Wednesday, October 29, 2014

The New Rules, 2015

There is a pattern, barely discernible. But we seem to look at the Florida Rules of Procedure for Workers' Compensation Adjudication (yes, they have a name) rules about every two years. I sometimes see them abbreviated, but the rules themselves do not state how they should be abbreviated. I have no idea what the Blue Book solution would be, but using my ALWD, I think the appropriate abbreviation is "Fla.R.Pro.Work.Comp." 

(Update; 10.30.14: I received several emails on citation form. Judge Anderson and Randall Porcher each referred me to Appellate Rule 9.800(i) as requiring the citation to be to the Florida Administrative Code, "Fla.Admin.Code.R. 60Q______." Judge Lazzara noted that the Florida Style Manual, Seventh Edition, published by Florida State University Law Review would support the same format. Attorney Gil Godfrey suggested "FRWCA," as in Rule 60Q6.____, FRWCA," in parallel to citations to civil rules as in FRCP." I am pleased that so many shared thoughts.) 

The 2014 rules will not be effective on Halloween as in other recent iterations, but shortly thereafter. They were published on October 21, 2014 and are therefore effective November 10, 2014. What is different, what is new?

First of all, I encourage everyone to read for themselves. The new rules are on the OJCC website, www.fljcc.org, and this link will lead directly there.

There is a new definition in the rules, for "personally conferred." There have been those who think the litigation "form letter" is "conferring." They draft a motion and send it to opposing counsel with a cover letter that essentially says "if I do not hear from you in "x" days, I will file this and state that you object." In the Hollywood blockbuster Fantastic Four, a villian is terminated by his boss. In the conversation, the boss says "this is not a negotiation, it is a notification." That is not what personally confer means. It is supposed to be a discussion, which might lead to agreement or compromise. That is the whole point. Fla.R.Pro.Work.Comp., Rule 60Q6.102.

When petitions are filed, the whole point is to obtain benefits. This is enhanced if everyone is on the same page, including defense counsel. When a petition is filed in an existing case, the Petition must be served on defense counsel if known. Fla.R.Pro.Work.Comp., Rule 60Q6.105(6).

E-service is coming for employers! In preparation for that process, all employers will now be required to register with the OJCC providing a single, general delivery, email and physical address. This will be an ongoing effort. As the programming comes online to accomplish utility of this data, we will update the community. Fla.R.Pro.Work.Comp., Rule 60Q6.108(11).


For years, most adjusters have attended mediation by telephone. The rules allowed mediators to grant permission for telephonic attendance. The rule now has a presumption that telephonic attendance will be allowed for represented adjusters "unless an objection is filed" on the "basis of good cause." Fla.R.Pro.Work.Comp., Rule 60Q6.110(5)(a).

Clarity is provided for the disqualification of mediators. The potential has always existed for such a situation, but the rules were silent. The reassignment process is by motion (all requests for an order or other relieve should be by motion, see Rule 60Q6.115). Fla.R.Pro.Work.Comp., Rule 60Q6.111(1)(c).

Pretrial procedure is provided with a timeline. The Rules now require that the claimant or counsel provide their portion of the stipulation form 14 calendar days before the pretrial hearing, and then is to be returned to the claimant or counsel seven days prior to the hearing. This may lead to a more organized progression of the stipulation form and more predictability for counsel. This may allow the counsel to plan their work on the pretrial with more certainty. Fla.R.Pro.Work.Comp., Rule 60Q6.113(2).

What does "amendment" mean. There is additional language added to the rules to convey that amendments will clarify. So "in no event shall an amendment or supplement be used to raise a new claim or defense that could or should have been raised when the initial pretrial stipulation was filed." The rule also adds "the failure to diligently seek and obtain discovery, standing alone, does not constitute good cause for failure to timely raise a claim or defense." Fla.R.Pro.Work.Comp., Rule 60Q6.113(2)(a).

Affirmative defenses must now be "raise with specificity, detailing the conduct giving rise to the defense, with leave to amend within 10 days." This section goes on to provide that "failure to plead with specificity shall result in the striking of the defense." The same constraint is applied to "objections/responses to the affirmative defenses." Fla.R.Pro.Work.Comp., Rule 60Q6.113(2)(h).

Want a stipulation to result in an order? The stipulation provision now says that a judge may enter an order reflecting the terms of a written stipulation or agreement of the parties "upon proper motion of any party," which is consistent with 60Q6.115, which has long said "any request for an order or other relief shall be by motion." Fla.R.Pro.Work.Comp., Rule 60Q6.116(5).

What to do with those x-ray films or video evidence, or anything that cannot be readily scanned to a PDF? Each party will file a trial memorandum, and such evidence that cannot be filed electronically "shall be filed contemporaneously with the memorandum and served on all parties by the same method" used to provide it to the judge's office. Fla.R.Pro.Work.Comp., Rule 60Q6.116(7).

The new rules have a provision regarding motions for rehearing. Attorneys have discussed the workers' compensation rules for rehearing and there has been much discussion over the years. The new rules provide that a motion for rehearing is "deemed denied" if no order is entered "by the close of business 10 days after service." Fla.R.Pro.Work.Comp., Rule 60Q6.122.


