Wednesday, December 31, 2014

A Worthy Goal for 2015? Alaska Reduces Accidents Almost 50%

On the last day of the year, we reflect. Many will make a resolution or two for the year to come. It is a time of year for reflection and focus. Perhaps a worthy goal for 2015 is less accidents, less injuries, and less occupational disease. 

In 1983, the movie War Games was released, starring Matthew Broderick. In it, a United States Defense of Department ("DOD") scientist programs a computer to simulate possible outcomes from various hypothetical scenarios of global nuclear war. Remember back in the 1970s and 80s there was still a cold war and computers were not as universally accessible as they are today. The movie was topical then, and quite popular.

Having run through a very rapid succession of potential beginnings and endings of a "game" simulation called "global nuclear war," the computer, named JOSHUA, concludes that nuclear war is inadvisable. This conclusion perhaps makes us feel superior to JOSHUA in that most of us humans had already intuitively concluded that war is a bad idea. JOSHUA explains his conclusion to the scientist saying "a strange game. The only winning move is not to play. How about a nice game of chess?"

Over the course of the last several decades, I have held a multitude of jobs. I have seen workers' compensation from the perspective of being an injured worker, a manager, a coworker, an attorney, and judge. I have invested a significant portion of my adult life in this thing we call comp. I have studied it, written about it and lectured others on it. 

Work accidents and illness affect so many people, some more profoundly than others. The scope of workers' compensation is amazing. See How Huge is it Anyway, published in the Lex and Verum of the National Association of Workers' Compensation Judiciary. The workers' compensation industry focuses ample attention on dealing with those accidents and illnesses, how and where they are treated, etc.

A recent story on Workcompcentral trumpets that "Alaska Notches 46% Decrease in Workplace Accidents in 2014." 

We are used to seeing stories in the news describing how various efforts reduce the costs of workers' compensation claims that do occur. A recent reminder is the Tennessee announcement that it will be working toward a prescription drug formulary. Its idea may be modeled on the Texas formulary. Essentially, the state creates tiers of medication, some more available than others. The result in Texas has been cost savings in the medication segment of those claim that do occur.

Statutes across the country restrict or limit access to certain medical specialties, limit chiropractic care, define periods of entitlement to various indemnity classifications, and limit payment of attorney's fees in claims that do occur. Employers may be precluded from terminating an employee in retaliation for claiming workers' compensation, limited in the defenses they may raise to benefit claims, and may face presumptions in favor of various employees. The industry is replete with examples of constraints, limitations, and parameters for the claims that do occur. 

The various state law parameters define what is and what is not comp and what it will cost. Significant effort is focused on these various definition and constraint subjects every year in legislative committee rooms and chambers from coast to coast. Much in the same way that JOSHUA tried scenario after scenario testing the possible outcomes of global nuclear war in the movie. As with JOSHUA's evaluation, there will be outcomes in claims that do occur that will be better than other outcomes. But none of them is a "win." 

The win in workers' compensation, or "win-win" if you will, is just as JOSHUA concluded, not playing the game. In other words, both the employer and the employee are better off if the employee is simply not injured or ill to begin with. The best way to save all of the frustrations that can be workers' compensation is to simply avoid the accident or illness. As Benjamin Franklin posited, "an ounce of prevention is worth a pound of cure."

According to the National Council on Compensation Insurance, NCCI, workers' compensation "frequency" has been decreasing for the last 25 years. The decrease in "accident year 2013" was two percent. An NCCI  report documents that "from 1990 through 2009 claim frequency declined at an average rate of more than four percent per year." If there were 100 accidents in 1990, then in 2009 it would be about 46 calculated at that rate of decline. The average of 4% annually, would result in an aggregate reduction of about 54% over that 19 years. 

That is a significant result, and likely represents a positive outcome. Less injuries is a benefit to employers and employees alike. As an aside, a note of caution. There are those who argue that frequency figures like this may signal something other than reduced accidents and injuries. Some claim that frequency is down, in part at least, not because injuries have decreased but because injured workers have become increasingly reluctant to report their injuries or illness. 

Proponents of this logic contend that all of the parameters, restrictions, and complications that can be workers' compensation are discouraging reporting. They argue that many injured workers are electing to handle their medical treatment under a group health and possibly short-term disability plans because there are less restrictions, greater physician choice, and greater patient control. Some also claim that there is a stigma attached to being a workers' compensation recipient. 

So, counting things, like accidents in a given year, is relatively easy. But deciding the validity of what is counted, the "why" of the volume can also be relevant. It can also be more difficult than the counting itself. So, if those who raise the non-reporting argument are correct, then the decrease in claims may be less impressive than at first blush.

With all of that in mind, it is pretty impressive to see a state's work accident/illness frequency drop 46% in a single year. Despite this progress, Alaska remains one of the most expensive states for workers' compensation premiums. The recent story on Workcompcentral story notes that Alaska's premiums are still in the top five in the nation. The story notes that the high price of medical care is partly responsible. Alaska is a significantly rural state and access to medical specialists can involve significant travel. They note hat some procedures are 200% to 400% more costly in Alaska than in other surrounding jurisdictions. 

So, there may remain issues of access to care, cost of care, and the resulting progression or regression of the cost of obtaining workers' compensation insurance that will result. In other words, even with reductions in the volume of claims that do occur, there may be room to work on how the claims are effectively treated and compensated. 

However, as we conclude 2014 and look to 2015 with anticipation and expectation, why don't we make it a collective goal to do better next year at just not playing the game, and doing that the right way, meaning legitimately less work accidents and illness? It would be a "win-win" for employees and employers alike. 


Monday, December 29, 2014

How Much Chiropractic Manipulation is Optimal?

A constant of workers' compensation is limitation and definition. Everything that is or is not workers' compensation is statutory, and those statutes are periodically amended and refined. In 1993, the Florida Legislature made significant changes to the workers' compensation law. Some of those revisions survive still. Fla. Stat. §440.13(2)(a) came to mind recently. 

The 1993 revisions, for the first time in Florida, restricted the provision of workers' compensation chiropractic care. Chiropractic care became limited to "18 treatments or rendered 8 weeks beyond the date of the initial chiropractic treatment, whichever comes first." In 2003, this was enlarged to 24 treatments or 12 weeks. The statute currently reads:

"Medically necessary treatment, care, and attendance does not include chiropractic services in excess of 24 treatments or rendered 12 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured."

Whenever there are set parameters, it is likely that some part of the population may need something more or less than the parameter. Human beings are incredibly complex, and as much as we have similarities with each other there are a million ways in which we may each be different. How we each respond or do not respond to medical treatment, exercise, diet, are among these. 

In December, Workcompcentral.com reported on a study regarding chiropractic care that was published in The Spine Journal. This was a randomized study of "400 participants with nonspecific" low back pain. They were provided with "a dose of  0, 6, 12, or 18 spinal manipulation therapy (SMT) sessions from a chiropractor." The study explains that each participant received "18 treatment visits, 3 per week for 6 weeks," and on appointments where a particular patient did not receive SMT, she or he received "brief light massage." Thus, all participants attended 18 visits, but not all received 18 SMT. 

