Wednesday, April 29, 2015

Perspectives on Being a Judge

Julius Young is an attorney and blogger out in California, he writes Workers' Comp Zone. He recently wrote about judging and his blog came to my attention. 

His post began with an acquaintance asking him "would you like to be a California workers' compensation judge?" Mr. Young said no, and then describes some thoughts that were generated as a result of the encounter. 

He sees several detriments to being a judge. He bases his conclusions on his experience as a litigator and from having served as a "pro tem judge, filling in when the board is short of judges." We do not have that in Florida. Our statute does allow the Governor to appoint a temporary JCC. It has happened, but it has been a long time. 

The last time I recall was Judge Dodson in Miami and that was about ten years ago. So many may be able to commiserate and try to imagine the stresses and challenges of doing this job, but in Florida it is a relatively small group who are judges or have been. I respect Mr. Young's perspective, and that he would not want the job. Different perspectives are what makes the world go around. However, I don't know a single judge who does not think it is the best job they have ever had. I had one tell me once that he loved it so much he would do it free. 

Mr. Young notes that taking the bench often involves a pay cut. He notes that the California "system "no longer trusts them (judges) to hemp make sound medical decisions." He notes that judges are "tied down," "pinned to a chair in a crowded, windowless room."  He notes that they spend "a significant amount of their day in the courtroom," and that their "surroundings are usually rather Spartan." He seems to lament the disappearance of paper, noting that "the judge is largely dealing with a case that is in the ether." Mr. Young notes his admiration for those who do the job, but concludes that he "couldn't do it full time."

I ponder Mr. Young's perspective. As a practitioner, he has certain perceptions of the judges' job. He has the advantage of service "pro tem," which adds to his foundation of knowledge. He concedes though that this did not afford him the opportunity to "actually conduct trials." From my perspective, there are few things as interesting as presiding over a trial, mulling the various perspectives on evidence, and drafting a decision of the claims and defenses. It is probably the most challenging and rewarding part of the job

He concedes some attractions to the job. He says "there may be intellectual rewards for some judges, but it can be quite abstract, as the judge helps move the pieces round the chessboard." I thought of this yesterday as I sat in the Capitol and interviewed candidates to replace Judge Spangler in Ft. Myers. There were also reappointment interviews for some sitting judges. 

Several discussed the intellectual challenges of Florida workers' compensation. There are some instances when this statute of ours presents some very interesting and complex questions for determination. I have never seen it, or those involved in it, or the processes of it, as pieces on a chessboard. Rather, it is a process for people to achieve resolution of their disagreements, either through their agreements or adjudication. 

I look around the Florida bench periodically. I have said before that I believe we have the strongest bench today that Florida workers' compensation has ever had. It is a diverse group or people with some interesting backgrounds and experiences. Certainly imperfect, each of us in her or his own way, but that is true for all humans. 

There are perceptions. We may think as lawyers that we understand the job that physicians do. Having never cut open a body, is it possible that academically I understand the surgeon, but that I simply cannot truly commiserate? Is it possible for people to understand disability, having never suffered it? Is it possible to confidently manage a case if we have never litigated one?  Perhaps not, but if our sincere goal is to try our best that may be good enough?

The simple fact is that we are all imperfect. In some manner there is deficiency in our backgrounds, our educations, our experiences. There is no perfect judge, mediator, attorney, doctor, therapist, etc. We all have perspectives and try to commiserate with the experiences and challenges of others. We will all try to do our best in these contexts, but in the end we will all still be imperfect. 

The judges, just like you, tend to get focused on the job. Anyone can become so focused on the particular row that is being plowed that day, that we might ignore the bigger field, or the next task. I recently spoke at a conference and a conversation about workers' comp challenges in the Tennessee and Oklahoma systems resulted in surprised responses from some judges. Those challenges are academically interesting to our system, but that big picture was not something these individual judges had time to ponder. Each was engaged instead in the challenges of those cases, workers and employers before them.

It is worth remembering that at its root, this system should be focused on the injured worker and the employer that needs the worker back. We need to provide a system that facilitates closure of claims for these two, either through mediation or adjudication. It is praiseworthy that judges keep their focus on those parties and their issues.

As a side note, Mr. Young notes in his context of "Spartan" surroundings" that "no California district office of the WCAB has WiFi." At least at the Florida OJCC you have full WiFi access. I hope that you do not find our accommodations "Spartan," and if you do please let me know how we can make the public more comfortable in our offices. The OJCC exists to serve you. I remind myself of that constantly. It is my hope that when you call or visit our offices that you feel valued in that manner. 

The injured worker, the employer, the insurance adjusters, the witnesses, the attorneys, and others who call and visit our offices are the purpose of our existence. These are not interruptions of our workday, they are the purpose of our workday. We are here because of them and for them. 



Monday, April 27, 2015

An Allegation of Conflict of Interest in California

There is an interesting workers' compensation claim being litigated in California. There have been a couple of recent news stories that make public some aspects of the case that are curious. One out of San Diego levels charges against an attorney and court reporter. A later story provides some follow-up and reveals an interesting mistake that was apparently made. 

An injured worker, Connie Campbell, alleges that the California workers' compensation system is tilted against employees. Interviewed by ABC 10News in January 2015, she alleges that the system is a "good old boys club." She is dissatisfied with the way her claim was defended. According to ABC 10 News, Ms. Campbell's difficulties allegedly arose several years ago. She claims that she was moving a 200 pound medical device involved in liposuction procedures.

In the January interview, she describes being deposed by an attorney representing her employer. That happens in virtually every workers' compensation case in Florida. The deposition of the injured worker is sometimes among the first things defense counsel will undertake. Ms. Campbell says she was deposed by Avery Chazen, and that the court reporter in that proceeding was Sherry Dietz. 

