites a similar Massachusetts story of a man falling from a ladder at work who "was detained by ICE" thereafter. Propublica/NPR notes that Florida's statute is unique, but that similar provisions have been advocated elsewhere by "insurers, hardline conservatives and some large employers" that have sought "for the past 15 years to deny injury benefits to unauthorized immigrants."

It is a crime in Florida to present false information either in "obtaining employment or filing or supporting a claim for workers' compensation benefits." The Propublica/NPR narrative does not seem to be about whether providing false information should be against the law, but about the impact of this law on those who are in the U.S. illegally, or are "unauthorized." 

Propublica/NPR makes a valid point that people injured on the job should have the safety net of workers' compensation. The system is designed for the mutual benefit of employers and employees. It is here to provide medical care and wage replacement to those employees and to provide civil remedy protections to employers. It is intended to provide both employees and employers with a more predictable and rapid system than tort law affords.

Every facet of workers' compensation is set forth in the various state statutes that create and define these systems, which are different in each of the states, despite some similarities and even some identical provisions. This is a point that variously draws admiration and criticism. There is no "American workers' compensation system," but at least 55 individual systems, each defined in its own law (including one in each state, the District of Columbia, Puerto Rico, Guam, the Federal workers' compensation system, Longshore and Harborworkers, and more)

The story concludes that "employment of unauthorized workers is a reality of the American economy." It states that "8 million immigrants work with false or no papers nationwide." Propublica/NPR says that these are "more likely to get hurt or killed on the job than other workers," but provides little explanation as to why. Possibly because of risks associated with certain regions, occupations, or tasks? 

But, since 2003, Propublica/NPR says that "insurers have avoided paying for injured immigrant workers’ lost wages and medical care by repeatedly turning them in to the state." This seems to be focused on Florida and to imply of frequent application of the law. 

How prevalent is this? Well,"NPR analyzed 14 years of state insurance fraud data and thousands of pages of court records." The result was about "800 cases statewide in which employees were arrested under the law." Of those, there were "at least 130 injured workers." And of the 800, "125 workers were arrested after a workplace injury prompted the state to check the personnel records of other employees." These number might support that the majority of arrests were not of injured workers.

So, 800 total cases, at least 130 injured workers, and at least 125 employed at a facility that was audited or investigated because of some co-worker's reported injury. 

A database report from the Florida Department of Financial Services generated figures for the period January 1, 2007 through December 31, 2017 (year to date). That is a period of about 11 recent years (acknowledging it to include several remaining months of 2017, possibly leading to an under-representation of actual figures for 2017), a shorter period than the 14 years studied by NPR. This report supports that 618,289 cases were reported to the Florida Division of Workers' Compensation during that time.

That results in an average (annualized) of about 60,000 per year. This does not include all Florida injuries (but "only those lost time workers' compensation records for which a DWC-1, First Report of Injury or Illness, and/or a DWC-13, Claim Cost Report, was reported to/recorded"). If the 800 cases found by NPR were evenly distributed over the 14 years studied, that amounts to about 57 cases per year. Stated differently, the cases found by NPR might be said to represent one tenth of one percent (.00095 - 57/60,000) of the lost time cases in Florida annually, and a smaller percentage of the total volume of injuries (which would also include medical only and first-aid cases).

The 130 injured workers NPR found over the studied 14 years (or the other 125 arrested after accident-induced investigations), would be about 9 per year, or about 2/100ths of one percent (.00015 = 130/60,000) of the lost time injuries. The volume of affected individuals is thus notably small. That said, each of the individuals mentioned are human beings, workers, and deserving of the benefits afforded by the social contract that is workers' compensation. Why? Because they were hired by the employers, worked for the employers, and were injured in that endeavor. That is the socialistic contract that is workers' compensation. The cost of such injury is appropriately born by the employer and its customers, not by the injured worker. 

The percentage that were deported as a result is even smaller. The Propublica/NPR headline is They Got Hurt, Then They Got Deported. Some might interpret that to mean work injury equals deportation. Propublica/NPR reports however only that "At least 1 in 4 of those arrested were subsequently detained by ICE or deported." That would be a total of perhaps 200 (a quarter of the 800 total cases found by Propublica/NPR) at least "detained." Because of the "or deported," some might infer that even less than 25% of the one tenth of one percent were deported. The statistics reported also substantiate that of the 800, only about 130 were injured. Some might argue that the suggested correlation between getting hurt and being deported may not be as absolute as the headline might insinuate.

Despite the Florida law being unique, Propublica/NPR rdescribes injured workers from Massachusetts, Pennsylvania, and Kansas who perceived mistreatment and/or deportation from involvement in workers' compensation accidents. 