The researchers followed-up with the patients to collect "self-reported pain intensity and functional disability at the 12- and 24-week end points." These were selected "to emphasize a short- and a long-term post-treatment time point." So, the participants were provided either massage or manipulation to varying extents, and then each was asked about their abilities and pain at both 12 and 24 weeks. 

So there is a degree of subjectivity to the study. Some might criticize the study for thus being largely dependent upon self-reported results. The report's validity is supported though by its breadth, 400 patients is a large population. There is also some validity support suggested by the completion rate; the report indicated that 90-95% of the participants attended "all 18 study visits." So a significant population with a significant completion rate. 

The best "treatment effects" were yielded by "12 sessions of SMT" (spinal manipulation therapy). The study concludes that "the data were consistent with a dose-response relationship being saturated at 12 sessions with little or no additional benefit attributable additional SMT visits." The report explains that there was some medical benefit even from the massage therapy (the alternative appointment purpose for those who did not receive SMT on a particular visit). The authors concluded that "sessions with even minimal massage may have more effect than one might expect." 

The study concludes that "overall, 12 sessions of spinal manipulation in 6 weeks from a chiropractor yielded the most favorable pain and functional disability improvement for chronic nonspecific LBP (low back pain").

Twelve sessions in 6 weeks is within the scope of Fla. Stat. §440.13 (2)(a), which limits chiropractic in many workers' compensation cases to 24 treatments or 12 weeks. None of the study participants received what is allowed by Florida law. The maximum in the study was 18 treatments in 6 weeks; a maximum of 75% of visits in 50% of the time allowed in Florida. 

Is the study vindication for the various state's legislative parameters restricting chiropractic care? I knew a lady years ago who received chiropractic care at her own expense. She went weekly for years, and swore by it. Her experience may be an outlier, and is not scientific like the study. It is anecdotal, but still makes me wonder about the study results. 


The Spine Journal is only one study. As the various television ads have cautioned over the years, "your results may vary." However, it is at least interesting. I will be curious to see future studies and whether they validate or call in to question the Journal results. 

Wednesday, December 24, 2014

Attorneys Obsolete?

In a recent post, Can I get an Uber Lift?, regarding the curiosities that ride-sharing services may bring to workers' compensation, I referenced a Josh Bersin blog post titled Are You Ready to Become Obsolete? Mr. Bersin's piece is about reinventing ourselves on a continual basis.

He begins his piece with statistics regarding what concerns employees today. Forty percent say they are concerned with "position changing or becoming obsolete." Nineteen percent were worried about "technological change" and nineteen percent about "economic uncertainty." Only fifty percent felt like the "skills they have now will be what's needed in 3 years." Fewer still, only thirty-four percent felt that their current employer is "able to give them the training they need."

That would not seem like a comfortable confidence level.

Now Newser reports that "Robots Could Make Most Lawyers Obsolete." The story is about a report regarding "the state of the legal profession in 2030." Before you start to dismiss that date, that is only 15 years away. The graphics on their story show robots in the humanoid version, think of Will Smith's film I, Robot. But the focus of the story is more on artificial intelligence than it is on machines that walk and talk like you and me.

Back in the day, I worked in a document processing facility. We were creating the raw material for discovery requests. Essentially, we would obtain the entire contents of some employee's office, and the high-speed copiers would duplicate every sheet. Each page of the copies then had a sequentially numbered sticker placed on it, and then the numbered pages were duplicated again (the stickers made for increased volume and the papers were difficult to stack, but the copies were not).

Then the document copies were read. The actual content was not important, the reading was to find specific words that were responsive to discovery requests. Those words were highlighted with a marker and the responsive document set-aside for further review by someone higher on the corporate food-chain. The documents without any responsive words were placed in a separate stack, and were read through again by a different staff member. Redundancies and reproduction. When I left the job, they had a warehouse full of boxes of those papers with the stickers.

The Newser report cites a New York Times report that compared two high-volume document cases. One involved lawyers and paralegals "sorting through 6 million documents" at a cost of $2.2 million dollars. That was in 1978; according to the government's inflation calculator, that would be over $8 million today. The second case was in 2011 and involved "1.5 million documents" that were examined by computer software "for less than $100,000.

The story does not explain whether there are economies of scale. One might posit that the cost for examining 6 million would be four times that of 1.5 million, or perhaps $400,000. In 2014 dollars that would be about $425,000 compared to the $8 million. Of course, the time setting up the software may be the critical cost and therefore it might not cost any more to have the program analyze 6 million than 1.5 million.

The New York Times article includes analysis from an MIT economics professor. He "says the United States economy is being 'hollowed out." Professor David Autor contends that "new jobs are coming at the bottom of the economic pyramid, jobs in the middle are being lost to automation and outsourcing, and now job growth at the top is slowing because of automation." He does not contend that automation leads to unemployment, but that it is not leading to "better jobs." We hear periodically about the declining American middle-class, and his analysis may help explain why.

The Times says that one such discovery software is not about "keywords." The software can "recognize the sentiment in an e-mail message - whether a person is positive or negative," and it can "detect subtle changes in the style of an email communication." Another software searches documents for "concepts rather than specific keywords, shortening the time required to locate relevant material in litigation." The point is that the technology seems to be taking multiple approaches to document examination.

Back to the Newser report that "Robots Could Make Most Lawyers Obsolete." Newser projects that law firm "upper echelons would still be populated by actual human laywers, but the need for associates would shrink dramatically." The remaining lawyers "would offer 'real understanding and human insight' to clients," while there would be less work for lower echelon attorneys. The projected effect would be greater on "very large, high-value commercial firms" and not so great on "smaller, specialist firms."

The Florida Bar has already seen technology as an influence on the future of the legal profession. The Vision 2016 Commission is studying a variety of issues expected to impact the practice of law. They selected four, and technology is on the list. Specifically, they are looking at technology in law offices and in the courts. According to their report, they are also examining "technology that performs legal work and employment opportunities for lawyers created by technology."

I recently saw an advertisement on television for an Alabama attorney. He stressed that he is local to his community and pointed out that some firms advertising in his area are from out-of-town. He promised that if you call his firm, he will personally return your call. This sentiment is similar to the Newser conclusion that even firms which leverage technology will need human lawyers to "offer real understanding and human insight." A similar perspective is offered by Thomas Friedman in his 2005 "The World is Flat." Mr. Friedman contends that in the age of globalization, there is value in being the doctor who touches patients or the architect that meets with clients. I recommend reading it. It is not an easy read, but a worthwhile read.

The message in all of this seems similar. Professionals will continue to see technology playing a role in what we do. There will be value in being the person that brings "real understanding" to the situations and problems of others. There may be less opportunity for paralegals and associate attorneys in the reasonably near future as these technologies affect the profession. Concurrently, American law schools are producing an epic volume of new lawyers annually.

