Sunday, October 30, 2016

The Responsibilities of Attorneys and Supervision

The practice of law can be challenging. It sometimes throws a curve ball. Law has also morphed from a profession to a business. As with other businesses, technology has been leveraged to maximize efficiency. And, there has been a reliance on paralegals and other staff in the practice. The U.S. Bureau of Labor Statistics says that paralegal job growth is expected to run at about 8%, which is about the average job growth for "all professions."  

The technology element is also worth of consideration. Technology is invading our lives, personal and professional. It becomes more pervasive almost daily. So much so that The Florida Bar has recently required that all lawyers receive three hours of continuing education (in each three-year reporting cycle) on the topic of technology. 

Unfortunately, and fortunately, attorneys are increasingly relying on both paraprofessionals and technology. Both make the attorney more productive. Both make the attorney more efficient. But neither excuses the attorney from responsibility. In the end, the responsibility for representation, for competency, and for the outcome rests on the shoulders of the attorney. 

Recently, I received a document from an attorney. It was titled "Claimant's Response to Order Dismissing Insufficient Petition (Without Prejudice)." Electronic filing of documents is mandatory in Florida workers' compensation. It has been by rule since about 2010 and by statute not long thereafter. When a paper document arrives at the clerk's office in Tallahassee, sent by an attorney, is is usually dismissed for violating the law. Phrased that way, it makes sense. Attorneys sending paper pleadings (unless for a good reason) violates the law. 

The document in this case closed with the phrase "the Claimant’s attorney respectively requests this Court to rescind its order dismissing the Petition for Benefits and allow the Claimant’s petition to stand proper." In effect, the "Response" was a "motion," though mistakenly titled. 

As an aside, this office is part of the Executive Branch of Government. It is not a "court." Jones v. Chiles, 638 So.2d 48 (Fla. 1994); In Re Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004)("The Office of the Judges of Compensation Claims (OJCC) is not a court of this State"). (Emphasis added). While this Office exercises quasi-judicial functions pursuant to statutory authority, it is not a Court. I am persistently bemused by references to this office and "Court," particularly when the reference is made by an attorney.

I periodically run into situations in which unrepresented parties struggle to get relief. They are not familiar with rules or procedures and they therefore send letters, postcards, or notes to a district office or the OJCC Clerk. Others, merely ask for time with the judge. Such requests often result in a "status conference," at which both parties and attorneys can present. It affords an opportunity to explain things to those who do not understand the rules, procedures and practice of law. Status conferences are useful when dealing with those who do not understand and need the opportunity for explanation and often for repetition. 

Generally, however, when a party wants an order or some other relief, they proper tool is a motion, see Rule 60Q6.115(1). 

This particular "response" (nay motion) made some intriguing representations. 

First, it merely asserted that counsel "desired to file a petition for benefits." No expression was made regarding why or how this was a challenge or problem.

Second, it said that "the undersigned was advised that they could not electronically file a petition for benefits." 

Third, that the "undersigned's office was advised that they could not file a Petition for Benefits electronically unless the Claimant voluntarily dismissed his own (previously filed) Petition for Benefits. 

Fourth, that this dismissal would "prejudice" the injured worker.

Fifth, that "there appears to be some glitch in the Department (sic) of Administrative Hearings' computer system which will not allow someone/an attorney to file a Petition for Benefits electronically if another Petition for Benefits has been filed already."

Sixth, that the counsel was nonetheless able to file a notice of appearance, and thereupon a "Petition for Benefits was sent (in paper form) to the Division of Administrative Hearings in Tallahassee."

That paper petition was dismissed because it was not electronically filed. Electronic filing is required by both statute and rule. As mentioned, that has been true for several years. Petitions for benefits are electronically filed in Florida on a daily basis, 67,265 times last fiscal year or about 184 times each and every day. When someone says the "cannot" file a petition, it signals that something serious is wrong. 

Despite this apparent success rate with petition filing, the attorney in this instance asserted that despite best efforts, "the Division of Administrative Hearings’ computer system would not allow the undersigned to comply with the electronically filing of the petition." 