Ms. Campbell alleges that the resulting deposition transcript was not accurate. She says her words were "misconstrued, there were things left out, there were places she had a 'dot dot dot' and didn't finish my sentence -- didn't finish my thoughts." She claims that her "words and sentences were changed." The fact is that the "dot, dot, dot" happens periodically. Any attorney has seen that, and it usually due to inaudible responses, or technical issues. The accusations of misconstruction and inaccuracy are perhaps more curious. 

Ms. Campbell was disturbed that Mr. Chazen, the attorney conducting the deposition, "works for the law firm Dietz, Gilmore and Chazen." (Emphasis added). She notes that the "senior partner in the firm is Bill Dietz who is married to Sherry Dietz, the court reporter" that transcribed her testimony. She also alleges that at the time of her deposition she did not know of the relationship. Mr. Chazen has been a partner in that firm since 2010 according to WorkCompCentral.

Is that relationship a conflict of interest? The National Court ReportersAssociation Code might suggest so. It appears to be a voluntary organization, not a regulatory one. However, its code may be a good exemplar of what standards should guide. That organizations code says that a member shall:

"2. Be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest. If a conflict or a potential conflict arises, the Member shall disclose that conflict or potential conflict."

"3. Guard against not only the fact but the appearance of impropriety."

The CaliforniaCourt Reporter's Association has a code also. It includes admonitions that its members "should:"

"Guard against impropriety and/or any appearance of impropriety."

"Fully disclose to the presiding officer and/or all parties present at a proceeding for which verbatim court reporting services are to be provided any conflict of interest of the possibility of a conflict of interest. Following that disclosure, decline to report the proceeding on the request of the presiding officer or any party." 

According to the January report by ABC 10 News, "the Court Reporters Board of California eventually cited Sherry Dietz after Campbell made two attempts to report the Dietzs' marriage to the board. The citation says it's "fraud, dishonesty, corruption, willful violation of duty, gross negligence…." 

ABC 10 says that Sherry Dietz and Mr. Chazen declined to be interviewed for its story. A comment provided by Mr. Chazen explained that Ms. Dietz participation was appropriate; he said that a former attorney representing Ms. Campbell knew of the relationship and allowed Ms. Dietz to "to handle the deposition." 
  
Her case returned to the airwaves/Internet in March 2015 with another ABC 10News story. Ms. Campbell now alleges that defense attorneys withheld evidence in her case. Apparently, the employer/carrier in her case recently decided that "it was in the best interest of all concerned to hire another firm to represent us in the case."

In the process of a change to a different defense attorney, Mr. Chazen discovered that "the witness interviews she (Ms. Campbell) had requested did exist." These are reportedly "transcripts of four co-workers and the office manager of her (Ms. Campbell's) former employer's office." 

Ms. Campbell has requested sanctions from Mr. Chazen. Mr. Chazen said "our firm acted in accordance with the law and we are confident that this frivolous request for sanctions will be summarily denied." He also added that the "witness statements include support that she (Ms. Campbell) did not have a work injury."

An interesting case on the process of discovery. There are ample stressors to litigation; it is more stressful for the parties involved than for the attorneys. Certainly, it is not free of stress for attorneys, but they experience it daily and become somewhat acclimated. For the parties themselves, it is often their first exposure to litigation.

Giving everyone the benefit of the doubt in the situation described, there are a couple of lessons here. First, attorneys may enter agreements, but they have to keep their clients apprised of those agreements. Second, discovery is a critical process in any case and can bring the stress of litigation to the surface. It may be an ideal time for increased communication between the parties and their attorneys. Finally, the appearance of conflict may be troubling to people and attorneys may wish to strive to avoid any such appearance. 


Wednesday, April 22, 2015

The Internet, Evidence, and Defamation

The Internet is changing so much around us for the better. The accessibility of information is incredible, from Google to search able JCC orders, to RSS feeds of the latest appellate decisions. There are assortments of blogs and journalism about the world, the news, the workers' compensation marketplace and more. It is an incredible tool that has changed our lives and continues to evolve. 


There are downsides to this vast flow of information. The information on the Internet can be difficult to verify or source. Sites like Wikipedia allow virtually anyone to change information. Recently, Business Insider reported that professionals have been hired in some cases to edit client's Wikipedia pages to benefit company's public image. Public relations firms accused of manipulating public opinion.  

Despite the somewhat fluid nature of the information on the Internet, courts may use material from Wikipedia to reach their decisions. See Truje-Perez v. Arry's Roofing. The New York Times notes that court reliance on Wikipedia is not anything new. In a 2007 article, they noted over 100 opinions had cited Wikipedia. In a 2012 article, the ABA and Wall Street Journal note about 100 Wiki citations in just the Federal Appeals Courts in the preceding five years. 


That ignores the argument that appellate courts ought to stick to the evidence of a particular case. Appellate courts are courts of error, whose role is to review the application of the law in a particular case. The role of hearing and determining facts belongs to the trial court. It is there that evidence should be introduced. 


An appellate court researching facts in any way, beyond what was presented by the parties at trial, is curious at best. Where is the due process in an appellate court performing research and identifying facts and figures of which neither party is aware and which neither presented at trial? Neither party in that instance can examine such facts introduced on appeal by the reviewing court, challenge their validity, or present contradictory or impeaching material. 


Beyond these concerns in the broadest context, an appellate court doing its own factual research by relying upon open-source Internet data like Wikipedia, with its propensity or at least potential for accuracy issues is more curious still. 


The Internet thus has the potential to convey information, or disinformation. Between these two is the potential for misinformation. I thought of this recently when a news story popped up one day regarding an Indiana soccer rivalry. Apparently a student was arrested, and his picture was posted immediately to the world wide web. Students rooting for a rival team copied the mugshot from the Internet and had it reproduced on t-shirts to wear to the big game. Shaming the other team's star was apparently intended to gain advantage. 


A couple of things in this story caused curiosity. First, how did they get the mugshot? Well, information is all over the Internet. It turns out that includes mugshots. I decided against linking to sites and feeding them "hits." Essentially, once you are arrested, there is a mugshot taken. The companies that own these sites apparently request these pictures from the authorities, and post them on the Internet. You can visit these pages and look at pictures, search by zip code or town, and see the photo, the charges, and more.


