Monday, January 16, 2017

What about the "BAD ACTORS?"

In December, WorkCompCentral announced California's implementation of a law signed in September 2016, in DWC to Start Kicking Rogue Medical Providers Out of Comp in February. That headline caught my attention because of the National Conversation on workers' compensation that began last May and has blossomed since in three settings: Dallas, Orlando and New Orleans. 

One of the critical points raised in the National Conversation has been the perception that there are "bad actors" in the world of workers' compensation. Attendees have stated that they exist, the industry knows who they are, regulators know who they are, and "nothing ever happens" to them. One attendee tied this perception to another common workers' compensation criticism, regulation. The attendee perceives that regulators respond to "bad actors" by implementing new, broad, expensive, and bothersome rules and regulations that burden all of workers' compensation for the sins of the "bad actors." 

More confusing, the perception is that the regulators fairly uniformly fail to enforce their new regulations or police the "bad actors" nonetheless. The process is perceived as pass regulations, fail to enforce them, witness transgressions, lament injuries and damage, and start over with pass more regulations. The industry perceives that only regulations affecting insurance carriers are enforced, and that the "bad actors" are rarely addressed. 

Under California's new law, "health care providers who have been convicted of billing fraud and other criminal acts relating to the practice of medicine could be kicked out of California’s workers’ compensation system by February." That sentence bears consideration and contemplation. Stated otherwise, California is saying "criminal convicts could be punished." National Conversation attendees might ask why the tenor of this is permissive ("could") instead of mandatory ("shall"). In what context should criminal convicts continue to participate in workers' compensation medical care? For that matter, why should they participate in any medical care in California? That begs the broader question, why let them participate anywhere?

California reports that "there are also thousands of providers who have been prohibited from participating in California’s Medicare system." These may also "meet the criteria for mandatory suspension under" the new California law. The list of providers suspended from California Medicate (Medi-Cal) exceeds "16,000 providers." Is anyone reading this and saying "that doesn't seem like very many?) That is equivalent to the approximate entire population of El Segundo, California! For you Floridians, that is more than the approximate population of Maitland City, Florida. 

This perhaps illustrates the sentiment of the National Conversation attendees. It appears California knows who some 16,000 "bad actors" are. It also appears that since 1972 California has been suspending medical providers from treating the old through Medicare, but left them free to continue providing care to California workers. 

The MediCal list is here. It includes providers: (1) convicted of a felony; (2) convicted of a misdemeanor involving fraud, abuse of the Medi-Cal program or any patient; (3) suspended from the federal Medicare or Medicaid programs for any reason; (4) lost or surrendered a license, certificate, or approval to provide health care; or (5) breached a contractual agreement with the Department that explicitly specifies inclusion on this list as a consequence of the breach. These appear to be the "bad actors" or at least they arguably belong in that category, perhaps with others. But this year, 44 years after the list was started, they may no longer be eligible to treat injured workers. 

Despite several Internet searches, no similar listing specific to Florida was located. 

California's move to restrict providers is dissimilar to the federal government's trend regarding the "bad actors." Medicare acknowledges that there are providers who have been disqualified from receiving reimbursement for services, based on their own behavior. But Bloomberg reported in 2014 that Doctors Banned From Medicare May Get an Easier Shot at a Second Chance. Medicare is striving to bring back the "bad actors" who have (1) acted inappropriately, (2) been caught, and (3) been stricken from the system. 

Bloomberg says that Medicare "pays millions of dollars to doctors whose licenses were revoked." Medical licensing is a function of states, and so a doctor might lose a license in one state only to be licensed by another. The article cites an example of a "doctor convicted of embezzlement in Ohio and barred permanently from practicing medicine there was granted a license in New Mexico." The failure or refusal of New Mexico to investigate this physician, or to care, resulted in the embezzler reacquiring access to Medicare patients and money. The embezzler physician reportedly "collected $660,000 from Medicare in 2012." 

In its recent effort, California has targeted the "bad actors" and limited the bureaucratic discretion in dealing with them. According to WorkCompCentral, the "division must suspend any person whose license, certificate or approval to provide health care has been revoked." and, it must "suspend any person who or entity that has been suspended from Medicare or Medicaid due to fraud or abuse." This language ("must") seems to limit discretion, and might lead to some consistency. 

The phraseology also suggests that a provider having been forgiven by Medicare for past fraud or abuse might still be suspended ("that has been suspended," not "that is suspended"). Is there some valid reason for letting the bad actors back in? A great line from a recent Star Wars installment, The Force Awakens, comes from the villain Kylo Ren. When asked where the "others are," he responds "do you mean the murderers, traitors and thieves you call friends?" When referring to the "bad actors," might one similarly question "do you mean the frauds, embezzlers and thieves you call doctors?"

Some believe that it is unfair to permanently punish providers for events in the distant past, or who "made a mistake." WorkCompCentral quotes one medical society director of government relations as believing that it is inappropriate to kick a doctor out of the workers' compensation system who has been "convicted, punished and then returned to practicing medicine." Thus, there appears to be at least some sentiment for ignoring certain fraud and abuse depending on circumstances. There is some sentiment that not all frauds, embezzlers and thieves are necessarily bad people. 

There are often discussions about federal intervention in workers' compensation. The vast majority of expositions on the topic that I have witnessed do not favor federalization. However, there are those who suggest that there is room for federal regulation in support of workers' compensation and medical care generally. Perhaps medical care reimbursement is an area in which such supporting regulation could be efficacious?