Counsel then advised that "requiring the Claimant to dismiss the Petition for Benefits prior to any other attorney being able to file a Petition for Benefits is impractical, is unconstitutional, and deprives the Claimant of his rights filed under Chapter 440, under the Florida Constitution." The Constitution protects due process and other rights of people. 

We take "glitches" seriously at the Office of Judges of Compensation Claims ("OJCC")(an agency of Florida government charged with administering the adjudicatory requirements of Chapter 440 F.S.), which is "within the Department of Management Services," see Fla. Stat. 440.45). Neither the "Department" or "Division" of Administrative Hearings (DOAH) is charged with adjudication of workers' compensation claims, though there are administrative ties between the OJCC and DOAH. 

Another aside, a "glitch" is "a usually minor malfunction." The term is frequently used to refer to an electronic component, processor, or micro-processor device not performing as expected or intended. So, I set out to investigate this "glitch." We like to make programming corrections as rapidly as possible to facilitate the public's needs. I was unable to replicate the "glitch." We had multiple staff members analyze the allegations, attempt similar filings in our testing program, and even asked some programming questions. All to no avail. 

Next, I elected to enter an order on the case. First, that order vacated the dismissal of the paper petition. It is critical that no error prevent a person from receiving their due process. This is true when such an error is mechanical or human. The system has to strive to deliver due process under all circumstances. And, the order sought details from the filer, such as what was attempted, why it did not work, who was spoken to, and more detail on replies (so that further attempts could be made to replicate this "glitch"), etc. 

Additional information was rapidly forthcoming. And, it turns out, dad that information been included in the original Response (nay motion), including what was actually attempted and what failure actually occurred, a great deal of time and effort might have been saved. If counsel had invested as much time in actually trying personally to file that petition as had been invested in drafting a "response" (nay motion), time and effort might have been saved for the attorney, this Office, and all involved. 

First, counsel explained that the attorney had not her/himself tried to file a petition and had not spoken to any OJCC staff about the perceived issues. Counsel had instructed "legal assistants/paralegals" to file a petition. Those staff had encountered issues, made phone calls, and thereafter counsel filed a motion in reliance on their hearsay and the hearsay within hearsay of what they believed people said to them. Counsel's staff had failed and counsel elected to simply (or simplistically?) rely upon them without personal inquiry or personal involvement. That is a mistake. Attorneys are responsible for the actions of their staff. They are responsible to actively and effectively monitor and supervise staff. Rules of Professional Conduct, Rule 4-5.3

Second, the legal assistant described that the OJCC website "did not allow an option for me to file a Petition for Benefits." This, it turns out, is simply not true. The assistant in this instance did not click on "file document" and attempt to file a petition. In this instance, the attorney had not yet filed a notice of appearance, which is why this option ("file document") was not selected. The assistant instead tried to start a "new case" by filing a petition, and received an error code. This is because that injured worker already had a case. The OJCC assigns only one case number for each injured worker for each date of accident. You cannot start a "new" case where there is already an existing case. 

The assistant then did a case search (a good step) and discovered that this client already had an existing OJCC case (a fact that would hopefully be identified in the client intake process). 

Armed with this information that a case existed, the assistant returned to e-JCC and selected "file document," and described how the only option offered was "Notice of Appearance." This is true. If you are not counsel on a case, you may not file documents in that case. This seems simple, but it bears repeating. To file documents in a case, you must be counsel of record. To become of record, you must file a notice of appearance (says so in the Rules, Rule 60Q6.104). 

For illustration, in e-JCC, the user has a couple of choices: 


One is to click "file new case." Caution, this will only work if, in fact, you are filing a "new case." It is possible that a particular worker who hires an attorney will already have a case. Someone (former counsel) may have already set-up a case by filing an "initial petition" or a "request for assignment of case number ("RACN")(maybe by the employer/carrier to facilitate filing a motion or request). "RACN" and "new petition" are the only choices when you select the "File New Case" option. Again, this option is only for "new cases" (see red circles below). To be clear, each claimant can have one "new case" per accident. 