There are occasions when there are several child support recipients for whom consideration must be given in a settlement order. The new rules provide that allocations in those situations will be made in accord with the formulaic process defined for income deduction orders in Section 61.1301(4)(c) F.S. Fla.R.Pro.Work.Comp., Rule 60Q6.123(4)(b). Counsel would do well to take a few minutes to review that section.

There are changes as regards requiring verified petitions for fees. The Rule now provides a bifurcation between entitlement petitions and amount petitions. The rule says that "the judge shall require the filing of a verified motion" when only fee entitlement is at issue. The judge likewise "may require the" filing if the issue is fee amount. Fla.R.Pro.Work.Comp., Rule 60Q6.124(5).

This is a highlighting of the changes. I encourage everyone to read for themselves. The new rules are on the OJCC website, 
www.fljcc.org, and this link will lead directly there. 

Monday, October 27, 2014

Now We Know Where Padgett will next be Decided

There has been a fair amount of attention to the Florida Eleventh Circuit case which is shorthand referenced as  "Padgett," which is Florida Workers Advocates v. Florida.

As described in the post "Padgett," or "Florida Workers' Advocates," A Rose by Any Other Name, there is ample discussion about how the case will be decided. Until recently, there was mystery as to where it would next be decided. 


That questions and conjecture of that "what is next" mystery has begun to resolve. On August 29, 2014 a suggestion was filed with the court. The intent was for the Third District to forego deciding the appeal, and instead to certify the case to the Florida Supreme Court. 

On October 16, 2014, the Court answered this part of the mystery and denied that suggestion. The Third District will hear the appeal from Judge Cueto's August decision. And, there will be some amicus, or "friend of the court" briefs allowed in the matter. The Court concluded:

"Upon consideration, the suggestion to certify question requiring immediate resolution by the Supreme Court pursuant to Florida Rule of Appellate Procedure 9.125 is hereby denied. The Florida Chamber of Commerce and the Florida Justice Reform Institute's joint motion for leave to file a joint amicus curiae brief is granted. The Fraternal Order of Police, Police Benevolent Association and International Union of Police Associations' motion for leave to file an amicus curiae brief is granted."

So next is the Third District Court of Appeal. Whether it must or may be reviewed by the Florida Supreme Court in the future remains to be seen.


Workcompcentral has a full story on the decision today.

We Collect a Great Deal of Child Support

Another illustration of the cost-effectiveness of the Florida OJCC is the volume of child support arrearages collected through the Judges' efforts. The Judges of Compensation Claims are statutorily required to ensure that the rights of child support recipients are considered when a support payer settles her or his workers’ compensation case. Through recent innovation, we have made this process more efficient and effective for the people that use our system.

Each Judge devotes considerable time and effort to the investigation and verification of child support arrearages when cases are settled. The significant amounts of child support collected through these efforts for the last twelve (12) fiscal years are represented in this table, which total almost one hundred twenty-nine million dollars ($128,921,661).

Fiscal Year
Annual Budget
Support Recovered
2002-03
$16,522,910
$11,031,544
2003-04
$16,225,513
$9,219,096
2004-05
$16,792,731
$8,238,113
2005-06
$17,022,942
$11,779,081
2006-07
$18,032,059
$12,266,091
2007-08
$18,367,869
$15,567,184
2008-09
$18,253,550
$10,951,854
2009-10
$18,184,779
$10,196,795
2010-11
$18,145,746
$9,176,661
2011-12
$16,662,329
$9,984,287
 2012-13 
$16,142,140
$9,626,855
2013-14
$16,938,037
$10,884,100

The volume of child support arrearages collected is particularly interesting when considered in light of the overall OJCC budget. Over the last twelve (12) fiscal years, the OJCC has collected an annual average of 62% of its overall budget in past-due child support to the benefit and advantage of support recipients throughout Florida.

When the Office of Judges of Compensation Claims was given the statutory responsibility for recovering these arrearages, no staff or budget was added to the OJCC to accomplish this charge. The process required attorneys or parties to obtain child support arrearage information from the various Florida Clerks of Court and the Florida Department of Revenue, and to submit that information with their settlement documentation.

This process required printing and mailing a request to the Clerk in the county in which the claimant lived at the time of accident and where the claimant lived at the time of the settlement. In most cases only these two of Florida's 67 counties were examined in each case. The labor and expense involved with potentially checking with all 67 County Clerks was determined to be too over-burdensome administratively. So, until the recent innovations with OJCC data access, searches were generally focused on two counties and the DOR data. 

In 2012-13, the OJCC undertook the duties associated with reporting arrearage information to attorneys on behalf of the Department of Revenue (DOR). Through a data-sharing agreement, the OJCC began obtaining a weekly copy of the DOR child support database. The OJCC Information Technology team, primarily Susan Brown and Jeff Russell, built a user interface that allowed OJCC personnel to access this shared data, and also allowed the OJCC to control which of the OJCC personnel could obtain access.