Where is the due process? News media are usually careful to to make clear that someone has "been accused." They usually stress that "accused" or "arrested" is not the same as "conviction."  Some of the mugshot websites now contain similar disclaimers such as "all are presumed innocent." Interestingly, some of these sites are willing to remove a person's mug shot, or "unpublish" for a price. One prominently notes that "if you were found guilty, you still may qualify to be unpublished."

Do these mugshot photos crop up in the litigation process? Anecdotal instance may lead us to conclude that they may. As with photographs from other social media platforms, parties in litigation are likely being asked to identify/acknowledge prints of their photographs and asked about the activities that are depicted. Some might argue that the use of some such information is more likely to offend or embarrass than to lead to admissible evidence. 


In the news business, there is concern with potential liability for defamation. Defamation is to falsely injure "the good reputation of another." The United States Supreme Court defined some standards for this in 1964 in New York Times v. Sullivan. The court became involved because there are issues of freedom of speech and of the press and competing interests of protection of privacy or personal liberty.  

The Sullivan Court explained that the First Amendment protects speech. And "public" figures are not protected from false speech unless it was published with "actual malice." In cases that followed, the Court refined who is a "public figure." The Court concluded in Gertz v. Robert Welch Inc., that private persons may sue for defamation without proof of actual malice, that is without proof that the statements were both false and either published knowingly or with reckless disregard for the truth. 

So we have a dichotomy in the area of defamation. A private person may recover defamation damages more easily than public figures, like Lindsey Lohan


In the age of print and broadcast media, that is the 20th Century, the spectre of defamation may have constrained the publication of information. When the publisher has potential liability for what is published, there will be protocols, practices, and processes in place for fact verification. More so, however, the print and broadcast media of the past were limited by space. There are just so many pages in a newspaper and so many minutes in a broadcast. Editors made decisions about what was sufficiently important to include. 


The Internet has vastly expanded the ease of publication. The Internet has virtually unlimited space. The mugshots are not defamatory, they are factual information. An arrest was made. However, the Internet providers that publish these are not constrained by the space and accessibility limitations of the print media. The availability and accessibility make this kind of publication easy. With the potential for advertising on each site "page" and the benefits enjoyed by those who attract "hits" or "page views," the incentive is to publish as many pages as one can. 


Some became troubled or offended by the postings that are made on such sites, and some of those have sued. A few recovered on the theory that websites were "publishers." See Stratton Oakmont v. Prodigy Services, 1995 N.Y. Misc. Lexis 229, (N.Y. Sup. Ct. Nassau Co., 1995) rehearing denied 1995 WL 805178 (Dec. 11, 1995).

After the Prodigy Services decision, Congress passed the Communications Decency Act of 1996. This includes specific language regarding "publisher" states:



"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (47 U.S.C. § 230)


The next year, The Federal Fourth Circuit Court of Appeals interpreted that statute in Zeran v. America Online, and concluded that "by its plain language, section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." The court held that these sites cannot be held responsible for the comments of their posters. The Fourth Circuit is Maryland, North and South Carolina, Virginia, and West Virginia.

So, the evolution to a digital world has not been seamless. Judicial application of existing law in the 1990s led to new legislative provisions. That refined the rights of websites and provided protection to those who would provide a platform for publication of information by private individuals. The evolution has not ended, however. 


In 2013, Kevin Bollaert was arrested for running a "revenge porn" site on the Internet; in February 2015 he was convicted. His crimes included identity theft and extortion. He was prosecuted after California passed a law criminalizing the posting of "identifiable nude pictures of someone else online without their permission and with the intent of causing serious emotional distress or humiliation." 


In a similar manner as the mugshots websites, he operated two websites, one which allowed anyone to post any person's picture, and sought to be protected under 47 U.S.C. § 230. The second site offered a service that would remove those photos from the first site for a fee. There will be those who will argue that Mr. Bollaert's websites were merely a platform, upon which third parties posted material. 


However, as we have seen in other examples, the change to a new paradigm like the Internet does not necessarily prevent liability under existing laws, such as extortion. 


This conviction may seem at odds with the federal immunity recognized in Zeran. The arguments on appeal are likely to submit that 47 U.S.C. § 230 protected Mr. Bollaert's right to maintain websites upon which the public posted this material. The operators of other Internet platforms may watch the review of this prosecution and the application of section 230. Is the immunity in that law in conflict with the California law? 


In another recent incident reported by the Washington Post, a lady was dissatisfied with services provided by a dog training expert. The lady took to Yelp to inform other consumers about her experience. The posting she made has led to a lawsuit against her by the dog training business, seeking $65,000 in damages. The owner alleges that the lady's comments were "false and damaged her small business." 


This example is slightly different. Yelp, the platform owner, is not being sued regarding the dog-training posting. However, it is interesting that Yelp did remove that negative customer review from the dog training business' Yelp listing. Anyone that has visited these sites like Yelp will know that there are a great many negative postings on many company pages. Why and how website providers like Yelp conclude it is appropriate to remove some comments and leave others is curious. 


The courts will continue to struggle with the frontier that is the Internet. Issues of privacy and defamation will remain in conflict with the freedoms of expression that define us. There will remain opportunities for information on the Internet to be amended and refined, perhaps even manipulated. Pictures will continue to be posted on the Internet following arrests, without the benefit of time, discovery, and defense. In the court of public opinion, it may continue to be difficult for people or businesses to defend their honor and reputation. 


Mr. Justice Brandeis, almost one hundred years age, explained the remedy for offensive speech, in Whitney v. California, 274 U.S. 357, 377 (1927). The freedom of expression in most instances will prevail. Justice Brandeis said "if there be time to expose through discussion the falsehood and fallacies, to aver the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."


