Sunday, October 23, 2016

An Interesting Review of Separation of Powers in OK

Last Thursday, the Tulsa World reported on the relationship between the Governor of Oklahoma and the Chair of its Workers' Compensation Commission in Workers Comp Commissioner Defies Governor Fallin's Demand for Resignation. On Friday, WorkCompCentral reported on this in Senator Condemns Governor's 'Intermeddling' With Comp Commission.

The story may be fairly familiar by this time. In addition to making the workers' compensation news last week, commentators like Bob Wilson have discussed it, with a touch of humor, Oklahoma Workers' Comp: Stranded on Gilliland's Island. Other commentary is bound to follow. This story is simply too interesting to ignore. Much interest will be for the intrigue, but it is also interesting legally.

The Tulsa World story Thursday started the attention. It revealed that in late August Governor Fallin of Oklahoma corresponded with Robert Gilliland, the Chair of the Oklahoma Commission, and requested that he resign. Chair Gilliland purportedly replied in writing and declined to resign. He says that the Governor's request was “inappropriate and illegal.”

Reportedly, Gilliland feels his resignation was requested “because of ‘dissatisfaction with a decision the Commission made in a case.’” There is speculation that the decision in question was the Commission’s declaration that the workers’ compensation opt-out, commonly referred to in industry circles as the “Oklahoma opt-out” is unconstitutional. When the Commission made that decision, there was discussion about their authority to do so. However, as reported by WorkCompCentral, Governor Fallin’s spokesperson has said the governor “had ‘multiple reasons’ for being dissatisfied with Gilliland's performance.” The spokesperson also said that “the specifics have been conveyed to the chairman.”

As explained in other posts, there is a general proposition that executive branch agencies lack the authority to make decisions about constitutionality. The Florida Judges of Compensation Claims, for example cannot decide if a statute passes constitutional muster. Such decisions in Florida are left to the constitutional courts. I remain astounded at how many practitioners and even judges refer to this administrative office as a “court,” when it is so clearly not one. In Re Amendments to the Rules of Workers' Compensation Procedure, ("The Office of the Judges of Compensation Claims (OJCC) is not a court of this State").

The Florida OJCC is not a “court,” and the Florida Supreme Court has clearly held so. When referring to this Office, the appropriate terms may include “the Office of Judges of Compensation Claims” or “the OJCC” or “this Office,” or “the Judge,” but not “the Court” or “this Court.” Use of that term is inaccurate and therefore confusing. 

So, there was much discussion about the Oklahoma Commission ruling when it was rendered last February. Did the Commission have such authority as an Executive Branch agency? From high school civics, most will remember that American government is generally divided into three branches, the executive, legislative, and judicial. This division of responsibility is a product of our constitutional form of government and is delineated in both the United States and various state constitutions. It is referred to as "separation of powers," a fundamental element of this Constitutional Republic.

The Oklahoma legislature, however, in creating the Oklahoma Workers’ Compensation Commission in 2013 declared that agency to be a “court” for the purposes of making decisions. Such a declaration is dependent upon the powers conveyed by a particular state’s constitution. Florida’s constitution does not empower the legislature to make such a declaration, to create such a "court." In Florida a “court” can be created only by constitutional amendment. But in Oklahoma, the constitution empowered the legislature to make such a declaration, to create a court, and the legislature did so. 

The 2013 workers' compensation legislation was a dramatic change for Oklahoma on several levels. Until 2013, workers’ compensation disputes there were decided by a specialized bench or “court” for such disputes. That court was housed within the judicial branch of Oklahoma’s government. At that time, a handful of states had such an arrangement, and both Oklahoma and Tennessee created administrative agencies for dispute adjudication that year. Currently, only Alabama still uses its constitutional courts for adjudication of new workers’ compensation disputes. In Oklahoma that court still exists, now called "the court of existing claims," and adjudicates only the disputes regarding accidents prior to the 2013 change. It is expected to diminish over time in terms of workload and personnel.

The decision of the Oklahoma Workers’ Compensation Commission, declaring the Oklahoma Opt-Out unconstitutional received a fair amount of discussion in the workers’ compensation industry. There were those that perceived the Commission's decision contradictory to its own earlier decisions about the scope of its authority. Others found it curious that an executive branch administrative body, at the time composed of one business person, one doctor, and one lawyer, could make constitutional decisions. But, the authority of the Commission has been accepted as an appropriate legislative delegation of power. And, the state’s Supreme Court has since affirmed the Commission’s decision and authority. In doing so, some believe that the Court has accepted and/or endorsed the state's adoption of the administrative workers' compensation process. 

The issue of separation of powers is not back in the news following this letter in August, in which the Governor sought Chair Gilliland’s resignation. This has been characterized variously. Some conclude that a Governor seeking resignation of an administrative agency head is merely engaged in the appropriate management of the executive branch. Others perceive this as meddling in the affairs of a “court,” which is nonetheless still part of the executive branch. And thus, there is the current return to the discussion of “separation of powers” in the Oklahoma situation. 

I am reminded of an old series of television commercials that focused us upon differing perspectives. In each commercial, through some contrived collision between a lover of chocolate and a lover of peanut butter, the two commodities would become intermixed. One party would claim “you got peanut butter on my chocolate,” while the other would argue instead that “you got chocolate in my peanut butter.” It was a wildly popular ad campaign, and the solution of course to all the argument was purported to be a candy bar containing both elements. 

I wonder aloud if it matters whether one is on the other (peanut butter on my chocolate) or in the other (chocolate in my peanut butter). The fact is that how you perceive the current situation (of chocolate and peanut butter mixed) may well depend a great deal on whether you individually prefer chocolate or peanut butter. Is the Oklahoma Commission an administrative agency with court powers, or is it a Court within the executive branch? And that determination may well flavor how a particular individual sees the outcome of this current dispute. 

The point of the debate may be moot in time. According to the Tulsa World, Governor Fallin has already decided that Chair Gilliland “will not be reappointed when his term expires in August 2017.” Thus, there may be conjecture and discussion as to whether an appointed official such as Commission Chair Gilliland can be removed from office. Or, it is possible that the conversation will become about leadership being marginalized, as we have seen in Iowa. In 2011 Iowa Governor Branstad first sought workers' compensation administrator Godfrey's resignation. When that was rebuffed he cut Godfrey's pay significantly. A lawsuit remains pending regarding that executive agency dispute. 

