Sunday, February 19, 2017

A Comp Fraud Drug Dealer Kills

WorkCompCentral recently reported on sentencing for a Drug Dealer Who Once Defrauded Federal Comp System. The story has several points worth consideration. It has ties to a workers' compensation claim, illustrates issues with workers' compensation fraud, and reminds us of the challenges that opioids cause for our country and its citizens. 

The opioid challenge part is nothing new for readers of this blog, see Maine Makes Opioid Changes, Opioid Guidelines from the CDC, Like a Broken (Drug Death) Record. I think too many people are dying in this country from drug overdose, and have repeated that in many forums. 

The subject of this story, Mr. Christopher Koegl, was a veteran, employed by the U.S. Postal Service. He was entitled to lost wage benefits as a result of a knee injury at work. The U.S. Attorney says that he was also "required to immediately report if he returned to work or obtained new employment," which included self-employment. Reporting on employment is not an uncommon feature of workers' compensation laws that provide for payment of wage-replacement benefits. 

In September 2014, Mr. Koegl was arrested and was charged with "possession of heroin with intent to deliver." He plead guilty to being a drug dealer and was sentenced to 5 years probation. (Red flag #1, heroin dealing = probation?) 

According to the U.S. Attorney's Office, he was also sentenced in March 2016 to probation for making false and fraudulent statements in order to qualify for workers' compensation benefits. Mr. Koegl was indicted for submitting "a false form to the Department of Labor. In it, he attested that "he was not self-employed or involved in any business activities" during the time he was both receiving workers' compensation benefits and running his drug business. (Red flag #2, on probation and committing felony fraud = probation again?)

The felony fraud conviction resulted in cessation of Mr. Koegl's workers' compensation benefit entitlement, and he was ordered to pay over $31,000 back to the government. A drug dealing workers' compensation fraud was caught and convicted. The penalty is to pay back the money, years of probation and no more workers' compensation. If the penalty for stealing $31,000 is paying back $31,000, will that deter people from stealing?

But as noted above, Mr. Koegl made it back in the news recently due to yet another conviction. According to WorkCompCentral, Mr. Koegl was running a "full-fledged operation" in 2014. When he was arrested for dealing drugs, he had "more than 20 grams of heroin, cash, a digital scale, pay/owe sheets and, in the trash, 65 tin foil squares containing black tar heroin residue." And, Mr. Koegl had a three-person sales force assisting him with marketing his product. But, he was sentenced to probation.

How did it all start? Mr. Koegl told investigators that he suffered a knee injury in 2010. One source reported that he also had a "military injury" at some point and that he was prescribed opioids for that condition. For some reason, Mr. Koegl was later unable to "get opioids" for his complaints and he therefore turned to heroin. At some point, he became addicted to heroin, and then became a drug dealer to support that habit. 

Alexander Herdt, a customer, somehow came in contact with one of Mr. Koegl's salespeople and purchased heroin. In 2014, Mr. Herdt fatally overdosed. Cellphone records led authorities to connect Mr. Herdt, the three salesmen, and Mr. Koegl. All four were indicted for "conspiracy to distribute heroin," but Mr. Koegl was also charged with "distributing heroin resulting in death." If convicted of that, Mr. Koegl faced "a minimum 20-year sentence." His recent plea bargain avoided that. 

The described circumstances involve elements that individually are unfortunately not uncommon today. Medication dependence exists. Some people are eventually denied access to prescription opioids. Evidence supports that some of those people turn to non-prescribed (street) opioids, or other substances. People are dying in America. We know all of this is true. 

I am reminded of Ross Perot's presidential bid eons ago. When describing the national debt (then about $4 trillion), he said it "is like a crazy aunt we keep down in the basement. All the neighbors know she's there, but nobody wants to talk about her." Is the American drug death pandemic any different? We all know she's down there. Why is this not being talked about? It is definitely more important than the latest escapades of the Kardashians, the Bieber, or the donut-licking pop star, but somehow it rarely makes the headlines. 

How did we get here? An article by National Public Radio (NPR) reminds us that perspectives on pain changed in the 1980s. Doctor's beliefs about pain coincided with "more available prescription painkillers." The result was increased prescriptions and increased addiction. Thirty years after the pandemic started, NPR says that "in 2011, the Centers for Disease Control and Prevention declared a prescription drug epidemic as a result of doctors over-prescribing painkillers." Mr. Koegl is thus certainly not alone in his use of opioids. This NPR article is a "must read" to understand how America got where it is regarding prescription pain medication. 

When I was young (yes, I was young once), heroin was in the news periodically. There were populations that frequented that drug and there were overdoses. However, the news of that is seemingly more prevalent today. And, some believe the medical community and its love affair with opioids is to blame. The National Institute on Drug Abuse concluded that "the incidence of heroin initiation was 19 times higher among those who reported prior nonmedical pain reliever use." Note that "nonmedical" use is "characterized by three main sources of opioids: family, friends, or personal prescriptions." In any event, those opioids were prescribed by a physician. 

The Partnership for Drug-Free Kids reports that "people addicted to opioid painkillers are 40 times more likely to abuse or be dependent on heroin." And heroin is definitely cheaper than non-medical opioids. The Partnership for Drug-Free Kids reports that OxyContin "sold on the street is $50 to $80 per pill, while generic oxycodone sells for $12 to $40 per pill." The Washington Post reported that a dose of heroin is cheaper, in some states, than a pack of cigarettes (we tax the cigarettes). 