ProPublica/NPR reports that a large portion (75%) of those who were arrested in Florida were reported by one private investigation firm in Central Florida. Half of those arrested in the last four years worked for the same employer, which is owned by the same person that owns both that employer's workers compensation insurance company and claims management company. The implication perhaps being that this particular combination of employer/carrier is more aggressive regarding these laws than perhaps others are?

Critics of the "no lying" law and of the outcomes it has produced complain that false social security numbers could be identified in the hiring process. They contend that hiring is the time to deal with the documentation issue, and seem to insinuate that the employers involved acquiesce in hiring and working those without solid documentation, and enjoy a benefit from their labor. Then, after there is a loss, the same employer escapes liability for the injury on a basis that could have been discovered earlier, could have precluded employment, and thus prevented the injury. Would it be better to more proactively investigate/research, and exclude those without appropriate documentation from the workforce?

There are likely various reasons for making misrepresentations when seeking a job. One quoted state official stated “there’s quite a lot of other circumstances why people use fake names and IDs and Social Security numbers aside from immigration." Examples offered included "people who might have other legal problems," and "people who are wanting to stay off the books for specific reasons," such as "divorces or liens put against them.” However, Propublica/NPR claims that it found only five instances of such "other reasons" in the 800 cases it identified. It quotes a state report that says “'nearly 100 percent' of the suspects investigated under the statute were undocumented workers."

And, is there injury to others? Propublica/NPR reports that "In one case, state investigators found that more than 100 workers were all using a Social Security number belonging to a 10-year-old girl." How will that girl be affected if she one day becomes employed in Florida, and suffers a work injury? Or, could the people using her Social Security number cause other damage to her by this use, or theft, of her identity? If someone uses your identity, is that "identity theft" or merely "unauthorized" use?

One of the workers quoted by Propublica/NPR concluded that she was unjustly treated. She complained of the "injustice (of) what happened to me,” which was “all because I fell, I slipped.” Some might contrarily argue that some portion of what happened to her was attributable instead to having either entered or remained in this country illegally, or to making false statements in the employment process. One attorney, quoted by Propublica/NPR said "even immigrants who are 'truly injured' should be denied benefits if they’re using illegal documents for their claim and 'they shouldn’t be here in the first place.'”

Propublica/NPR suggests that the Florida laws on false statements are efforts at controlling immigration, citing sources that perceive constitutional issues therefrom. There is discussion of Arizona v. United States, in which the United States Supreme Court struck various provisions of Arizona law by which local law officers were to enforce federal law. Propublica/NPR concedes that "unlike Arizona’s law, the (Florida) statute doesn’t mention immigrants specifically." However, it quotes an attorney that contends the results of the law, its impact, disparately affects illegal immigrants, which he says is "problematic" from a constitutionality standpoint. 

This is an enlightening piece from NPR/Propublica. There will perhaps be elements of the story that are troublesome to various perspectives. However, it is probable that the story will generate intelligent discussion and debate; some may perhaps question their perspectives as a result. Newsweek reports that deportations have dipped slightly in early 2017, arrests of illegal immigrants have increased. Whether deportation will be different in what Propublica/NPR refers to as "the age of Trump" or not, deportation appears a likely subject of debate and discussion in years to come. 

Thursday, August 17, 2017

A Recent "Real" Fraud Discussion

Workers' compensation is a topic that evokes strong emotions sometimes. Back in June, Joe Paduda penned a short piece on fraud that generated a fair amount of discussion, titled The Real Fraud in Workers' Comp. He contends that there is fraud in workers' compensation, but that it is not what many perhaps think about most readily. He asserts that this "real" fraud is too infrequently the focus of the media, and he encouraged "real journalists to concentrate a lot more on the real problem – employer fraud."

Despite that urging, he notes that the "real fraud" includes
(1) employers going without insurance coverage so workers and taxpayers foot the bill,(2) providers scamming the system to make millions, and(3) a relative few applicant attorneys and their schemes to defraud employers and taxpayers. 
These are all worthy of attention and examination. Following the Paduda post, WorkCompCentral responded editorially with Clickbait News is Still News. It seemingly took some issue with Mr. Paduda's "real journalists" characterization. It provided some recent examples of injured worker fraud stories in the news, and explained that "Readers love dumb crook stories."

At this stage in the discussion, there is perhaps too much focus on the "real." Back in 1982, there was a book challenging some perceptions of masculinity, titled Real Men Don't Eat Quiche. The emphasis on the "real," as in a man might eat baked egg casserole, but not a "real man." This was a "tongue-in-cheek examination of masculinity and the macho America of the 1980s, coming on heals of the Village People's Macho Man and other pop culture male references. It perhaps illustrated the literary use of "real" as some sort of contrary demeaning accolade (by complimenting one, perhaps all others are diminished).