But, in the end, Gilliland's effectiveness as Chair may be impaired by the simple conclusion that regardless of future performance his tenure will close in ten months. Whether he can or cannot be forced to withdraw, it seems clear that the Governor can elect not to reappoint him when his term expires. Though Commissioner Gilliland concluded in his letter to the Governor that he believes “it is in the best interest of the injured workers, employers, insurance carriers, employees of the Commission and the people of the State of Oklahoma” that he “remain at the Commission,” it appears as clearly that this conclusion is, at best, up to him for the next ten months. And, it is possible that all of this publicity and discussion alone may itself impair the Commission in coming months. 

So, some believe that the Governor’s request for a resignation was a normal administrative action, in which an agency head would be replaced. A Gubernatorial spokesperson said “it is perfectly appropriate and legal for the governor to request any appointee’s resignation at any time.” And there is ample support for that contention across the continent regarding administrative agencies generally. 

Others perceive this request as executive branch meddling with a state court. One community leader quoted by the Tulsa World said that “under the tradition of separation of powers, it is inappropriate for people to try to affect those decisions” (of the Commission). I certainly think that everyone is entitled to their own opinion(s), but the characterization of “separation of powers” as a “tradition” is curious; separation of powers is a constitutional construct that is at the foundation of American constitutional government. The question, really, is whether this situation actually implicates separation of powers. 

According to WorkCompCentral (“WCC”), the governor’s request for Commission Chair Gilliland’s resignation has drawn criticism, some of which comes from those who oppose the 2013 workers’ compensation reforms, including the very creation, and empowerment, of the Commission. One critic told WCC that “it seems the governor's office has ‘a very clear idea of the results they expect’ from commission decisions, and ‘if you don't give them what they want, you will be removed from the process.’"

Commission Chair Gilliland’s refusal to resign drew praise from some of those same system and reform critics. One said “he considered it ‘a serious miscarriage of justice to try to influence a judge,’ and that Gilliland was praiseworthy for “having the courage to resist attempts to influence decisions in workers' compensation cases." This system-critic also said that Gilliland is “one of the most respected lawyers in Oklahoma City, and his integrity is unquestioned.” Not faint praise from any perspective. 

It is important to remember that there is a certain element of criticism in any change. We as beings do not traditionally react positively to change in many instances. And, it seems that our propensity to accept change may be affected by how accustomed we have become to the current status quo when change comes our way. There are changes advocated constantly in American society, business, government, and more. And, how we each react to those changes is critical to both our function and our psyche. In that context, the 2013 change in Oklahoma was significant, and it is perhaps inevitable such systemic change will bring disagreement and discord?

I met Robert Gilliland at a meeting of the Southern Association of Workers’ Compensation Administrators (SAWCA) in Williamsburg, Virginia. It was July 2015 and he happened to sit next to me at the annual Regulator’s Roundtable. Discussion centered initially on the variety of issues and constitutional challenges to statutes around the country, and I delivered a short update on the Florida litigation in Padgett (A Rose by Any Other Name), Castellanos, and Brock. Workers' compensation for the last few years has been interesting here in Florida too after all. 

I recall feeling like there were many active challenges and issues in Florida at that time. And then Robert Gilliland delivered an overview of Oklahoma's creation of a whole new agency, and the challenges, legal and logistical. They were two years into a whole new administrative process at that time, and facing multiple constitutional challenges to it and to the revolutionary concept of an opt-out that included employer immunity. I remember after he spoke of those challenges, I leaned over and told Robert “thanks for being here." I found the Oklahoma experience and challenges intriguing and educational. 

As an industry, we witness innovation and effort in various jurisdictions. There are attempts to streamline processes, innovate with technology, and deliver service to injured workers and employers. I have been fortunate to know a great many state workers' compensation administrators, board members, commissioners, directors, judges and more. I have been consistently impressed with how focused they all are on serving their states and the constituents of their workers' compensation systems. I do not always agree with them, but on the whole I find them sincere and well-intentioned. We learn a great deal from each other, and from the events in each other's states. 

I will be watching Oklahoma's current discussion, as I have watched it for years regarding the opt out. I will be interested to see how the current contentions and disagreements work out in time.

Thursday, October 20, 2016

Interesting Science and the Litigation Process

Science is intriguing. In the legal field there are innovations and technological advances. We feel sometimes like we are on the cutting edge of certain things. But, lawyers and judges are really just about process and procedure, rights and responsibilities. We deal with what is, for the most part, rarely with what might be. We are not innovators in the way that scientists are. We struggle for truth and justice, but science is struggling to understand the very foundations of our existence, and that is interesting and intriguing.

I recently ran across an article in The Atlantic. The headline caught my attention. That happens a lot, but unfortunately I thereafter find few articles worth reading all the way through. This one, How Your Cat Is Making You Crazy, was an exception. I read it twice. No, it is not about cat behavior and antics and aloofness, every cat owner has a story about their cat (chewed this, hid that, likes, dislikes, etc.). This one is actually about taking over the very function of the human mind, and it is fascinating. You read that right, taking over the human mind. 

The tag line of the article is "could tiny organisms carried by house cats be creeping into our brains, causing everything from car wrecks to schizophrenia?" That is intriguing. Essentially, The Atlantic tells us that Jaroslav Flegr is a scientist who has drawn focus to parasitical influences on neurology. Remember, one might decide any particular scientist is an Expert or Faker

But to reach that conclusion, we first have to consider the science and the conclusions. Flegr believes that a "single-celled parasite," a protozoa excreted in cat feces, has the ability to subtly manipulate personality. The effect can result in unexpected behavior. Some effects of this parasite have long been well-known. Toxoplasmosis has long, since the 1920s, supported physician advice for pregnant women to avoid cat feces and litter boxes. But Flegr believes the impact of this parasite is more pervasive than previously known. 

Conventional wisdom has been that this protozoa can have detrimental effects on those with weak immune systems. It has been blamed for dementia symptoms in patients with immune implicated diseases such as HIV. Scientists have believed that this parasite does not effect the healthy, but upon infection it merely lies dormant in the body. That conclusion is beginning to change.