The downward path is relatively simple. A patient is prescribed narcotics, and through health insurance or workers' compensation, or other programs is provided with that medication at minimal personal financial expense. It is easy to get and cheal to use. They become addicted to, or dependent upon, the substance and crave the feelings and relief that it brings. Then, whatever system has thus introduced this person to the drugs abandons them. High and dry, they have choices. Unfortunately, many are choosing to continue using drugs, but now without that prescription. And the economic choice seems pretty simple to calculate, $12 for an oxycodone or "about $5" for heroin. 

People are dying, and Dying to me don't sound like all that much fun. Overdose is touching thousands of lives, of the users, and those around them. I know I sound Like a Broken Record

The fraud in Mr. Koegl's case cheated the workers' compensation system and he was slapped on the wrist. He was convicted of drug dealing and was slapped on the wrist again. And, now that someone has died, Mr. Koegl is going to prison, where he unlikely to pay back the $31,000 he stole from workers' compensation. 

Perhaps as a society we should be more concerned about prescribing opioids to begin with. Are there viable alternatives instead of opioids; can we at least discuss that question? When they are prescribed, perhaps we should be more concerned that there is care and intelligence in the course of later discontinuation of those drugs. And, perhaps there are better answers to curbing the inclination of so many to both use and abuse drugs. People are dying, and I am just not convinced that we care about this "crazy aunt" we just don't want to talk about.  

Thursday, February 16, 2017

Daubert, We Hardly Knew Ye, Or do We?

For those who wonder, the title of this post is adapted from Hamlet's soliloquies regarding "poor Yorick," by William Shakespeare (unless you believe someone else did all that writing). 

On February 16, 2017, the Supreme Court of Florida rendered its opinion In Re: Amendments to the Florida Evidence Code, Case No. SC16-181. The process leading to this decision began in the Florida Legislature, comprised of representatives and senators elected by the people of Florida. In 2012, those representatives amended the Florida Evidence Code to change the legal standard for admitting expert conclusions into evidence. That bill was signed by the Governor of Florida, and many would, relying upon their civics lessons growing up, conclude that such would thereafter be the law. This was discussed in this blog last May in Daubert Better Explained

But, today, the Daubert standard is not the law in much (frankly most) of Florida. The Florida Supreme Court has decided that this decision making about filtering the evidence that a jury hears is procedural. Generally speaking, there are laws that are "substantive" and then there are "procedures." The Florida Supreme Court has long ago concluded that it has the authority to decide what procedures will be used in Florida courts. And, to the extend that the Evidence Code, Chapter 90, Fla. Stat. delineates procedure, the Court may either adopt such procedure or reject it. On February 16, 2017, the Court rejected the procedure that is the Daubert standard. 

Explained differently, there is a Florida Evidence Code (enacted by the legislature) and then Evidence Rules (adopted by the Court). Though this is difficult for some lawyers to comprehend, it is truly confusing for the public. In several conversations over the last year, since Daubert Better Explained, I have attempted to respond to non-lawyer questions about this distinction. In each instance, I have received head nods and thanks, but I have walked away each time convinced that I did little to clear the fog from the landscape for these questioners. This distinction, to many, is as clear and simple as quadratic equations or differential calculus. 

In Daubert Better Explained, I noted another distinction that has been equally difficult for people to accept. There are actually more variables in this equation. It is not just about whether the legislature or courts will make the law. This is because the Office of Judges of Compensation Claims (OJCC) is not a court (though a fair few judges do offhandedly refer to themselves as "this court" and "the court"). The OJCC is part of the Executive branch. The Florida Supreme Court stated this in Amendments to the Florida Rules of Workers' Compensation Procedure in 2004. So, the Florida Supreme Court cannot make procedural rules for the OJCC, according to its own logic and decision. Thus, while the February 16, 2017 decision of the Court is interesting in a broad context, and will certainly affect procedure in Florida's courts, it likely changes nothing in Florida workers' compensation. 

Today, in constitutional courts around Florida, the Frye standard controls under the Evidence Rules, despite the legislative adoption of the Daubert standard in the Evidence Code, because of the Supreme Court's decision. And in the Florida workers' compensation dispute system (the OJCC) the Daubert standard in the Evidence Code applies despite the Supreme Court's procedural rejection of the statute in the courts (as they used to shout at the ball park, "you can't tell the players without a program"). 

Interestingly, in an unrelated section of the opinion, the Court cited professor Charles W. Ehrhardt's book, Ehrhardt’s Florida Evidence. There, the professor recognizes value in avoiding "having the evidence rules scattered in piece-meal fashion in various statutes and rules of procedures” and instead having “a single comprehensive set of rules.” This outcome of a single comprehensive set of standards is avoided by the Supreme Court adoption process. And, the process likely creates two standards for Florida litigation, one in the courts and another in workers' compensation (and perhaps other administrative) proceedings.

The Court's decision on February 16, 2017 resulted from the Court's regular biennial process of reviewing rules. In that process, a committee of The Florida Bar makes recommendations regarding various rules, the Court considers recommendations and comments from the public, and rules are kept current. This opinion was written by a majority consisting of Justices LaBarga, Pariente, Lewis, and Quince. Justice Polston wrote an opinion concurring in part and dissenting in part, in which Justice Canady concurred. The newest member of the Supreme Court, Justice Alan Lawson, appointed in December 2016, did not take part in the decision. 

The Court noted that the Bar committee, by a very closely divided "vote of 16-14," recommended that the Daubert standard not be adopted by the Court. The Court considered reports of both the majority and minority positions of that committee. Some other recommendations of the committee were not as contested. Anyone interested in medical malpractice should read the opinion for more on that subject.  