Perhaps federal law should mandate:
(1) any provider convicted of violating the controlled substance act in any jurisdiction shall remain forever ineligible to prescribe any controlled substance in any U.S. jurisdiction.
(2) any provider ineligible for reimbursement for any medical program in any state as a result of criminal conviction, involuntary relinquishment of eligibility, or voluntary relinquishment pending investigation or discipline, shall be forever ineligible for reimbursement through any federal reimbursement program or any state program that utilizes or relies upon any federal funding of any description (medical or otherwise).
(3) Any provider that ceases licensure due to criminal conviction, involuntary relinquishment of license, or voluntary relinquishment of licence pending investigation or discipline, shall be reported to the (newly created) Federal Reimbursement Approval Unauthorized Database (FRAUD).

It may be impractical to catch all the "bad actors." It may be impossible to stop all of the fraud and criminal activity. But, perhaps there is room for some common-sense effort to deal with the "bad actors" that we do know about. 

While some may lament efforts, and instead feel sorry for the frauds and criminals that might have to find new vocations, perhaps strong efforts against the "bad actors" we know might deter and disincline bad behavior by others? Having invested resources in catching and disciplining the "frauds, embezzlers and thieves you call doctors?" perhaps their departure from our midst needs to be permanent?

It will be interesting to watch California's efforts under their new law. How many of those on the Medicare list will actually be expunged from eligibility regarding injured workers this February?

Thursday, January 12, 2017

The Debate of Mental Mental and PTSD

There is a debate raging across America related to mental health. There are those who see disparity and injustice in the treatment of psychological illness in workers' compensation. It appears that state's treatment of mental illness falls into some reasonably defined categories. 

In some states, including Florida, mental injury alone is rarely compensable in workers' compensation. Florida follows the "impact rule" in both tort and workers' compensation settings. Essentially, mental injury is compensable only if that injury emanates from or is caused by some compensable physical injury. These are sometimes referred to as "physical/mental jurisdictions."

Florida even strives, in Section 440.02(1)(Italics are direct quote) to exclude certain such conditions from the definition of "accident:" 

Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment.

Other states extend this theory, providing coverage if a mental injury results in or causes a physical injury or manifestation. These are sometimes referred to as the "mental/physical jurisdictions."

And, in still other states, a mental injury or condition can be compensable regardless of the existence of any physical symptom or injury. These are sometimes referred to as "mental/mental jurisdictions."

There have been efforts in recent months to compensate "first responders" regarding mental injury. In December, WorkCompCentral reported First Responders With PTSD May Have to Rely on Donations for Treatment. This detailed how "millions of dollars" donated for the "victims of the Sandy Hook Elementary School massacre have been spent on mental health services." The event was traumatic and horrific by all credible accounts. I am glad that I lack any first-hand knowledge of the event and aftermath. Most people acknowledge that witnessing certain things can have profound impacts upon us. 

Just this week, reported that two Microsoft employees have sought compensation for their work watching Internet videos. There may be arguments in those cases about whether those employees are limited to workers' compensation as a recovery, that is "exclusive remedy." There may also be debate about the existence, extent, and cause of mental injury. The point is that Post Traumatic Stress is in the news periodically. Work place safety and workers' compensation will have concerns about it and other mental injury in years to come. 

This WorkCompCentral article notes that Sandy Hook first responders are struggling to gain treatment and compensability of "many mental health issues are not covered by workers’ compensation." Connecticut is a state that formerly compensated "mental/mental" injuries, but statutory amendments constrained that coverage. Since 2012, Connecticut covers post traumatic stress for police officers, "but only if they use deadly force or are subjected to deadly force. It covers firefighters for PTSD but only if they witness the death of another firefighter." And so, for most who responded to Sandy Hook, there is no PTSD coverage under workers' compensation. Recent legislative efforts in Connecticut, to change these coverage provisions, have not meet with success. 

The effects of workplace exposure to violence or other shocking events are not limited to first responders, as the Microsoft suit above illustrates. Business Insurance reported in December in Workplace Tragedies Create new Perspective on Comp. The focus is upon the coworkers of those injured or killed a year ago by two terrorists in San Bernardino, California. Two terrorists entered a government office during a holiday celebration in 2015 and killed multiple individuals. Survivors of the attack, who were not physically injured, have complained about the way workers' compensation has affected them. 

Business Insurance notes that these are employees "whose injuries are limited to the mind." Employees were present that day, and escaped physical injury, but "watched co-workers perish at the hands of" the two terrorists. These co-workers returned to work, but are faced with the reminders of the event and those who were injured or killed. There are issues with becoming "comfortable again with their surroundings." Anyone who has ever lost someone close to them knows the feelings that can erupt when even a small item, scent, location reminds us of that someone. These co-workers return each day to the same location, see the work stations or offices of the slain co-workers, perhaps have to enter and leave through the same doorway they saw the terrorists enter.

These obviously traumatic settings such as San Bernardino and Sandy Hook are part of the discussion. But, some contend that events with far less news coverage are similar regarding potential for effects on people. They cite examples such as "a store cashier getting robbed or a worker seeing a co-worker injured in an accident." Are these the manner of events that should be compensable in a "mental/mental" paradigm? Are job duties such as viewing scandalous and violent Internet videos?