Flegr believes that the impact of this parasite is broader. Flegr believes that the "dormant" parasite "may be quietly tweaking the connections between our neurons, changing our response to frightening situations, our trust in others, how outgoing we are, and even our preference for certain scents." That last one is fascinating. I have long noticed that people have different perceptions of scents. Sometimes I note a strong scent and others around me do not notice. Other times, someone around me will complain of a scent, but I do not really notice it. We are, after all, very different people. 

Dr. Flegr believes this parasitical protozoa can work even more profound effects upon us; he "believes that the organism contributes to car crashes, suicides, and mental disorders." It may even be responsible for killing a "million people a year." That is a significant volume. That is about twice the volume of Americans expected to die from cancer this year. While Flegr's analysis is worldwide, this comparison to American cancer deaths provides some scale for comparison. 

Dr. Flegr concedes that people do not readily accept that their behavior may be controlled or influenced. In other words, we all believe we have free will and are reluctant to think we are controlled (Madison Avenue has been proving us wrong for eons). It is notable that his conclusions, to some, "sound an awful lot like fringe science, right up there with UFO sightings and claims of dolphins telepathically communicating with humans." But, there is a trend toward growing acceptance of his conclusions according to The Atlantic. Scientists at Stanford, and the Stanley Institute are lending credence to some of the conclusions. 

Recently, studies have suggested "the parasite is capable of extraordinary shenanigans." Research supports that infected rodents exhibited demonstrably different behavior: "much more active in running wheels," and "less wary of predators in exposed spaces." Both of which might increase the odds of a cat consuming them. Why on earth would a rat want to encourage the cat to consume it?

In experiments with rats, the parasite has been shown to alter the rodent's aversion to its primary predator, cats. The scientists conclude that a rat's natural aversion to cats is in fact reprogrammed by the parasite and the rat becomes attracted to the very thing that presents danger. Cat urine is avoided by uninfected rats, but it contrarily seems to attract infected rats.

The scientists suggest that this alteration is accomplished because the parasite needs the cat to multiply. The parasite can survive in other hosts, it reproduces only in cats. The parasite cannot prosper and spread without the help of the cat. Thus, the purpose of the protozoan's life in other hosts, like a rat, is to somehow travel from the rat host back to a cat host; you guessed it, the parasite needs the rat to be eaten. In this way it returns to a host that facilitates multiplication, propagation of its species if you will. 

To alter the rat's natural behavior, the parasite "rewires circuits in parts of the brain that deal with such primal emotions as fear, anxiety, and sexual arousal." In what scientists call "bizarre neurobiology,” experts think various parasites may share this ability to neurologically influence a host. An expert from the Stanley Institute suggests that similar host influencing could be evidenced by viruses like rabies, in which nervous system agitation accommodates spread of the virus from host to host. Another scientist contends that "there are truckloads of" organisms "behaving weirdly as a result of parasites."

Dr. Flegr's research with the parasite at the root of Toxoplasmosis began in 1990. His university colleagues were studying detection of this parasite and he agreed to donate blood. he learned he was carrying (hosting) the parasite and began to wonder if its presence could explain his own diminished fear responses, something he had noticed for years. Something he had labelled a "self-destructive streak."

His resulting research demonstrated that the parasite is excreted by cats, "typically picked up from the soil by scavenging . . .rodents," and returned to a feline through rodent consumption. But humans can acquire it because grazing animals or rainwater have been exposed to cat feces, directly or as contaminated water is exposed to vegetables which are later consumed with insufficient cleaning. Flegr thus blames food habits for infection rates. He blames the French attraction to undercooked meat for infection rates "as high as 55 percent."

Americans harbor infection rates of 10 to 20 percent. He theorizes that the parasite's "intent" is ultimately rodent infestation, which spreads the organism geographically. But, he believes the larger mammals (humans, etc.) are "accidental hosts," and that we are "a dead end for the parasites." as we will not be consumed by a cat. Thus, once in the human or other large mammal host, the parasite is perhaps still spread through waste, but is less likely returned to a feline host in which it is capable of reproduction.

But, he asserts that the parasite may nonetheless work similar neurological changes on our system. Changing our behavior despite the fact that changing our behavior will not enhance the chances of a cat eating us. The alterations, intended by the parasite to increase its chances of having the host consumed by a cat and leading to propagation, might be worked on the neurology of any host, even the "accidental" or "dead end" ones. The Atlantic reminds us that "mammals from mouse to man share the vast majority of their genes." Thus, Flegr's conclusions about neurological manipulation may be of concern; "we might, in a case of mistaken identity, still be vulnerable to (neurological) manipulations by the parasite."

This parasite could be influencing how we (some of us, perhaps many of us; 319 million Americans, if 10% infected that is 32 million people, roughly the population of California) perceive our world. What scents we perceive and how we react to them, how we perceive and react to danger, our very "fight or flight," reactions. This is very intriguing. Could a parasite be controlling your neurological responses?

As I read The Atlantic article, I found their relatively new focus on otherwise healthy human neurology fascinating. It occurs to me that the Toxoplasmosis infection process and effects has been known on some level for at least one hundred years, and yet scientists are only now learning more about it. The work of science is intriguing and thought-provoking. We seem to know a little more each day. Scientists are out on the leading edge of this and other curiosities of our very world, our very being, and their work is fascinating. Each day brings new scientific developments and new beliefs. Not necessarily facts; remember when opioids were thrust upon the injured worker scene and acclaimed as the "no risk" solution to so much in the realm of injury? 

But, I also wondered whether the processes and Flegr's conclusions would pass the tests of Daubert? In other words, would this discussion, research and conclusion(s) be admissible in a Florida workers' compensation case? And, if it is not today, that does not mean that it will never be. Science evolves. Flegr's research may not be enough alone. His conclusions may be intriguing, but not yet admissible. But other scientists, studies, and conclusions may follow. They will confirm or refute findings. They may bring new perspectives to the analysis just as Flegr has. He may be a pioneer, but with more research his theories may be debunked. 

In time, we will see some scientific consensus, and as a dispute resolution process, we will see scientific consensus and belief affect how cases are perceived and decided. For better or worse, we are not the scientists. We think we are pretty good at determining the credibility of those who testify as scientists, but we are not scientists. So, we do what we do with procedure and process, listen and consider, and do our best.