There can only be one "initial" petition. By "initial" we mean "occurring at the beginning" (see Webster's). After an "initial" has been filed, there can never again be another "initial." A similar example is birthdays. When someone attains one year of age, we celebrate their first or "initial" birthday. After that, we may celebrate many "subsequent" birthdays. Each will have an effect and is worthy of noting, but only that first one will ever be the "initial" one. 

It is not possible, when you meet someone, to attempt to celebrate their "initial" birthday again. That has already occurred. You might celebrate their birthday, but not the "initial" one. In the same way, if you get a new client, you might well file another petition, but you cannot file another "initial" petition. That is not a "glitch," unless in personal logic. The attorney in this situation would likely have understood this had a personal role been undertaken, rather than the reliance on staff hearsay and the resort to a "response" (nay motion). 

So, it turns out that the first error was attempting to file a second "initial" petition. That cannot be done, and the reason is perfectly logical. There is no "glitch." 

The second error was counsel relying blindly upon staff hearsay. Staff is of assistance to counsel, but their inability to accomplish assigned tasks does not deny due process to a client. It may merely evidence staff competency issues that the attorney should personally work to resolve. The attorney should become involved personally because that is what the client hired, expects and deserves. 

The third error was the attorney's staff calling for advice and assistance from an OJCC district office staff with e-filing. For several years, the OJCC has advertised the availability of assistance with filing. The appropriate source of advice or assistance is to email askOJCC@doah.state.fl.us. If you need assistance with e-filing, go to the source. Go to the clerk's office that runs the filing system. Go in writing (email) and that way you will get a response in writing. The chances for miscommunication of the problem or the solution is minimized. 

But, if you make a phone call to the OJCC clerk's office, take the name of the person to whom you speak. In this instance, the best we know now from the attorney's response is that the attorney's staff says they called the clerk and "spoke to someone." Weeks later, that is an almost impossible trail to follow. 

The fourth error is the misunderstanding that the attorney "could not file a Petition for Benefits electronically unless the Claimant voluntarily dismissed his own (previously filed) Petition for Benefits." The question that was asked was how the new attorney could file an initial petition. The correct answer was you cannot. Once an "initial" petition is filed, every other petition will be "subsequent" to it. Unless the entire "initial" case were deleted from the OJCC database, there is no way a new "initial" petition can be filed. This is as impossible as you celebrating another "initial" birthday. 

The fifth error is the allegation that there is a "glitch." The only error in this situation is what computer programmers refer to as "user error." Computers are literal processors of information. Humans program them to interact with humans, and to provide communication. They seem to react and to provide advice sometimes with error messages, but they are really just doing what humans programmed them to do, with "canned" responses. Computers do not make decisions. They do not make independent observations. They take what you tell them and they rely upon your representations. 

An old adage in computing is "GIGO," or "garbage in, garbage out." The effectiveness of a computer is directly dependent upon the inputs provided by the user. If you repeatedly try to file an "initial petition" in a case that already has a petition, the computer will not let you. It will show an error every time. This is not a glitch, it is user error. If you find that a computer will not do what you want it to, email askojcc@doah.state.fl.us and ask a question. 

And finally, remember that the notice of appearance is your way of joining a case. Imagine the chaos if that gateway did not exist. Imagine thousands of lawyers filing documents on hundreds of thousands of cases, haphazardly, randomly, without checks and balances. No, to file on a case you must file a notice of appearance. You cannot file documents using another attorney's access (username and password). If you do, the filing will show up as that attorney's filing and not as yours. Computers are literal. They do not read your document to see who signed it. Computers accept your document and the representation (remember the Rules of Professional Conduct and the requirement of truthful representations to the tribunal, Rules of Professional Conduct, Rule 4.3-3) of who is filing it. 