The majority followed "the Committee’s recommendation and" did not adopt, "to the extent they are procedural, the changes to sections 90.702 and 90.704 of the Evidence Code made by the Daubert Amendment." Thus, Florida's courts remain using the Frye standard. According to, There are now 9 Frye jurisdictions (though that site has not yet been updated to reflect the Florida Court decision), including Alabama, California, Florida, Illinois, Kansas, Minnesota, Pennsylvania, Utah, and Washington. That site reflects that 21 states are Daubert jurisdictions and that 18 apply a standard that is a hybrid of the two. Two other states, North Dakota and South Carolina apply standards that are each unattributed or unrelated to either standard. The Federal Court system throughout the country adheres to the Daubert standard. 

There is debate  as to whether there is any real difference between the two. 

The Court explained that "the Frye test only applies to expert testimony based upon new or novel scientific evidence, and in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’” 

And, that "Daubert provides that the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Opinions may be rendered "if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case."

A second legislative amendment could also arise in workers' compensation proceedings. Though the Bar recommended Court adoption of legislative changes to Section 90.803(24) Fla. Stat., the Court rejected that legislative change also. This is an exception to the Hearsay Rule (which prohibits a witness from repeating things other people said outside of the hearing or court room, unless such a statement is (1) not being submitted for the truth of what was said, or (2) subject to one of the many exceptions recognized in the rules. This particular exception related to the statements of "elderly person or disabled adult." Thus, the process regarding this evidentiary standard is likewise likely to be different in the courts and in workers' compensation. 

Justices Polston and Canady dissented regarding the Daubert standard. This opinion noted that the prognostications of “grave constitutional concerns” about the Daubert standard, were not of concern because that standard was set forth by the United States Supreme Court in Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993). Presumably, the body with responsibility for ultimately determining constitutionality, see Marbury v. Madison, would not contrive an unconstitutional standard. He added that "the clear majority of state jurisdictions also adhere to the Daubert standard." And, he noted that there are no reported cases finding that standard constitutionally challenged. He concluded that Florida's Court "should adopt the Daubert standard," and Justice Canady concurred. 

What does this mean for workers' compensation disputes in Florida? In August 2015, the Florida First District Court of Appeal rendered Perry v. City of St. Petersburg, 171 So.3d 224 (Fla. 1st DCA 2015). In it, the Court reiterated that it had "long ago determined that the evidence code applies to workers' compensation." (Emphasis added)(Citations omitted). The Court remanded this case to the Judge of Compensation Claims (JCC) with instruction that the "JCC apply the Daubert test." It is perhaps symantics, or perhaps critical, that the Court used the phrase "evidence code" and not "evidence rules." The Court also recommended consideration of the Daubert process described in Booker v. Sumpter County Sheriff's Office, 166 So.3d 189 (Fla. 1st DCA 2015).

The "rules" and "code" distinction was explained by the First District Court in Baricko v. Barnett Transportation, 2017 WL 163692 (Fla. 1st DCA 2017). That case has no court opinion, it merely affirms the JCC decision. But, Judge Wetherell wrote a concurring opinion, essentially explaining his rationale for affirming. That opinion essentially agrees with the conclusions previously published in Daubert Better Explained. Judge Wetherell wrote even if in In re Amendments to the Florida Evidence Code, the Court declines to adopt the Daubert test in section 90.702 for judicial proceedings because the test is procedural in nature, that decision will have no impact whatsoever on the applicability of the Daubert test in workers' compensation proceedings."

The logic of this conclusion is dependent upon the distinction between "code" and "rules." But, fundamentally, it is likewise rooted in the Florida Supreme Court's conclusion that it has no authority to dictate procedural process to the Office of Judges of Compensation Claims. Amendments to the Florida Rules of Workers' Compensation Procedure (Fla. 2004). As it has no such authority under the Florida Constitution, its decision rejecting the Daubert standard would appear to have no affect on procedure in workers' compensation litigation. Seemingly, the First District would so decide if the specific question is presented, in agreement with Judge Wetherell. However, the concurring opinion in Baricko does not have the weight of law which a published opinion would carry.

As to how the standard works, the District Court's decisions discussed in Daubert Better Explained, Perry v. City of St. Petersburg, Booker v. Sumpter County Sheriff's Office, and Baricko v. Barnett Transportation are perhaps worthy of review. As Florida's constitutional judges tomorrow lament "alas poor Daubert, I knew him," perhaps the JCCs will instead lament "alas poor Frye," and some practitioners may lament that Florida now apparently has two standards, and no “single comprehensive set of rules?”

Tuesday, February 14, 2017

An Act Relating to Workers' Compensation

Valentines Day 2017 brought a news release from Associated Industries of Florida (AIF). Last summer AIF formed a task force to study Florida workers' compensation. Meetings were held, and suggestions discussed. Then on Valentines Day, AIF released its proposed bill to the public. 

Many will remember that workers' compensation has been on the "front burner" in Florida from many perspectives for the last several years. There was hand-wringing and "what iffing" about the constitutional challenges to the Florida act. Last spring the decisions started coming from the courts, and several decisions included constitutional conclusions by the courts. 

The first decision was Miles v. City of Edgewater Police, reported in Fla. Stat. 440.34 (Florida Attorney Fees) Unconstitutional. There was a  follow up in Some Interesting Questions on Miles. Miles was rendered April 20, 2016. The Court concluded that injured workers in Florida have the right to contract with attorneys as they wish, a right based in "Equal Protection, Due Process of Law and First Amendment freedoms." The court concluded that there was a "general interest in regulating fees" that related “specifically to the state’s interest in protecting the amount of benefits secured by an injured worker under chapter 440 from depletion to pay a lawyer’s bills."  