Will all of those new lawyers turn to the public interest? Will we hear less of the need for legal service for the poor as more and more pour into the breach of under-served markets?

Are you concerned with your "position changing or becoming obsolete?" or about "technological change" or "economic uncertainty?" Do you feel like the skills you "have now will be what's needed in 3 years?" It sounds like these may be valid questions for everyone. Automation changed the face of manufacturing, will it change the professional practice as well? Will occupations or professions be "hollowed-out."

If they can program a computer to do what attorneys have done, can they likewise decrease the demand for doctors, chiropractors, physical therapists, pharmacists, claims adjusters, economists, vocational experts, actuaries, others? Should we be exclaiming "oh, brave new world?"

Frankly, it is a somewhat uncomfortable proposition, confronting obsolescence. I am asking myself if I am prepared for the changes that are coming. I am frankly not confident about my answers. So, the real question, I guess, is not whether there will be change or how I feel about change, but is what am I going to do to survive and thrive through the change?

I welcome your suggestions.

Monday, December 22, 2014

Florida has a Large Percentage of Medicare's top "Controlled-Drug" Prescribers

A story was recently published on the WUSF website, Health News Florida. It says that the "prolific prescribers" of some medications are facing "Medicare scrutiny."

A chart in the story reflects the distribution of 192 top prescribing medical providers in 12 states. Of these, 52, or 27% are located here in the Sunshine State. 

The article notes that in 2012, "Medicare covered nearly 27 million prescriptions for powerful narcotic painkillers and stimulants with the highest potential for abuse and dependence." 

Despite efforts at addressing narcotic use, the article notes that this was a "9 percent" increase compared to 2011. 

Thankfully, though Florida has the largest volume of providers represented in this chart, the top prescriber is not in Florida. Dr. Shelinder Aggarwal of Huntsville, Alabama has that distinction. He prescribed "more than 14,000 Schedule 2 prescriptions in 2012." This amounted to "more than 80 percent of his Medicare patients" receiving "at least one prescription for a Schedule 2 drug, in many cases oxycodone."Apparently he is no longer a physician, the article notes he "surrendered his medical license" in 2013. 

The prescription practices are a "real area of concern" for the federal Centers for Medicare and Medicaid Services, according to the director, quoted in the article. 

The article suggests that data in existing resources can help identify potential problems such as "pill mills." There are "red flags" that could focus attention on potential problems. It notes that Dr. "Aggarwal's Medicare prescribing history" indicated he was a "top prescriber of narcotics." 

As part of the reaction to the data that has been identified, "in September, Medicare sent 760 letters to doctors who prescribe far more Schedule 2 drugs than others in their medical specialty and state." It cautions that the data is not conclusive, and there are appropriate uses of narcotics; "simply being an outlier doesn't establish that you're doing something wrong." The point is to allow physicians an opportunity to see that her or his practice is generating the volume and type of prescriptions that raise questions. 

The article praises the efforts of "New York, Kentucky, and Tennessee" with prescription databases aimed at addressing similar questions or concerns. Florida has a prescription drug database, but did not merit mention in the article praise. Some have been critical of Florida's effort in that it requires creation and maintenance of prescription data, but physicians are not required to consult it before writing a script. 

There has been ample coverage of the "pill mill" issue. There has been significant improvement. The DEA data supports that the "pill mill" doctors are not in Florida any longer. This data is more current than the Medicare data from 2012. Perhaps the database effect will be sufficient without any mandate that it be referenced prior to each script. Perhaps Medicare's efforts will support and enhance those efforts.  

Thursday, December 18, 2014

Congress Adjourns - No TRIA Re-Authorization Yet

Will the federal government reauthorize "TRIA" and reinforce workers’ compensation insurance markets? The answer remains “I don’t know.” 

In the Hollywood classic, Fast Times at Ridgemont High, a history teacher, Mr. Hand, asks the protagonist, Mr. Spicolli, a relatively simple question. Mr. Spicoli answers in a classic, clueless “I don’t’ know.”  Mr. Hand sarcastically writes this answer on the board “for all my classes to enjoy.” What a great answer, right? It is a lighthearted moment, in which a rudderless teenager’s inability to postulate or even speculate is made light of. 

Unfortunately, Congress adjourned this week without addressing the reauthorization of the federal program that provides a government risk-sharing, or "backstop," when an act of terrorism causes significant insurance losses. The news has been full of what congress did accomplish in the waning days if this session, but this omission may have a significant impact on workers’ compensation.

Workers’ compensation is mandated for at least some employers in 49 United States jurisdictions; Texas and Oklahoma have made workers’ compensation optional. Some argue that it has long been optional in New Jersey also, but that contention will raise an argument. So call it 48 states and D.C. There are businesses that do not have to have workers’ compensation even in the 49 jurisdictions, typically small employers. There are many variations in the how and how much of what workers’ compensation must provide. It is a state-run program, but with federal influences and involvements.

One aspect of states’ workers’ compensation has been federalized with little fanfare following the terrorist attacks on September 11, 2001. That attack illustrated the risk associated with “employee concentrations.” That is, the risk of having significant portions of any carrier’s risk pool concentrated in one geographic area.

The insurance industry is built upon a foundation of spreading risk across large populations, so that there may be loss in any one location or population subset, but the absence of losses in other subsets will offset the loss. If the potential risk is fire, the idea is that one house may burn in Indianapolis, but the carrier’s other insured buildings in Columbus and Scranton do not burn.

All of the policyholders pay premium, but most of their homes do not burn. In another example, wind damage is much more likely in the hurricane beach-front environment than in Tennessee. While a carrier might insure a Pensacola home against wind damage, it might not want to insure a large volume of Pensacola homes in that regard. If it did choose to, a single wind event like Hurricane Ivan might present significant losses. Likewise a carrier might insure some homes against earthquake, but not a large volume of San Francisco homes.

In the context of workers’ compensation, underwriters can predict the probabilities of loss in a given geographic, occupational, age, or other demographic. What is more difficult to predict, more so perhaps than even natural disasters, is the probability of loss from terrorism. The injuries and exposures that followed that terrorist attack on September 11 were significant, and concentrated in New York City.

Following September 11, 2001, insurers became cautious about how much casualty risk they underwrote in a particular geographic area to avoid the disproportionate risk of an attack and its effect on predictable underwriting estimates. The losses in New York were in the tens of billions of dollars. Workers' compensation losses from that event continue to this day. 

While there was some effort to exclude terrorism from coverage in general liability policies and property policies, that is impractical in workers’ compensation policies. Unlike other casualty policies, workers’ compensation coverage is required by law. Coverages became difficult to obtain in some metropolitan areas. Prices in most states are set by state regulation, and therefore, carriers’ choices were limited regarding such risks.