Justice Brandeis could not have foreseen the Twenty-first Century paradigm that is the Internet. But today, anyone can publish on the Internet. We may individually lack the market penetration of Wikipedia, Yelp, and others. But anyone can use these same providers to post their own perceptions, though these providers ultimately decide whether your postings remain or are removed.


Additionally, anyone can write and publish what they wish in a forum such as this blog. The opportunity to have "your turn" is at your fingertips. The defense of "more speech" has perhaps never been as accessible. Admittedly, the danger remains that our individual speech may be lost in the vast cloud that is the Internet. 


The access to Internet "equal time" may be perceived as sufficient in the abstract, but is it sufficient when one is the victim of cyber-publishing ("bullying") by persons unknown? As social media evolves and expands, will admissibility rulings in workers' compensation proceedings take into account reliability of source, authentication of publication, and afford the due process of cross-examination? Will appellate courts do their own research after the due process of trial and make decisions on that research from the world wide web?


The Internet will challenge us all. As it evolves, we will have access to information, concerns about authenticity, questions about sincerity of posters, and doubts about fairness. It will be interesting to many, but possibly humiliating, embarrassing, or otherwise damaging to some. 

Monday, April 20, 2015

Marijuana Back in the News

Is Medical Marijuana an oxymoron? In January 2015 I worked through some of the conflicts inherent in the use and prescription of Marijuana. Essentially, the law designates various substances for regulation by listing them in one of five "schedules" in the Controlled Substances Act. Marijuana is listed in Schedule 1. That means that it has "no accepted medical use in treatment," and a high potential for abuse. 

Marijuana is in the workers' compensation news periodically. One of the large pharmacy management companies provides a great overview of recent efforts to legalize marijuana. This spring marijuana is in the workers' compensation news. In April, WorkCompCentral (subscription) reported that the California system had denied payment for medical marijuana in a workers' compensation case. That article includes an extensive overview of how various states have dealt with the marijuana question. 

The same day, WorkCompCentral reported that the "nation's views" regarding marijuana are shifting. There is a perception that more Americans are comfortable with legalization. The Journal of Occupational and Environmental Medicine has recently published guidance for dealing with marijuana in the workplace. 

This appears to be a recognition that it will become more widespread. States will have to deal with the substance and the states' decisions to ignore federal law prohibiting it may lead to issues. Earlier in April, Arizona passed legislation that clarified medical Marijuana is not part of the basket of benefits provided by workers' compensation there. 

If someone is under the care of a doctor, and marijuana is prescribed (ignoring that the physician is prescribing something that  by definition has "no accepted medical use in treatment"), how will states justify treating some patients, workers' compensation patients, differently than patients in the general health system. Some will argue that the equal protection clause is implicated. 

In the federalist system in which we live, there will also be differences among the states regarding laws and regulations. As states make their own decisions regarding enforcement of marijuana laws, questions about it in workers' compensation will occur. 

Marijuana is not legal in Florida. If a worker is injured in Florida, and then moves to Washington, might the employee be able to obtain and use Marijuana as part of ongoing workers' compensation treatment at the expense of the Florida employer/carrier? 

Some of the complexity of all of this would be alleviated if the states respected federal law regarding marijuana. Likewise, the complexity would be alleviated if use of marijuana was not illegal under federal law. Congress could certainly remove it from the Schedule I listing. 

The US News reported on April 16, 2015 that a federal judge had been asked to remove Marijuana from Schedule I of the Controlled Substance Act by judicial conclusion. Advocates of legalization sought to have the courts intervene and change the federal law. There have been a variety of circumstances in which judicial activity has changed law in the United States. The judge in this instance was reportedly "initially prepared to rule that marijuana should not be a Schedule I drug." 

Ultimately, the judge declined to enter that ruling, concluding "it was up to Congress to change the law." She held that courts are not makers of public policy, and followed instead of overturning the law. The judge did make some findings. She noted that the Controlled Substance Act is 45 years old and that "the landscape has changed" during that time. 

The context of this particular case was not about workers' compensation. It involved a criminal prosecution which the US News story describes as pitting "federal authorities against states that have legalized medical marijuana." There remain questions of "legality" despite state actions regarding marijuana. Though a state may legalize, the fact remains that marijuana is illegal under federal law, and the Constitution makes federal law the "supreme law" of the land. 

Marijuana advocates claim that the substance is not as potentially harmful as other drugs, which are less regulated. They argue therefore that classification of Marijuana as a "Schedule I" substance is "arbitrary in violation of the Constitution."

The article says that some contend that the "majority of the public has already concluded" that "marijuana does not meet the three criteria of a Schedule 1 drug." There is anticipation that this federal ruling will be appealed. As the court is in Sacramento, California, the appellate issue will be for the United States Circuit Court for the Ninth Circuit. All of the states in this Circuit have "legalized" medical marijuana, except Idaho, according to the Helios overview cited above. One state, Washington, has also legalized recreational marijuana use. 

Will change to the Controlled Substance Act come through judicial intervention by the federal courts? If that is the course, will this be the case in which it happens? Or, as the judge ruled in April, is the decision to amend the Act up to the legislative branch of government? 

In the meantime, the states will continue to struggle with the implications of marijuana. It will be a challenge in the workplace and in workers' compensation.

Wednesday, April 15, 2015

How Will Attorneys (or any of us) Adapt?

I wrote last year about the effects of automation on attorneys. Attorneys Obsolete? described a trend towards automation in the legal practice and what that could portend for attorneys. This is an example of how automation may attack the legal profession from within, an internal effect. 

Later, in Three-D Employment, I outlined some amazing things that are being done with digital printers. That post questioned how these technological miracles will change employment. The effects are likely to be significant in manufacturing. The future is changing, and it is interesting to consider what may be coming to our economy.

It is of concern, because the future and change in general are issues of concern for people. Rightly so. We spend a great deal of our lives learning and gathering skills that we hope will be of value. We expect to use those skills to convey value in the marketplace and to be compensated for those efforts. Becoming skilled at making buggy whips may have once been a great career foundation. 