It recognized that the state has "police powers" and that those powers might justify limiting fees. But, the Court concluded that the state's interest is not advanced by limiting attorney fees. It concluded that the constraints on fees "do not actually prevent a public harm," but do prevent injured workers in some cases from being able to hire an attorney. And, the Miles court concluded that “[laypersons] cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” The Court noted that only claimant fees were constricted, and "the restrictions on her right to contract for legal work" were "being arbitrarily and capriciously applied," as only claimant fees were constrained. 

Eight days after Miles, the Florida Supreme Court rendered Castellanos v. Next Door CompanyThat was covered in Castellanos is Decided by Supreme Court. There, the majority concluded that "a reasonable attorney’s fee has always been the linchpin to the constitutionality of the workers’ compensation law." (Emphasis added). The Court did not expound upon that statement further. Whether this statement confines "the linchpin" based upon the kind or source of attorney fees is therefore perhaps left open to discussion?

In an interesting approach, the Court declined to decide Castellanos using traditional constitutional analysis, and instead concluded that the constraints on fees in section 440.34, Fla. Stat. were an "irrebutable presumption" and therefore unconstitutional. The Court based its decision on Recchi Am. Inc. v. Hall, 692 So. 2d 153, 154 (Fla. 1997)(a case interpreting a statute that actually included a presumption, "it shall be presumed").

The Court did not explain how the "presumption" conclusion about a statute that does not use the word "presumption" might implicate other statutory constraints which likewise do not use the word or infer "presumption." For example, arguably any statute which imposes a "minimum" prison term for a criminal conviction likewise, under the Castellanos logic, could be viewed as creating an irrebutable presumption. In those cases, as in pre-Castellanos workers' compensation fee cases, "the statute prevents . . . challenging the reasonableness . . . in his or her individual case." If such a resulting inferred presumption is constitutionally critical regarding fees in workers compensation, some may argue it is as inferrable and as critical when liberty itself is at stake in the criminal conviction context? 

A third case, Westphal v. City of St. Petersburg was decided June 9, 2016. See Westphal Decided, Questions Remain. The Court's analysis in this case was that the 104 week limitation on temporary total disability benefits. The Court struck that provision, reviving the prior statutory limitation of 260 weeks. The First District Court of Appeal interpreted that decision as also extending to temporary partial disability in Jones v. Food Lion, Case Number 1D15-3488 (November 9, 2016).

These developments were all discussed recently in an OJCC mid-year (fiscal year) report on case filings and attorneys fees. And, last fall a bill was proposed to change Florida workers' compensation. It is described in Legislative Seismic Shift in Florida. The bill was apparently not filed, but it generated a great deal of discussion. 

The AIF bill released on Valentine's Day 2017 does not address constraints on indemnity benefits (Westphal). But, it does attempt to refine pleading practices. The apparent point to this language is reducing litigation through greater clarity in pleading. The bill does some "cleaning up," with removal of the requirement of social security numbers in section 440.192(2)(a), Fla. Stat., and requirements regarding pleading the location of an accident/injury in (2)(c). It also makes pleading more specific for indemnity benefits in 440.192(2)(f) and calculation of the average weekly wage in 440.192(2)(j).

It would amend section 440.02(40), Fla. Stat. as follows (underline is added language and strikethough would be removed (all italics are direct quote).

"Specificity" means information on the petition for  benefits sufficient to put the employer or carrier on notice of the exact statutory classification and outstanding time period for each requested benefit, the specific amount of each requested benefit, the calculation used for computing the requested benefit, of benefits being requested and includes a detailed explanation of any benefits received that should be increased, decreased, changed, or otherwise modified.

The bill would remove the criminal prohibition on workers compensation attorney fees in section 440.105(3)(c)(all italics are direct quote):

(c) It is unlawful for any attorney or other person, in his or her individual capacity or in his or her capacity as a public or private employee, or for any firm, corporation, partnership, or association to receive any fee or other consideration or any gratuity from a person on account of services rendered for a person in connection with any proceedings arising under this chapter, unless such fee, consideration, or gratuity is approved by a judge of compensation claims or by the Deputy Chief Judge of Compensation Claims. 

The bill would legislatively overrule two First District Court of Appeal decisions regarding the process and procedure for an injured worker to obtain a "one time change" of treating physician, see A Victory (Whose?) on One Time Change. The law currently allows an employer/carrier 5 days to respond to such a request. If they fail to respond in that time, then the recovering worker may select their own doctor. The "5 days" has been mentioned in the context of "gamesmanship" by the Court, but it has directed critics to have this addressed by the legislature. The AIF bill would amend section 440.13(2)(f) as follows (underline is added language and strikethough would be removed (all italics are direct quote).

The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. 

The bill would strive for more communication and perhaps thereby less litigation. It significantly amends section 440.192(4) in this regard as follows (underline is added language and strikethough would be removed (all italics are direct quote). 

 (4) Before filing a The petition, must include a certification by the claimant or, if the claimant is represented by counsel, the claimant's attorney, must make stating that the claimant, or attorney if the claimant is represented by counsel, has made a good faith effort to resolve the dispute. A petition for benefits must include a certification by the claimant or, if the claimant is represented by counsel, the claimant's attorney, and that the claimant or attorney made such a good faith effort but were was unable to resolve the dispute with the carrier or employer, if self-insured. Upon determining that the claimant or, if the claimant is represented by counsel, the claimant's attorney, has not made such a good faith effort to resolve the dispute, the judge of compensation claims shall dismiss the petition and may impose sanctions to ensure compliance with this subsection. Certification by the division that the claimant or attorney has made a good faith effort to resolve the dispute is prima facie evidence of compliance with this subsection. 