On the other end of the spectrum are perhaps even less apparent examples. There is ample stress in many workplaces and occupations. Sometimes related to the work itself, and other times related to the co-workers, supervisors, facilities, customers, and more. Some perceive stress in the workplace as a somewhat common occurrence. 

I recall an occasion when I was in the restaurant business. The headwaiter was on vacation, and we were dealing with all those implications (less-experienced leadership on the floor, more questions for the manager). That morning, my preparation cook and my fry cook got into an altercation/argument about religion. One threw some equipment at the other and fortunately neither was injured, but one stormed out the back door while the other stomped out the front. Neither returned. Fortunately for me, I had a full thirty minutes of abject panic, before the lunch rush, during which to call our other stores to beg for personnel. Unfortunately, no help was offered or provided. For that lunch rush, I was without waitstaff leadership and alone in the kitchen. To this day, I do not know how we pulled through that lunchtime. However, It resides fresh in my memory as if it were yesterday, though it was about 30 years ago. 

I suspect that some would argue that this kind of stress should not be compensable, without something more. It is certainly the kind of stressful event that undoubtedly happens every day out there in the world of business? Until I penned this post, I never contemplated the potential for mental claims by the two cooks when they later returned to the shop and were fired for both their behavior (fighting) and abandonment. Did my termination of the two result in stress and shock? Should that sudden loss of employment be compensable? If a similarly situated manager finds such an event, or series of them, traumatic should she/he be entitled to mental health care under workers' compensation? The working world is full of stress sometimes.

Returning to the violent tragedy situations such as Sandy Hook and San Bernardino, these illustrate an interesting dichotomy that may be worthy of discussion. As various states discuss the compensability of stress or mental claims by first responders, will there be discussion of non-first responders who suffer similar stress from violence?

There were armed officers that responded to these events. They witnessed bloodshed and death, physical danger, and fear (at least I would). There were trained paramedics and firefighters that responded to these events. They may or may not, individually, have experienced the "active shooter" threat. However, they were at a minimum confronted with the aftermath, in an urgent or emergent setting. 

But, then came the coroners and similar. Tasked and trained for removing remains, even these professionals might find an extraordinary violent setting such as these unsettling or disturbing. 

Then came the professionals who had to dispose of the carpet, repair the walls, and rebuild facilities. What impact does the enormity of a terrorist attack have on them? 

Are the mental effects limited to those who respond to the scene of such an event? Might hospital employees find extraordinary stress or feel extraordinary impact from the sheer number of trauma patients coming in from such an event? How about the extraordinary volume of family, friends, and the curious in and around the hospital following such an event?

Might there be potential for mental effect or injury to victims, coworker witnesses, first responders, cleaners, rebuilders, caregivers, and more? Are some of these employees better than others? Is the pain or some of these worse than others? As there is discussion about whether first responders should be eligible for workers' compensation as a result of their exposure to such events, should there be discussion about these others that might suffer complaints and concerns as a result of their exposure to these events and their sequellae? If the stress in one occupation is to be the basis for workers' compensation, should it be uniform for other occupations? Should it depend on occupation, on severity of situation, on proximity to or involvement in events? There is much worthy of discussion. 

Business Insurance says that there is confusion about these issues, and one consultant suggested "there’s a lot of gray,” He continued that questions regarding work causation are difficult. He says that “The biggest thing we are seeing with mental injury claims in general is the ambiguity: What was the cause of the (mental) injury? Did it arise out of employment?” And, in that context, perhaps mental claims are no different than a fair volume of physical injuries around which the eddies of workers' compensation litigation flow daily? For instance, a clear traumatic physical injury is perhaps more readily accepted as compensable than a repetitive "trivial" trauma claim that eventually results in symptoms but for which causation is less readily apparent.? 

Others quoted by Business Insurance cautioned that there is potential for fraud in such claims. A Connecticut psychiatry professor cautioned that psychiatric diagnosis may be imperfect. He notes that there is already potential for "fraud in physical workers' comp claims," and seems to intimate that the potential exists for similar complications in mental injury claims. He expressed concern about symptom exaggeration on one hand, and the potential for PTSD focus to distract from other "debilitating conditions, such as depression" related to work. Some might argue that there is potential for symptom exageration in many types of injury, and they may question whether that potential is reasonable grounds for simply excluding those injuries from compensability?

There will be discussion of PTSD specifically and mental claims generally in 2017 across America. There will be various perspectives and there will be legislative bills. It is impractical to predict where the issues will be raised, where there will be bills, and what bills will pass. But, it is easy to predict that these will be passionate debates and will provide much about which to think. 

In December 2016, the Office of Judges of Compensation Claims researched Florida claims for "mental/mental" injuries. The research focused on claims for benefits related to "Post Traumatic Stress Disorder" ("PTSD"), and identified over 100 instances of that phrase in specific petitions for benefits. It appears that only ten of those seek mental benefits in the absence of a physical injury. 

Thus, the instances in which such "mental/mental" benefits are sought appear to be exceedingly rare in Florida. That conclusion, however, should not be interpreted as indicating that such complaints are necessarily rare. Because Florida follows the impact rule, it is likely that some volume of such claims are complained of, but never filed. That a handful are, suggests that there are imaginative lawyers (everyone always wants this quality in the lawyer they hire) who see an argument for compensability of "mental/mental" in Florida. It will be interesting to see how those arguments are constructed and how the judges rule. It will be as interesting to see how the debates about mental injuries proceed in various statehouses this year.