Early this year, Bob Wilson published What is Scarier Workplace Automation or Annihilation? He noted that "experts are predicting that by the year 2025, fully one half of all jobs that exist today will be automated out of existence." I remember when 2000 seemed a long way off, when I read 2001, A Space Odyssey as a child. I remember at the turn of the century when I thought 2025 was a long way off. But that is just ten years from now. It no longer seems a long way off; it seems like tomorrow.

More recently, Mr. Wilson has continued writing about factors that could motivate employers to further automate. In March, he wrote McDonalds Employees Make Further Push to Automate Their Jobs. He contends that the push for a higher minimum wage will change the economic dynamics in the service industry. He says that as the cost of labor increases, the business is encouraged to automate. He cites a machine under development that can produce 400 hamburgers in an hour. I used to work as a fry cook and producing 400 sandwiches an hour was simply not within my capacity. 

These are interesting points. But the one that struck me was a recent article I ran across regarding "self driving cars." George Jetson got to fly to work, I am still waiting for my flying car. But, he still had to fly it. But a car that drives itself, now that is interesting. Back in 1990, in the Schwarzenegger version of Total Recall, we met "Johnny Cab," an animatronic cabbie. That may foreshadow what the pundits tell us is coming for us all. We will supposedly get into our car and tell it where to go. 

They claim that such cars already exist and they have been tested. The Decline of Scarcity blog describes how this will have a direct impact on people's lives. On the plus side, it predicts that commuters will have hours re-inserted in their lives. They will be able to read, write, talk, or crochet while the car does the driving. It predicts that fuel efficiency will increase, and "most importantly, tons of lives will be saved." Human benefits from technology.

In May 2015, Daimler's Freightliner, the first self-driving truck hit the American highway at the Hoover Dam. 

Scarcity goes on to address the effects on people's ability to make money. It predicts a short term flurry of car sales as consumers scramble for the new technology. But, these vehicles could be the end of "truck drivers, cab drivers, delivery drivers, bus drivers, and limo drivers." The author concludes that it "seems like all of those people will soon have to look for new jobs." In the meantime, the news is full of questions about "ride sharing" software and how to classify those drivers and whether and how to license them or require them to have insurance coverage. By the time we get Uber and Lyft all figured out, they may be operated with no drivers at all.How we feel about that is interesting.

The BodyShopBusiness Blog reports on a Harris Poll regarding driver-less cars. The results indicate that 35% of us accept that this is the future, and twenty-four percent "believe they're the designated drivers of the future." Nineteen percent "think they are insanely cool." But, "34% say the cars are an unnecessary luxury and 32% feel they're only for the wealthy." I was struck by the fact that "12 percent say they're confusing." That one might go without saying?

This is a similar internal effect of technology on a particular profession, driving, to the internal effect on attorneys described regarding attorneys in Attorneys Obsolete? and on fast food workers in McDonalds Employees make Further Push to Automate their Jobs. One critical point here is that technology will bring INTERNAL effects to a profession, drivers. These changes are becoming increasingly obvious and the news is becoming focused on these internal changes. 

But, it may be that the internal effects, while significant and worthy of analysis, may be secondary to the greater external effects. That is, the effects that go beyond the profession of driving, or fast food, or law. If software decreases the need for attorneys, is there a marked effect on non-lawyers? If a hamburger churning machine replaces three employees at the local fast food joint, is there a significance to the consumer? In these industries, there will be some external effect, discussed more below. 

It may be that the external effects of the driver-less car could be more widespread. Investopedia has brought some focus to these external effects. It predicts otherwise unforeseen external effects on vehicle manufacturers, "governments via licensing fees, taxes and tolls and by personal injury lawyers and health insurers." Those may not be immediately apparent. One of the less thought about impacts of the driver-less car will be less "distracted driving" and ultimately less accidents. Some estimate distraction is a factor in up to 58% of car crashes.

Investopedia questions "who needs a car made with heavier gauge steel and eight airbags . . . if accidents are so rare?" And "who needs a parking space close to work if your car can drive you there, park itself miles away, only to pick you up later? Who needs to buy a flight from Boston to Cleveland when you can leave in the evening (by self-driving car), sleep much of the way and arrive in the morning?" 

So, perhaps less jobs in the steel industry, car part manufacturing industry, and less revenue for owners of parking facilities? All external effects of the internal changes in personal transportation. Investopedia predicts that car sharing will increase, reducing the volume of cars required from producers. Imagine your Uber app, but it just controls the routing of many driver-less "Johnny Cabs."

What about safety? One driver-less car has travelled over 300,000 miles without an accident according to Politifact. The predictions are that the automated car of the future will be involved in less, perhaps no, accidents. 

Imagine yourself in the auto bodyshop business. You would not be alone. In 2000, "there were an estimated 35,220 paint and body shops employing 220,393 people" in the United States. That is almost the same number of people as live in Tallahassee, Florida, according to Wikipedia (Remember the First District Court has told us Wikipedia is reliable as a source).

No accidents means no need for body shops. And that effects employment of just those directly involved in repairing the cars. It does not consider the people who are out there making the replacement parts like new fenders, hoods, airbags, and windshields, driving the trucks to deliver materials to the people making the replacement parts, keeping and tracking the inventory of those parts, or driving the trucks full of replacement parts out to those 35,320 body shops. 

How about the people that work for insurance companies providing repair estimates? How about the people who adjust the insurance claims regarding those automobile accidents? If there are no accidents, will there be as much need for insurance products and service? Will there be any need when it comes to autos?

How about the attorneys. Anyone with a Yellow Pages or who had driven past a billboard lately might suspect that there are a few attorneys who specialize in personal injury claims. Answers claims that there are about 76,000 attorneys in the United States who specialize in personal injury. That is about how many people live in St. Augustine, Florida. 