The bill would further constrain judges in terms of compelling rapid decisions on motions to dismiss for lack of specificity. The Judge would have ten days after a motion to render such a decision, or twenty days after a hearing on such a motion. It amends section 440.192(5)(b) in this regard as follows (underline is added language and strikethough would be removed (all italics are direct quote). 

(b) Upon motion that a petition or portion of a petition be dismissed for lack of specificity, the judge of compensation claims shall enter an order on the motion, unless stipulated in writing by the parties, within 10 days after the motion is filed or, if good cause for hearing is shown, within 20 days after hearing on the motion. 

The bill would remove the prohibition on fee payments for non-specific petitions. This is a section that has been ridiculed for its poor phraseology. See, Langham, 1994 Obviation of Carrier Paid Fees for Valid Petitions, News and Four-Forty Report, Summer, 1997. It amends section 440.192(7) in this regard as follows (underline is added language and strikethough would be removed (all italics are direct quote). 

(7) Notwithstanding the provisions of s. 440.34, a judge of compensation claims may not award attorney's fees payable by the carrier for services expended or costs incurred prior to the  filing of a petition that does not meet the requirements of this section. 

Notice that statute currently says that no fees or costs can be paid "prior to the filing of a petition that does not meet the requirements." Thus, fees can only be paid if an incomplete or unintelligible petition is filed pursuant to the current language. This language has been in the statute for over 20 years. 

What will draw the most discussion and attention, however, is the AIF bill's near complete removal of section 440.34 from the statute. Paragraphs (2) through (7) are all stricken (but see special treatment for paragraph (3) below). Paragraph (1) would be all that remains, as follows  (underline is added language and strikethough would be removed (all italics are direct quote).

(1) A claimant is responsible for payment of her or his own attorney fees fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, and a judge of compensation claims may not award attorney fees payable by the carrier or employer. Any retainer agreement between a claimant and her or his attorney must be unless approved by the judge of compensation claims or court having jurisdiction over such proceedings as consistent with The Florida Bar's rules of professional conduct, and attorney fees payable by the claimant must be approved by  the judge of compensation claims to ensure compliance with the retainer agreement.

What is currently in section 440.34(3) would become a new section, 440.341 Fla. Stat., as follows  (underline is added language and strikethough would be removed (all italics are direct quote).

440.341 Costs.—If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney fees. 

It is an interesting proposal. It will undoubtedly receive significant attention and discussion in days to come. Some will question whether injured workers will have funds to pay for attorney fees. In an instance such as Miles, where a third party (union) is willing to pay fees for representing an injured worker, this may be less of a concern. However, some injured workers may simply lack the funds for such representation. Faced with the denial of a small bill such as a prescription, some recovering workers may elect to pay the prescription cost themselves or do without the medication rather than paying an attorney to pursue the payment. Critics may argue that some employers might withhold authorization for some benefits in the belief that they are too inconsequential for a recovering worker to pursue. This may be related to a logic mentioned by the Supreme Court in Castellanos: fees “'discourage the carrier from unnecessarily resisting claims' and encourages attorneys to undertake representation in non-frivolous claims."

The bill would impact the Office of Judges of Compensation Claims. It would statutorily require judges to prospectively approve attorney fee retainer agreements. However, only the attorney fee agreements between recovering workers and their attorneys. It is not clear if this distinction would be permissible within the analysis of the court in Miles"being arbitrarily and capriciously applied." An argument might be made that this (claimant but not defense) is a distinction without basis. However, an argument might likewise be made that this contract approval is part of the overall approval of claimant fees (and there is no similar approval of defense fees), and is for the protection of the recovering worker. 

If this bill becomes law, it is possible that some disputes will arise between recovering workers and their attorneys regarding the appropriateness of fees. The Supreme Court noted in Castellanos that "a 'lengthy and expensive contest' with an E/C, a claimant proceeding 'without the aid of competent counsel' would be as 'helpless as a turtle on its back.'” The District court in Miles that “[laypersons] cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” Some have questioned whether an injured worker in a contest against any attorney, such as in a dispute over the amount of fees, would be any less helpless or any more able to "protect their rights" "without the aid of competent counsel." 

It will be interesting to hear what thoughts, comments, and criticism, are voiced regarding this proposed bill. Things in Florida are rarely dull.  

A Victory (Whose?) on One Time Change

On February 7, 2017 the Florida Fist District Court of Appeal published Zekanovic v. American II Corp., Case number 1D16-3669.  

It is an interesting case in which the recovering worker asked for a "one time change" and the Employer/Carrier (E/C) did not respond within "five days of its receipt, as required by paragraph 440.13(2)(f), Florida Statutes (2013)." In 2013, the Court decided Hinzman v. Winter Haven Facility Operations, Case Number 1D12-2382. It concluded that "within 5 days," as used in this statute, means exactly that, "5 days," and not "5 business days." 

Despite the failure to respond within 5 days in this case, the Judge of Compensation Claims did not allow the recovering worker to make his own choice for his new physician. The District Court reversed, but the recovering worker nonetheless did not get what he sought.

In this case, the recovering worker "faxed" his formal request for change on December 23, 2015 (this date is relevant and is discussed in the case, and below; think holidays and being off work). The Employer/Carrier (E/C) responded on January 5, 2016 (13 days after the request), and offered another physician. Thirteen is greater than 5, and one might conclude that therefore the worker could select his own physician.

On January 13, 2016, the recovering worker "filed a petition for benefits requesting authorization of Dr. Hassan." The recovering worker took the position that he was entitled to Dr. Hassan as a result of the untimely response by the E/C. The E/C continued to declined to authorize Dr. Hassan, and the matter proceeded to trial. 