Tuesday, January 10, 2017

Maine Makes Opioid Changes

Last March, the Maine legislature passed S.P. 671. It became effective January 1, 2017 and illustrates an effort to recognize the dangers of medication. Maine is not one of the most populous states according the wikis. But, it has done some innovative things with workers' compensation. This recent legislative action is not specific to workers' compensation, but it is likely to have an impact. Maine's largest workers' compensation carrier, MEMIC, apparently thought so and reached out to injured workers recently regarding the changes. 

There are many states with prescription drug monitoring programs, "PDMP." E-FORCSE and KASPER are two I have discussed. One of the questions I have posed regarding PDMPs is the sentiment that leaves many voluntary. In 2015 I asked If it's Worth Having, is it Worth Checking? Florida's PDMP is a database into which information must be contributed, but whether to consult that data in making prescription decisions is up to the physician. We insist that the data is compiled, which suggests it is deemed relevant, but we curiously do not insist that it is used.

Maine's PDMP was also discretionary until S.P. 671. Now, the PDMP must be checked "upon initial prescription of a benzodiazepine or an opioid." Benzodiazepines include a long list, but some likely familiar examples are Xanax, Librium, Diazepam, Valium and Klonipin. Opioids include a similarly long list, including methadone, fentanyl, tramadol, oxycodone and name brands like Oxycontin, Zohydro, Duragesic and Dilaudid. 

When a Main physician prescribes a benzodiazepine or an opioid now, the PDMP must be consulted. And, if the prescription is renewed, the PDMP must be consulted every 90 days. Any physician that fails to do so is subject to a fine of "$250 per incident, "not to exceed $5,000 per calendar year." That math is pretty easy, the fines stop each year after twenty violations. Logically, there are perhaps other appropriate steps for providers who have more than twenty violations in  a year?

There are provisions of S.P. 671 that will change practices for "dispensers" also. There are instances in which prescriptions might be forged or altered. This is a possible methodology to obtain medication that was not prescribed, or to obtain more medication than was prescribed. If a dispenser "has reason to believe that that prescription is fraudulent or duplicative," then the "dispenser must notify the program." The dispenser is also obligated to delay filling the prescription "until the dispenser is able to contact the prescriber." Dispensers are subject to parallel penalties: $250 per violation with a cap of $5,000 per year. 

Fraud is a serious concern with prescriptions. Papers can be forged or modified. The verification requirement for dispensers above begins to address this concern. But, S.P. 671 will phase in another layer of security within a year. By January 1, 2018, any prescription for opioids will have to be electronic. This will make fraud and forgery more difficult. But, everyone has some doubt about the infallibility of computers, those use them, and the evil out there able to hack or manipulate them. 

In a similar step, Florida has precluded telephonic prescriptions for opioids. A great many prescriptions are not written, but are instead "called in." But, in Section 893.04, Fla. Stat. Florida has mandated that prescriptions for Schedule II Controlled Substances have to be in writing, except in emergency situations. In emergencies, a "72-hour supply" may be dispensed on an oral prescription, but may not be refilled. As technology increases, it will be interesting to see if Florida will follow Maine to a digital script requirement. 

There is also an educational component of S.P. 671. All healthcare providers that prescribe these medications will have one year to complete a medication training program. By the December 31, 2017 deadline, prescribers must "complete a training course on the prescription of opioid pain medication that has been approved by the Department of Health." Each prescriber will thereafter be required to complete a follow-up training course every five years. 

The new Maine law is unlikely to be a solution to all of the challenges opioids present. However, it appears to combine some sound contributions to controlling access to these medications. The education component makes logical sense. Remaining current on developing trends with medications may assist physicians. The electronic prescription requirement may improve communication between prescribers and dispensers, help to prevent errors, and make fraud more difficult. 

The most important provision of S.P. 671 is likely the mandate that the PDMP is checked both before a potentially dangerous prescription is filled, and periodically thereafter. This will help to assure that those prescribing medications know what other medications a patient is taking, and which other physicians may also be prescribing for their patient. Of course, this will not solve all problems and concerns. Patients may travel to avoid detection of poor behavior. And that argument is often raised when mandatory use of PDMP is discussed. This will remain a concern so long as PDMP is a patchwork of state systems, but there is belief that eventually there will be a national database for narcotic prescriptions. 

In the end, the question cannot be whether any bill or requirement is "THE" solution to the opioid crisis in America. The question has to be whether requirements are likely to be "A" solution. 

Sunday, January 8, 2017

Vocational Rehab, Part Deux

Last October I published some observations on Vocational Rehabilitation Questions. I received a response from a reader, Pat Studenroth, at the New York State Workers' Compensation Board. Those thoughts are interesting. With permission, they are reproduced here (all the colored text is direct quote). 

Having read the Vocational Rehabilitation question posed by David Langham, I was compelled to respond on behalf of that profession. I was appalled to read that some agencies were basing their success on the number of interviews and evaluations performed. Interviews and evaluations are useless unless they lead to viable employment. I suspect the person to whom he spoke worked for a private agency, as the state agencies base their success on the number of successful placements.