WorkCompCentral also asserted "a larger purpose in telling these kind of stories," fraudulent employee stories that is. It says that such stories "provide real-life examples of how to successfully defend against a fraudulent claim," and this is information of value to those who manage employees and claims. It urges thorough investigation of claims and purports two benefits therefrom, (1) "to prevent future mishaps," and (2) "to make sure the claimant didn’t make it up."

To be fair to each, there is not "real conflict" between the Paduda point and the WorkCompCentral response. There is a seeming consensus that fraud is bad. On that point, you rarely hear any outright disagreement. But, it is not uncommon to hear excuses and minimization. I have often heard conversational disagreements regarding both the extent and nature of fraud, but they rarely make the point that something is not fraud.

Instead, when some action is described, a response is often to the effect of, "well sure, but that is not as bad as ___________." Sometimes, those conversations devolve into absurdity, like some comparing of scars as popularized by 1975's Jaws, or 1992's Lethal Weapon 3. Oh, you think that's fraud, let me tell you about this fraud. Oh, that's nothing, the real problem is this. Oh, sure that sounds horrible because of the dollar amount in one instance, but it is so rare. Oh, that fraud impacts so few. It would perhaps be humorous except that these discussions only distract from what should be the "real point," that fraud is illegal and it is unacceptable in any context or extent. 

Misclasification is a problem. It is not a new subject, and has been perpetrated for years. For the basics, read Misclassification, What is it? It presents challenges, which government regulators and legislators may struggle to address. It is perpetrated by often imaginative and creative individuals who are well aware of how to skirt the law and avoid detection and prosecution. 

There are service providers that are working the system. We know about a hospital scheme in California, We are well aware of medical care provider behavior that has propagated "pill mills" and even led to disability and death. And these topics are discussed at seminar after seminar, by panel after panel. Back in 1992 a billionaire named Ross Perot ran for U.S. President. One of his arguments regarded the national debt, and he said
The debt is like a crazy aunt we keep down in the basement. All the neighbors know she's there, but nobody wants to talk about her.
His point was his perception of a problem (debt) that was ignored, not discussed enough. One might argue that fraud is a similar issue today, a problem that everyone loves to talk about but about which no one wants to take any "real" steps. 

But, it makes sense to do something about it. The common theme in all of the fraud examples is harm. The harm is real, and damaging. 

The worker who is misclassified works under a cloud of risk. Some are injured, only to find that they have no coverage. Certainly, Obamacare has mandated that all Americans have health insurance and the government is empowered to assure that. However, CNBC reports that 13% of adult Americans nonetheless remain uninsured, about 33 million people. How are there uninsured when health insurances is "mandatory?" Perhaps someone will write and tell me what the "real" meaning of mandatory is? 

Someone who is injured, but who lacks workers' compensation and group health insurance is likely to be unable to afford medical care. Choices will be made, and ultimately someone will pay for that injury, in money or otherwise.

The worker that takes money from the system illegitimately creates cost and harms others. Resources are diverted from those in legitimate need. The system is burdened, costs are incurred, and resources are directed, as WorkCompCentral suggests, to the making "sure the claimant didn’t make it up" in all cases thereafter. Investigation costs money, and "real" investigation really costs money.

The doctor, hospital, or chiropractor that bills too much, or engages in kick backs, or over-prescribes dangerous drugs, are likely bad actors. The news alerts us to both their existence and reminds us of their impact. And yet, it seems the risks must be worth the money, or their behavior would stop. Maybe it is the money. Fee allowances that allow medical procedures in workers' compensation to cost double what is paid in other settings diverts resources, and could encourage bad behavior. 

The "real fraud" in workers' compensation is not any particular category, nor are those who write about any particular description "real" journalists or not based on their subject. Despite the best efforts of some to explain away or minimize or apologize various types or descriptions of fraud are mis-direction at best. The "real fraud" in workers' compensation is all of the fraud. It is high time to remember that criminal activity is criminal activity. Words should not be twisted to explain or excuse behavior that is criminal (George Carlin could have a hay-day with this topic of words). 

In our modern vernacular, we mix metaphors and sometimes confuse. But Huey Lewis and News reminded us way back in 1984, that "sometimes bad is bad." I would suggest that all fraud is bad, and all fraud is "real." There is no reason to hide any of it, ignore any of it, massage words about any of it, or excuse any of it. The only solution is to prosecute all of it, and to impose penalties that are sufficient to stop it. 

Perhaps jail time, long probation, exclusion from markets, repayments of what was taken or perhaps two or three times what was taken. Fraud is an intentional action. When one is convicted of it, the outcome should prevent both that person and others from travelling that path again.