In 2013-14 the OJCC integrated the process of reporting Circuit Clerk's arrearage information to attorneys. This was accomplished by negotiating access to the Clerk of Court Information System (CCIS). Each of Florida's 67 Clerks reports their child support information to this database. The OJCC received authorization to simultaneously access all 67 counties. This process was significantly contributed to by OJCC counsels Kathleen Hagan and Stephanie Hayes, as well as OJCC Clerk Julie Hunsaker.

This combination of OJCC access to DOR and Clerk data eliminated redundancy and waste across the process. Litigants and attorneys in Florida's workers' compensation adjudication system now get all of their required child support information from the OJCC instead of the combination of DOR and the Circuit Clerks. In each case, one request for data is e-filed with the OJCC (free to ask and to file), all databases, including all 67 counties, are searched efficiently, and one response is e-served to all parties (no postage). One request, one response, no paper, no postage, no facsimile long distance. Fast, effective, efficient.
These tremendous child support services on behalf of support recipients have been delivered without any additional staff or funding for the OJCC operations. $129 Million dollars, an average of about $10 Million each year. That is a tribute to all involved, and a great illustration of the drive of this agency to improve the system for all involved.

Wednesday, October 22, 2014

Is Misclassification in Trouble in Florida?

Some work involves greater risk of accidents and injury. Let's face it, working in an office is not usually as potentially dangerous as working on a construction site (that is why they call them "hard-hat areas.")

Misclassification is a form of workers' compensation fraud. It takes various forms. Some employers whose companies do work in which accidents are more likely or more likely to be severe, may mislabel their employees as being in other occupations. Then there are those employers who characterize their workers as "independent" contractors. Both methods could be used to decrease workers' compensation exposure. Some contend this Misclassification is a billion dollar problem for the workers' compensation marketplace. The subject is getting a fair amount of attention; David Depaolo recently discussed some interesting misclassification issues in his blog.

WorkersCompensation.com reported recently that Alabama has signed a "memorandum of understanding" with the U.S. Department of Labor Wage and Hour Division  (WHD), which "represents a new effort on the part of the agencies to work together to protect the rights of employees . . .." The story says that the WHD led the way to recovery of about $83 million in "back wages for more than 108,050 workers," and that they "regularly find large concentrations of misclassified workers in low-wage industries." 


It appears that misclassification is not new, not isolated, and it affects more than just workers' compensation. 

Florida has been effective at enforcing compliance with workers' compensation coverage requirements. In October, The Florida Division of Workers' Compensation was invited to address the International Association of Industrial Accident Boards and Commissions (IAIABC) at their 100th annual conference in Austin, Texas. According to Workcompcentral, Florida is progressing well in deploying a database designed to facilitate data sharing and to make misclassification harder to conceal.

Allegedly, check-cashing services can be used to facilitate misclassification. Certainly, there is a legitimate purpose for such businesses. People get paid by check but choose not to have a bank account. They need their check converted to currency, and these businesses facilitate that, for a fee. But, there are those who allege that some such businesses are used inappropriately to facilitate the payment to "independent contractors" as part of a Misclassification effort.

According to the Division's Compliance Bureau Chief, Robin Delaney, addressing Misclassification, "this type of fraud has proliferated in Florida," such that some have dubbed it the "Florida Plan." The "Florida Plan" is a formalization of the misclassification process, conducted through shell-companies and with the help of sophisticated intermediaries. To better understand it, read Did Dirkson Have it Right in this blog.

Bureau Chief Delaney explains that recent Florida legislation has led to the development of a database, which gathers information from "check-cashing businesses." There are provisions that will require reporting from others who are not necessarily appropriate for this label, but whose businesses nonetheless collect and cash checks as a service. 

The plan is for this database of check-cashing information to then be "checked against records of other state agencies." It is hoped that this will identify discrepancies between various filings, and is intended to lead investigators to entities that are engaged in the misclassification practice or engaged in facilitating or assisting others with that practice. 

There are many perspectives on workers' compensation. Injured workers seek greater benefits and industry generally resists such increases. Payors seek more constraint and control on payment of expenses, and service providers generally resist the layering of greater bureaucracy. There will always be conflicts in the policy questions of workers' compensation. It is by definition a system of limited resources and competing interests. Balances will always be struck and various constituencies will always debate the equities of the balances. 

One perspective that is hard to comprehend, however, is the criminal perspective. It is difficult to be sympathetic to those who break the law. Their actions can put human beings at risk directly. When people are hurt, sometimes catastrophically, the provision of immediate and appropriate medical care should be the hallmark of our system. The actions of those who break the law with misclassification may gain for themselves them a price advantage that leads to being awarded bids or contracts, to the detriment of law-abiding competitors. The law breakers' actions consume resources of the state, as enforcement, databases and auditing are required. 

Is there a valid counter-argument in favor of the misclassifiers? If there is, I would like to hear it.

For now, it is gratifying to see Florida regulators working to better enforce the laws for the benefit of workers, legitimate businesses, and the state. I was proud to see the Florida Division recognized by the IAIABC for their efforts. 