Unable to price their coverage in relation to their perceived terror risk, carriers instead elected to limit their exposure by writing less policies in particular locations. This decreased availability of voluntary insurance coverage drove some employers into what is called the residual market. This includes assigned risk pools and other insurers of last resort where high-risk employers have traditionally sought coverage. 

This had a marked effect on small employers. However, even some large employers felt the effect. One insurance executive related to me that his own company would not insure some of its own operations in Manhattan, and instead had sought to diversify its risk by insuring certain of its business units there with other carriers. Imagine an insurance company unwilling to underwrite its own risk because of geographic location and the risk of terrorism.

The federal government stepped into that uncertainty with the Terrorism Risk Insurance Act (TRIA) passed in 2002. It was reauthorized as the Terrorism Risk Insurance Extension Act (TRIEA) in 2005 and as the Terrorism Risk Insurance  Program Reauthorization Act (TRIPRA) 2007. This law, generally still referred to as TRIA, provides “reinsurance” from the full faith and credit of the United States. In the event of losses in excess of a defined level (currently $100 million), resulting from terrorism, the federal government would step in and provide relief to a carrier, to offset its catastrophic losses from that event.

It is not a government hand-out. The TRIA reinsurance, or temporary cash infusion to the carrier, would have to be repaid by the policyholders thereafter, in what is called a recoupment. And, keep in mind that the reinsurance is only payable to the carriers, under the current law, if the loss exceeds 100 million dollars, and if the event or occurrence is certified as an act of terrorism.

That law will expire in December 2014. That sentence has been uttered many times in the last 18 months, with the conclusion “unless reauthorized.” Much hand-wringing has already been done in the market. Until this week when Congress recessed, there was still much faith (or hope perhaps) that there would be reauthorization before that deadline. That hope was in vain, the Senate adjourned without passing reauthorization. But, it is possible that reauthorization will be passed early in 2015.

There is uncertainty in the marketplace regarding the probability of reauthorization. This U.S. Treasury program (TRIA/TRIEA/ TRIPRA) on terrorism act provides a “shared public and private compensation for certain insured losses resulting from a certified act of terror.” The program is not a federalization of workers’ compensation per se, but an example of the federal government exerting influence in the state workers’ compensation risk market. 

According to a report by Marsh (page 8), uncertainty surrounding the future of this “backstop” program has already been contributing to uncertainty in  the workers’ compensation insurance markets.
TRIA/TRIEA/TRIPRA is likely pressuring state premiums upward as carriers prepare for the contingency that such terrorist risks will again be theirs to underwrite without federal assistance, if the program is not extended. Many businesses will renew their workers' compensation and other insurance in the first quarter of 2015.

If the act is not re-authorized, the effects are predicted to be significant. A main focus of the effect may be on small, higher risk, employers in urban centers. The impact could be significant. 

For there to be re-authorization, there may be adjustments needed in specifics, such as the size of the “triggering loss” if it is reauthorized. That was raised from 50 million dollars to the current 100 million in the 2007 re-authorization (TRIPRA). Perhaps there is room for other adjustments or tweaking. 

It is hard to tell whether there is real opposition to re-authorization generally, as compared to there being real debate as to the exact parameters that a re-authorization should contain. Certainly, the concept should be discussed and debated. To anyone who sees no merit in debating re-authorization in some form, Mr. Hand of Ridgemont High might ask “what are you people, on dope?”

The foregoing was adapted from Langham,  How Huge is it,  The Lex and Verum, Volume LVII, June 2014, http://www.nawcj.org/docs/newsletters/newsletter_2014-06.pdf

Wednesday, December 17, 2014

How to Transition Cases upon the Death of Counsel

Once an attorney files a notice of appearance in an OJCC case, that attorney is "of record" in that case until the appropriate steps are taken to remove her or him from the OJCC database related to that particular case. 

The Rules provide that once an attorney has noticed an appearance in an OJCC case, that attorney remains of record until either a stipulation for substitution has been filed and served (Rule 60Q6.104(2)(a)) or a “motion for substitution or to withdraw” is granted (Rule 60Q6.104(2)(b)).  

Again, it is important to note that individual attorneys are listed as the attorney of record, not firms of record. See Who Represents this Party. Accordingly, if an attorney wishes to be removed from a case the document requesting withdrawal or substitution should indicate the name of the attorney who would like to be removed and not merely the firm that the attorney of record works with or for. If three attorneys from a firm each file a notice of appearance, each would be counsel of record. A motion or stipulation later filed should list those attorneys, not seek substitution or withdrawal for the firm. 

There are instances, tragically, in which attorneys unexpectedly pass-away or become otherwise incapacitated. Clearly deceased attorneys are not able to represent parties to a case. As clearly, the deceased attorney cannot withdraw. However, the death of an attorney does not somehow automatically remove that attorney from the OJCC case, or from cases in circuit court for that matter. There is no provision for the filing of a "suggestion of death" to remove that attorney from the case. 

The Rules provide a specific set of alternative processes for removal of an attorney from a case. In the event of death, the attorney must still be removed either with a stipulation for substitution or an order granting a substitution or withdrawal. 

But who would file these documents?

The Florida Bar has recognized the issues associated with attorney death or disability, and requires each attorney in Florida to “designate another member of The Florida Bar who has agreed to serve as inventory attorney,” Rule 1-3.8(e). If the attorney has not designated an “inventory attorney,” then Rule 1-3.8(a) provides that “the appropriate circuit court, upon proper proof of the fact (of death or disability), may appoint an attorney or attorneys” as “inventory" attorney. Thus in any case of death or disability, there is a procedure for some attorney to step-in.

This could occur when an attorney passes. It could occur when an attorney is suspended or disbarred without time to effectuate coverage of her or his cases. It could occur if some illness or accident renders the attorney unable to practice. 

The “inventory attorney” may “take such action as seems indicated to protect the interests of clients of the subject attorney.” Rule 1-3.8(a). Such an attorney may:

(1) File a notice of appearance on an existing OJCC case to monitor orders and notices and thus protect the lien of former counsel and/or the interests of the client.

(2) File a notice of appearance on an existing OJCC case to file a substitution of counsel signed on behalf of the deceased or disabled counsel, to shift responsibility for the matter to new counsel.

(3) File a notice of appearance on an existing OJCC case to move for the withdrawal of the deceased or disabled counsel.

(4) Create an OJCC case by filing a Petition to protect the interests of the client pending some other action by which the inventory attorney might later withdraw.

(5) Create an OJCC case by filing an RACN to protect the interests of the deceased or disabled attorney and monitor orders and notices and thus protect the lien of former counsel, pending some later withdrawal.

The responsibilities of the “inventory attorney” are significant. For an excellent discussion, see Big Shoes to Fill: The Job of the Inventory Attorney, Florida Bar Journal, Volume LXV, No. 1, January 1991.

When an attorney is hired by a client, the primary concern is representing the client. Therefore, the best first step is to file a notice of appearance immediately. This makes the new attorney a counsel "of record," and will put everyone else on notice of the new attorney's presence. 