I am a Certified Rehabilitation Counselor and hold a Masters in counseling psychology, with a focus on working with the disabled. I also hold a CAS and am a LMHC. I have worked as a vocational counselor in the field for over 18 years. Please allow me to explain what a real VRC (Vocational Rehabilitation Counselor) does for their client.

First, a VRC must have completed a Master’s program with a CORE, (Council On Rehabilitation Education), curriculum on rehabilitation counseling. Once graduated, these individuals are eligible to sit for the “CRC”, the nationally recognized Certified Rehabilitation Counselor exam. Not all take the exam, but the state run agencies require their VRC’s to be eligible to sit for it. This ensures the highest level of training in working with individuals with disabilities/injuries.

Using New York State’s vocational agency for the disabled (ACCES-VR, formerly VESID) as an example, Federal guidelines require tracking of: the number of participants served, the number of plans written, the severity of the disability, and the number of successful placements (measured by a minimum of 90 days of employment). For the last several years that agency has placed over 12,000 individuals every year.

The success of vocational rehabilitation hinges on four things:

1. The VRC’s ability to connect with the individual and create an alliance.
2. How well new counselors are trained when entering the job.
3. The availability of specialized placement counselors with experience working with a disabled or injured population (these can also be VRC’s).
4. Communication with treatment providers, employers, and any other stakeholders involved in the participant’s case.

In 2009, Washington State launched a pilot program to determine if early intervention (utilizing their VRC’s) and provision of expanded services resulted in more positive outcomes and reduction of expenses.

The program was so wildly successful that they now have over 110 VRC’s across the state.

- The average life of a case dropped from four years to one.
- There was a significant drop in litigation
- They realized over $600 million dollars in reduced costs to WSWCB

That is what a good VRC can do for their agency, and for the job seeker.

Thursday, January 5, 2017

Negativity and your Inner Pooh

A.A. Milne brought us an incredible journey with his characters and stories. He is the creator of the simple, loyal, and always hungry Winnie the Pooh. Pooh is the protagonist in a series of adventures that tend to take place in the solitude of the hundred acre woods, and in the imagination of a child, Christopher Robin. The earliest of these stories are almost on hundred years old. Many have enjoyed them as children, only to later share them with children, grandchildren and more. 

Much as we all appreciate Pooh, however, I focus today on an ancillary character in the stories. A balance to the happy-go-lucky, optimistic Pooh is a donkey named Eeyore. Eeyore does not share Pooh's simplistic optimism. In fact, he is the epitome of pessimism. He is described as characterized as "pessimistic, gloomy, depressed, and anhedonic." Some examples:

Greeting our protagonist one morning Eeyore says

"Good morning, Pooh Bear," "If it is a good morning," "Which I doubt." 

Informed that there is to be a celebration, a party, Eeyore says

"Very interesting," "I suppose they will be sending me down the odd bits which got trodden on. Kind and Thoughtful. Not at all, don't mention it."

In discussing the weather, Eeyore focuses upon the cold, and in his inimitable manner finds a depressing manner in which to look at the bright side:

"It's snowing still," said Eeyore gloomily. "So it is." "And freezing." "Yes." "However," he said, brightening up a little, "we haven't had an earthquake lately."

Eeyore brings a dismal outlook to all he perceives. He is ever convinced that all is not well, that all is against him, that the world is to be survived and not engaged. He brings an gushing mix of ambivalence and pessimism to his companions. He never hesitates to rain on their parade, caution them of impending disaster, remind them of their shortfalls. In the process, what does Eeyore accomplish?

Eeyore is a foil for the story. In literature, there is a recurrent theme in which the story's hero has some flaw or shortcoming. As we read Winnie the Pooh, we may perceive that Eeyore has been saddled with many such flaws; that Eeyore is merely an amalgamation of flaws and problems. He is a project upon which the other inhabitants of the hundred acre woods work. As Eeyore tries with all of his might to bring the others down, they try as mightily to bring Eeyore up. 

Eeyore comes to mind periodically as I follow social media and try to remain abreast of what is occurring in the world, but more specifically the world of workers' compensation. We find ourselves confronted with a fair assortment of challenges in this business. There are competing interests and personalities. There are agendas and pessimism. There is change flowing past us, around us, every day. Each day seems to bring us this legislative action, that regulatory adjustment, this decision, that ruling. The only constant is change. 

And in the midst of these challenges there are a handful who seem focused on finding the positive, the "Poohs" amongst us. They try to see the positive; they accept the challenge and persevere in spite of challenges or concerns. Some might say their optimism, like Pooh, is at times simplistic or even ill-advised. They find the positive angle, even if that is "this will be a real challenge." They make suggestions and offer ideas, even if some ideas may seem unrealistic or unattainable.

But the "Eeyores" walk amongst us also. They are relentless in their criticism, pessimism, and dismissiveness. They are certain of their superiority and infallibility (sometimes downright narcissistic). There is no idea too small or inconsequential to merit their criticism and superior condescension. They reject for the sake of rejection. They are, right or wrong, convinced of the correctness of their positions, and sometimes even icily offer their pity for others who just cannot see it their way. 

Certainly, we all have our days. Even our best "Pooh" may find herself/himself in an "Eeyore" state of mind periodically. But, the "Poohs" return quickly to their optimism and good nature. They inspire us and motivate us. Sometimes their very naivete, so derided by the "Eeyores," is what we find most compelling about them. The "Poohs" amongst us have "high hopes."