But the scientists are questioning, testing, and perhaps progressing. It is intriguing to witness their quest, and the conclusions that they reach. Our job is to consider their process, their conclusions, and their consensus. In a particular instance, are they bringing truth, or yet another opioid epidemic of unintended or unforeseen consequences? Because, in the end, it is possible that some conclusions an advances may change our world, and others may just be spreading feces.

And the bigger question, did I really find this article interesting, or am I being manipulated by some protozoan influence?

Tuesday, October 18, 2016

Applicants Announced for OJCC Vacancies

The Statewide Judicial Nominating Commission will meet November 1, 2016 in Orlando. The meeting will be at the Doubletree Hotel, Orlando Airport, 5555 Hazeltine National Dr. Orlando, FL 32812. 

Their business includes interviewing nine (9) Judges of Compensation Claims (JCC’s) for reappointment: Hon. Wilbur Anderson (DAY), Hon. Diane Beck (SAR), Hon. Gerardo Castiello (MIA), Hon. M. Renee Hill (GNS), Hon. Margret Kerr (MIA), Hon. Daniel Lewis (FTL), Hon. Mark Massey (TPA), Hon. Stephen Rosen (SPT), and Hon. Thomas Sculco (ORL). 

The Commission will not ordinarily grant any requests for personal appearances to speak in favor of any of the above sitting Judges. However, the Committee will accept letters in support of the current Judges as long as they are delivered to the Commission Chairman and to Lisa Mustain, Division of Administrative Hearings by Tuesday, October 18, 2016, 5:00 p.m. Eastern Standard Time. Since the application deadline was extended, it is possible that late correspondence may be accepted. 

Also, there are three vacancies for which nominations need to be made: to replace Hon. Mary D’Ambrosio upon retirement (West Palm Beach); to replace Hon. W. James Condry upon retirement (position will be in Lakeland); to replace Hon. Charles Hill upon retirement (Miami). 

The application process was supposed to conclude on October 7, 2016. However, that week we had an unwelcome and uninvited Hurricane Matthew cruising up the east coast. That week, the OJCC had 11 of 17 offices closed for various parts of the week. The University of Florida cancelled a football game against Louisiana State. Even Disney World closed the parks due to the weather threat. As a result, the Commission Chair extended the application deadline through October 14, 2016. 

The volume of applications was lower that I had hoped. 

For Lakeland, the applicants are:

Lawrence Anzalone, who has practiced since 1981. A graduate of T.M. Cooley School of Law, he is currently working at Burnetti P.A. in Lakeland. 

Robert Arthur has practiced since 1992. Rob graduated from the Case Western Reserve University School of Law. He is currently the state mediator in Lakeland District. 

Mark Capron has practiced since 1994. He is a graduate of Marshall-Wythe School of Law and is currently a sole practitioner in Lakeland. 

Juliana Curtis, who has practiced since 1998. She is a Stetson graduate, and is currently working for Vecchio, Carrier, Feldman and Johannessen in Lakeland. 

For Miami, the applicants are:

Walter Havers has practiced since 2003. He graduated from the Florida State College of Law, and is currently one of the state mediators in Miami District. 

Jeffrey Jacobs has practiced since 1986. He is a Miami University School of Law graduated. He is a partner in the firm of Malca and Jacobs in Miami. 

For West Palm Beach, the applicants are:

Jeffrey Breslow has practiced since 1983. Jeffrey graduated the University of Miami law school. He is currently one of the state mediators in Ft. Lauderdale District. 

Jill Forman has practiced since 1999. She is a University of Florida College of Law graduate. She is currently an associate attorney at Pallo, Marks, Hernandez, Gechijan and DeMay in Palm Beach Gardens. 

Jeffrey Jacobs has practiced since 1986. He is a Miami University School of Law graduated. He is a partner in the firm of Malca and Jacobs in Miami. 

Marydenyse Ommert has practiced since 1999. She is a graduate of St. Thomas University School of Law. She is currently senior associate at Hernandez, Hicks &Valois in Ft. Lauderdale. 

Ken Schwartz has practiced since 2001. He graduated from University of Hawaii school of law. He is currently a sole practitioner in Boca Raton. 

Carol Stephenson has practiced since 1983. She graduated from the University of Cincinnati School of Law. She currently works as legal counsel for Liberty Mutual Insurance Company.

The Commission will meet telephonically on Monday, October 24, 2016 at 2:00 p.m. Eastern Standard Time This meeting will be to discuss any procedural issues of the Commission specifically for the November 1, 2016 meeting. This telephonic commission meeting will be open to the public by dialing 888.670.3525, and entering code number 249 217 2867# when prompted prompted.

Sunday, October 16, 2016

Two Emails I Recently Received

I recently received some interesting emails. They were both critical of workers' compensation. 

I find workers' compensation fascinating. I have spent a great many years involved in the industry. I have represented injured workers, major insurance companies, fortune-50 companies, "mom and pop" small businesses, and everything in between. I have tried cases, mediated and adjudicated. I have discussed workers compensation on presentations, written papers, and published articles. I have talked about it with doctors, lawyers, workers, employers, vocational experts, physical therapists, actuaries, government officials, legislators, and more. I have invested a great deal of time in this concept of workers' compensation. 

But, in the end, workers' compensation is about workers and employers. The rest of us are ancillary. Recently, at the National Summit, an attendee proposed that where this industry goes awry or is less than informed results from the lack of engagement of the "silent constituency." He noted that the group that is never heard from is the worker who has not yet been injured, what he called the "future injured worker." They do not engage because workers' compensation is not yet affecting her or him. They vaguely know of it, and perhaps have perceptions of it, but it is not currently, individually, personally affecting them. 

I use those adjectives and limitations because workers' compensation is affecting each worker and each employer every day. It cannot help it. There are costs associated with maintaining a safe workplace, every resource devoted to safety cannot be devoted elsewhere. Certainly, safety is worthwhile and should be promoted. But, programs can be expensive. There are similarly costs associated with regulatory compliance, injury reporting, return-to-work, disability, medical reporting, and more. All of this is an expense to business and a focus of some degree of management time and resources. 

But once an injury happens, there is a tendency to be dissatisfied with workers' compensation. I suffered a variety of work injuries in my life. I have been fortunate that none were serious or catastrophic. I have been lucky to have had cuts stitched, burns salved, and brief periods of missed work. But, that is simply not the case for everyone. Accidents occur daily and the severity of injury, speed of recovery, extent of disability and more are all variable from situation to situation. 