The ancillary concerns are clarifications of the status of any former attorney. She or he may wish to remain associated with that case in order to protect a lien. See, Perfecting a Florida Workers' Compensation Lien. She or he may wish to be removed from the case entirely. After the primary concern of new counsel, noticing her or his appearance, then the secondary concern of disposition of the former counsel can be addressed. 

Rule 60Q6.104(2) provides
“During the pendency of any issues before the judge, an attorney of record remains the attorney of record until: (a) A stipulation for substitution has been filed with the judge and served on all other parties or, if represented, their attorneys of record; or (b) A motion to substitute or to withdraw, which reflects that it has been served on the client and all other parties or, if represented, their attorneys of record, is granted.”

So, the former attorney remains of record until appropriate steps are taken to remove her or him from the case in the OJCC database. The new attorney and former attorney may sign a stipulation for substitution and either may file it with the OJCC. This is the simple option. There are those unfortunate instances in which counsel do not cooperate in this manner. Examples may include the situations of death or disability. 

However, in those instances the inventory attorney may sign a stipulation for substitution or agree to the entry of a substitution order. In the absence of agreement by the former attorney or inventory attorney, the new attorney may simply file a motion to substitute and allow the assigned judge to sort out the situation by order.   


No one wants to contemplate her or his death. Unfortunately, or perhaps fortunately, we cannot always see our future. I am reminded of a friend of mine, a young attorney who perished in an automobile accident. It could happen to any of us. I encourage attorneys to make a plan for the transition of their responsibilities in the event of a tragedy. The Bar rules require it, but more importantly, it is good for your clients.

Monday, December 15, 2014

Winter Weather Ahead, Be Prepared

That cold time of year is coming. I recently spent a few hours laying in a cord of split oak for the winter here in North Florida. People do not think of Florida as a place that has winter, and frankly we do not have that much of it. As a result though, we seem to have a hard time coping with it. November saw temperatures in the thirties. We just aren't built for that here. 

Last winter we had an ice storm. No, not what people north of the Mason-Dixon (or perhaps north of Interstate 10 even) would call an ice storm, but an ice storm nonetheless. It was nothing like the havoc that occurred in Atlanta and surrounding areas.  It was an ice storm in name only here in Florida. It melted very rapidly except on the bridges; however, we have a great many bridges. 

City officials in one town were perplexed by the iced bridges. After meetings to discuss the complex problem of ice on roads, they emerged unable to conceive of any available resources that might alleviate slipperiness, so they just closed the bridges. Police cars were stationed at the bases of each, engines running, lights flashing, overtime-paid. The only conceivable solution was not to venture onto the ice. Days passed.

Another thing we have in abundance in Florida is an abrasive that has been successfully used on ice forever up north. People who live in the north are familiar with sand and its ice-remedying properties. Not in Florida; sand never occurred to them here. With the bridges closed, the pressure mounted to find a solution other than the city's initial thought of "let's pay the police overtime to sit on the bridge approaches until it just melts." 

Alas, they never thought to apply sand. Instead, they eventually brought out a street sweeper with a rotating brush on the front and drove up and down the bridges polishing the ice, while the police on overtime sat and watched. Apparently no Zamboni was available; the only vehicle that could have been more efficient at ice-polishing. North Florida is just not equipped for the challenge of ice. Hopefully we will not face such an onslaught again. 

I was reminded of that great Florida bridge closure of 2014 when I recently read that "one-third of all Midwest workers compensation claims that resulted in time away from work last winter were caused by slips and falls on ice and snow." More precisely, one-third of last winter's lost time claims resulted from ice and snow. That was recently reported by Businessinsurance.com. It notes that the frequency was "nearly double the normal average, likely because of the extremely harsh weather conditions."  

It turns out that ice is serious business for everyone, not just those of us here in the Sunshine State. The article reports that "winter-related slips and falls claims represented an average of 29% of all workers comp claims in five Midwest states" last winter: Indiana, Illinois, Michigan, Minnesota, and Wisconsin. The article mentions nearby states that also had tough winter weather were "Iowa, Nebraska, Kansas and Missouri." And these are all states where ice and snow are an annual expectation, not a surprise.

I wondered why they did not study Florida (just kidding). One carrier president did note that though the Midwest was studied, "other regions also experienced their share of icy conditions.” I would bet the folks in Atlanta, Charlotte, and Raleigh would agree with that.  

I suspect that there were a fair number of falls in Florida because ice is just not something we deal with very often; hurricanes we understand, ice not so much. Just as the city with their ice-polishing street sweeper, I suspect that individuals in the south are just as unprepared for ice. I wonder what contribution adverse weather had on slip and fall injury rates in those southern states with less experience and preparedness for winter weather, like Georgia and the Carolinas?

The point of the study and the article was to raise awareness. Some safety recommendations are made, including "walking slowly and wearing slip-resistant footwear, being prepared for black ice, and not carrying items, as keeping hands empty leaves arms are free to move for stabilization." Essentially, the cautions are to be aware, be careful, and pay attention. 

At the end of the day, that is probably good advice for a broad spectrum of risks we face at work, at home and in the world generally. That being said, it probably does not hurt to remind ourselves of it once in a while. As the recent weather on the west cost reminds us, anything can happen and sometimes with little notice. Let's be careful out there. It's going to be a long cold winter. 


Wednesday, December 10, 2014

Perfecting a Florida Workers' Compensation Lien

The Florida Office of Judges of Compensation Claims (OJCC) is paperless, or nearly so. While there are a few judges who keep some small volume of paper files for convenience, the digital record and database is the official record of the OJCC. When a document is filed, there has to be some place on the computer to put that document. The logistics therefore involve the creation of a “case” within the OJCC database.

Everything related to a particular accident for a particular injured worker will be stored digitally at the OJCC and electronically connected with or "tethered to" that electronic “case.” An OJCC workers’ compensation “case” is commenced in one of two ways. A petition for benefits may be filed. Rule 60Q-6.105(1). In the event that there is “any claim” within the jurisdiction of this Office, which is “not subject to a petition for benefits,” then “the claimant shall file with the clerk of the OJCC a request for assignment of case number,” referred to often as an “RACN.” Rule 60Q-6.105(3).

Filing either of these automatically causes an OJCC “case” to be commenced. A case number is assigned. The OJCC database creates a record for the “case” data and virtual folders into which PDF images of all the “case” filings will be stored.

The data in the database when a case number is assigned is usually provided by an attorney. The attorney for either the injured worker or the employer provides names, addresses, phone numbers, date of accident, and more for that particular case. That data resides in the OJCC database, and is used by the parties and the OJCC thereafter.