The appellate court noted that "as of the date of the hearing, Claimant had not sought treatment with Dr. Hassan or any other a physician of his choice." It described that the trial judge concluded that the recovering worker was entitled to the one time change, but that the E/C was still allowed to choose the physician to whom care would be transferred. The District Court explained that the judge's decision was predicated upon the fact that at the time of trial the recovering worker had not yet begun care with Dr. Hassan. 

The Court reiterated that "under paragraph 440.13(2)(f), a claimant who sustains a compensable injury is entitled to a one time change in treating physician as an absolute right if a written request is made during the course of treatment." Therefore, the Court said that Dr. Hassan was (in January 2016) "considered authorized" because of the failure to timely respond. But, because of developments in the law since then, this recovering worker will nonetheless perhaps never treat with Dr. Hassan. 

As an aside, if the E/C provides an alternate provider, even outside the 5 day requirement as it did here, the recovering worker can accede to that choice and begin treatment with the E/C's proffered alternative. But, the Court noted, the recovering worker is in the driver's seat once the five day period has expired. If the E/C proffers an alternative provider after the five day window, the recovering worker may elect to accept that provider, but is not bound. After the five day period, she/he retains the right to choose her or his own provider. That right to choose is not extinguished by a late offer of an alternative provider. And, as important in this case, that right is not waived by the recovering worker not beginning care and treatment with her/his selection immediately, or even before trial on the issue. 

So, at this point in the analysis, it appears the recovering worker would receive what he wanted, to treat with Dr. Hassan. But, the Court in Zekanovic reminded of another recent constraint on the recovering worker. It referenced its January 23, 2017 decision in RetailFirst Insurance Co. v. Davis, No. 1D16-2310 (Fla. 1st DCA 2017), which held that "when dealing with a one-time change, the change must be within the same (medical) specialty regardless of who makes the selection." 

Remember, Florida law provides that the E/C selects the treating physician, and thereby selects the treating specialty. The recovering worker can select an alternate provider once during her or his case, the "one time change." But, pursuant to the Court's recent logic, the E/C having made the original selection of provider, the E/C thus has ultimate control on the selection of medical specialty to provide care, even following the one time change. 

The control is not absolute. While the employee has a clear path to changing the care provider, the "one time change," changing the specialty of care is perhaps more complex. To change the specialty of care, it appears the recovering worker's path is to ask, and hope that the E/C agrees. If not, then perhaps the worker's only recourse is an independent medical examination (with that other specialty or recommending that other specialty), followed by a petition for benefits, a mediation and trial? 

If that is the only process for a change in medical specialty, then it will ultimately be up to either the Judge or an expert medical advisor to decide if the change in specialty is warranted. The outcome might ultimately be dependent in part by the specialty that is practiced by the expert medical advisor (EMA) selected by the Judge. In other words, an EMA that practices pain management might conclude that such care is appropriate, while an EMA that practices orthopedic surgery might conclude otherwise. 

Finally, the Zekanovic Court mentioned the timing of this "change" request, and suggested that it "smacks of gamesmanship." The request for a one time change in this case was faxed December 23, 2015, "just prior to the holidays" and therefore the court concluded that the E/C had "a little more than one business day to respond. Neither the appellate opinion nor the underlying compensation order provided any indication of what time on December 23, 2015 the one-time-change request was faxed. If it was sent early that morning, then the E/C had all day on the 23rd and all day on the 28th to respond (see below). If the fax was sent late in the day on the 23rd, then the E/C had only December 28th, counting regular "business days." 

What the appellate opinion did not mention is that this request was not this recovering worker's first. According to the compensation order, the recovering worker had sought a "one time change" on November 20, 2014 and withdrew that request when he did not like the doctor the E/C authorized per his request (the request itself said "the one-time change must be acceptable to the claimant"). Then, on August 20, 2015 the recovering worker again requested a "one time change," with a similar stated reservation of right of refusal. The E/C again timely responded and the worker "refused this physician and advised the employer/carrier that he would prefer to treat with Dr. Pagano and withdrew his request." 

Is the right to a "one time change" a right that should be read as "a one time change acceptable to the recovering worker," or does that reading of the statute, and the addition of words (italic), make any more or less sense than the strained reading that inserted "business" into the "5 days" language, a reading rejected in Hinzman? Does a recovering worker that requests a one time change have a right to refuse the one time change that is then provided? If so, from what statutory provision does that right come?

Back in 2013, I suggested that E/C's would need to respond with agility following the Court's decision in Hinzman, questioning "Can 'Jake' Authorize a Change in Physician?" (A play on a popular television commercial for an auto insurance company touting their 24 hour per day availability for policy service calls). Under Hinzman, each year a fax on the Wednesday before Thanksgiving might leave an E/C with only a day to respond. Each year, a Friday fax before Martin Luther King Day, Memorial Day, and Labor Day (consistently Monday holidays) might afford an E/C no more than two days to respond (and on the odd chance an adjuster took a Friday or Tuesday off to turn a three-day weekend into more, then a Thursday fax might be as constraining as the one in Zekanovic). And, the placement of other holidays such as July 4, Christmas and others might have a similar effect depending on the year. 

Some lament the Hinzman "5 days" interpretation. I have heard it described as "unfair" and "unwieldy." But, as the court noted in Zekanovic, that "is a policy consideration that should be directed to the Legislature, not this court." Since the E/C is allowed to select the treating specialty, arguably exclusively unless there is a claim and litigation, the E/C might be seen as having significant control, with the one-time-change a small exception. Does the recovering worker take some of this control with an inferred "right of refusal" regarding the alternate provider? Perhaps that will be an issue for the Court in the future. 