Tuesday, August 15, 2017

Communication and Activation

Medical News Today (MNT) recently published Did I understand you correctly, doc?, an expose of communication between patients and physicians. It is a worthy subject for the workers' compensation industry, because every injured worker becomes immersed to some depth in medicine. For many, it will be both their first and most significant foray into medicine. 

The MNT article contends that patient understanding is a critical element of care, and particularly so when dealing with "chronic diseases." Patients need to be engaged in caring for their conditions, and particularly aware of "potential complications" that are involved with or associated with those conditions. If patients are not "actively engaged in their own care," then we might anticipate an "impact (on) both care and safety."

Effective communication is a two-way street. Over decades of working with a vast variety of people, I have concluded that both speaking and listening are critical skills. Unfortunately, I have often found that listening is a skill that is too often ignored. Sometimes, that is through a personality trait, some people seem to just be inherently weak listeners. Other times, I have seen that to be a situational issue in which the poor listening is associated with the stress or emotion of a particular setting, such as a hearing or a doctor's appointment. 

MNT contends that patients must be engaged in their own care. Becoming engaged will enhance care effects and outcomes. The informational deficit is illustrated by the story's example of diabetes. Studies are cited supporting that less than half of diabetes patients understand the link between this disease, heart disease, and mortality. Even less appreciate the diabetic risks of stroke, and a great number do not appreciate diabetic risks of "kidney disease and amputations." These risks are all well documented, and the Internet is replete with information. Why do patients lack this knowledge?

The point of disease knowledge is directed at care. Patient appreciation for risks and complications "improves patient adherence to treatment," and will perhaps delay or even prevent the onset of various complications. The adherence to treatment may include effective and regular use of medications, engagement of healthy lifestyle choices in broad contexts such as diet and exercise, and avoidance of behavior or situations with a demonstrated deleterious probability, such as alcohol or smoking. 

In the Age of the Internet, there is a great deal of information available. Unfortunately, the Internet is so full of information, that finding appropriate and succinct information can sometimes be challenging. Stanford University recently issued a report that concludes there is untrue information on the Internet, no surprise (how do I get funding for my own study?). But even some of our best and brightest have trouble recognizing bias, or are "duped by sponsored content." Seemingly, if people are duped when they are at their best, they might be more susceptible to being mislead when under emotional strain that accompanies physical injury or illness?

The primary source of information for patients, however, is the physician, particularly the "primary care" physician. Patients have reported frustration at the volume of information received from their physician. And, their perceptions include complaints of (1) a lack of information provided, (2) a failure to understand or remember the information provided, or (3) a combination of the two. Patients have been documented as perceiving their physician's communication skills as lacking. Patients are not faulting their own listening skills, but their physician's speaking skills. 

The MNT suggests that communication skills training for physicians could be of benefit in changing this dynamic. It cites data supporting that doctors with such training have demonstrated a patient "adherence to treatment" rate that is "1.62 times higher than among patients of doctors without training." Patients whose doctors are trained communicators follow instructions better. The focus of this communication skills training is predictably two-fold, focused on both effectively conveying information and equally important the critical task of listening actively to the patient, and thus understanding their perceptions, concerns, and overall comprehension of their situation. 

What impacts patient understanding and compliance? Some suggest that when a patient is provided information is important. They encourage the physician to consider whether the patient is "ready to understand and absorb the information?" It is also likely important how often the patient is provided with information. Repetition can be important in retaining information. We all seem to have a natural tendency to remember things that are repeated often. Sometimes that may be positive, but unfortunately repetitive disinformation may have a significant and similarly effective negative reinforcement.  

MNT suggests that the physician's engagement with, and empathy for, the patient affects how communication from the physician is received and processed by the patient. It cites multiple examples of positive patient reaction to information delivered with consideration and genuine concern, both in comprehension and retention. 

So, physicians will be more successful with well-timed, empathetic, and repetitious communication. And, communication training can enhance their communication delivery capabilities. But, this affects only half of the equation. The patient must be ready to receive and process that communication. Patients must be active listeners also. While physicians can affect that with timing, empathy, and repetition, the patient must still be able, willing, and prepared to receive. The best radio broadcast process is of little value if people lack functional radio receivers.  

The receipt and processing of information is referred to as "activation." Patients with "low activation" may ask fewer questions in the clinical setting. It is estimated that a significant volume of patients suffer from "low activation," for whatever reason. They may be unready to receive and process, that is the timing may be wrong. This may be because of focus on other life issues, focus on primary diagnosis, focus on treatment details, or the simple fact that new and unpredictable situations (the aftermath of an accident) are inherently stressful and therefore probably confusing and frustrating for even the best listener/patient. 