For example, if the person requesting the case number states the carrier is “ABC Insurance,” then that is what the database will reflect. If that information is to later change in the database, then there should be some documentation of that change. A phone call asking the assigned Judge or staff to change the name of the carrier to “XYZ Insurance” is not sufficient. Generally, any request for relief will be by motion. Rule 60Q6.115(1). So if it turns out the wrong carrier was named or that the carrier later changes, some party should file a motion to correct the database. This could easily be a joint a motion.

The attorney (the eJCC profile) who creates a case is automatically captured in the electronic case as the attorney of record. Attorneys who appear after a case is created do so by filing a notice of appearance. It is important to note that the 60Q rules address the appearance and withdrawal of an attorney, not the attorney’s firm. Rule 60Q-6.104. See
 Who Represents this PartyAn attorney who has never noticed an appearance on a case cannot withdraw from the case. That seems simple, but it is periodically misunderstood. An attorney who has never appeared cannot file or maintain a lien. Another fairly simple truth.

There are instances in which an attorney represents an injured worker (claimant) regarding an injury, and may not file anything with the OJCC. The attorney may contend that fees are due pursuant to Fla. Stat. 440.34 based upon an obtention of benefits through that representation. The contention may be that fees are due from the employer/carrier or from the claimant. Alternatively, or additionally, the attorney may contend that costs are due either from the employer/carrier pursuant to the statute or from the claimant based upon a contract of representation.

The attorney may wish to place the world (or at least the parties to the claim) on notice of the contention that fees or costs are due. The vehicle for that notice is usually a lien filed in the specific OJCC case. To file such a lien, there must be an OJCC case in which to file it. Years ago, attorneys might mail such a lien to the district office, a paper folder was created for it. If a later case file was created when a claim, petition, or other litigation ensued, that earlier filed lien would hopefully be remembered and consolidated into the same paper folder. However, with rooms full of file cabinets, such fortuitous outcomes were not consistent.

As a side note, contracts of representation are like other contracts between parties. Contracts are not sent to the Courts or judges in any known adjudicatory system for “pre-approval.” People sign contracts all day throughout the world. Those contracts are not filed with courts, and orders are not entered to approve or disapprove them. Imagine if every finance agreement signed at every appliance store every day was sent to a court for approval.

The resources of the adjudication system are for the resolution of disputes. Certainly, if an order is required regarding a specific contract for a specific purpose, then a motion, joint or otherwise, is the appropriate vehicle. Rule 60Q-6.115(1); 60Q6.116(5), but systemic approval of all agreements or contracts is simply not necessary.

There are many workers’ compensation accidents each year. These are filed with the Division of Workers’ Compensation, which is part of the Department of Financial Services. The injury is reported, benefits are provided, and the employer or their insurance carrier periodically files reports with the Division about the nature, severity, and progress of the accident and recovery.

In 2010 (the Division ceased publishing data after their 2011 Annual Report), the Division noted there were 51,598 “lost time claims” reported. Many more “medical only” claims were reported. That same year, 30,525 “new cases” were filed with the Office of Judges of Compensation Claims. So, most “accidents,” (reported to the Division) which refers to accidents and injuries, did not result in “cases,” which refers to litigation in the Office of Judges of Compensation Claims (OJCC).

The point is that this Office is only involved in those cases that are brought to us, not in all workers' compensation accidents that occur. The OJCC is not responsible for “accidents” in the general sense, but for the efficient and timely resolution of disputes about benefits, or “cases.”

Within the proceedings of the OJCC, a “claim” “means each assertion of a legal right or benefit under Chapter 440, F.S.” Rule 60Q6.102(1). Thus, once proceedings are begun in the OJCC, it is based on an “accident” (reported to the Division), there is a “case” (opened with the OJCC) and within that case there are “claims.”

Thus, an injured workers’ issues regarding her or his workers’ compensation comes within the responsibility of the OJCC when there is a dispute about benefits, and thus a need for a resolution through agreement or adjudication. Until that time, the injured workers' relationship with the employer/carrier are subject to the law, and workers' compensation regulations, but that is all within the jurisdiction of the Division of Workers' Compensation. Then a dispute arises, something is filed with this Office, an OJCC case is created, and the jurisdiction of this Office is invoked.

If an attorney is representing an injured worker regarding her or his accident, there is no reason for the OJCC to know of the "accident," “claim” or the representation before their is a dispute. Furthermore, there is no authority of the OJCC to acknowledge, memorialize, or document such representation. There is no “jurisdiction” of this Office. The authority or jurisdiction of the OJCC is invoked by the filing of some document with this agency, either a petition or an RACN.

Thus, the question of how to perfect a lien depends upon whether there is or is not yet an OJCC “case,” that is whether a petition or an RACN has been filed and thereupon an OJCC case number assigned.

An RACN (Request for Assignment of Case Number) may be filed for any of the following reasons:


· Claim for Reimbursement from SDTF
· Claim Limited to Attorney's fees or Taxable Costs
· Motion for Advance
· Motion for Protective Order
· Motion to Compel Discovery
· Motion to Preserve Evidence
· Request for Child Support Information
· Settlement Requiring Approval by a JCC
· Third Party Claim
· Voluntary Mediation


If the relationship between counsel and injured worker ceases and there is no existing OJCC case at that time, then the attorney seeking to file a lien should request a case number (for her or his personal "claim" limited to attorney fees). The attorney may then file a lien in the resulting OJCC case.

To do so, log in to e-JCC, the OJCC electronic filing system, through the portal at
www.fljcc.orgIn the e-JCC program, select “file new case.” The program defaults to “petition for benefits.” Instead, select the “RACN” option from the drop-down menu. Insert the relevant information, and select “Claim Limited to Attorney's fees or Taxable Costs” as the legal basis for assignment of an RACN. This will result in the assignment of an OJCC case number. 

Once the case number is thus established, any future filings such as PFBs will be in that same case. Any attorney who becomes affiliated with that case will have access to the docket, and thereby access to the attorney's lien. This process is far more likely to result in the later connection of that lien and the subsequent litigation than the old paper process was.

If the attorney and injured worker relationship ceases after an OJCC case already exists, it is likely the attorney will have already filed a PFB or a notice of appearance. If not, and the attorney wishes to file a lien, then the attorney need only log in to e-JCC and file a notice of appearance in that case. It is the PFB or notice of appearance that associates that attorney with the case itself.

To do so, prepare a notice of appearance as in any case. Log in to e-JCC and select “file document” from the e-JCC menu header, insert the case number in the space provided, and select “Notice of Appearance.” The program will provide the choice as to whom you represent, “Claimant,” “Employer/Carrier,” or “other.” The appropriate selection in this example is “other” as the attorney in this example no longer represents the injured workers, and is essentially protecting the attorney’s personal contract or statutory rights.

The result of the foregoing, the establishment of an OJCC case and the notice of appearance, will then allow counsel to file her or his notice of lien. Furthermore, the attorney will be “of record” in the case. This results in the attorney being listed in the OJCC database as counsel and thus should cause the attorney to be included on the certificate of service whenever notices or orders are issued by the OJCC. This allows the attorney to monitor activity in the case.

