Wednesday, September 2, 2015

Are we Working Ourselves to Death, and is that Compensable?

Last week was workers' Compensation Institute's educational conference, coming to be known as "WCEC" followed by a year. This year was WCEC2015. I have been attending this annual event since 1992, so this year marked 23 years. I may have missed one early this century. 

It was a long week for me, getting ready for the Judicial College that has become an integrated part of the event. This is sponsored by the National Association of Workers' Compensation Judiciary (NAWCJ). The Judicial College celebrated its seventh annual iteration this year. It marked a milepost this year with over 100 adjudicators registered for the event. 

The Southern Association of Workers' Compensation Administrators (SAWCA) has become a bigger part of the WCI event. They started five years ago with a Regulator Roundtable (TM), and I was honored to be invited to participate. We met in a Hall of Cities room at the Marriott with five regulators on each side of a U-shaped table, about 15 of us total. There were about as many of us as there were people in the audience. This year there were 27 states represented on the Roundtable (TM), and over a hundred in the audience. A slight decrease in attendance from the 125 we had last year. 

Last year, SAWCA began offering a Regulator College (TM) for two days during the WCEC. It also began small. This year, it was standing room only. It was designed for regulators to learn from other regulators. It is an excellent opportunity for people to share experiences, ideas, and concerns with others who are similarly charged with running workers' compensation systems. We had a great public interest in the Regulator College (TM) this year. It may well have to expand to include non-regulators. The interest and the demand is simply compelling. 

When all was said and done, I worked seven straight days last week. Several days were fifteen hours or longer. I had the chance to meet with the Florida Judges and mediators, the Florida Workers' Advocates (I was late and they were gracious), The Florida Bar Workers' Compensation Section Executive Council, and to speak with a raft of industry and practice leaders. 

One of the groups of interest was Kid's Chance. This grassroots conglomeration of state organizations is focused on providing scholarships to people whose parents have suffered work-place accidents. A dynamic group gathered and discussed why there is no Kid's Chance chapter in Florida. There will be soon, of that I have no doubt. 

People are used to the bustle of the World Center during the WCEC. I do not know the count as yet, but I am comfortable that we had well over 8,000 workers compensation professionals in the building last week. I heard some say they estimated as high as 10,000. It is simply the largest workers' compensation conference I know of, dwarfing the rest. 

I saw doctors, lawyers, regulators, lobbyists, agents, brokers, chiropractors, adjusters, risk managers, safety directors, nurses, consultants, and more. In one conversation about MSA, I pointed out to an industry leader that there are a handful of people who really understand MSA, and most or all of them were in the building last week. That group was merely representative of the unbelievable depth of expertise on various panels.

The Marriott literally hums with activity and conversation throughout, but it is really quite a peaceful place at 6:00 a.m. as a handful of people are getting ready for a day of conference. Rooms are checked and refreshed, power-points tested, signs changed, and more. The Marriott crew was exceptional in their attention to detail and focus on the success of our programming. Without their attention, the NAWCJ and SAWCA events simply would not be what they are. 

I was disappointed to miss Joan Jett. But by 9:00 Monday evening I was over 15 hours into my day and instead headed down the road to my hotel. Suffice it to say that after the long days, I returned to Pensacola tired. I filled out my time sheet for the week and was astounded by the hours for the week. It reminded me of a recent case in Pennsylvania, which I perused earlier in August. 

Reuters reported on workers' compensation in August, published by Yahoo among others. The story is about a man who was "worked to death." He was employed by a city in Pennsylvania (incidentally one of the jurisdictions that had two judges in attendance at the NAWCJ Judicial College). This employee "collapsed during his 14-hour shift" in 2007. The cause of death was a heart attack. 

I remember my first experience with workplace heart attack back in the 1990s. The Florida Court's Victor Wine case and other authority were a challenge. The compensability of heart attacks in Florida workers' compensation is a somewhat difficult analysis. Even in the cases on first responder presumption heart attacks continue to challenge somewhat. The WCEC2015 included a breakout just on these presumption cases. 

As an aside, the Pennsylvania story also caught my attention because the injured worker was named Robert Dietz. Coincidentally, we have a Florida Judge by the same name. Our Judge Dietz has been instrumental in the establishment and development of the Professional Mediation Institute which holds a full day mediation education program during WCEC, so that coincidence of names caught my eye.

In the Pennsylvania case, the employee's usual work was to repair elements of the water system. This could involve making holes in streets or sidewalks, removing tree roots, clearing debris, repairing the damage to the water line itself, and then replacing the earth and/or pavement. Obviously not a desk job, and one which would be expected to involve some significant exertion. 

The 48 year old "died of a heart attack while performing hard physical labor." His widow sought death benefits, and the Pennsylvania Workers' Compensation Appeals Board denied them. She sought review of the Commonwealth Court, which reversed the Board last month and awarded her death benefits under the Pennsylvania Act. 