One recent correspondent contends that workers' compensation "needs a major overhaul." The writer says the system is "full of corruption on all three sides." That phrase made me pause. Three sides? Then came the explanation, this includes "attorney plaintiffs, attorney defendants, and . . . judges." These three sides, according to the note, are corrupt and require attention. 

The writer explained that the judges "no longer can read case files, they are just trying to clear their dockets." The defense "attorneys don't care and follow only what insurance carriers stipulate to do what is needed to settle case." And, the "plaintiffs attorneys who no longer fight for client (because it's in their best interest to settle and get paid)." As a result of these three parties, the correspondent says that the rights of the "injured party" are unaddressed and unenforced. The writer urges that reforms fix this, but is not specific regarding a legislative or regulatory course. 

The second email led with "I know you may not be interested in my opinion of the WC Laws." I hear that lead in, or similar, often when conversations occur about workers' compensation. There is a feeling that listeners are few and far between. There seems sometimes to be a perception that the status quo is acceptable to most (or many) and that change is discouraged. However, I hear from others that the tendency towards statutory change is too prevalent across America. So, some perceive comp as too prone to change, and others as too resistant. That in itself is intriguing. 

The second writer says that she/he perceives workers' compensation is "very bias to the worker and there are no rights for small WBE and DBE businesses." I was not familiar with either of those acronyms, so I did some Googling. 

According to the U.S. Department of Transportation (yes, Transportation, or "DOT"), a DBE is a "disadvantaged business enterprise." DOT says that DBE are "for-profit small business concerns where socially and economically disadvantaged individuals own at least a 51% interest and also control management and daily business operations." The definition of "disadvantaged" presumptively includes "African Americans, Hispanics, Native Americans, Asian-Pacific and Subcontinent Asian Americans, and women." A "WBE" is a woman business enterprise, according to the National Women Business Owners' Corporation. So, we might conclude that WBE and DBE similarly identify women-owned businesses?

The second writer goes on to lament that such businesses are "at the mercy of the WC carriers and they do not even notify us when there is a claim." The complaint is that "contracts for WC are written to benefit the carrier only," and that "small business(es) have no voice." The writer seems experienced, claiming that "even when we (small business) speak, no one will listen or even cares that we are struggling to be heard and have an advocate for us. Might we posit that there is perhaps a population of "employers" of "future injured workers?" These may be concerned about cost and premium, but may not fully engage in the workers' compensation debate because, like the "future injured worker," it has not "become real" yet?

The second writer complains that small business (or perhaps DBE/WBE) is not engaged or addressed by the WC industry, noting that "there are no services for small business resources at the WC (Workers' Compensation Institute?) in Orlando. I found that interesting. I went back to the WCI360 program for 2016, presuming that WCI is that to which the writer refers. Perhaps there is room on that program for a small business "track." 

The second writer also complains of courtesy and disrespect. She/he felt at one point as if "treated like gum under there (their) shoe." She/he related arriving at a workers' compensation office for a scheduled mediation, only to learn it had been cancelled. There was frustration at wasted time and at the discourtesy of not being advised when something is cancelled. I know from experience that mediations are often attended by insurance and the injured, and employers may elect not to be involved. Is it possible that such a habit perhaps leads to forgetfulness about the employer (who is one of the two critical parties to this system: employees and employers)?

The gist of this second email was clear, and multiple details were provided. Certainly, some of the circumstances and examples described would be difficult for anyone to grasp, even with a daily exposure to workers' compensation. Simply put, the range of potentials and possibilities for complexities and complications in workers' compensation are vast. As daunting as this system can be for any of us, we have to remember how daunting it is for the fortunate people who experience it sporadically or even singularly. Their one exposure to this law and system may be overwhelming, at best. 

What solutions exist? One that occurs to me is communication. Another is effort directed at understanding the concerns and questions of both employers and employees. I am hopeful that with the aid of search engines, some find this blog of assistance regarding questions and concerns. I know of a fair number of blogs out there in the market, written by attorneys, vendors, service providers, and more. Perhaps some or all of that helps in some degree, 

Beyond communication, it seems likely that simplification has merit. There has been a tendency perceived in which workers' compensation has become increasingly complex procedurally. I have heard lawyers and others lament how difficult it is to understand. Perhaps it would be a good idea to focus on the core issues of why workers' compensation is necessary, on the fundamental purpose, and reduce confusion, regulation, and complexity. Would it be a better system if it was easier for everyone to understand?

And, perhaps reminding ourselves of the challenges would be positive. If we each remember that on a given day, the situations we confront involve people just like us. They are employees and employers, but they have similar concerns. They seek recovery from injury, return to work, minimization of lasting effects, and respect. Perhaps the thing they all seek the most is respect? If we as a marketplace cannot offer immediate and simple change anywhere else, perhaps we could each make that change today, with feeling more empathy and exhibiting more respect?

I am sure that these three points are not the "be all" and "end all." But, perhaps they are a place we as an industry, collectively and individually, might consider starting?

Thursday, October 13, 2016

Defensive Charting

Some recent conversations caused me to think about veracity issues with medical records. The world of workers' compensation is immersed in medical records. The foundational element central to every workers' compensation situation is an injury or illness. That is where it all starts, and unfortunately, this is sometimes forgotten. In a recent meeting, I once again heard the all-familiar refrain "medical drives the claim." I cannot count how many times I have heard that one. Medical in an integral part of the world in which we work.

But my most recent medical records conversation occurred with a non-workers' compensation patient. It was a casual conversation about a trip to a medical specialist. The preface to the story is that this specialist is so busy that patients wait for months for an appointment. The patient was told that this wait is justified because the expert is "that good." The patient's perceptions and conclusions did not confirm that justification. 

Unfortunately, this specialist did not make a great impression on the patient. There was the curt and condescending interaction with the front-desk staff. First impressions can be lasting impressions. An hours long wait in an examination room did not have the calming effect that perhaps the physician intended. From personal experience, I can commiserate with this patient's expressions of boredom from a long exam room respite. 

Some find it curious, in a business built on day-after-day processions of people, that time management seems all but impossible for medical offices. Has anyone, anywhere, ever been seen at 9:00 for a 9:00 appointment? The patient described to me that after a two hour exam room wait, the doctor was most reassuring that the long delay was uncommon, due to some particular urgencies of that particular day. In fairness, anyone can have a bad day. I have been late for hearings before; never two hours late though. 