MNT suggests longer patient interaction, that is longer physician consultations. Some physicians are said to offer "double appointments," a more complex interaction with patients, in furtherance of this. There is the suggestion that physicians can enhance care by recommending "reliable sources," of information, thus facilitating patient access to information that is less likely to be "sponsored content" (websites paid for by a party with a financial interest in selling some good or service) or otherwise inaccurate. A patient might be directed, for example, to the web resources of the American Diabetes Association, instead of being left to the mercy of whatever Internet sites a particular browser produces in response to a general query on diabetes. 

As with many issues in life, professional and personal, the critical point in communication is perhaps fairly simple. Recognizing that there is a problem. When patients and doctors understand that communication is a skill, that it must be appreciated, learned, and practiced, then both can become better at it. With enhanced communication skills on both sides of the conversation, patient care can be enhanced. 

Physicians can be trained, reminded and encouraged to both effectively deliver information and actively listen. Patients can perhaps less readily be trained (by the time they know they will be a patient it is too late to train, and until they are a patient, they have little motivation to be trained). 

But, perhaps there are other ways to overcome potential patient deficits. I have been involved with some very skilled nurses and case managers who accompanied accident victims to doctors' appointments. They were adept at retaining and reiterating information for injured workers. I have seen instances in which spouses and other family members successfully fulfilled a similar role in care and treatment. They can perhaps be a less-stressed set of ears, a dispassionate note-taker, or possibly ask some pointed clarifying questions. 

The point of medical care is recovery when possible, prevention of further decline or complications, and alleviation of symptoms. Those engaged in care must appreciate that patients may not be ready for information, may not understand information, and may simply forget information. Patience, repetition, and empathy may be the keys to overcoming those communication challenges and to the success of the medical care process. And, some may need help from a third person to assist and facilitate the communication process. 

Sunday, August 13, 2017

The Successor Judge

A 1989 Florida divorce case provides some guidance for lawyers who find their case assigned to a "successor judge." There, the former husband was challenging a final judgment of dissolution. Batista v. Batista, 553 So.2d 1281 (Fla. 3rd DCA 1989). Litigation can take time, and the reality is that people involved in litigation, adjusters, doctors, lawyers and even judges can come and go. Most attorneys practicing Florida workers' compensation will eventually litigate a case before a successor judge. 

The litigation process in Batista demonstrated neglect. Following the wife's petition for dissolution, the husband filed nothing for over one year. As a result, the wife moved for default, and a hearing was held. The husband, remaining consistent, did not appear for the hearing. The judge entered the requested default judgment. As an aside, ignoring litigation and missing hearings is usually not the way to win in litigation. 

After waiting for another six months, the husband moved to vacate the judgment, specifically seeking to "reduce the amount of child support awarded." The husband claimed he had been mislead, that both husband and wife had been represented by the same attorney, and that he was the victim of fraud. But, by the time the husband filed this motion for relief, "the original trial judge" was no longer on the bench, and the hearing on the motion to vacate the judgment "was held before a successor judge."

The successor judge "denied the motion on the grounds that a successor judge could not vacate another judge's final judgment and that modification was the proper remedy." There were intriguing arguments raised by both litigants, generally surrounding whether the husband was seeking a "rehearing" or a "modification." But, the successor judge concluded that, regardless of the procedural distinctions urged by the parties, "a successor judge can never reconsider a ruling made by his or her predecessor."

The appellate court noted that the Florida Supreme Court "expressly indicated that a successor judge is entitled to entertain a rule 1.540 motion." That Rule of Civil Procedure allows a "court" to address "clerical mistakes in judgments" and to do so "at any time on its own initiative or on the motion of any party." It also allows the trial court to "relieve a party" from a judgment or order for various reasons including "mistake, inadvertence, surprise, or excusable neglect," and more. The appellate court concluded therefore that the successor judge could hear the motion to vacate, and ordered that judge to do so. 

The reader may at this point voice two thoughts. First, the litigation of Florida workers' compensation cases is not controlled (in most aspects other than discovery) by the Florida Rules of Civil Procedure. And, second, that a dissolution of marriage case might not be viewed as very persuasive by a Judge of Compensation Claims who recognizes that her or his authority is limited to that which the legislature affords, see Conferring Jurisdiction. Two valid points for consideration and discussion. 