If the attorney does not want to receive ongoing notice of the events in litigation, with her or his lien filed, may file a motion to withdraw. See
 Who Represents this PartyIn doing so, the attorney may maintain her or his lien, and will be marked as a "lienholder" in the OJCC database. 

This process affords counsel the ability to file a lien for the protection of their fees or costs. The process should also assure that the data in the OJCC database remains accurate regarding the identity of counsel.

To summarize, if there is an existing case, the attorney could file a notice of appearance, notice of lien, and motion to withdraw. There is no reason that all of this could not be accomplished with a single pleading so titled, "Notice of Appearance, Lien, and Motion to Withdraw."

If there is no case, then the attorney will have to first file a request for assignment of case number (RACN), and then file the "Notice of Appearance, Lien, and Motion to Withdraw."

This will maintain the public record, put everyone on notice, and accommodate the goal that all filings regarding any particular person and accident will be recorded in association with one case number, with access afforded to all involved.

Thursday, December 4, 2014

Morales Arrives

In an earlier post, I explained the pending Supreme Court case Morales v. Zenith Insurance.  This was the first of several currently pending cases which have implications for Florida Workers' Compensation, which the Florida Supreme Court has taken up in the last year.

Understanding our government is an example of federalism, there are roles for state courts and roles for federal courts. Sometimes their responsibilities overlap somewhat. Morales is an example of that. The Eleventh Circuit Court of Appeals, a Federal Circuit Court, is reviewing an appeal of a case from a federal court in Florida. It had some questions about Florida law and so it asked the Florida Supreme Court to consider three questions of law. 

The Supreme Court oral argument was April 10, 2013. Today, the Florida Court issued its opinion. Two hundred thirty-eight (238) days from oral argument to decision. Using some averages, I had predicted in Morales, Where for Art Thou, Morales that the decision might be as early as December 11, 2014. Let the record reflect that I was wrong; sorry, I did my best.

The oral argument in Westphal occurred June 5, 2014 and the oral argument in Castellanos was November 5, 2014. If the Supreme Court addresses these other pending workers' compensation related cases in the same 238 days, there could be a decision in Westphal (argument June 5, 2014) as early as January 29, 2015 and Castellanos (argument November 5, 2014) as early as July 2, 2015 (it has to be a Thursday). Or, it could be sooner or later. There is just no predicting these things. I have been wrong before, see above.

The questions presented (essentially quotes from the opinion, but somewhat paraphrased for space) from the Eleventh Circuit to the Supreme Court were:

(1) "Does the Estate have standing to bring its breach of contract claim against Zenith under the employer liability policy?"

(2) "If so, does the provision in the policy which excludes coverage for "any obligation imposed by workers' compensation law" exclude coverage for the claim against Zenith for the tort judgement?"

(3) "If the estate's claim is not barred by the workers' compensation exclusion, does the release in the workers' compensation settlement agreement otherwise prohibit the estate's collection of the tort judgement?"
  
The decision was issued today. The Supreme Court concluded that the estate does have standing to to bring the breach of contract suit, essentially answering question one "yes." And, the Court concluded that "the workers’ compensation exclusion and the release prevent it (the Estate) from collecting the tort judgment from Zenith," essentially answering questions two and three "yes" also.

The opinion recites the facts of the case. Essentially, this employee was crushed by a tree falling from a truck. The procedural process that led the case to the Eleventh Circuit is all explained in Morales, Where for Art Thou, Morales

The Court explained that a "judgement creditor has standing to bring suit against a liability insurer that may have coverage for the judgement." The court noted that "standing" essentially means the party can bring the suit, but that "one possessing standing does not necessarily prevail upon the proper application of the legal principles he may assert." In other words, having standing means you may proceed, but not that you will necessarily win.

The Court concluded that the entire insurance policy must be considered "as a whole, endeavoring to give every provision its full meaning and operative effect." Then, "only if a provision is ambiguous after considering the policy as a whole will this Court construe the ambiguous provision against the insurer in favor of coverage."  The Court concluded that it was "clear that the workers’ compensation exclusion bars coverage of claims arising from bodily injuries for which Lawns is required to pay benefits under workers’ compensation law—i.e., claims that are covered by the workers’ compensation insurance portion of the policy." 

Thus, the Court concluded that the exclusion in the policy for workers' compensation precluded the estate from collecting from Zenith for the civil judgement. The Court explained that the Estate did not have the right to bring the civil lawsuit against the employer, Lawns, because the Estate's "exclusive remedy was under Florida’s Workers’ Compensation Law, chapter 440, Florida Statutes."

Finally, the Court concluded that "the release in the workers’ compensation settlement agreement precludes the estate from collecting the tort judgment from Zenith." While the Estate was suing Lawns (the employer) in the tort case, Ms. Morales "(who is also the personal representative of Morales’ estate), entered into a workers’ compensation settlement agreement with Lawns and Zenith." The Court interpreted the release signed in connection with that agreement as an election of that workers' compensation settlement "as the sole remedy for Morales’ death."

The first of the 2014 Supreme Court cases is decided. Of course, the decision is not final until there has been a period of time for either party to ask for reconsideration. The decision process goes back to the Eleventh Circuit then and it will make its decision on the case.

The focus of Court watchers returns now to Westphal and Castellanos. Though anytime means anytime, I suspect I will not be penning a post on these again until the new year. 

Wednesday, December 3, 2014

Is Drug Testing Blaming the Victim?

It seems that society has evolved, and there is less inclination to "blame the victim," though it still occurs. 

Recently, news services reported that three Oklahoma law enforcement officers have been accused of "sexually assaulting women while on the job." These are allegations and not convictions; but that may come in time. The situation is not isolated to any one agency, the accused reportedly worked for the Oklahoma State Police, the Tulsa County Sheriff's Office and the Oklahoma City Police. 

The situation made some recent news coverage because of the interview provided by Captain George Brown, an Oklahoma Trooper. Apparently speaking on behalf of the Oklahoma State Police, Captain Brown praised law enforcement generally, reminding the public that there are lots of good officers and that they do "a lot of good things daily." He cautioned though that there are "the few bad apples that exist out there."  

How can women protect themselves? Captain Brown suggested "that women can keep their doors locked and speak through a cracked window if a trooper approaches them." If they are asked to exit the car, he suggests that "she can ask in a polite way why he wants her to do that." Then Captain Brown suggested that the best thing you can do "is to follow the law in the first place so you don't get pulled over."

Several who commented on this story suggest that this "obey the law" comment  is simply blaming the victim. That is, somehow it is the victim's fault she was assaulted; if she had not been speeding, she would not have been raped or assaulted. Others point out the fallacy in believing that a "bad apple" officer who would commit sexual assault will nonetheless be too honorable to pull someone over who is not breaking the law. It seems unlikely that anyone could seriously contend these victims are at fault for being victimized by police.