The Pennsylvania Court noted that Mr. Dietz worked a 14-hour shift just before his heart attack. Judge Leavitt of the Court noted that "the overwhelming circumstantial evidence in this case shows that exertion from Decedent’s regular work activities over the course of a 14-hour workday caused his heart attack." Would the result be the same in Florida? In the non-presumption setting that most of us Florida employees work in, causation by our "regular work activities" might arguably not be sufficient to prove compensability. 

This Pennsylvania case was one of those factual disputes that come up in litigation. There was conflicting evidence about whether the work resulted in the injury or whether the heart attack was inevitable and simply happened to occur during the work-day. The worker's expert attributed it to work, the defense expert opined that "he could have died at any time. It was just serendipitous that it happened while he was working," Deciding between conflicting opinions is part of what adjudicators do. 

Generally, deciding between conflicting evidence is not what appellate courts do. The question for appellate courts is usually whether there is evidence in the trial record that could support the conclusions that were reached by the trial adjudicator. It is called the "competent substantial evidence" standard. Despite that being the normal course of appeals, appellate bodies in Florida and elsewhere have periodically substituted their judgement for trial judge's determinations also. 

This raises another interesting point about the Pennsylvania case. The medical evidence there was supplied by affidavit. Most of the evidence in Florida cases comes in the form of medical expert depositions, often accompanied by medical records. In those cases where all of the conflicting medical evidence is in writing, the Florida court has occasionally concluded that it is in the same position as the trial judge to read and interpret those opinions. The court reasons that when the testimony is live and "in person" a trial judge is in a superior position to assess and determine credibility, but when the testimony is written, like a deposition or an affidavit, then the appellate court is as well-situated to determine which writing is most credible and therefore persuasive. 

It strikes me that the Pennsylvania affidavit process is likely less expensive than coordinating, scheduling and attending depositions. One of the programs at the NAWCJ last week focused on the evidence challenge presented by affidavits. The deposition provides the benefit of cross-examination, and that is a fundamental element of procedural due process. 

Due process is expensive, and systems of all kinds struggle with providing appropriate due process. Even criminal defendants in Florida have seen less opportunity for discovery and confrontation in recent years. The scenario on Pennsylvania law at the Judicial College considered whether a Judge should admit affidavits that have not been subject to cross-examination. 

Should the party objecting to such affidavits have the opportunity to cross-examine those opinions? If so, should the submitting party have the obligation (and expense) of providing the forum (the deposition) or should the party objecting to the affidavit bear that cost? It provided an interesting discussion on Pennsylvania practice and law. But it was a compelling discussion in more general terms regarding evidence and due process. We were privileged to have the undisputed dean of Florida Evidence, Charles Ehrhardt of Florida State University, lead the discussion. 

Depositions are a compromise. They can be obtained at the doctor's office, on her/his temporal terms, and then submitted as evidence. Bringing a doctor to testify live before a judge or court is far less predictable and is frankly expensive. So most Florida workers' compensation litigants settle for the deposition. Of course, this leaves the possibility that an appellate body might elect to reinterpret evidence. That cost/benefit analysis is likely similar for the affidavit process in Pennsylvania. 

This is an example of compromises and strategic decisions made in litigation. Parties may not try the perfect case, but they try their best case within the confines of their abilities and means, and within the strategy they have settled upon. 

So, we can gain a couple of points from all of this. The systems across the nation are neither identical nor perfect. The results in a Pennsylvania case may not be the same as in a similar circumstance in Florida. The facts of a case may be critical to the outcome. Medical experts may disagree about what the evidence shows. And there is a role for appellate review in all we do that affects people and their claims. 

It was a long week, but I enjoyed seeing so many at the WCEC, as I did last spring at the Section's Forum. This year I have also met Florida lawyers at the Friends of 440, the Miami oral arguments, the NCCI and the WCRI. This year I regrettably missed the WCI Spring Forum, the FWA Annual Convention, the Florida Association of Self-Insureds (though I appeared by video, I missed seeing and discussing things with the attendees), and the Worrkers' Compensation Claims Professionals, all events that I have attended in various years past. 

I regretted that it was not possible to attend more sessions, and hear more presentations. I had too little time to talk to the barometers of workers' compensation like David DePaolo and Bob Wilson. I know that other thought leaders like Mark Walls and Kimberly George were there (I saw pictures on Twitter), but my interaction with them and some other leaders was purely by social media.

Twitter is an engaging way to interact. But it is somewhat troubling that I was using it to communicate with people in the same building I was in. I would have enjoyed the opportunity to meet and see Mark, Kimberly, Aimee, Connie, Brandon, Jarrod, James, Schuyler, C.J., Anna, Tammy and all the rest of the Twitter crowd that was sharing thoughts and comments throughout the WCEC.

There are some great opportunities to gather and discuss this industry/marketplace. I appreciate your feedback and comments at these various conferences. I learn a great deal from people's questions, comments, ideas, and complaints about workers' compensation generally, Florida specifically, and our adjudication/mediation process. If we could just figure out a way to constrain it all to a normal ten hour workday?

I look forward to seeing you at one of these conferences soon. But there is no reason to wait. Email me your thoughts anytime, or contact me through social media @FLJCC (#workerscompensation or #SAWCA or #FLJCC).

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