Monday, October 20, 2014

Filing Volumes Increased for 2013-14

This time of year is always interesting. The annual report of the Office of Judges of Compensation Claims is due to the Legislature and Governor before December 1, 2014.

"Annual" has a unique connotation in the realm of Florida government. We use a fiscal year that begins each July first and runs through the next June thirtieth. We are working now in what I call "2015," though the new year is still two months away. A quirkier point is that our State work week runs from Friday through Thursday. I have always wondered if they do these things just to confuse me.

This year, the annual report will announce that electronic filings are up again, four percent above last year. We received 521,205 filings in 2013-14. That is a huge volume of inbound documentation. If each of those documents only saved the filing party one envelope and the minimum First Class postage, the savings would be about a quarter of a million dollars.

Keep in mind that a fair number of these filings were Petitions. Sending petitions requires either e-filing or certified mail. So the savings is much more significant. Certified mail is expensive. We are going to begin work in 2015 on adding employers to our database, so that the expense of certified mail of Petitions to employers can be reduced also. To date, we estimate that e-filing alone ("eJCC") has saved the marketplace about two million dollars, and the State about three million dollars.

With the addition of the electronic service to carriers about two years ago, we believe that e-service alone is saving the marketplace about one million dollars annually in postage.

I am proud of the fact that our outstanding IT team has developed, implemented and deployed all of this in house. To date, the OJCC has not spent a million dollars on this project. With overall savings of about five million dollars, on an investment of less than one million, we are proud of the eJCC brand and all it does for you.

None of these savings estimates account for the time and trouble that is saved, with you being able to sit at your workstation and generate documents that are converted, efiled and scratched off of the "to do" list without printers, folding, envelopes, postage meters and more.

In other filing news, Petition for Benefit (PFB) filings were up in 2013-14. That is the first time we have had an increase in PFB filings since the 2008-09 fiscal year. Remember that is around the time the 
Murray v. Mariner case was pending for Florida Supreme Court determination of the constitutionality of 440.34 attorneys fees. The Court did not address the constitutional issues in Murray, deciding the case on statutory construction grounds. The 2013-14 PFB filing increase is 2.2% over last fiscal year's total. That increase, 2.2%, is higher than the 2008-09 increase of 1.6%.

The Office of Judges of Compensation Claims also counts "new cases." The term “new cases filed” refers to the volume of PFBs filed, which represent the first PFB in the history of that particular accident by that particular injured worker. "New case" filings have consistently decreased since a peak of 56,869 in 2002-03. Even in 2008-09 when PFB filings increased slightly (1.6%) "new case" filings decreased. But, in 2013-14 "new case" filings increased 859 to 29,771, an increase of about 3%.

So volumes are up in terms of electronic filings generally, Petitions and new cases. Watch the OJCC website for publication of the 2014 annual report in November.

Wednesday, October 15, 2014

How Much Florida Workers' Compensation Litigation is Pro Se?

I attended a seminar in September at the International Association of Accident Boards and Commissions, the "IAIABC." Several state officials from around America made points about the challenges they perceive with self-represented parties, that is injured workers and employers who do not have attorneys to represent them. Several said that their state's litigation process commonly included pro-se or self-represented parties. Some believed that this was as common as represented parties or perhaps more common in their state.

The 2014 Florida OJCC Annual Report is progressing well. We have a publication deadline of December 1, 2014. When it is complete, it will be posted on the Notice, Orders and Reports" tab of the OJCC website, 
www.fljcc.org

This report memorializes a variety of statistical measures of the litigation process for workers' compensation benefits in Florida. Florida is distinct in that our litigation process, the OJCC, stands alone in one agency while all of the other workers' compensation regulation is managed in a separate agency, the Division of Workers' Compensation. Most jurisdictions have the regulatory and adjudicatory workers' compensation functions in a single agency.

One of the questions that has been asked repeatedly since the 2003 revisions to Chapter 440 is whether pro-se, or self-represented litigants are becoming any more or less prevalent in our Florida litigation processes. The OJCC has a great database, with many functional tools and reports built in. However, this is not a question that it can answer with the clarity that many people seek. When a petition for benefits is filed, our database does not memorialize whether an attorney filed that petition or whether it was filed pro-se.

Whether a particular claimant is represented or not at a given moment in time can be determined with accuracy with the OJCC database. However, this does not answer whether that claimant in fact filed any pro se petition(s) for benefits (PFB).

For example, a claimant might hire counsel and through that counsel file three PFBs for various benefits. The JCC Application database would at that moment reflect three “open” PFBs attributable to a “represented” claimant. If the claimant thereafter ceased to be represented, and filed one pro se PFB, the database would at that moment reflect four “open” PFBs attributable to a “pro se” claimant, despite the fact that three of those were in fact filed by (former) counsel at some point during the history of the litigation. If that same claimant later hired a new attorney, who then filed a fifth PFB, the JCC Application database would at that moment reflect five “open” PFBs attributable to a “represented” claimant, despite the fact that one of those five was in fact filed pro se at some point in the procedural history.