The Boston Globe recently ran an opinion piece proclaiming that the U.S. Legal Bubble Can't Pop Soon Enough. The author claims law school admissions are decreasing. He contends that this is because it is increasingly difficult to find work, claiming that "fewer than half of lawyers graduating in 2011 eventually landed jobs in a law firm," and that only "65 percent found positions requiring passage of the bar exam." So there is already an arguable oversupply of attorneys. Fewer accidents, fewer injuries, does that mean there will be a decreased need for personal injury attorneys? If there are less personal injury lawyers, less injured people, is the converse obvious, less demand for injury defense attorneys. 

This ignores the criminal defense bar. With self-driving cars, would there be any "driving under the influence," that is DUI or DWI in other states? In January, we heard of the inebriated Ole Miss fan who hailed an Uber following the Peach Bowl. Sensationalists initially reported that his/her almost $1,000 tab resulted from a drunken ride-share ride home to Mississippi.

Auto Blog later reported that it was more related to providing a faulty address and not understanding Uber's "surge pricing," but nonetheless that tab resulted in part from drinking. In the driver-less world, might such a "price tag" detriment be the worst scenario? Would it be a crime to drunkenly tell the automated car the wrong destination? Would DUI defense work become a thing of the past?

The implications are broader. The Rocky Mountain Insurance Information Institute reports that in 2013 the "average auto liability claim for bodily injury was $15,443." They claim that the volume of crashes was about 5.5 million in 2012. That is a great many crashes, and a great volume of dollars required to provide the medical testing and treatment for the results. Contemplate the economic impact of eliminating the need for all of that care and treatment. 

Certainly. the injured are better off not being in the accident and not being hurt. No one would argue to the contrary. But the absence of those injuries may potentially cause a shift in the labor market. Perhaps the medical expertise currently invested in that care could be invested in treatment and care for other medical challenges. That investment might lead to even longer life expectancy for us all?

The economic impacts are potentially intense, internal and external, direct and indirect. Less drivers, less trucks, less replacement parts, less cars, less parking facilities, less advertising by attorneys and physicians, less claims, less claims adjusters, investigators, estimators, etc. It is a truly staggering potentiality. 

On the human side, this is all positive. There is no human detriment to fewer people being hurt, and no one would suggest that there is. The point is that we will see internal changes to the practice of law, production of hamburgers, and truck driving resulting from automation. We have begun to comprehend what these internal changes will mean to various professions; I hope they do not replace me with the "robotic hamburger maker."

But the real point is that we may see far broader external impacts of automation on the highways. As they benefit us as human beings with less injuries, these technologies are likely to cause shifts in the American economy. Resources directed at dealing with the results of auto accidents today will likely be redirected otherwise as the external effects of driver-less cars change our environment, Will we be prepared for the changes that will come as we experience the changes that will come with the great benefits in safety and health?

What does this all mean for workers' compensation? From "falling asleep behind the wheel," to "distracted driving," Business Insurance concludes that "traffic accidents are one of the leading causes of high severity workers' comp injuries." The National Council on Compensation Insurance (NCCI) echoes that conclusion. An info-graphic on WorkCompCentral.com represents that the top occupation for injuries is "Driver/Sales Workers."

If auto accidents become a thing of the past, will the "going and coming rule" become obsolete? Here is a recent post from Bob Wilson on when the risk begins for travelling employees. With little or no responsibility for operating the vehicle on our commute, will we sit in front of a display and actually work during that time?

I recently read about a new program offered by Wal Mart in limited areas. You go online and order your groceries and schedule a pick-up time to drive through the pick-up window at the store. With a driver-less car, there may be no need for you to go along for the ride. While your car is out shopping, it could perhaps pick up your dry cleaning and the kids from soccer practice as well? Such changes may alter the kinds of jobs in the marketplace as we consume more convenience (pre-selected groceries loaded into our car) and spend less time with tasks such as shopping. 

We likely have little choice in whether we can remain buggy whip producers. Hopefully, this will be the limit of the change; though there are some who wonder if instead of being the whip makers we may be the horses in this revolution. If these folks are right, the impact might be more profound than we think. But, as I have said before we do have the chance to both anticipate that change is coming and to prepare ourselves for it. What skills can we obtain today, and perfect in coming days and months that will allow us to continue to bring value to the marketplace through such change?

Monday, April 13, 2015

Diamonds Are Forever, Settlements May be Too

A couple of settlement cases across the country provide some insight last month. Both are reported on WorkCompCentral (WCC). In the first, review of a settlement was denied, and the settlement is permanent. In the second, an injured worker sought recovery from a former attorney and was denied. 

On March 27, WCC reported that the U.S. Supreme Court had declined to review a pro-se injured worker's challenge to a settlement. The case originated in California where the injured worker entered into some stipulations. When she tried to set-aside those agreements, an administrative law judge (ALJ) concluded that she had not proven that would be appropriate. 

There followed a series of reviews by the workers' compensation appeals board, the California appellate court, the California Supreme Court, and concluded with the U.S. Supreme Court declining to review the case. 

On March 31, WCC reported that a Pennsylvania injured workers' malpractice claim against his attorney could not proceed. There, the worker injured his back in 2005, and settled his case in 2008 while represented by an attorney. The worker later complained that he did not understand that this settlement would bar his receipt of future medical care. 

In the Pennsylvania case, the worker sued his attorney alleging that had he known the settlement would bar future medical care, he would not have entered into the agreement. The PA court dismissed holding the injured worker could not win unless he proved that "he was fraudulently induced to settle." The court concluded that the evidence did not show that the injured worker's agreement was not voluntary. There was evidence as to what he was told, and that he was afforded the chance to ask questions. 

These two reports come from across the continent. A California case in which appeal after appeal sought to negate a workers' compensation settlement. A Pennsylvania case in which an injured worker was unable to hold an attorney responsible regarding a settlement. The suggestion that comes from these cases is that settlements may be forever, just like diamonds. 