Back to those commercials in which they tout the ease of 24 hour contact ("Jake") with their automobile insurance company; there, perhaps the only tool for the E/C is a ready, handy list of providers with which to rapidly respond to such "day before the holiday" requests? With such a list, the E/C could rapidly and perhaps rotely respond to the request, and gamesmanship versus gamesmanship could be the norm?  

But, this system should not be about gamesmanship. Would such a a rote response move the worker's recovery forward? Shouldn't that be the inquiry - "does this move the recovery forward?" Twice in the Zekanovic claim, requests for change were made, with a reservation of right of refusal (no citation was provided for the legal authority of that reservation), and twice an alternate provider(s) were offered. Those requests and authorizations did not apparently effectuate progress with recovery, because the worker rejected them. Will there be more gamesmanship with multiple such "reservation of refusal" requests for change, in hopes of some carrier eventually missing the deadline on one? Does that move the recovery forward?

The third Zekanovic request, recently decided by the Court, might provide progress toward recovery. If it does, that progress will undeniably be more than a year after the recovering worker filed his Petition for Benefits on January 13, 2016. I have touched on how long time lines can get in A Very Brief Case Worthy of Study. The point of that post is that it takes time to litigate. Even in the most expeditious circumstances with all diligence, it takes time. Do long time lines help the worker's recovery or not? After reading of Zekanovic, some might ask if it is better to get what you want after a year or what you need today? (Remember the lyrics?)

But, because of the recent decision in RetailFirst, this recovering worker will not get what he wanted, even after a year of litigation and after winning on appeal. The worker here treated with Dr. Pagano (though the trial order does not say Dr. Pagano is a surgeon, that is inferred by the finding that  he "ultimately performed a lumbar fusion L4-L5"). The recovering worker wanted to change to Dr. Hassan, "a pain management physician." So, despite the employee's year of waiting and his victory on February 7, 2017, the recovering worker will apparently not be selecting Dr. Hassan, RetailFirst.

A year has passed. The recovering worker is now clear that he may choose the doctor to next undertake care, but that provider seemingly will be a surgeon. Has the last year been positive for either the employee or the employer? Has this litigation moved this worker's recovery forward? He has confirmed his right to choose, but apparently cannot choose the doctor, or even the specialty, he has sought. A victory in a legal sense. A victory that will perhaps guide many others in their future pursuits of care. But, in this case, for the recovery of this recovering worker, a Pyrrhic victory perhaps?

Sunday, February 12, 2017

On Mental Status in Workers' Compensation

The subject of mental capacity was in the news recently in workers' compensation. A pro-se party in Alabama was ordered to undergo a mental examination in In re Dwayne Johnson v. Tidra Corporation, (Lee Circuit Court, CV-12-900563). Procedurally, the case is also interesting because it involves Mandamus, an "extraordinary writ." 

Mandamus is an appellate order compelling some government official to perform an official act. In this instance, it was the appellate court ordering the trial court to enter an order to vacate an earlier order. When there is a final order, it is more common in Florida that there is an appeal of the earlier order, and the appellate court would, where appropriate, quash that order in reversing the decision. But in extraordinary situations, such as when no appealable order has been entered, then Mandamus may be the only appropriate process to seek relief. 

In Johnson, the court explained that the trial court had ordered medical benefits for the pro-se injured worker and ordered a mental examination. The injured worker did not resist the order, but the employer/carrier asked the trial court to reconsider ("rehearing"). While the "rehearing" motion was pending, the trial court's order was not a "final" order, and the motion for rehearing did not "toll" (or extend) the time limitation for seeking relief from the appellate court. The Employer therefore sought relief by filing the "writ of mandamus." The court concluded that the employer seeking mandamus was proper, "despite the pendency of its motion to reconsider."

This illustrates a difficult situation for a party. It wants to have an appellate review occur. But, there is no appealable (final) order. The reason the order is not final is because that party has appropriately asked the trial court to reconsider (it is usually quicker and less expensive to point out issues or problems with an order through a motion for rehearing, and hope that the trial judge corrects the issue). So, with no final order to appeal in this case, the party seeks an extraordinary review, the "writ of mandamus."

As an aside, the Rules of Procedure for Workers' Compensation Adjudications also do not "toll" the time for appeal while a motion for rehearing is pending. See, Rule 60Q6.122.

In granting this petition for Mandamus, the Johnson court concluded that the trial court lacked authority to order a mental examination "on its own motion." The rational of the court essentially relies on differences between the Alabama Rules of Civil Procedure and the Alabama Rules of Criminal Procedure. The court noted that the Criminal Rules provide authority for a judge to order an examination on "the court's own motion." However, the Civil Rules say that such an examination can be ordered "only on motion for good cause shown." The Court reasoned that if the authority under the two sets of rules was the same, the rules would say the same thing (or at least be more similar). 

The Johnson decision is instructive on several levels. First, that a judge might perceive issues of mental capacity. When a judge perceives such issues, is it appropriate to act? Second, how do parties seek review of decisions with which they disagree? Third, note that the trial court ordered the mental examination of the injured worker, who did not resist. It was the employer that sought review of that decision. 

Judges are charged with making a great many difficult decisions. How are they to deal with persons that are impaired? This can occur in a variety of circumstances, with impairment that may be temporary or permanent. A temporary impairment example might be a witness that comes to trial under the influence of drugs or alcohol. That has occurred. A simple solution to temporary impairment is delay of trial, in hopes that the temporary impairment will not persist or recur. 