What we can do with the OJCC database is compare the volume of petitions filed in a fiscal year (Florida operates on a calendar that begins each July first and runs through the next June thirtieth) to the number which do not reflect attorney representation as of some particular point in time. For the sake of consistency, we concluded that the comparison should be made as of the same date each year; we selected June thirtieth of each year to use as our comparison moment. The date has no real significance compared to any others, except that it is the last day of the fiscal year.

The percentage that results may not be the best indicator of pro-se participation in litigation. However, if calculated consistently and regularly, it might well be an accurate barometer of change in the litigation marketplace.

For fiscal 2002-03, that equation demonstrated that 8.26% of injured workers were pro se as of June 30, 2003. That percentage declined closer to 7% for each of the three years 2003-04 through 2005-06, then closer to 6% for the four years 2006-07 through 2009-10. For the last four years, the figures have been between about 5% (4.96%) and 5.45%, so rounding it yields about 5%. For 2013-14, the figure is 5.28%.

These figures suggest that among injured workers the percentage of pro-se or self-represented litigants is not increasing. Whether that is significant is subject to discussion and debate. It is possible that fewer people are self-representing, and that the percentages are not demonstrating that because of the decreasing volumes of petition filings overall. That is, as PFB volumes decrease, perhaps a significant volume of the petitions that are not filed compared to previous years would be self-represented.

These figures are perhaps not the best answer to whether litigants are increasingly self-representing in the Florida workers' compensation litigation system. However, they are the answer that we can generate at this time. According to the picture they paint, it appears that the volume of self-represented litigants in the Florida workers' compensation litigation process remains reasonably consistent in recent years, at least comparing the volume in a year-end snapshot.

Monday, October 13, 2014

Formularies in the News

The California Workers' Compensation Institute (CWCI) released their study of controlling pharmaceuticals on October 6, 2014. They acknowledge that Washington and Texas have each implemented drug formularies, and have enjoyed cost savings as a result. The complete report is here. Their data helps with the question of whether a formulary might be part of the solution elsewhere, California in particular. 

Formulary restrictions are not new. Texas enacted legislation in 2005 that led to the deployment of its formulary. The results have been remarkable. Prescription volume has dropped and the cost of "non-formulary drugs" decreased by 80% according to the Workers' Compensation Research Institute. I summarized some of the WCRI findings in a June 2014 post


Another interesting point on closed formularies is the control they afford regarding specific medications or potentially types of medication. The Texas experience with Zohydro, and its recent approval by the FDA is discussed in a December 2013 post. Essentially, while others have wondered about the effect of "heroin in a pill," Texas simply did not add it to their formulary, and that is that. For a doctor to prescribe it in a Texas Comp case is not impossible, but it will require paperwork and pre-approval. So it is less likely. 


The CWCI report is a results from an examination of "2.6 million California workers' compensation prescriptions" filled in an 18 month period ending June 30, 2013. That is a huge amount of data. Statistical sampling is not uncommon, and this would appear to be a significant sample size. The CWCI team applied the Texas and Washington formularies to these 2.6 million prescriptions. They concluded that either formulary would have saved the California marketplace significant money.


Formularies esentially provide a pre-approved list of medication. Physicians can prescribe these in any case, subject to their own judgement. If a physician prefers instead to prescribe something that is not "on the list," then preapproval is required. Texas has found that this process leads to less scripts and to less expensive alternative medications being used. 


According to the CWCI, if the Texas formulary had been applied to the studied 18 months of scripts, then 17% of the prescriptions would not have been allowed. In terms of payments for prescriptions, the Texas formulary would have exlcuded 29% of the payments. 


If the Washington forumlary had been applied, the result would have been more dramatic. The CWCI characterizes Washington's restriction as a "more exclusive formulary," which would have excluded "39% of the prescriptions and 70% of the payments." 


The CWCI concludes that "using the Texas and Washington formularies in California would reduce brand-name drug payments between 42 and 95 percent, and reduce the use of controversial Schedule II opioid painkillers by 36 to 45 percent, reducing the associated payments for these drugs by 65 to 78 percent."


The cost savings? CWCI estimates "a potential savings of $124 million to $420 million a year."


It begins to beg the question. Why not? Is there a downside to medication formularies in workers' compensation? This is not my expertise certainly. However, when a marketplace is presented with an opportunity that has a potential savings approaching one half billion dollars per year, would it make sense to ask the question, why not? Perhaps there is a compelling counter-argument? Does it impact patient recoveries either in terms of the length of recovery or the patient's comfort through recovery? Does a formulary inhibit or influence physician participation in the treatment market?


One of the great benefits of periodically gathering with others who study workers' compensation is that these questions are discussed. I would appreciate hearing from opponents of formulary plans, to help me better understand what counter arguments exist. Should Florida consider the implications of such a process on this marketplace? If a formulary was considered, what are the comparative advantages or disadvantages of the Washington and Texas approaches, beyond the dollars involved?

Wednesday, October 8, 2014

Zohydro Update, A Year Later


Zohydro has been the subject of this blog before, Zohydro in the News Again (12.12.13), More Powerful Opiods Approved (11.13.13) and Zohydro and Closed Formularies (12.09.13). What has been referred to a "heroin in a pill" has generated much discussion, some litigation, and the story continues. You can read about it on CNN ("genuinely frightening"), Forbes ("just too dangerous?"), the Wall Street Journal and even High Times ("Heroin Pill"). 