Settlement is an important conisderation in any dispute. It affords the opportunity to both sides to cease hostilities and conflict. Mediators like to tell people that their process offers the chance to formulate their own resolution to their issues or their case. That is true enough. 

These news stories suggest though that the time to ask questions about resolution is before the agreement is made. Ben Franklin is said to have "an ounce of prevention is worth a ound of cure." This was in the context of his idea that preventing fire "was preferable to rebuilding a burned city." 

Litigation can be exhausting. Those who advocate alternative dispute resolution note as an advantage that agreements can be quicker than proceeding to trial. In that context, a purpose of entering a settlement may be to end the litigation, to put the dispute to rest. 

In both of these stories the litigation did not end when agreements were entered. Certainly, it appears that the litigation ultimately concluded. But the California case apparently continued in litigation for at least a year after the settlement was signed. Documents were required from both sides at a hearing before an ALJ, then at the workers' compensation appeals board, the California appellate court, the California Supreme Court, and the U.S. Supreme Court. 

In the Pennsylvania case, there is more data available. That settlement was entered in 2008. In 2011, the worker filed this malpractice suit. In May 2013 the trial court dismissed the lawsuit. In March 2015 the appeals court affirmed that dismissal. That might be the end, or the appeals could continue as they did in the California case. But so far, the malpractice litigation has been ongoing for about four years, and the settlement of the workers' compensation case was seven years ago. 

Neither of these resolutions resolved much immediately. Regardless of the ultimate outcome in these stories, a point worth considering is that years have been spent in rebuilding Ben Franklin's proverbial city in these cases. Time and expense on all sides that might have been prevented or minimized with his "ounce of prevention."

Lawyers.com cautions us that contracts are all around us, that "we make them everyday." Its' advice is "most contracts include information or clauses that should be read and understood before you sign." That is a critical point, before making the agreement, know what the details are, what the words and phrases mean, what you are giving up and what you are getting in return. 

Since 2001, the Florida workers' compensation judges do not review details of settlements involving injured workers who have attorneys. Unrepresented settlements receive more scrutiny, and in my experience judges of comensation claims ask some pointed questions about them. But in the represented settlement, the analysis is limited to attorney's fees and chid support. It is critical that all sides read and understand the agreement before it is signed. 


Wednesday, April 8, 2015

Is it Manslaughter, Does it Matter if it it's not?

A teen in Massachusetts, Michelle Carter,  has been charged with manslaughter.That story struck me when I saw it, because a legal question in that case is likely to be what duty one has to prevent, or at least not to encourage, another's suicide. 

The Free Dictionary defines "manslaughter" as "the unjustifiable, inexcusable, and intentional killing of a human being without deliberation, premeditation and malice." Manslaughter is not murder, which requires planning before-hand. 

I had just penned this post when I received my March 1, 2015 Florida Bar News. The front page had a story titled "Lawyer Suicide." This describes a recent recognition that lawyer suicides are increasing. The article cites high rates of depression in the profession. It says "lawyers are 3.6 times more likely to suffer from depression than non-lawyers." 

I am willing to bet that the numbers get worse when the stress increases. Stress from making payroll, too many cases, accumulated debt, never enough time for everything, work demands conflicting with family. Attorneys tend to take the woes of their clients upon themselves. The client is sometimes in dire straights, and this causes you stress. This likely occurs in the life of many attorneys. You name it, there is much on the stress buffet from which to chose. 

What does this have to do with workers' compensation? It has little to do with workers' compensation specifically. It has everything to do with how people treat one another. That is important in any community, and workers' compensation is a community.

According to Cable News Network, Conrad Roy was 18 years old last summer when he died of "apparent carbon monoxide poisoning." He was found in his automobile. This is not uncommon, according to one source it is the method of thousands of suicides each year. There are even websites that detail how to accomplish this.

In the course of Mr. Roy's experience, he apparently "expressed second thoughts." The CNN article says that he "exited the vehicle and communicated to" Ms. Carter, a friend. He apparently told her that "he was having second thoughts about taking his own life." Ms. Carter apparently responded to this text message and essentially told him to "get back in the car."

The police searched Mr. Roy's cell phone and "discovered hundreds of texts between" the two. They say that "many" of these "contained language from Carter that encouraged Roy to take his own life." The police also fault Ms. Carter for failing to assist Mr. Roy and for failing to notify authorities of his thoughts or concerns.

Beyond the encouragement, the police say that Ms. Carter "guided him in his engagement of activities which led to his death." Ms. Carter denies guilt, and claims to have repeatedly attempted to "console Roy." Her attorney argues that no manslaughter was committed.

In this instance, there will be no winners. Mr. Roy is already dead. Ms. Carter is either a friend left to suffer with guilt and remorse or a criminal off to spend time in a correctional facility, which is no teenager's post-high school goal. That determination will be for the Massachusetts criminal justice system, but it is likely that neither outcome is a "win."

There will always be questions following a suicide. Did anyone know or suspect? Was there something, or something more, that could have or should have been done? There are those who might choose to be guided in daily actions by the analysis of whether a given course is or is not against the law, that is "is it manslaughter?" The law sets a "floor" of basic behavior choices. But whether something is illegal does not answer the question of whether it is right.

This was an instance in which there were apparently some reasonably specific signs that Mr. Roy was in a difficult place. The world will likely never know the full details of his circumstances. I would argue that the details are likely not important except in the context that they were sufficiently serious in his perception to lead him to end his life. Whether others agree or not with his perception, essentially what matters is how he felt.

In another recent story, a teenager received an email from school advising him about some late homework. Thirteen years old, he took a walk. He was found about 150 yards from his home, following a "frantic search." If you stacked up all of my missed and late homework assignments, it would be a huge pile of paper. I am not counselling anyone to ignore their homework, but in the grand scheme of things, it should not be a reason to die. 

Maybe there are "straws" that break the camel's back. Unfortunately, we do not have sound methodology for knowing whether someone is having a bad day or not. We cannot predict how they will react or fail to. 