Finally, the error was in sending a paper document to Tallahassee. Electronic filing is mandatory. If you believe you have found a "glitch" in the system, email askOJCC@doah.state.fl.us. If you do not make any progress, send me an email david.langham@doah.state.fl.us. Save yourself the time of a paper pleading, an order striking, and a "response" (nay motion). Protect your client's due process proactively, rather than through a later complaint (response, nay motion) that merely outlines user error and staff supervision issues. 

Paralegals' presence in our profession will expand. Technology will continue to expand its presence in our profession. Attorneys will become increasingly dependent upon both. Each will contribute to efficiency and productivity and profitability. But each must be supervised by the attorney, who is ultimately the one responsible for protecting his or her client. In the end, there is no denial of due process in user error, or competency issues, there is only the spectre of malpractice. And that, ultimately, rests upon the attorney rather than the computer or the paralegal/assistant. And, that is why the attorney must take an active, personal role. 

Thursday, October 27, 2016

Vocational Rehabilitation Questions

Less than a year ago the national conversation on Worker's Compensation began. Serious questions were asked about the future of this system. I am pleased that those conversations have extended, and multiple organizations are attempting to focus attention on the future of this integral part of American employment. Hats are being removed, and interests set-aside, as a fresh look is taken. 

At the first gathering in Dallas, last spring, there was a significant discussion of vocational rehabilitation. There was a perception expressed that vocational rehabilitation has been unsuccessful, and questions about that were raised. It is perhaps fair to ask whether vocational rehabilitation has a viable place in Worker's Compensation today? It is also perhaps important for the perceptions about it to be considered. Is vocational rehabilitation successful?

When I think of vocational rehabilitation, I recall taking the bench in Pensacola many years ago. After several months on the bench, I was visited by a rehabilitation counselor employed by the state of Florida (I will call her "Sally" for the sake of this discussion, though I do not recall her name). She was cordial and gracious, but it was clear something was on her mind.

Sally eventually asked why I was not referring clients (injured workers) to her office. She explained that her agency was responsible for training and education of injured workers. She said that her performance was evaluated annually, and one of the important measures of her success was the volume of injured workers that she interviewed and evaluated. She explained that my predecessor had made it a practice to refer all injured workers who were settling their worker's compensation cases to her agency for an evaluation of their potential for training and education. This, she explained, allowed reassurance to the judge that the particular injured worker's settlement was in fact reasonable. 

She handed me several reports that she had prepared over a period of years. Each related to an injured worker who had sought approval of a unrepresented Worker's Compensation settlement in that District. In the course of our conversation, we were interrupted by an office visitor with whom Sally was acquainted.  She politely chatted with the visitor momentarily. In this moment, I quickly perused the training and education agency reports she had handed to me. Each provided a detailed background of an injured worker, a discussion of the Pensacola Florida employment outlook, an overview of educational opportunities in the community, and a brief conclusion. Each of the reports provided concluded that training and education would not be appropriate for that particular injured worker.

The visitor departed, and Sally and I resumed our conversation. I asked how often the her agency concluded that an injured worker was in need of training and education. She had no estimate. I questioned why each of the example reports I had been handed concluded that training and education would be inappropriate. She briefly reviewed the reports, and said the most likely reason was that each person lacked a high school diploma. She explained that her agency success was also measured, in part, upon the outcome of training and education efforts. In other words, her agency wanted to train injured workers, but wanted them to be successful in obtaining employment following that training. Most would agree that this is logical, and an admirable goal.

But, I asked, what is the correlation between a high school diploma and future employment? She knowingly nodded her head and explain to me that completion of schooling, such as a high school diploma, demonstrate an ability to focus on a goal, to complete a process, and is an accepted predictor of future success in further education. Thus, someone who can finish high school has a greater probability of being able to finish another educational pursuit, such as junior college or college. That also made some sense. 

At this stage in the conversation, Sally volunteered that her agency actually preferred individuals who possessed a Associates degree or further college experience. She explained that while high school diploma indicated a probability of success, a college degree indicated an even greater probability of success, both for further training and for job placement. In fact, she assured me, the more education somebody has at the outset of the training and education program, the greater chance for successful reintegration into the workforce.