But, the patient described being eventually seen by this specialist. Symptoms were reportedly discussed and notes were taken. Various data was input into a computer in the examination room. The physician then informed the patient that she/he would be changing the medications prescribed by the referring general practitioner physician. The physician assured that these drugs would make the patient "better," rather than "just alleviate symptoms." That is likely a welcome assurance from any doctor? Every patient wants to recover.

Curiously, the patient reported that this physician did not take even a few moments to discuss the purpose of the pills, or the potential side-effects. Apparently, this is seen by that physician as a task for others in the health care delivery system. It is common for pharmacists to document that they have afforded customers the opportunity to ask questions about medications, but apparently not so common for physicians. Or, perhaps this physician was an outlier in this regard? 

This patient in this instance followed the specialist's instructions and began taking the pills. Reportedly, there were immediately profound side-effects that were both uncomfortable and disturbing. Due to the doctor's schedule, the patient returned months later to the specialist for follow-up. As mentioned, getting in to see this physician was no easy task. The patient returned with hopes that the first appointment delay would not repeat, and the physician's prior assurances of anomalous urgency would be true. She/he related that the examination room delay on this second occasion was slightly less than an hour; a vast improvement over the first visit, but an hour in the exam room waiting?

The noted side effects were related, as were symptoms, etc. A fairly regular follow-up doctor visit. The doctor apparently assured and reassured. The medication prescription was renewed. The patient told to return in several months. And the side-effects continued. The persistent (and profound) side-effects led the patient to the Internet for information. There have been multiple interesting Internet articles about web-based medical advice. Most recently How do Online Symptom Checkers Compare to Doctors. The gist is that doctors are a better option. 

The patient discovered from the Internet that not only were side-effects being reported from various patients, searching for this medication led easily to advertisements for law firms. A cancer had been named after this medication, as in "XYZ medication-cancer." The patient "might be entitled to a significant cash award." If there is a risk of cancer or other detriment from a medication, the patient explained to me, it would be preferable to hear about it from the physician. 

The patient returned yet again to the specialist, having already stopped taking the medication. After yet another protracted exam room wait, the physician appears and inquires about status. The patient informs her that XYZ has been stopped, because of side-effects and the allegations that it is a substance allegedly causing serious cancer. The physician's response is that this cannot be so, she/he has read extensively about this medication and "it cannot cause cancer." I found that statement interesting. I have read a great deal about cancer over the years and I doubt anyone can say definitively what does or doesn't "cause cancer."

Alas, the relationship between this specialist and her/his patient ended that day. Perhaps this results from the interminable delays in appointments, or the long exam-room waits, or the condescending conversations, or the unexplained prescriptions, or the inability/unwillingness to discuss concerns about the medication. Perhaps it is the combination of them all. But, the relationship ends. Odd thing about patients, they tend to tell their troubles to others, just as this patient conveyed all this to me. And, word spreads.

The patient explained that she/he then made arrangements for a new specialist. In preparation, the patient's medical records are obtained from the first specialist, and provided to the next. This is where the patient is surprised. Despite that last visit being a conversation primarily about the cancer risks of this medication, there is no mention of cancer in the specialist's notes. In fact, the specialist's notes instead make a cursory mention of the side-effect complaints, and the patient's unilateral decision to stop taking the pills. 

I related this conversation to a friend who is a physician. We ran into one another at a recent conference. I was curious whether such behavior, inaction, action, record keeping is common among physicians. I expected to hear that time is limited and that errors of omission happen. I expected to hear that the patient was perhaps embellishing or maybe misperception. I was surprised that my physician friend's instant reaction to the story was "defensive charting." What, I asked, is that?

This physician explained to me that the last thing this specialist will do is document that a patient has concerns or issues with the specialist's care and treatment. He explained that it is not in the doctor's interest to mention the cancer concerns in his chart. This is particularly true since the earlier office-visit notes do not contain any memorializing of the specialist warning the patient of the potential down-side to taking this medication. The specialist likely cavalierly prescribed the medication without discussion of its potentials for benefit or harm. According to this physician, defensive charting is both common and expected in such an instance, a shield against potential liability or complaint. 

I cannot vouch for the content of the patient/specialist conversations, nor for the content of the medical records in this scenario. I can only take that as represented to me. I likewise cannot vouch for the opinions expressed regarding the practice of "defensive charting" or its pervasiveness. This also I can only take as represented to me. 

But, I can vouch for the fact that the workers' compensation system is dependent, in no small degree, upon medical professionals and the records they keep. In workers' compensation, there are injuries and illnesses, symptoms and signs, complaints and representations of improvement and/or persistence. Doctors are depended upon to take in vast quantities of information, to process it, and to render sound opinions from it. In the process, they create records and reports. And those reports become evidence in the disputes that arise. 

I have heard many arguments about medical records. Sometimes it is argued that certain complaints were not voiced by a patient. I have heard it argued that a patient did not report all of her/his medication sources. Often I have heard "or that would be in the records." There is a tendency to either argue that the doctor's records are the best evidence we have, or to argue that doctors are busy and cannot possibly document everything. The difference being which of these best supports a particular attorney's position. 

But, this is the first I have heard of "defensive charting." Is there really a systematic and purposeful process of preparing medical records focused on the best interest of the physician? If this does exist, is it widespread through the medical profession or is it isolated to a few bad apples? 

I wondered whether any patient can find a way to document what is said to the physician, what symptoms, thoughts, or complaints? Is the patient at the whim and caprice of the physician in this regard? Does the potential of such a charting practice instill faith in either our medical system or those who work within it? With medical opinion so critical to the decisions of workers' compensation, should we somehow answer these questions?

After I wrote the foregoing, as it awaited publication, I attended a seminar. A panelist noted a perception that injured workers have increasingly begun requesting to bring videographers to medical appointments. That request has been made for years regarding independent medical examinations. Lawyers say they believe it documents how long the examination lasts, what testing or procedures are performed, and the outcomes or signs elicited. But, I had never heard of such a request for a treating doctor visit. This speaker assured me that such requests have occurred, and a perception they are increasing. The point being a distrust of medical providers, a perception that documentation is advisable, a feeling that independent verification is desirable. 

