Wednesday, August 20, 2014

Judiciary College 2014

Today I am at the National Association of Workers' Compensation Judiciary Judicial College in Orlando. This is presented in conjunction with the Workers' Compensation Institute, the largest gathering of its kind. Imagine 8,000 rabid workers' compensation experts and aficionados waxing eloquently on all things workers' comp.

We have had two full days of judicial education focused specifically on issues that face workers' compensation adjudicators. Professor Ehrhardt (Florida State) provided commentary on evidence in a program that was moderated by Judge Lazzara (Tallahassee). That program included exceptional role-play by Judge Roesch (Panama City), Kellye Shoemaker, Esq. (Orlando) and Steven Coonrod, Esq. (Tallahassee).

We have judges enrolled this year from eigteen states. It is a dynamic and diverse crowd. This morning I will present a program to the assembled Judges, along with David DePaolo from Workcompcentral.  Our subject is social media. It is amazing to me how many people still do not realize what social media is (you are reading it) in its many incarnations. There are places on the world wide web to post pictures, share video, be followed, and tell your story. 

Anytime a workers' compensation case involves a social media element, I am reminded of good old Gary Hart. For those of you too young to remember Gary, he was a Colorado Senator that sought the nomination for president back in 1984 and 1988. He was the subject of rumors, and some thought he was engaged in an affair. When the press asked him about it, he reportedly replied to the effect of "follow me around. I don't care. I'm serious. If anybody wants to put a tail on me, go ahead. They'll be very bored." Reporters took the challenge, followed him, connected him to a young model named Donna Rice (one encounter allegedly occurring on a yacht named "Monkey Business," you can't make this stuff up).  The rest is history, and there was no President Hart. 

That was in the 80s. We were hip and happening. But there was no internet in the real world. Academics had been using the platform for communication and research for years at that point, but the rest of us did not discover it (like Columbus "discovered" America) until the 1990s. Incriminating evidence, pictures, etc. were nonetheless damaging then and they can be damaging now. 

Last week, a variety of news outlets covered the arrest of a young woman who fractured her toe at work and claimed workers' compensation benefits. She was allegedly unable to work due to the toe fracture; she was unable to put weight on her foot or wear shoes. Then the video surfaced on YouTube of her competing in beauty pageants wearing high heels. 

Her case was interesting enough that it garnered discussion at the National Regulator Roundtable that SAWCA presented on Monday. There are ample examples of misstatements and representations in workers' compensation cases. They are not limited to injured workers by any means. 

What is difficult for some people is to understand what has changed. It is likely not the misrepresentation that has changed. That has likely gone on since mankind learned to communicate with the spoke word. The medium has changed. There is an internet today, that means more space to publish things. I doubt any newspaper would agree to publish these thoughts of mine on workers' compensation. They have limited space in each issue, and they have to focus on what sells the papers. They have to be efficient with their space.

The internet is boundless. I can publish this there for the world to see, praise, ridicule, consume or ignore. Thirty years ago, the odds were against a news agency capturing the beauty contestant with the hurt toe. The odds of that video clip getting through the news editor's efforts to pick the 15 to 30 second clip that would get on TV are even longer. That someone familiar with the compensation case would then tune in at that moment to that station and "catch" the young lady, even longer odds. 

Then or now, the video could be published. That has not changed. What has changed is that more people have video cameras. More space is available. Less time is spent editing, virtually everything is uploaded to the internet. And, critically, it is all easily searchable from any PC, Mac, iPhone, or any variety of other devices. 

All that has changed is the "how." How we record things. How we publish things. How we share things. Social Media is not new, the TV and Radio and papers have had it for years. But now it is more widespread, more potentially narcissistic, more easily accessed, more easily shared. The better we understand that, the more easily we can wrestle with the things that make it professionally interesting to those of us who run adjudication processes (call them trials, call them hearings, call them what you will). 

We have to decide whether and when such evidence is relevant. When it is too prejudicial. When it is persuasive. When it is authentic. These decisions exist with newspaper articles also. Our job has not changed. We just see more examples due to the explosion of content (videos, pictures, statements and more).

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