So I asked whether that meant that her agency would be most likely to except for training and education the people who already have the greatest volume of education? She assured me that that was in fact the case. I did not thereafter make a habit of referrals to that training and education agency. I got the distinct impression that the purpose of those evaluations was far more focused upon this state employee (Sally) appearing busy, than upon the goal of returning injured workers to employment.

Within a year, I received a call from the Deputy Chief Judge in Tallahassee. He had received a call from Sally's supervisor. He had been encouraged to call and tell me to renew the practice of referring injured workers for evaluation. We discuss the subject for several minutes, and we each agreed that such referrals were neither necessary nor appropriate. He related to me that the supervisor's call had been focused upon the volume of referrals from my predecessor to which that agency had become accustomed.

Since that time I have had the opportunity to relate those conversations various times. After describing this situation in a seminar, I was approached by a rehabilitation provider. She explained that the representations regarding education completion, as a predictor of future academic success was absolutely valid, and had been demonstrated in various studies. But, she assured me, the level of education one possesses is also very often a valid predictor of the probability of returning to gainful employment following an injury, irrespective of whether additional training and education is delivered following an injury. She said that this is a result of several factors.

First, she argued that as education increases, physical demands of employment tend to decrease. Thus she explained that finding a position within the vocational capabilities of a college graduate, with physical restrictions, was much easier than locating such jobs for those with less education and those same restrictions.

She concluded that the state agency rehabilitation nurse had adopted a policy of accepting for training and education only those individuals who frankly did not need further training and education. She contended that the appropriate audience for training and education is in fact those who lack education, and who would benefit from obtaining skills that might facilitate less strenuous activity and therefore employment following a work place injury.

In short, she bluntly concluded that the training and education program as I described was nonsensical and destined to be ineffective. Ineffective in that it successfully demonstrated statistical measures, which likely would've been achieved without the training. This rehabilitation provider culled the statistically best candidates with the most education and provided them training, and successfully placed them (or they placed themselves) back into the workforce. Sure, that was "effective" in satisfying statistical measures, but that the program delivered no services to a sizable population of the very individuals who might well have benefited, despite the fact that probabilities were were against them. 

I am no vocational expert, but I frankly found both of these interactions, with Sally years ago and the rehab provider who confronted me at the presentation, intriguing. What is the point of training and education services? I would suggest that it is for increasing skills and knowledge. Increasing skills that are marketable in the community, so that someone can find work that is productive and rewarding. And, if the injured (or "recovering") person is open to self-improvement, and the professionals are careful in selecting training that is appropriate, and if there is a demand for people that possess such skills, wouldn't that increase the odds of returning someone to gainful employment?

As America attempts to redefine what worker's compensation is, and perhaps re-focuses on the ultimate goal of reemploying those who suffer injury, can there be a valid conversation about when training and education is indicated, what the reasonable measures of success might be, and how professionals can be engaged to positively affect the vocational outlook of injured workers, and return them to gainful employment?















Monday, October 24, 2016

Recalling a Trial from Long Ago

Every lawyer has a story or two. I have found over the years that a great path to hearing those stories is to gather some of those lawyers in a social setting. It is not uncommon on those social occasions to hear some lawyers recite the same story repeatedly. This occurred to me recently at an Inns of Court meeting where I again heard a familiar anecdote. The theme was about a local panhandle judge and a public perception of dedication, focus and public service. It was a tribute to a public servant. 

It reminded me of a trial in which I participated years ago, in a city far, far away. It sticks in my mind for several reasons. I represented the injured worker. The economic reality for him had landed his family as roommates in a friend's small apartment far from the beaten path. He was stressed, distracted, and had difficulty remaining focused on any topic for long, including the topic of his case and testimony. Like many I have met in this practice, I can still remember his face. 

This trial also sticks in my mind because it was Thanksgiving week. I recall having rented a vehicle for a long drive for the holidays. The trial was scheduled for two hours that morning, and my intent was to leave town for the holidays immediately after. I drove that van to the countryside on this particular morning to retrieve my client, his significant other and their small baby. Their access to personal transportation had been curtailed in the extensive wait for trial. Their economic situation and temporary residence location had left them with as little access to public transportation. 