Frank Sinatra popularized lyrics by Sammy Cohn back in the 1950s, in a song, "High Hopes." It similarly expresses the "can do" of the "Poohs." The lyrics describe underdogs (an ant and a ram) who aspire to the improbable (moving a rubber tree plant and punching a hole in a dam). The challenges are highlighted and accepted ("anyone knows an ant, can't"). But, the song suggests that we can't let go. It warns that our backs will periodically be "to the wall." But, when we find ourselves so challenged, we must keep on "buttin that dam." See, the ram and the ant keep on trying, "'stead of letting go," they have "high apple pie, in the sky hopes." 

Time wears on us all. Professionally and personally, we progress through a lifetime of success and failure. Unfortunately, too many of us tend to remember all of our failures and forget too many of our successes. We each choose though, whether to become an Eeyore, or regain our inner Pooh. Will we have the strength to challenge the limitations that "anyone knows," or will we insist that "all problems are just a toy balloon," and "they're just bound to go pop," through our "high hopes?" 

We have some constant critics amongst us in workers' compensation. Their Eeyore comes shining through, channelling his persistent sentiment, "it'll never work." They all had an inner Pooh at some point, and perhaps time will show it to them again. It is all a matter of attitude. As Zig Ziegler said, "your attitude, not your aptitude, will determine your altitude."

I hope optimism and progress for you all in 2017. What progress means is of course up to you, but I hope you are moving towards something (your goal) that you find important, personally and professionally. And, I hope that we can all be a bit more successful suppressing our inner Eeyore when we interact with each other. I am going to strive to keep my Eeyore to myself this year and put my Pooh foot forward. 

Happy New Year!

Tuesday, January 3, 2017

What if Not a Party to THIS Case

The 2016 holiday season brought me more entreaties regarding identification of carriers. Attorneys are reaching the conclusion of their case, preparing paperwork, and filing it with the Judge's office. They are dismayed, having documented a resolution between "Joe Claimant," and "Sally Employer" and "THIS Insurance Company," to learn that "THIS Insurance Company," is not a party to THIS case!

So, ready for approval and craving speed and finality, the parties awaken to the problem with THIS carrier. They realize that when the case was created, by petition for benefits ("PFB") or request for assignment of case number ("RACN"), it was filed against "THAT insurance company." Later in the case, the parties realized that error and began changing the documents each prepared and traded. They each quietly and unofficially acquiesced in litigating between "Joe Claimant" and "THIS insurance company." But they never bothered to file the simple one-page motion to correct carriers, to substitute THIS for THAT. 

Having sought approval of the fees and child support, seeking the order upon which to close the file, the parties instead receive a response to their filing. They are frustrated to learn the response or order is not an approval. The response or order is merely a reminder that the settlement documents as filed attempt to resolve a case against "THIS carrier" instead of "THAT carrier," which is reflected in the OJCC records. 

One attorney suggested to me that the OJCC should not care. the attorney urges that since the OJCC is not approving the settlement, but merely the fees and child support allocation, that the identity of the carrier does not matter. I wondered at that time about this argument if the ensuing settlement check was late. If "THIS carrier" is expected, upon approval, to issue a check to "Joe Claimant" would it matter to "THIS carrier" if their name or "THAT carrier's" name was on the order? If an attorney were seeking penalties from "THIS carrier" weeks later (for untimely payment pursuant to the order), would it matter if "THIS carrier's" name were on the order? If "THIS carrier" paid a settlement based on an order that instead named "THAT carrier," how would the Division view that in the event of an audit?

Another attorney explained to me that he feels "punished" or "criticized" when he gets such "wrong carrier" notifications or orders. He protested his lack of "fault." He explained to me the process he engages to investigate before filing a PFB. He described a detailed and thorough process of investigation, checking, double checking and verifying. It sounds very careful and very appropriate. But, he lamented, he sometimes ends up with the wrong carrier despite his best efforts. And, when there is an error he takes it personally. I appreciate his pride and professionalism. But, there will be mistakes. When they happen despite thorough and best efforts, do not let it bother you. A mistake is merely a mistake (I already made a dozen of those today). 

There seems is an inclination to ignore potential due process issues throughout a case against "THIS carrier" in a case that really involves "THAT carrier," or vice versa. It actually makes sense to correct such errors early and assuring the right parties are named in the case. 

Counsel should be aware of the details. As a case is litigated, either counsel may realize that there is an issue regarding the appropriate parties. It may be because the wrong party was initially named despite best efforts. It may be because there is a change in parties during the litigation, through mergers, contractual changes, etc. But, what is clear is that the attorneys should notice the need for a correction of a party. From what I am told, they all notice and acknowledge, but there is a failure to file a simple motion to correct the record. 

Defense counsel really should be aware of the parties to the case when she/he files a notice of appearance. That is an ideal time to file a simple motion to correct. There is no reason, with the consent of all true parties, that counsel cannot file an “unopposed motion to substitute parties” when she/he files a notice of appearance. The process is basic: defense counsel notices the error, and makes a quick call “Claimant's counsel, I noticed you listed THIS carrier, I represent THAT carrier and they stipulate that they are on this risk along with Sally Employer. Would you consent to substituting; I will file the motion.” 

As an aside, it is not uncommon at that time for Claimant's counsel and "THIS carrier's" attorney to file a joint motion to substitute "THAT carrier," when an error has occurred. This is unlikely to be procedurally sufficient. In order to substitute "THAT carrier," the parties would need to obtain the agreement of "THAT carrier" or "THAT carrier's" counsel. 