However, the Florida Supreme Court authority relied upon in Batista was a Florida workers' compensation case, Tingle v. Dade County Bd. of County Com'rs, 245 So.2d 76 (Fla 1971). There, the Supreme Court, relied upon the civil procedure rule and found it persuasive or instructive. While the Court might no longer find that rule applicable in workers' compensation, the arguments remain. And, the Court provided some critical guidance for both attorneys and judges:
There is a limitation . . . on a successor judge's reconsideration of his predecessor's Final judgments and orders, upon the merits on the same facts absent mistake or fraud and upon discretionary final rulings where the facts remain unchanged.
Those final rulings are not subject to reversal, modification or review by a successor judge, absent the grounds in Civil Rule 1.540. 
The successor does have authority even after final judgment to make such further order as may be necessary to effectuate the judgment.
Where the final order or judgment is not complete, the succeeding judge may supply the element which may have been omitted.
The Court provided this advice for judges: 
A judge should hesitate to undo his own work.
A Judge should hesitate still more to undo the work of another (the prior) judge
But, until final judgment, the judge has the power to do so and may therefore vacate or modify the Interlocutory rulings or orders of his predecessor in the case. 
The Court explained that these cautions, this "code" of behavior, are based upon
The law of the case 
Comity (courtesy and considerate behavior toward others), and
With these cautions in mind, attorneys may wish to exercise restraint in asking a successor judge for such accommodating or relief. Attorneys may wish to think about what a reconsideration might change as to process or procedure, whether the due process rights of some party would be affected by a reconsideration, and whether there is sufficient grounds upon which the successor judge might be persuaded to exercise this discretion. 

Thursday, August 10, 2017

Surgery could be b b b b b bad

A Texas story in 2017 documented a tragic situation in which Dr. Christopher Duntsch performed some surgeries. Several patients did not enjoy the outcomes they sought, two were rendered wheelchair-bound and others died. 

In May 2017, an ABC affiliate in Texas announced that another North Texas Orthopedic Surgeon Faces Lawsuits over allegations that "their lives have been ruined by a surgeon putting profits over patient care." These allegations concern Dr. Stephen Courtney, who is said to have attempted to "profiteer off Pennington" (now deceased patient) by using Dr. Courtney's own surgical implants during surgery. Those implants were provided by Eminent Spine, co-founded by Dr. Courtney; the "company slogan on the website video is 'Bad to the Bone.'"

Some will connect that to George Thorogood's 1982 single by the same name. Others may remember the cover by ZZ Top. In the 1980s, many sought to be "bad to the bone." Of course, only one of these has a Texas origin (ZZ Top), which perhaps integrates into this Texas-themed post better?

In Texas, another patient contends that he was provided surgery by Dr. Courtney before the recommended "six months of non-operative treatment." He alleges also that "supplemental fixation" was not used in that surgery, despite his belief that "FDA guidelines" recommend fixation so the approved hardware "won't slip." In short, he claims multiple deviations from appropriate care. 

There will always be people who are not satisfied with medical care received. For example, Medscape reports on satisfaction among people who underwent "total hip and knee" surgery. Though physicians report that "at least 85% of total hip and knee patients have had completely successful procedures," only about 80% of patients "say they're happy." Statistics vary across practice areas.

Similarly, The Daily Mail reports that one in five plastic surgery patients are dissatisfied. These are merely examples. The degree of satisfaction is also potentially in the wording used; "satisfied" and "happy" may be two different things. However, it appears supportable that some patients are not completely satisfied with their care.

Interestingly, the Texas patients that were not satisfied with surgery results sometimes acquiesced in further surgery with the same physicians to attempt alleviation of complaints. Bryan Taylor, who had surgery before the "six months of non-operative treatment," and had a device called "the Python" installed in his back, without fixation. With ongoing symptoms, he underwent a second surgery with the same physician, again without fixation. Later, Taylor allowed the same surgeon to perform a third unsuccessful surgery on his back. He ultimately came under the care of a different physician, who performed a fourth surgery to remove "the Python." Mr. Taylor is not the only patient who underwent multiple surgeries.

This may raise questions about surgery generally. But, there is a specific focus on surgery to install hardware licensed by or produced by the surgeon.

The ABC affiliate has reported that there is "a 2013 report by the U.S. Senate Finance Committee staff" that questions the appropriateness of physicians implanting "their own devices," a practice known as "Physician Owned Distributorships." The report contends that Physician Owned Distributorships "present an inherent conflict of interest that can put the physician's medical judgment at odds with the patient's best interests." Perhaps this could be better phrased as putting the physician's financial interest at odds with the patient's health interest.

A 2013 report of CBS This Morning referred to this practice as "surgeon salesmen." That report also alleges that "financial incentive caused" a physician to perform "a riskier procedure than necessary." The allegation is that this "riskier" surgery allowed him to "put in more hardware." That allegation involves hardware, but a similar complaint might be about surgery generally, which might be "riskier" than non-surgical intervention for maladies. Perhaps the risks associated contributed to the recommendation cited above for "six months of non-operative treatment?"