The short story is that the Food and Drug Administration approved Zohydro about a year ago. The FDA approval process involves review of medication by panels of experts. The panel in this instance recommended against approval, 11 to 2. The FDA disregarded their expert's recommendation and approved the drug.

Late last year, the Attorneys General of 29 jurisdictions (including Florida) wrote a letter to the FDA and asked them to reconsider its approval. They expressed their concern and belief that the "approval of Zohydro ER has the potential to exacerbate our nation's prescription drug abuse epidemic." They noted that Zohydro is five to ten times more potent than other opiods, and that it lacks "abuse deterrent properties."

More recently, it is now reported that the FDA approval "has been nothing but 11 months of aggravation for the agency and its leader." Fiercepharma reported last month that anti-addiction groups are now calling on FDA Commissioner Margaret Hamburg to resign. They express their frustration with "the FDA's continued approval of new, dangerous, high-dose opiod analgesics that are fueling high rates of addiction and overdose deaths."

These advocacy groups are addressing their concerns and the call for Hamburg's resignation to her boss, the Secretary of Health and Human Services. According to Fiercepharma, the FDA acknowledges that opiod abuse is "a serious issue," and committed that Secretary Burwell would provide a response to their letter. 

According to Workcompcentral (WCC), the coalition calling for resignation is comprised of "70 advocacy groups." They marched on Washington September 28, 2014 to express their views. Medical Daily reports the call is from "the National Coalition Against Prescription Drug Abuse and 15 other anti-addiction groups." That number is echoed by American Health Line, while other sources like The Fix, and In Pharma, reference more generally "over a dozen groups." According to the "Fedup" website, the Workcompcentral number would appear to be more accurate. 


According to Workcompcentral (WCC), the FDA response to the criticism of the agency and leadership appears to be "an article in a prominent medical journal defending its (FDA) approval of" Zohydro. This article purportedly states that Zohydro is a minimal portion of the market. According to WCC, the journal article says that "in July 2014 . . . there were 3,588 outpatient retail prescriptions dispensed." This "represents .23% of the 1.6 million ER/LA opiod analgesic prescriptions and 0.02% of the nearly 18 million prescriptions dispensed for all opiod analgesics during the month."

Pause a moment and let that sink in. If you are inclined to skip over these statistics because they support Zohydro is such a small percentage (.23% or .02%), fine. But note that in one month there were "nearly 18 million prescriptions dispensed" for opiod analgesics. According to the census bureau, there are 316,128,839 Americans. of those, 74,181,467 are under 18 years old. So there are 241,947,372 adults. That 18 million prescriptions means that about 7.5% of American adults had an opiod script dispensed in July 2014.

The comments to the Fiercepharma story are on both sides of the issue. Some advocate that the decision of taking opiods should be strictly up to the patient. Some argue that opiods are the only alternative for those with unrelenting pain. Others argue that there are better alternatives to treat pain. 

Recently, a group of neurologists joined the debate expressing their conclusion that opiods are a bad choice for most chronic pain. 

The American Academy of Orthopedic Surgeons published a September 2012 story, Can I have a Refill on My Percocet, which describes the dilemma some physicians perceive in the opiod debate. 

With the volume of people concerned ("70 advocacy groups"), it seems unlikely that either the Zohydro debate or the national opiod discussion will disappear anytime soon. Some estimate that "2.1 million Americans suffer from substance abuse disorders related to prescription opiod pain relievers." The U.S. is not alone. Canadians are hearing about the supply of opiods also. 

What are the alternatives for the treatment of pain? What are the costs, monetary and human, of the current pain situation and those alternatives? What role will the FDA play in the debate and the ultimate decisions? The Zohydro story does not seem to be going away and watching it, and the larger opiod debate, play out will be interesting. The effects on injured workers, regardless of the outcome of the debate, may be profound. 

Update 10.11.14: On October 10, 2014 Workcompcentral reported that Arizona will start its efforts toward comprehensive treatment guidelines with adoption of the "chronic pain and opiod sections of the WLDI Official Disability Guidelines." Another story Friday reported that Tennessee's Medical Advisory Committee is drafting protocols "with an emphasis on tapering of opiods and other pain drugs."

Could there be a trend developing towards uniformity in dealing with opiods?

Monday, October 6, 2014

"Padgett," or "Florida Workers' Advocates," A Rose by Any Other Name

I traveled to the International Association of Industrial Accident Boards and Commissions (IAIABC) convention in Austin, Texas last week. It was their 100th anniversary convention. Amazing that this convention has been meeting for 100 years when you reflect that workers' compensation itself just reached its 100th American anniversary. 

I sat quitely in the Commissioner's Forum on Tuesday afternoon, listening to what is going on around the world and the industry. There were 41 leaders on the panel, which makes for a very diverse discussion of what is being tried, what has worked and what has not. 