And all of this causes me to wonder and think. There is a value in human interaction. Prompt service at the doctor's office, as scheduled, likely enhances the relationship. Explaining the why and "what if" of prescriptions or procedures likely has value to the patient, and instills faith and trust. Sure, the doctor sees this all day, every day, but for this patient such interactions are much more limited. Today is this patient's only such appointment, it is special, it is important, to this patient. Accurate record keeping by physicians is critical; critical to delivering care, critical to patient trust, critical to documenting risks and benefits.

I expect that I will hear from a doctor or two about this post. Some will doubt the story, express belief of exaggeration or assure me I have misunderstood. And, I hope they are right. But, nevertheless, reputations of practitioners and professions are sometimes built on the perceptions of others as much as they are upon the performance of the professionals themselves. Where do you think all those lawyer jokes came from? Will physicians find themselves the next punch line?

Wednesday, October 12, 2016

Roger Williams, Virginia Commissioner, Passes

Virginia’s workers’ compensation system has suffered a great loss. On October 11, 2016 Commissioner Roger Williams passed after a brave and arduous medical battle. For the second time this year, I find myself writing to memorialize one of our nation’s great workers’ compensation leaders. 

I remember meeting Roger Williams in July 2011 at a conference in Biloxi, Mississippi. I was there to speak on a panel. Karl Aumann of Maryland was running that event. He introduced me to Roger, who was welcoming and friendly. We spoke at length, and I felt fortunate for his attitude and openness about the challenges of worker's compensation, particularly on regulating and running it. Roger was a friendly, outgoing person. 

I next saw Roger at the Southern Association of Workers’ Compensation Administrators (SAWCA) All Committee Conference (ACC) in New Orleans, Louisiana in November 2012. We were both engaged in the program, but somehow Roger made time to traverse the busy room to spend a few moments. He seemed to know the news in your state as well as his own. He was impeccably well informed. He was a gentleman who always found time to talk and listen.

Roger had been elected SAWCA Vice President the prior July. In SAWCA, you serve as VP, President-elect and then President. I remember the Thursday night SAWCA “coffee and cordials” in New Orleans. I joined a conversation with Roger and Dwight Lovan. Roger steered the conversation to his vision for the future of SAWCA. Out of the blue, Roger explained to me that I would be VP after him (he did not ask, he told). He had a plan. A few months into his journey through SAWCA leadership, Roger had a plan. Roger was a visionary, a planner.

I will always remember Roger’s laughter and cheer that evening. He was in his element. I took Roger’s comments about my leading SAWCA with a grain of salt. I was flattered and frankly embarrassed by his conviction that I should follow him. I rather thought he must be kidding.

I spoke with Roger a few times in the months after New Orleans. Kidding he was not. In July of 2013, at the Don Cesar in St. Petersburg Beach, I was nominated and elected to serve as SAWCA vice president. I believe that it's fair to say I was talked into this by Dwight Lovan, Gary Davis, and Roger Williams. And Roger wore that signature smile the whole time. Roger was persistent and committed to his goals.

In November 2013, I attended the SAWCA ACC at Saint Simons Island Georgia. The Executive Committee dinner was at a fantastic restaurant. In all of my workers’ compensation travels, perhaps it was the best meal ever. After dinner, Roger arose to make some comments and announcements, and Roger is what makes the night stick in my mind, despite the fantastic food. 

That night we all learned (or perhaps others already knew) that Roger was an amateur magician, since childhood. Despite encouraging calls from the audience, no rabbit was produced from a hat. However, Roger regaled us for several minutes with multiple slight-of-hand tricks. In typical Roger Williams’ style, the smile never left his face, and the jokes and quips flowed freely. It was like a routine at the Comedy Store, Roger’s own brief HBO Special. Roger was again in his element, singling out attendees for this or that comment or joke. Roger was always genuine and openly engaged with people. 

I was proud when Roger was inducted as a Fellow of the College of Worker's Compensation Lawyers (CWCL) in 2014. He was honored and pleased. He told me that this experience was all the better because he was inducted along with Judges Alvey, Belcher, Kellar, Lott, Lovan and Szablewicz. Roger was proud of his profession, his associations, and his friends. 

Roger was a leader in designing and implementing the SAWCA Regulator College. The first year, he and Judge Belcher sat through both days, a full time job. The second year, he was scheduled to present, but did not make it due to food poisoning. We virtually sent out search parties when he did not show. His absence generated widespread concern (pronounced “panic”) because it was so out of character. Roger was known for being dependable and reliable. 

When I saw him last July, Roger was making jokes about cancer. He moderated the SAWCA Regulator Roundtable at the Annual Convention (to me it seems like he always did this). Roger really enjoyed the Roundtable; he liked preparing for it, moderating it, and his quips and comedy made it flow. He had become "Mr. Roundtable." As Mr. T might say, “I pity the fool” that has to try and fill Roger’s shoes next July. 

At the conclusion of that July roundtable, I presented Roger with a small acknowledgment of his effort, a framed picture of the Blue Angels. As I posed with him for a photo, he solemnly said he was going to take that picture home with him on the airliner. Then he dropped the punchline: that he would henceforth tell people "he flew with the Blue Angels." That was classic Roger. He was quick witted and sharp. Always on-cue and unscripted. 

I do little with Facebook. I understand Roger’s Facebook friends received updates in recent months. I fortunately received a periodic email pasted from Facebook. I was up-to-speed, but sporadically. I really only got one theme from those posts: Roger was incredibly cared for and loved. I reflect on the last year, after learning of his condition last November, and I think how incredibly short a time he had. But he was never alone. 

Selfishly, I lament Roger’s passing October 11, 2016. Things won’t be the same without Roger. I know he was suffering though, and that this is part of a larger plan. We will all process through our grief. Hopefully we will remember that Roger was always quick with a quip. He brightened a room. He was a good friend, a valued colleague, and an amazing intellect. I will miss you Roger, Godspeed.

P.S. I am tired of writing about friends lost though. 2016 has been one tough year. The rest of you better stick around.