As an aside, I was at least the third attorney to represent this injured worker. As I recall, it had taken about two years to get the case to trial. It was partially for that reason that I had opposed defense counsel's proposal to continue this particular trial and avoid its implications on our holiday week. 

I spent some time in that tiny apartment on the morning of trial. I had printed my client's deposition, highlighted it, and sent it to him the prior week. That morning, for a final time, I explained that his case depended upon some key facts, and that I would ask him the highlighted questions, similarly to his deposition. That, I explained, would be his role today. In the thirty minutes we talked, he repeatedly wandered to other economic topics, as his significant other and I repeatedly brought his focus back to that deposition. His attention span was a challenge. His nervousness was a challenge. His fear for his future and his family's was a challenge. These future issues, not the issues of this trial, were too often the focus of his distractions. 

We loaded that rented mini-van and drove to the workers' compensation office. As certain as I was that we would be late, we were prompt (likely due to the light traffic that holiday week). We even had a few minutes before 9:00 to caucus with the employer representative and counsel when we arrived. Our discussions of possible resolution that morning were not fruitful. 

As we were distracted by our discussions, we did not even notice that trial time (9:00) came and went. We were reminded when the Judge's staff joined us in the lobby to inform us that the judge was "running late." but we were "welcome to wait in the hearing room." We truncated our conversation and most of us adjourned to the hearing room, leaving my client's significant other and baby in the waiting room. We continued an amiable conversation there. This was not a case we could agree on, but it was not one where there was animosity or anger. We talked evidence, football, Thanksgiving plans, and local news. And we waited, after all the judge was "running late."

Then we discussed fishing, national news, business, Thanksgiving plans and more. And we waited. Eventually the clients wandered about, mine to check on his family and the employer to check in with the office. And "us lawyers" tried again to reach some compromise on the claims. But we made no more progress than before. And we waited. 

The judge arrived a few minutes before 11:00, out of breath and somewhat disheveled; it was a somewhat blustery fall day after all. The judge was all apologies for tardiness. As we began to mark evidence and document objections (of which there were not many due to our long opportunity for discussions and our fear of not trying this case that day), the judge volunteered the reason for our long delay. 

The judge had decided to purchase a young family member a particular toy for the impending holidays that year. Hearing on the radio recently that this toy was in high demand, the judge had been disheartened. But on this day, driving to work, the judge's car radio had announced availability of this toy at a local department store. Alas, upon arrival at this brief detour the judge found no inventory, but heard rumors of availability at another of the store's locations. And so had begun an hours-long tour of several of the store's locations in that town. 

As the Judge told this story, the look on the employer representative's face was, as they used to say in some catchy television ads, "priceless." My client did not evidence any reaction to the toy story, but as his baby's patience with the strange environment had waned that morning, so had my client's. Long before the judge had appeared, my client's overall aggravation had been reasonably apparent. It occurred to me that having wasted two hours waiting for the judge, we were only wasting more time now with this story of the holiday toy shopping. 

I called my witness, and asked my client exactly the questions that had been posed in the deposition. Precisely the questions we had reviewed that morning in the apartment and in the van driving to the trial. And, after responding sharply and cogently to "state your name," his answers had become distracted, wandering, and even inconsistent with his deposition. This was a frustrated and scared injured worker who was struggling to concentrate. This was an injured worker more concerned with his child in the waiting room than his trial testimony. The effect was not positive, but we muddled through direct and cross. And the judge announced that the noon hour was approaching and that the judge had lunch plans. We adjourned just before noon, with instructions to return at 1:30. 

I had not anticipated this trial being a day long commitment (and had plans to depart for Thanksgiving as soon as I dropped this client back off, which we had thought would be that morning). My client's significant other had likewise planned for a morning and had brought a supply of diapers and formula consistent with that expectation. And, there was little within walking distance of that OJCC office for lunch. Loading them again in my rented minivan, we set out in search of baby formula, diapers and a quick sandwich. My client was distracted, his significant other was angry, and their child was not content. It had been a tough day on all. 