Without such a stipulation from "THAT carrier," the request for removing "THIS carrier" should be by motion. The Claimant can thereafter follow the normal steps to bring "THAT carrier" into the litigation (file a new PFB against "THAT carrier"). There are due process concerns with substituting a carrier into ongoing litigation without its agreement, and perhaps even without its knowledge. 

And, now that everyone is an expert on THIS and THAT, it is important to remember the same analysis applies to all parties. The Claimant must be correct. If something changes, a lack of competency or the Claimant passes, then another person will have to substituted as the Claimant. If the putative Employer turns out to be incorrect (actual employer is a leasing agency, the actual direction and control was possessed by some other entity, the general contractor is actually the employer, etc.), then the documentation must likewise be corrected. 

The ideal time for these corrections is not when the case has resolved and the parties are eager to have approval orders entered and expedite closure of their case. The ideal time to handle such matters is as they arise or are noticed. There are those who see this as a matter of mere formality, and of little importance. But, when the parties are incorrect and it impedes receipt of that needed and desired order, the importance will become clear.

Friday, December 30, 2016

A Thanks for All our Team Does!

We pause this holiday season to express appreciation and admiration for the outstanding job done by the OJCC team across Florida each year. Thanks team, for an outstanding 2016! We are counting on each of you for more of the same in 2017! It is astounding that these 165 people manage all of the disputes for Florida's workers' compensation system!