Surgery is prevalent in U.S. health care. According to Your Health, there are about 500,000 inter-vertebral disc surgeries in the U.S. annually. And, "as many as 90 percent are unnecessary and ineffective." Let that sink in a moment, 90% equals 450,000 allegedly unnecessary surgeries. According to an admittedly dated 1994 study, the rate of back surgery in the U.S. is "at least 40 percent higher than any other country." To Your Health reports that the least expensive of these surgeries are about $18,000 and the more expensive procedures range up to $44,000. Think about that, 450,000 surgeries at $18,000 each; that is at least $8.1 billion in back surgeries annually, which are allegedly "unnecessary and ineffective." So what, it does not work, but at least it costs a lot of money?

Returning to the Texas story, it notes that there are also even more serious allegations elsewhere. Patients in Wisconsin and California have alleged that a medical device company "knowingly produced and manufactured fake, knock-off implantable hardware" that was placed in over 100 patients. A current lawsuit alleges that patients cannot be sure that the implants in their bodies are not counterfeits. As bad as the success rate is with tested and licensed hardware being used, it is possible that results may be even less satisfactory when unapproved materials are used.

The prosecution in Texas will be interesting to watch. The physicians may be found culpable or acquitted. It is important to remember the old "innocent until proven" otherwise. But, it is also important for people to realize that there are dissatisfied patients out there. Many have recommended being wary of medical care and asking questions of a doctor recommending a procedure or course of care. Perhaps that advice is as apt, or more, when the care involved is surgery.

A patient can ask questions about surgery. What are the alternatives? What are the potential complications? How many of these surgeries have been performed (is it "new" and "innovative" or an "old standby")? How many procedures has the recommending doctor performed? What are the perceptions of patients to this recommended care (both in the nation and in this particular doctor's practice)? Will hardware or special equipment be used in the procedure? Does the recommending doctor have any financial interest in the equipment or hardware manufacture or design? Has the manufacturer of equipment, hardware or medication ever provided any gift or payment to the recommending doctor?

But, perhaps the most worthwhile step for a patient facing any course of care is the second opinion. The cost is simply not that significant. Even if payment is not covered by insurance, it may be worthwhile to schedule an appointment with a doctor not affiliated with the recommending surgeon. The patient should take the medical records and diagnostic tests to the second opinion. Ask about the recommended procedure or treatment, the success rates, complications, and your concerns. Make an informed decision about whether the proposed care is in your best interest. After all, the patient will be the one that must live with the outcome.

The Texas patients cited in these stories are not satisfied with their results. Some are now wheelchair bound and others have died. It is the patients who will live with the results of the medical care they underwent. Patients should ask questions and make informed decisions. It is entirely possible that what is advertised as "bad to the bone" might instead just be "b b b b b bad." (cue ZZ Top for closing the music). 

#workers compensation


#second opinion

Tuesday, August 8, 2017

Florida Legislature Mandates Patient Convenience

Most Floridians will not have heard of Senate Bill 800 (SB800), which passed last spring (2017). But it is an important bill and potentially provides us important lessons. 

I have heard complaints about the frustration in obtaining medication through various workers' compensation systems. About a year ago, I wrote Pharmacy Frustration, in which a story about recurrent prescription frustration was highlighted. I have written about drug formularies and Prescription Cost Control. And this post is focused on pharmacy and an improvement brought to Floridians in the 2017 legislative session (without much publicity or hoopla). 

Much of the world we live in is about economics. Most people I talk to are oblivious that they are making economic choices in their daily lives. Oh, they get the money part, and whether they do or do not have enough money to do what they want. But economics is so much broader. When we decide we do not have enough time to watch a particular television show, because we "need" to clean the living room, that is an economic choice. It is supply and demand, too little time and therefore economic choices. 

Several years ago, I lectured a high school class on economics and value. I showed them pictures from my local grocery, paired together. One was of a pre-packaged steak, the other of some specially-prepared steak kebabs with the same meat, some vegetables, on skewers and re-packaged. One was of some sliced meat and condiments, next to another of pre-made sandwiches in the deli case. There were several other examples. My question for the students: "what are you buying in the kebabs and sandwich that you are not buying in the (less expensive)  composite ingredients?

It was a little frustrating. The class did not grasp the answer either easily or quickly. But they eventually came around. The answer is simply "convenience." You can buy ingredients and make food (using your time), or you can buy the food in a more convenient form and save yourself time. The downside is that this option will likely cost more money. An economic choice in which you decide whether you value your time or your money more highly in that particular instant. 

Multiple similar examples could be described, but space is limited. In short, every retail experience is offers a combination of product and service. Arguably, some retailers are majority service or majority product, but all contains some of each. Notably, service is a difficult sector of the economy. I have worked in the service sector for most of my life, and can vouch for the many challenges it includes. 