We returned to the District Office as instructed, ready to start at 1:30. Well, most of us did. The judge, unfortunately, was "running late." By 2:00 we were hard at it, and managed to do our closing arguments by about 3:30. My opponent's focused significantly on the confusing and muddled testimony of my client. While not all of that can be laid at the feet of our long delay that morning, I will always think that some of it was a direct result. 

I managed to get my client and family to the apartment at which they were staying, and headed home. My hopes of an uneventful departure for the holidays were dashed. That trial has stuck with me for years. I learned only after the final order (we lost) that my client had attempted to treat his anxiety and pain during the long delay that trial day morning. What I thought at the time was "just nerves" or tiredness turned out to be pills. As they were not prescribed for him, and as he was in no position to definitively identify the substance, any thought of rehearing on that basis was discouraging at best. 

I will always remember that trial. The judge let my client down that day. That is not to say that he did not let himself down some also. But people deserve to have a process that functions. Moms and babies should not be expected to spend hours in a waiting room. Employers and employees should not be expected to start a trial two hours after it is scheduled. And, having imposed significantly on people, a judge's lunch plans could likely yield to serving the public. 

People should be respected by the system every bit as much as they should be respectful of the system. And when they are not, no judge should add insult to that injury telling them that their discomfort was required so that the judge could shop for the holidays, or any non-emergency cause. 

How people perceive the litigation system and how they feel is important. Treating other people with respect and dignity is even more important, for us all. That was a trial that will stick with me forever. It demonstrated disrespect, it caused frustration, it affected people. I am hopeful that litigants in our workers' compensation system today never experience such treatment. 

Sunday, October 23, 2016

An Interesting Review of Separation of Powers in OK

Last Thursday, the Tulsa World reported on the relationship between the Governor of Oklahoma and the Chair of its Workers' Compensation Commission in Workers Comp Commissioner Defies Governor Fallin's Demand for Resignation. On Friday, WorkCompCentral reported on this in Senator Condemns Governor's 'Intermeddling' With Comp Commission.

The story may be fairly familiar by this time. In addition to making the workers' compensation news last week, commentators like Bob Wilson have discussed it, with a touch of humor, Oklahoma Workers' Comp: Stranded on Gilliland's Island. Other commentary is bound to follow. This story is simply too interesting to ignore. Much interest will be for the intrigue, but it is also interesting legally.

The Tulsa World story Thursday started the attention. It revealed that in late August Governor Fallin of Oklahoma corresponded with Robert Gilliland, the Chair of the Oklahoma Commission, and requested that he resign. Chair Gilliland purportedly replied in writing and declined to resign. He says that the Governor's request was “inappropriate and illegal.”

Reportedly, Gilliland feels his resignation was requested “because of ‘dissatisfaction with a decision the Commission made in a case.’” There is speculation that the decision in question was the Commission’s declaration that the workers’ compensation opt-out, commonly referred to in industry circles as the “Oklahoma opt-out” is unconstitutional. When the Commission made that decision, there was discussion about their authority to do so. However, as reported by WorkCompCentral, Governor Fallin’s spokesperson has said the governor “had ‘multiple reasons’ for being dissatisfied with Gilliland's performance.” The spokesperson also said that “the specifics have been conveyed to the chairman.”

As explained in other posts, there is a general proposition that executive branch agencies lack the authority to make decisions about constitutionality. The Florida Judges of Compensation Claims, for example cannot decide if a statute passes constitutional muster. Such decisions in Florida are left to the constitutional courts. I remain astounded at how many practitioners and even judges refer to this administrative office as a “court,” when it is so clearly not one. In Re Amendments to the Rules of Workers' Compensation Procedure, ("The Office of the Judges of Compensation Claims (OJCC) is not a court of this State").