Belkis Alvarez Deputy Clerk Miami
Wilbur Anderson Judge Daytona Beach
Susan J Arrick Mediator Miami
Robert A Arthur Mediator Lakeland
Catherine E Bailes Administrative Secretary Lakeland
Diane B Beck Judge Sarasota
Susan Berman Commission Deputy Clerk II Orlando
Patrick S Bickford Commission Deputy Clerk II Tallahassee Clerks
Susan G Bisbee Mediator Tallahassee
Shirley J Blank Deputy Clerk Ft. Myers
Yolanda P Bradshaw Commission Deputy Clerk II West Palm Beach
Eric R Bredemeyer Mediator Ft. Myers
Jeffrey S Breslow Mediator Ft. Lauderdale
John P Brooks Mediator Daytona Beach
Shanetta Brown Commission Deputy Clerk II Ft. Lauderdale
Julie K Brown Deputy Clerk Orlando
Susan J. Burton Commission Deputy Clerk II Sarasota
Pamela S Cain Deputy Clerk Jacksonville
Alejandra Campuzano Commission Deputy Clerk II Miami
Kimberley M Cardone Commission Deputy Clerk II West Palm Beach
Laure M Carnes Deputy Clerk Sarasota
Gerardo Castiello Judge Miami
Frank J Clark Judge Ft. Myers
Anne W Claussen Mediator Sarasota
Tara C Cole Administrative Secretary Tallahassee
Ruby M Coleman-Brown Deputy Clerk Lakeland
Willie J. Condry, Ii Judge Orlando
Merle B Cortez Commission Deputy Clerk II Ft. Myers
Kelly A Cronan Commission Deputy Clerk II Daytona Beach
Mary A D'ambrosio Judge West Palm Beach
Kahlil A Day Mediator Jacksonville
Luis E De Fana Deputy Clerk Miami
Lidia Delgado Secretary Specialist Miami
Jacquelyn S Denton Administrative Secretary Orlando
Robert L Dietz Judge Melbourne
Romeika L Dixon Administrative Secretary Miami
Nerida C Dominguez Administrative Secretary Miami
Marquita M Dukes Commission Deputy Clerk II West Palm Beach
Joseph A Edwards Commission Deputy Clerk I Tallahassee Clerks
Elina Escarda Deputy Clerk Miami
Leticia Espina Commission Deputy Clerk II Miami
Ana R Ferlita Deputy Clerk Tampa
Iliana Forte Judge Ft. Lauderdale
Tammy L Galey Commission Deputy Clerk I Tallahassee Clerks
Louise V Gaskin Dministrative Secretary St. Petersurg
Deborah L Geer Commission Deputy Clerk II Ft. Myers
Randee J Gildea Administrative Secretary Melbourne
Deborah M. Golden Deputy Clerk Tallahassee Clerks
Malena B Gonzalez Deputy Clerk Miami
Alan M Gordon Mediator Jacksonville
Narita B Green Commission Deputy Clerk II Tampa
Adrianne M Guy Deputy Clerk West Palm Beach
Christina L Hamons Court Reporter/Transcriptionist Tallahassee Clerks
Kevin G Harris Commission Deputy Clerk II Gainesville
Deirdre J Harrison Commission Deputy Clerk II Tampa
Deborah D Hart Mediator Ft. Myers
Paul L Harwood Mediator Port St. Lucie
Mark C Hauber Mediator Melbourne
Walter J Havers Mediator Miami
Stephanie R Hayes Staff Counsel Tallahassee
Sophia D Heath Commission Deputy Clerk II Ft. Lauderdale
Thomas A Hedler Judge West Palm Beach
Joshua Henderson Commission Deputy Clerk I Tallahassee Clerks
Lyna S Hickman Commission Deputy Clerk II Panama City
Marjorie R Hill Judge Gainesville
Charles M Hill Iii Judge Miami
Sherry D. Hires Mediator Orlando
Sherri Coleman Hobbs Administrative Secretary Daytona Beach
Silvia M Hoeg Mediator Orlando
Geraldine Hogan Judge Ft. Lauderdale
Anastasia Jean Hollaway Deputy Clerk Panama City
William R Holley Judge Jacksonville
April M Holsman Commission Deputy Clerk II Ft. Lauderdale
Wendy M Hope Deputy Clerk Jacksonville
Ralph J Humphries Judge Jacksonville
Julie Hunsaker Office Operations Manager I Tallahassee Clerks
Michael H Imber Mediator West Palm Beach
Antoine P Jacques Administrative Secretary Ft. Lauderdale
Shahida A James Administrative Secretary West Palm Beach
Gregory J Johnsen Judge West Palm Beach
Mark B Johnson Commission Deputy Clerk II Tallahassee Clerks
Pamela J Johnson Deputy Clerk Tampa
Wanda L Keenan Commission Deputy Clerk II Tampa
Chymbee A Keith Administrative Secretary Port St. Lucie
Margret G Kerr Judge Miami
Regina A Key Deputy Clerk West Palm Beach
Paula C Kiedeisch Administrative Secretary Gainesville
Daniel R Kilroy Deputy Clerk Orlando
Anna Marie M Kim Mediator Orlando
Jaquandra E King Administrative Secretary West Palm Beach
Rhonda G Lapin Mediator Miami
John Lazzara Judge Tallahassee 
Laurie R Leon Mediator Tampa
Linda S Leonard Administrative Secretary Sarasota
Daniel A Lewis Judge Ft. Lauderdale
Pamela L London Deputy Clerk West Palm Beach
Ellen H Lorenzen Judge Tampa
Noreen A Lusco Commission Deputy Clerk II Jacksonville
Mark A Massey Judge Tampa
Sylvia Medina-Shore Judge Miami
Ilene V Mele Commission Deputy Clerk II Orlando
Jessica Melendez Deputy Clerk Ft. Myers
Beverly J Melton Commission Deputy Clerk I Tallahassee Clerks
Gary A Miller Mediator Miami
Marla R Miller Deputy Clerk Orlando
Sarah T Minker Deputy Clerk Gainesville
Melissa R Moody Deputy Clerk Tallahassee Clerks
Amanda L Morales Deputy Clerk Tallahassee
Paula Nickel Deputy Clerk Tallahassee Clerks
Nelio E Oramas Mediator Panama City
Keef F Owens Judge Pt. St. Lucie
Carmen L Padilla Deputy Clerk Ft. Lauderdale
Neal P Pitts Judge Orlando
Ronda T Pope Deputy Clerk Ft. Lauderdale
Irish L Porter Commission Deputy Clerk II Tallahassee Clerks
Sylvia Ramkishun Administrative Secretary Ft. Lauderdale
Eduardo Ramos-Almeyda Judge Miami
Jeanette M. Randall Commission Deputy Clerk II Pensacola
Brittany L Reid Deputy Clerk Pensacola
Ellen F Riley Administrative Secretary Ft. Myers
Teresa D Robinson Administrative Secretary Orlando
Rosanna Robles Administrative Secretary Miami
Barbara Glenn Rook Commission Deputy Clerk II Lakeland
Liliana J Roque Administrative Assistant Ii Miami
Stephen L Rosen Judge St. Petersburg
Adam I Ross Mediator Ft. Lauderdale
Carol Ruffin Deputy Clerk St. Petersurg
Sheila A Ryder Deputy Clerk Melbourne
Doris Salgado-Sama Administrative Secretary Miami
Isabel M Schuchman Commission Deputy Clerk II Miami
Thomas W Sculco Judge Orlando
Carolyn C Slowikowski Mediator Pensacola
Suelean J Smith Deputy Clerk Ft. Lauderdale
Margaret E Sojourner Judge Lakeland
E Douglas Spangler Jr Judge Tampa
Callie M Stamper Administrative Secretary Jacksonville
Timothy S Stanton Mediator Tampa
Angelique I Steele Commission Deputy Clerk II Port St. Lucie
Cory Strickland Administrative Secretary Tallahassee Clerks
Yadira Suarez Commission Deputy Clerk II Orlando
Sharleen J Sudbury Commission Deputy Clerk II Melbourne
Michele Suero Commission Deputy Clerk II Miami
Christine A Sullivan Administrative Secretary Ft. Lauderdale
Theresa Sullivan-Hadden Administrative Secretary West Palm Beach
Stuart F Suskin Mediator Gainesville
Kelly Tiska Deputy Clerk Port St. Lucie
Karla A Trumbull Commission Deputy Clerk II St. Petersurg
Kathy M Valdez Administrative Secretary Panama City
Bethany L Valliere Mediator West Palm Beach
Keren Vega Deputy Clerk Miami
Joan H Venable Comission Deputy Clerk II Jacksonville
Jonathan E Walker Judge Panama City
Priscilla A Walker Commission Deputy Clerk II Tallahassee
Angelique S Washington Deputy Clerk Tampa
Jack A Weiss Judge Ft. Myers
Alena H Wilson Deputy Clerk Daytona Beach
Nolan S Winn Judge Pensacola
Joann Winters Commission Deputy Clerk II Miami
Ronnie K. Witlin Mediator Miami
Rita L Young Mediator St. Petersurg