What we can learn from these stories is that people may be going through challenges. We may see them and we may not. The first story seems to suggest that Ms. Carter knew Mr. Roy was troubled. The State faults her for not reporting this. Whether criminally liable or not, there will be those who will agree Ms. Carter should/could have done something. Keep in mind that she was 17 at the time of Mr. Roy's death. Regardless of how the prosecution plays out, it is likely she will wonder the same thing.

We see people in workers' compensation who are under stress. There are professionals who can provide assistance with that. The March Florida Bar News article provides information on risk factors. Stress is one. It provides some warning signs that might alert us. It concludes with a reminder that the Florida Lawyers Assistance (FLA) is a call away. 

I have been privileged to meet some of the leaders of FLA. They put on some great presentations at Inns of Court and local bar meetings that are well worth the time. Many attorneys think that FLA is just about substance abuse. Know that they can help with that, but their scope is far broader. 

My point in all of this is that stress is real in this community and profession we are in, as well as in the world around us. If it gets too much, get help. If you see someone struggling, stumbling, even falling, reach out to them. This is the least we can do. If someone contacts you and expresses their feelings, don't ever be the one to tell them to get back in the car. Though I have some doubts that doing so is criminal, I have no doubt it is the wrong thing to do. 

By the time I got around to publishing this post, the April 1 Florida Bar News arrived. Above the fold on page one is an announcement of the Young Lawyer's Division promoting health, balance, and wellness. They have some stress-reducing suggestions. I encourage a read. These suggestions may be worth a try, even if you do not feel like you are experiencing much stress. 

I am honored to have been a part of this profession and the practice of Florida workers' compensation. I am privileged to have have known so many of you. You each bring value to the community. If you need help, reach out and get some help. FLA is at 800-282-8981,There are a multitude of other resources available too, and they are just a Google search away.

Monday, April 6, 2015

Drug Formularies Back in the News

On March 2, the Claims Journal opened with an enthusiastic headline: "More States Considering Workers' Compensation Drug Formularies." The potential benefits from formularies are described in Formularies in the News last fall. The idea in a nutshell is to reduce friction in the system by having a pre-approved list of medications for treatment of workers' compensation claims. 

The California Workers' Compensation Institute (CWCI) study last year concluded that these formularies are potentially a viable way to control pharmacy costs. There are occasions in my experience that lead some to conclude they have found "the" solution to a perceived problem. Experience teaches us that there are rarely "silver bullet" solutions, that is solutions that are complete, focused, and effective. 

That does not keep various constituencies from discussing a variety of "reforms" which ultimately are not adopted. Just because the "perfect solution" is elusive does not tend to keep people from searching for it. It is like that old adage from Ralph Emerson, "build a better mousetrap and the world will beat a path to your door." There are constant efforts to improve our workers' compensation systems, with varying degrees of success. 

When the Insurance Journal leads with "More States Considering Workers' Compensation Drug Formularies," one may wonder if that is the world beating a path to some innovator's door. The article explains the motivation, stating that "pharmacy costs have been a large contributor to the increase in overall workers' compensation medical costs." As a result, there have been some consumers (those that pay bills for medical care) who have sought methods to control pharmacy costs. 

One solution has been pharmacy benefit management (PBM). There are several companies who specialize in reducing pharmacy costs. Their theory is in some part an economy of scale model. By offering their consolidated purchasing power, they can obtain lower unit prices for prescription commodities; some savings they pass to their customer (the purchasers) and some savings equates into the profit of these PBMs. This is a model that health insurance companies have engaged for some time. 

The Claims Journal notes that this PBM process has been used by workers' compensation managers, but "only Washington, Texas, Ohio, and Oklahoma have" enacted state mandated workers' compensation drug formularies. Three of these are among the largest, ranked by the volume of benefits paid, workers' compensation markets in the nation, Washington (7), Ohio (8), and Texas (10). The largest systems are California (1), New York (2) and the federal systems (3). See, How Huge is it Anyway, Lex and Verum, P.11, June 2014. 

California has studied the formulary process, resulting in the CWCI conclusions published last fall, Formularies in the News. However, New York and California do not have forumlaries in place. Florida ranks 6th on the list of the nations largest workers' compensation systems, and it likewise does not have a state formulary.

According to the Claims Journal, "California, Montana, Tennessee and Maine, are currently considering drug formularies." The article notes that Louisiana is researching the subject and "Arkansas' drug formulary is set to launch in July 2015." 

WorkCompCentral more recently reported that support for a California formulary is growing. An advocate for injured workers cited in that story contends that any formulary should include "all medications and drug therapies that are available for a covered medical condition." It is unclear how that  would be different from not having a formulary. Such a broad availability seems more like the PBM model than the forumlary model.


Cost-efficiency is certainly a driver in the published studies on formularies, and was a focus of the CWCI study last fall. Some claim that there are other factors that support formularies. Jennifer Kaburick works for Express Scrips, one of the larger PBMs. She says that drug formularies produce a "likelihood of better utilization." she describes the process as "changing prescribing behavior." She cited a 90% decrease in prescriptions for some medications following implementation of these programs. 

The article quotes an official from Prium, a company involved in pharmacy management, that "prescribing behavior" of physicians could be altered through retraining, "from inappropriate care to appropriate care," and thus "patient outcomes should be better." 

The article leads to some questions. First, if formularies are all they claim why are they not under consideration in all of the systems? Could Florida's workers' compensation system benefit from a regulatory formulary? Is it even being explored?

Second, if these benefits are real, that is lower costs, better prescribing and better patient outcomes, what is the other side of the story? I have seen a fair amount written about the concept of formularies and PBMs. The WorkCompCentral story supports the conclusion that there are critics, but is there data to support that a formulary would not deliver the promised benefits, or that there are coincident detriments that persuade against the idea? If they are really the "better mousetrap" that proponents say, why are all of the states not moving in that direction? 

I am left wondering if there is some "Paul Harvey," that is "the rest of the story." Can someone tell me what it is?