The discussion was led by Dwight Lovan of Kentucky, who will be the IAIABC President for the next year. He somehow noticed when I entered the room, and called upon me to give what perspective I could on "that constitutional case in Florida."

He is not alone in his interest. I hear from other states periodically. They are curious. There is much discussion about the "what" of the case, that is what conclusions the trial judge reached, and what that means. There is ample disagreement about this in the legal world. There is also much discussion still about the "how," "when" and "where," as in how will the courts decide this case further, when will we know, and where will it be decided. 

I touched on the Florida procedural process in an August post. Essentially, "that constitutional case in Florida" is currently on appeal, in the Third District Court of Appeal. That is in Miami/Dade County for those tuning in from other jurisdictions. 

The Third District could hear the case, or could pass the case directly to the Florida Supreme Court. The outcome of that dichotomy will answer the "how" question.

If the Third District hears the case, then the "where" will be Miami (at least for now) and the "when" is likely in about six to ten months. If the Third District hears the case and disagrees with the trial court (it concludes the statute is constitutional), there is the potential for a further review by the Supreme Court. If the Third District hears the case and agrees with the trial court (unconstitutional),  the Supreme Court must consider the case.

If the Third District passes this on to the Supreme Court, then the "where" becomes Tallahassee and the "when" is still likely in about six to ten months. 

There is a request pending to "pass-through" meaning for the court to certify the case to the Supreme Court. The argument as I understand it is that this would make the process faster. Others say that it would only be faster if a substantive decision by the District Court was ultimately, and later, reviewed by the Supreme Court. Thus, it may be more accurate to say that the case would be finally decided no more slowly, and perhaps faster if the "pass-through" route is granted.

One thing that struck me is that I think it is time we came up with a better reference than "that constitutional case in Florida." First of all, with Westphal and Castelanos already pending in the court, each raising constitutional issues, "that constitutional case" is just not descriptive enough.

The case as decided in August, in the 11th Circuit Court in Miami-Dade County, Florida was styled Florida Workers' Advocates and Workers Injury Law and Advocacy Group and Elsa Padgett v. State of Florida, Office of the Attorney General, Case number 11-13661. That is a mouthful. Some are calling the case simply "Padgett," others "Florida Workers' Advocates." or "FWA." Elsa Padgett was an intevenor in the case, and so some still refer to this case by the name of the original plaintiff, which I do not even recall, but are quick to say "Padgett" when confronted with a confused countenance in response. 

I checked my Guide to Legal Citation and it suggests that "FWA v. State" would be the choice of the Association of Legal Writing Directors (AWLD). Despite that, it just does not roll off the tongue like a simple "Padgett." In all, "Padgett" seems to be the label that Floridian lawyers and system constituents have adopted for this case, and will likely be the shorthand used for ready reference. 

Several people asked me last week about the Judge, the appellate court, and our Supreme Court. There is ample curiosity about the case and the how, who, what, and where of its anticipated progress through from here. I certainly cannot even guess at the ultimate outcome, but for those who want to learn more:

The 11th Circuit judicial directory is here, and Judge Cueto's information is here. More unofficial information from Judgepedia is here

The Third District Court of Appeal website has online information about the cases pending there, including Padgett. This court has jurisdiction over appeals from the Miami-Dade County Circuit Courts, and those in neighboring Monroe County (the Florida Keys). There is no way I know of to predict which of the ten judges of this court will be considering this case. 

The Third District has assigned this case number 3D14-2062. Checking the status of the case is easy with this number, just click on the "On-Line Docket" tab on their website. The public cannot view the filed documents themselves, but there are detailed descriptions of orders and other filings in that docket. The docket reflects that some are already seeking permission to file "friend of court" or "amicus curiae" briefs with the court, a common way for interested people or entities to bring their perspective to pending appellate cases.

The Florida Supreme Court does not have this case yet. However, should that come to pass, their website would be helpful. It is also helpful if you are following the other three currently pending workers' compensation cases. If Padgett proceeds to the Florida Supreme Court, the clerk there will assign it a new case number that is specific to that court. 

In the meantime, there are many commenting on and explaining the case. If you are looking for the latest, just Google "padgett florida workers' compensation blog" and you will find interesting reading from a variety of sources.


Wednesday, October 1, 2014

Preservation of Error

Many look upon the appellate process as a search for justice. There are those in the appellate courts who view their role as providing justice, others see their role as correcting error. The multitudes of judicial perspective and judicial philosophy are beyond the scope of a simple blog. But people need to understand that how our American appellate courts work is dependent upon the people who serve on those courts, and their respective judicial philosophies.

Many watch the current Florida workers' compensation marketplace and wonder about the future. There are a variety of cases
pending in the Florida Supreme Court this year. And it is likely that the next few months will bring decisions. Floridians are not alone. I hear questions about Florida from leaders in others states. Lawyers in others states are blogging about Florida. Whether the pending Florida Supreme Court cases will be monumental or anticlimactic remains to be seen, and will likely depend in large part on perspective. 