Returning to pharmacy, there is certainly a product element in medication. The patient is prescribed medication and we need to purchase it in our local community. They travel to a pharmacy. In Florida workers' compensation, the patient travels to their own choice of pharmacy. In other states, workers' compensation patients may be more limited, as recently described in a WorkCompCentral article about Louisiana. 

In this regard of pharmacy choice, Florida workers' compensation is perhaps becoming an exception, as pharmacy benefit management has come into vogue, and many group health carriers are limiting or specifically directing pharmacy care. So, when you purchase coverage from a particular health insurer, you may be forced by that contract to use a particular pharmacy. This kind of agreement delivers the pharmacy company a large and dedicated clientele, in exchange for which it delivers a lower-cost service to the insurance carrier. It is an economic decision about the patient, if perhaps not a decision of the patient. 

Of course, the patient retains some decision-making authority also. You decide from whom you purchase an insurance policy. Sure, purchasing an individual policy yourself, instead of buying the plan offered by your employer or organization, may costs hundreds  of dollars more. However, through such a policy you may have more physician selection, more access to various pharmacy, or other benefits. In deciding which coverage to purchase, you are making a cost-benefit decision, just as the carriers are making cost-benefit decisions in structuring their plans and setting prices. 

A complaint I hear about pharmacy comes from people who take multiple medications. I know one person who takes a daily pill that is filled in 30 day supplies, another that is filled in 90 day supplies, and yet another that is also filled in 30 day supplies. This patient has taken all three medications for years. And here is the rub, you might think that this results in one monthly trip to the pharmacy. No, in this instance, this results in at least two monthly trips to the pharmacy, sometimes three. 

You see, the prescriptions were not all instigated at the same appointment. None of us ever scheduled a doctor's appointment with the thought of making the appointment coincide with the monthly anniversary date of some existing medication. So, we visit the doctor, receive a script, and go pick it up at the pharmacy. Thus, patients end up, over time, with various prescription dates and therefore re-fill dates. 

Pharmacy managers will remind us that most scripts can be scheduled for home delivery and they tout the convenience. I have a friend that has been through many hoops with that, and has utterly failed to connect the Pharmacy Benefit Manager (PBM) and doctors on the "same page." Hours of phone work have resulted in success with mail delivery of one of several medications. Why not keep trying regarding mail delivery of the others, I asked. The response is simple, how many hours will be devoted, and will there be results. This is another example of consideration of your time, a cost-benefit analysis. This friend has given up and finds it less time-consuming (or time wasting) to drive by the pharmacy than waste hours on the phone setting up mail service options that have not born fruit. 

In a world in which customers have freedom to choose, customer service might reign. I know an elderly friend who consumes many meals at a local fast food provider, but persistently complains about the food quality. I asked one day, why do you keep going there. He answered, "they have great service and I enjoy the people." Service rules his decision to persistently eat food with which he is not impressed. The quality of the service drives his consumption choice (another economic decision). 

But in a world of PBMs and decisions made by others (such as your employer selecting health insurance to offer at an economically advantageous price), we may have less consumer choice. In that instance, the providers or pharmacy may feel they have less motivation for us to be satisfied. Let's face it, if your insurance carrier only allows you to use ABCXYZ pharmacy, you are going back there, and they know it. They may have little incentive for customer service or satisfaction. 

Into this mix stepped the Florida Legislature with 2017's SB800. This bill will:
require health insurers and health maintenance organizations, respectively, which issue or deliver certain policies or contracts to offer medication synchronization to allow insureds and subscribers to align refill dates for certain drugs at least once in a plan year.
See, the patient can now force the insurance company or PBM in Florida to make those refill dates line up. The patient described above with the two 30 day and one 90 day refills, will now be able to go to the pharmacy once month for refills, instead of two to three times. The patient will get some convenience from legislation. Convenience that competition might have brought, but which has required legislation due to the structure of our health insurance system. 

On the surface, this will likely seem a pleasant surprise from our legislature. Certainly, it will be a benefit for those who require multiple medications, particularly those for whom driving may be a challenge. In time, there is certainly the chance that PBMs and pharmacies will raise their price to accommodate for this mandated shift; more patient/customer convenience may mean less pharmacist convenience. As convenience shifts, the price point may also. 

Some will argue that the pharmacy suffers no inconvenience in this, but synchronizing will require personnel time. Time is money. That time invested in synchronization may be recouped by the pharmacy, as the result should be less customers to wait on (with the customer coming only once per month to be served, rung-up and bagged) instead of thrice. In the end, it may be that pharmacies will gain efficiency and save money through the legislative mandate. 

Time will tell whether this legislative mandate affects price. But, in the short-run at least, it appears likely to increase patient convenience.