But whose responsibility is it to (1) determine impairment exists and (2) decide whether the extent of impairment (how many drinks has someone had) justifies delay? Should it be up to the parties to object based upon their individual perceptions, or should it be up to the judge to intervene regardless of their perceptions? In other words, should the judge suggest there is a problem, or is that up to the parties trying the case? Who is responsible for assuring that there is due process and effective presentation of evidence? If the parties do not think the witness is impaired, should the judge's responsibility include second guessing them?

When impairment is perceived as potentially more lasting, the same questions might be applied regarding responsibility. This may occur in a variety of settings where the injury, medical procedures, or pre-existing mental capacity are perceived as limiting capacity. There is minimal statutory guidance on this in Florida workers' compensation. 

In some settlements that involve an unrepresented worker (Section 440.20(11)(b)), There is at least authority for judicial inquiry: "the judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary." But, that authority might be limited to the settlement situation itself. 

The Florida statute provides some protections to the "mentally incompetent," see Section 440.19(5), Fla. Stat. And there is provision (italics are direct quote) for appointment of a guardian in Section 440.17, Fla. Stat.:

a judge of compensation claims, may require the appointment by a court of competent jurisdiction, for any person who is mentally incompetent or a minor, of a guardian or other representative to receive compensation payable to such person under this chapter and to exercise the powers granted to or to perform the duties required of such person under this chapter; 

This provision does not appear to empower the Judge of Compensation Claims ("JCC") to remedy a perception of impairment, but perhaps merely to require such a remedy from a court. In other words, the JCC may "require" that competency issues are addressed. By such an order of requirement, does the JCC have authority to compel a constitutional court to appoint a guardian, or simply compel the court to consider such a decision? 

The dependent clause "or any person who is mentally incompetent or a minor" likely means that the court and not the JCC would decide whether or not someone was incompetent; thus, the JCC authority might likely be limited to the decision of whether to compel parties to have such a competency issue addressed by a court. 

This statute does afford the JCC some direct authority and discretion. In addition to that authority to compel consideration by the courts, the JCC has discretion  to:

designate in the compensation award a person to whom payment of compensation may be paid for a minor or incompetent, in which event payment to such designated person shall discharge all liability for such compensation.

Arguably, that authority applies only to an "award" of contested benefits ("in the compensation award"). Similar language is employed by the statute in Section 440.25(4)(e)(italics are direct quote):

(e) The order making an award or rejecting the claim, referred to in this chapter as a “compensation order,” shall set forth the findings of ultimate facts and the mandate; and the order need not include any other reason or justification for such mandate. 

Another broad statutory provision may also become involved in such a discussion. Section 440.33(1), Fla. Stat. (italics are direct quote) includes a very broad description of authority for JCCs 

The judge of compensation claims may . . . do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office.

This provision has been interpreted in a number of appellate decisions. Whether a JCC or an appellate court would conclude that this statutory authority empowers a JCC in situations of questioned mental capacity is interesting.

Therefore, it is a debatable point whether a JCC could order payment of ongoing, voluntary, benefits to a designate or representative for "a minor or incompetent." In the broadest context, decisions of competency may rest with Florida's constitutional courts, whether on referral ("require") of the JCC, or upon independent instigation of an action by the parties to a case. In the specific context of settlement by an unrepresented party, perhaps the JCC's authority is more broad. 

The second point of interest is how parties seek review of decisions. Statutorily, all review of orders entered by JCCs is within the authority of the Florida First District Court of Appeal. Section 440.271, Fla. Stat. For purposes of appellate review generally, Florida is divided into five Districts. The First District is the largest geographically, including 32 of Florida's 67 counties. The Third District is the smallest geographically, including only two counties (Dade and Monroe). 

An appeal from a constitutional court (Circuit or County) generally proceeds within the geographic area of one of the District Courts. For example, a review of a decision by the Circuit Court in Dade county, regarding appointment of a guardian for an injured worker, would be reviewed by the Third District Court in Miami. However, a decision of a Dade county JCC regarding the same injured worker would be before the First District Court in Tallahassee. This has the potential to become confusing to some. 

How review is requested, and how such appeals proceed, is described and defined in the Florida Rules of Appellate Procedure. While attorneys are generally familiar with those processes and procedure, they are perhaps less known to non-lawyers. The Florida Bar Appellate Law Section has published The Pro Se Appellate Handbook to provide guidance and advice to those less familiar with the appellate practice. There are paths for appellate review of final orders, such as one awarding or denying workers' compensation benefits. There are also processes for extraordinary writs such as Mandamus (to compel action) or Prohibition (to prevent action). 

The final point of interest is in the Alabama trial court's order for the injured worker to be examined. In a discussion of this case at a recent seminar, a conversant expressed surprise at the outcome. The injured worker is the one ordered to be examined, and had no objection to the trial judge's order. This conversant felt it inappropriate therefore for the employer/carrier, that in her/his perspective was unharmed, to appeal an order. 

Another participant in this conversation, however, pointed out that this examination regarding mental capacity would not be performed free of charge. Thus, the order for examination burdened the injured worker with being examined (time, inconvenience, etc.), but burdened the employer/carrier financially. The participant also suggested that a decision of incompetency might lead to further complications and procedures for the employer/carrier, and potentially a commensurate increase in cost.

These suppositions and questions regarding the "why" of the appeal are interesting. But, the point is that any party feeling aggrieved may seek review by the appropriate appellate court, through appeal or writ, and that this process may not be either clear or easy. Thus, while there may be supposition and discussion of "why" one might appeal in a particular situation, it is important to remember that both "why" and "whether" to seek appellate review is up to each party to a case.