The states are so different in their laws. The methodologies employed for payment of attorney's fees is a good example. Some states limit the hourly rate allowed. Some states allow injured worker's counsel fees to be paid only from certain benefit classes. Thus, whether the residents of another state find the current Florida fee statute challenge compelling may well depend on the extent to which they perceive similarity between their statute and Florida's. Thus, their interest may depend on perspective.

I remember back in the 2008/2009 court determination and legislative reaction to
 Murray v. Mariner, there was much discussion about "the other" cases. In short, Murray was about the provisions of the Florida workers' compensation fee statute. It was a constitutional challenge ("these fees are not sufficient") and a statutory interpretation challenge ("the formula portion of the statute conflicts with the language regarding 'reasonable' fees").

As aside note, there was an increase in Florida Petition filing back in the early part of fiscal 2008-09 (our year runs from July 1 through June 30). That increase was the first in years, and following 2008-09 Florida saw the Petition trend return downward. It remained downward in recent years, but when the 2013-14 report is issued, it will document an increase again last year. Whether that relates to current legal challenges or the recovering economy and greater employment will be debated.

The Supreme Court ultimately decided the Murray case on the statutory interpretation ground in
 October 2008The essential conclusion was that the word "reasonable" conflicted with the statutory formula in the statute. This reopened the field for hourly claimant attorney fees for the accidents in the period since the statutory amendment in 2003. The Florida legislature responded in 2009 by removing "reasonable" from the statute section. Thus, limiting the effect of Murray to the period 2003 through 2009. 


The fee statute constitutional challenge ("these fees are not sufficient") is back before the Court now in the
Castellanos appeal. Opinions about the subject are a vast and diverse. There are prognosticators who will tell you what they believe will happen. There are others who simply shrug their shoulders. Constitutionality is an interesting legal question, and it is a complex area of law that most attorneys just do not deal with daily.

With that background, it is important to remember that the appellate process, at least in this regard, is a process for correcting error. Regardless of judicial philosophy, appellate courts are reluctant to decide issues that are not before it. That is, they tend to see their job as correcting the error in this case, not necessarily in all cases. Thus, the question often arises, will the Court's decision fix my case also? The answer is likely "it depends." If someone's case is pending for future determination by a trial judge, then the Castellanos decision may affect them. If instead their case was decided two years ago, then likely it will not.

If an attorney prosecuted a fee motion in 2008, was awarded an amount, and allowed that order to become "final" (passage of 30 days), then the Court's
 Murray decision later in 2008 would not likely change the fact that the earlier fee order is final. This would be the same outcome if the earlier fee order was negotiated and a stipulation as opposed to adjudicated. Court decisions are unlikely to "fix" unappealed earlier decisions in other cases. 

A party wishing to challenge error should preserve error. That is, the order must be appealed in a timely manner so that the order does not become final. The
Rules of Workers' Compensation Procedure (Rule 6.122do not allow the filing of a Motion for Rehearing to keep an order from becoming final, though there are those who will argue this point also. The vehicle that prevents a Florida workers' compensation order from becoming final is the appeal. When an appeal is filed, an appellate court determination in that case will affect that particular case, it may affect later case decisions by the trial judges, but it is not likely to affect earlier, unappealed, orders in other cases. 

This is not inconsistent with other jurisprudence. There was a decision this year by the United States Supreme Court regarding some unions forcing private citizens to involuntarily join their ranks, and having union dues involuntarily withheld from people's Medicare and Medicaid. Picture a parent or child caring for a disabled family member who received such government payments. The parent or child was forced to be in the union and some of the disabled person's payments were reduced to pay that parent or child's union dues. The United States Supreme Court put a stop to that in an
 Illinois case

Two Michigan citizens had also sued to stop the dues deduction. Following the Court's ruling in the Illinois case, the Michigan union that had been the beneficiary of their involuntary dues repaid the dues to the two Michigan citizens. Thus, these two plaintiffs found themselves no longer "injured" by the forced dues payment process. They had their money back and thus had nothing to gain from their lawsuit. The Michigan union then moved to dismiss their case. At the same time, about 44,000 other union members left the union when they were no longer forced to belong. The news estimates that about $34 million in dues were collected before the practice was struck by the Court in the Illinois case.

The Michigan appellate court dismissed the case because these two had their dues returned. In doing so, the court essentially concluded that the other Michiganders who paid dues, but who did not sue, could not collect their money back. The news reports that the statute of limitations likely precludes those other dues payers from seeking their money from the union at this point.

In this context, there is a lesson. If there is error or wrong it has to be asserted. Rights are protected for Americans through various laws, but they have to be enforced by Americans. Those who had money involuntarily deducted to pay union dues, but who did not resist that in court, will likely not get their money back. Likewise, those whose Florida workers' compensation fees were settled or adjudicated in before the Castellanos decision, and which orders were not appealed, will likely not find their situation affected, in those prior cases, by the Castellanos decision.

Of course, this is all just prognostication. What the Florida Court decides is yet to be seen. How it will affect the practice of workers' compensation law and whether it will affect petition filing volumes will be seen in time. Whether it will somehow address prior cases or future cases will also be seen in time. For now, the Court works, the prognosticators predict, and watchers watch.