Similar "blaming" comments have been made recently in response to the situations of domestic abuse that were in the news this fall. When football player Ray Rice was seen on video striking his then fiance, now wife, in the face, there were those who commented on the internet and elsewhere placing blame on the victim. A story on Salon.com summarized some of these. It may seem obvious that blaming the victim is inappropriate, but it has nonetheless occurred. 

These examples from the Internet came to mind as I recently read some stories about drugs and alcohol and one about workers' compensation. Is it ever appropriate to blame the victim? 

There is the public opinion aspect that is difficult or perhaps impossible to control, whether those people's views are agreeable or not they are going to be posted on the Internet. The anonymous commenter may be willing to blame the victim. There is virtually no filter for comments and posting. So there may always be some element of society that both blames the victim and does so in an unfiltered and public setting of the world-wide web. 

But in the "no fault" world of workers' compensation, where responsibility is delineated by statute or code, is it appropriate to blame the victim for a work accident? If the law elects to penalize the victim, to what extent will that be allowed, and upon what quantum of proof?

There are some states that have integrated "fault" into workers' compensation, a system designed to be "no fault;" designed to provide a level of care and income to people who suffer injuries on-the-job. Workers' compensation started primarily about compensation for accidents on-the-job, but it as expanded and evolved in various ways to deal with illness and disease and repetitive trauma. This evolution and amendment over years and has resulted in an array of protections provided in modern workers' compensation.

There are also "fault" provisions. Failure to use an employer required safety device can result in a reduction of workers' compensation benefits in some states. There are also states that provide for reduction or elimination of workers' compensation benefits when an accident is caused by the use of drugs. These are not universal propositions however. 

New Mexico has recently debated this idea of relieving the employer of responsibility when drug use is involved. New Mexico currently has a provision to this effect, but is is specific and limited. The Albequerque Business Journal conducted a survey to measure voter opinion regarding the proposal to broaden New Mexico's law regarding denial or reduction of benefits "in cases where alcohol or drug use led to an employee's injuries or death." The results were interesting and are discussed further below.


The Journal notes that this is not a new idea, and that "a number of states have laws that restrict or deny" benefits in such instances. They cite, but do not link to, a "2009 survey by the U.S. Department of Labor." My research suggests that this may be that study. This entire study would require hours to digest, and in some instances it only makes broad references to statutes or codes that would likewise require analysis. But this is not a law review article. In summary, I counted about 30 states in the study that clearly reduce or eliminate benefits based on substance use. That is a solid majority of the states.

The Department of Labor study says that New Mexico law already has some provisions in place regarding benefit preclusion or reduction. According to N.M. St. Ann. section 52-1-12, New Mexico precludes compensation if an injury is caused "solely" by being under the influence of "a depressant, stimulant, or hallucinogenic drug as defined" by New Mexico Law. 

This is a reasonably narrow definition. The types of drugs are limited and the injury has to be "solely" caused thereby. Other states may use broader characterizations of what kind of drugs, and might have less stringent phraseology than "solely."  More detail about the laws of the thirty states counted in the Department of Labor study would be interesting. 


But how do people feel about this in New Mexico? Sixty-seven percent supported a prohibition or limitation on compensation if the use of alcohol or drugs "led to" injury or death. When they analyzed support along political lines, they concluded 72% of Republicans and 63% of Democrats favored this. This sounds like significant support for the idea, and the "led to" standard seems broader that New Mexico's current "solely" standard. Whether this kind of provision is seen as blaming the victim, there appears to be significant support for the concept.


This debate is likely to receive more press, in New Mexico and beyond. It is part of a larger debate on drug use in the workplace that is related to current drug-free workplace policies, state decisions not to enforcement Federal laws against marijuana, Federal decisions not to enforce or to change marijuana laws, and evolving social attitudes regarding drug use generally. There are those who see looser restrictions on marijuana as potentially affecting work place safety profoundly. Others see little difference between marijuana and alcohol. There is already litigation. There will be ongoing debate. 


Also this fall, news from the wide, wide world of sports. A race driver named Tony Stewart is apparently fairly famous for driving a race car. He was driving in a "sprint car" race some weeks ago when he struck another driver on the track. Apparently this other driver had exited his vehicle and was walking on the track when Mr. Stewart struck him. That is, walking on a darkened track, at night, in a dark suit. A grand jury was convened to investigate the death, and concluded that it would not be appropriate to charge Mr. Steward with a crime in connection with that death. 


This story received a fair amount of press and the racing world has been interested in the crash, the death, and Mr. Stewart. Some have suggested that the young man who died should not have been walking on the track, while others feel Mr. Stewart did not do enough to avoid him. The news following the grand jury decision though included the detail that the young man who died "had enough marijuana in his system to influence his actions the night he was killed." There was no detail provided in terms of how much or how measured, but the conclusion: "enough."


As an aside, the "sprint car" is an interesting proposition. They look much like a go-cart, but with a V-8 engine that might be rated as high as 800 horsepower, and with airfoils (wings) mounted on the chassis to help control the vehicle's direction in light of this raw power. According to some, the top speed may be as high as 120 miles per hour. That may not sound like much if your perspective is NASCAR or INDY racing, but these people are racing on 1/2 mile clay tracks. How much time is there to react at that speed? Is there more time to react when an industrial machine cycles, closes a pinch-point, etc.?


Is it safe to operate any vehicle under the influence of marijuana, alcohol or other drugs? Is it safe to operate any machinery at all, at work or at home, under the influence? Regardless of how you feel about those questions, does it make sense to preclude or reduce workers' compensation benefits when an employee is found to have been under such influence? Should such preclusion be if the influence "existed," "contributed to," "caused," or "solely caused" the accident or injury? These issues will receive attention and discussion if the New Mexico amendment moves forward.


Do people want their engineer, pilot, bus driver, "doctor, lawyer, Indian chief" to be under the influence? Is there some level of intoxication or impairment at work that is acceptable? Society will struggle with these questions. Do such restrictions impair people's rights to do as they wish in their off-work hours? In the debate on these questions will people be conscious that provisions that preclude or reduce benefits in workers' compensation for such situations could be perceived as blaming the victim? 


Some in the racing example, including the victim's aunt, oppose blaming the victim. She takes issue with the conclusion of impairment. Many comments on the racing story have taken issue with the science of drug testing, the presence of proof, and their perceptions of the science that ties that presence of traces to a conclusion of impairment. In short, though that driver was tested and "impairment" concluded, there are those who believe the victim is nonetheless being inappropriately blamed when the testing might have evidenced prior use, but not current impairment.

When is it appropriate to blame the victim? It seems that in the vast majority of situations, America is evolving away from blaming victims, though it still seems to occur at least in Internet comments. Is reducing or eliminating the workers' compensation benefit because of a positive drug or alcohol test blaming the victim? Or is it appropriately limiting risk and exposure? As marijuana use becomes more prevalent under state decisions, will its "legal" use change the complexion of this debate?