Edited October 13, 2016 to add the following:

Celebration of Life
Commissioner Roger L. Williams

Friday, October 14, 2016, 2:00P.M.
Welborne United Methodist Church, 920 Maybeury Dr., Richmond, VA 23229; Reception to follow at Richmond Country Club, 12950 Patterson Ave., Henrico, VA 23238

In lieu of flowers, the family requests contributions be made to Kid's Chance of Virginia, 12701 Marblestone Drive, Suite 250, Woodbridge, VA 22192 or Gayton Kirk Church, 11421 Gayton Rd., Henrico, VA 23238.

Please join the Commission in celebrating the life of our great leader, Roger L. Williams.

Tuesday, October 11, 2016

People's Choice 2016 is SET!

As everyone now knows, there will be a new addition to the Comp Laude Awards in Burbank this November. The program is less than thirty days away. A fantastic committee of workers' compensation professionals has dedicated significant time to the new People's Choice Award portion of the program. They deserve recognition. 

The Sponsor of the People's Choice program is Adelson, Testan, Brundo, Novel and Jiminez. Partner Jeffrey Adelson served on the committee and will moderate this program in November; his leadership and commitment are unparalleled. 

A brainstorm of WorkCompCentral founder David DePaolo, the People's Choice program will feature short "TED Talk" presentations of an inspirational or motivational nature. David conceived it, and an amazing group of people has succeeded in bringing it to you in 2016.

The leadership of Yvonne Guibert, WorkCompCentral, was the force behind bringing this program to fruition in 2016. Her focus and determination regarding this project were indispensable. Steve Cattolica is Legislative Advocate with AdvoCal. He brought many thoughtful contributions to the planning of this event. The speaker/presentation selection panel was all-star. It included: Richard Victor, formerly of WCRI and currently Senior Fellow of the Sedgwick Institute; Becky Curtis, an amazing example of fortitude and focus, she is founder of Take Courage Coaching and an all-around amazing person (and Comp Laude award-winner); Catherine Bennett is an the Director of Public Relations at Sedgwick Claims Management, and has a broad and deep understanding of this industry and the people in it. A truly amazing group that rapidly and efficiently brought organization, focus and determination to fulfilling this dream of David's. I am both proud and humbled to be associated with each of them.

Each speaker was selected from a group of submitted proposals. The speeches in November will be brief (7 minutes), but the speaker's proposal had to be even more abbreviated. Each made a pitch in 250 words or less, and they were all fantastic. Unfortunately, time is limited and we had to pick the seven that we believed were the most inspirational and motivational. I will not recite the 250 word synopsis of each. What I will do is provide you a brief overview. 

One will be about a lady attending a holiday party in San Bernandino last year. In the midst of a celebratory day, at which she was to receive an employee-of-the-month award, Julie was shot by terrorists. The national news story is well-known and disturbing on many levels. But this presentation will introduce you to an "optimist, cracking jokes with her husband and 3 children while she learns how to both navigate the workers’ compensation system, and learns to walk again." Despite her significant trauma, and the long rehabilitation she faces, her story is one of hope, commitment, and perseverance. 

Another will bring lessons from Rwanda. This will teach the value of empathy, which is so important in workers' compensation. Building on a humanitarian trip to Rwanda, and exposure to results of tragedy, genocide, and violence, this presentation will focus on the resilience of Rwandans. The speaker describes them as "the kindest and gentlest people I have met." They exhibit a sense of community, kindness and empathy from which any organization could benefit. The Rwandan philosophy of Umuganda or “coming together in common purpose to achieve an outcome” will be the focus. 

One speaker will remind attendees that "words matter." This focus on the purpose of workers' compensation will illuminate the needs of injured workers, and the losses suffered. It will be a reminder of the bigger picture, beyond the medical care and indemnity. The effects of injury are broader than are perhaps acknowledged in our day-to-day. The speaker will focus listeners on the losses of "financial security, identity, confidence, and health." The theme is practical advice on communicating with injured employees, "demonstrating empathy, eliminating cynicism, active listening, and changing our lexicon." 

Yet another will focus on the "lousy job" that is done in conveying and sharing the many good things done by workers' compensation professionals and the industry. The public image of Comp is tarnished by the few and the poor examples and outliers that make the news. But this speaker will focus on the "diligence and hard work of front-line claims handlers, case managers, medical providers and other staff working to deliver great medical care to work comp patients and get them back to work." A passionate reflection on all the good that is accomplished day after day, week after week by many thousands of people whose story just does not get told often or forcefully enough. 

A speaker will focus on the talent shortage that workers' compensation faces. The theme of this is an "advocacy principle—an injured worker–centric approach" to managing recovery. This is potentially successful, according to the speaker, if this industry enhances its "talent pool by mining groups that typically have been underrepresented." Examples cited will include "people of color, people with disabilities, veterans, senior workers, retirees, and recent graduates." The speaker advocates embracing the "unique talents and experiences each individual brings to the whole of an organization," and the overall strength that such diversity might foster. 

Another speaker will describe the effects of catastrophic injury, and learning "to walk all over again." Having suffered two traumatic injuries, having lost both legs, having endured through the recovery and rehabilitation, this speaker will bring a positive attitude and motivational message. He "decided to make something out of what happened" to him. And he has become an artist, innovator, and motivator. He will speak on overcoming adversity, celebrating life, and perseverance. His theme is to "live life to the fullest and Walk with Soule!"

A speaker will present on developing a culture of caring and compassion. His theme is the methodology of story telling for understanding the challenges of workers' compensation specifically and corporate culture generally. He describes stories as a method of remembering and understanding situations, events, success and failure. The message of caring and compassion is woven through specific examples of highlighting positives and social purpose. With humor, insight, and passion, the speaker will bring a message of changing perceptions. challenging the status quo, and championing a cause. 

I know, you are probably thinking a couple of things by this point. First, who are these speakers? I will leave revealling identities to Yvonne and the WorkCompCentral team. Watch their website for details. Second, perhaps you are lamenting that you cannot make Burbank this November. That thought has crossed my mind as well. I am sorry to be missing this parade of positivism and motivation. I am hopeful that these extraordinary presentations will find their way to the Internet for those of us who cannot make the trip. Finally, you may be thinking "this is right up my alley." Sorry, the stage is now set for 2016. That does not mean you cannot present, but start now planning for your People's Choice 2017 proposal!

Thanks again to a phenomenally talented and dedicated committee, without whom there simply would not have been a 2016 People's Choice. I am certain that David is so proud of each of you! You each inspire me - Thank You!