The Florida OJCC is not a “court,” and the Florida Supreme Court has clearly held so. When referring to this Office, the appropriate terms may include “the Office of Judges of Compensation Claims” or “the OJCC” or “this Office,” or “the Judge,” but not “the Court” or “this Court.” Use of that term is inaccurate and therefore confusing. 

So, there was much discussion about the Oklahoma Commission ruling when it was rendered last February. Did the Commission have such authority as an Executive Branch agency? From high school civics, most will remember that American government is generally divided into three branches, the executive, legislative, and judicial. This division of responsibility is a product of our constitutional form of government and is delineated in both the United States and various state constitutions. It is referred to as "separation of powers," a fundamental element of this Constitutional Republic.

The Oklahoma legislature, however, in creating the Oklahoma Workers’ Compensation Commission in 2013 declared that agency to be a “court” for the purposes of making decisions. Such a declaration is dependent upon the powers conveyed by a particular state’s constitution. Florida’s constitution does not empower the legislature to make such a declaration, to create such a "court." In Florida a “court” can be created only by constitutional amendment. But in Oklahoma, the constitution empowered the legislature to make such a declaration, to create a court, and the legislature did so. 

The 2013 workers' compensation legislation was a dramatic change for Oklahoma on several levels. Until 2013, workers’ compensation disputes there were decided by a specialized bench or “court” for such disputes. That court was housed within the judicial branch of Oklahoma’s government. At that time, a handful of states had such an arrangement, and both Oklahoma and Tennessee created administrative agencies for dispute adjudication that year. Currently, only Alabama still uses its constitutional courts for adjudication of new workers’ compensation disputes. In Oklahoma that court still exists, now called "the court of existing claims," and adjudicates only the disputes regarding accidents prior to the 2013 change. It is expected to diminish over time in terms of workload and personnel.

The decision of the Oklahoma Workers’ Compensation Commission, declaring the Oklahoma Opt-Out unconstitutional received a fair amount of discussion in the workers’ compensation industry. There were those that perceived the Commission's decision contradictory to its own earlier decisions about the scope of its authority. Others found it curious that an executive branch administrative body, at the time composed of one business person, one doctor, and one lawyer, could make constitutional decisions. But, the authority of the Commission has been accepted as an appropriate legislative delegation of power. And, the state’s Supreme Court has since affirmed the Commission’s decision and authority. In doing so, some believe that the Court has accepted and/or endorsed the state's adoption of the administrative workers' compensation process. 

The issue of separation of powers is not back in the news following this letter in August, in which the Governor sought Chair Gilliland’s resignation. This has been characterized variously. Some conclude that a Governor seeking resignation of an administrative agency head is merely engaged in the appropriate management of the executive branch. Others perceive this as meddling in the affairs of a “court,” which is nonetheless still part of the executive branch. And thus, there is the current return to the discussion of “separation of powers” in the Oklahoma situation. 

I am reminded of an old series of television commercials that focused us upon differing perspectives. In each commercial, through some contrived collision between a lover of chocolate and a lover of peanut butter, the two commodities would become intermixed. One party would claim “you got peanut butter on my chocolate,” while the other would argue instead that “you got chocolate in my peanut butter.” It was a wildly popular ad campaign, and the solution of course to all the argument was purported to be a candy bar containing both elements. 

I wonder aloud if it matters whether one is on the other (peanut butter on my chocolate) or in the other (chocolate in my peanut butter). The fact is that how you perceive the current situation (of chocolate and peanut butter mixed) may well depend a great deal on whether you individually prefer chocolate or peanut butter. Is the Oklahoma Commission an administrative agency with court powers, or is it a Court within the executive branch? And that determination may well flavor how a particular individual sees the outcome of this current dispute. 

The point of the debate may be moot in time. According to the Tulsa World, Governor Fallin has already decided that Chair Gilliland “will not be reappointed when his term expires in August 2017.” Thus, there may be conjecture and discussion as to whether an appointed official such as Commission Chair Gilliland can be removed from office. Or, it is possible that the conversation will become about leadership being marginalized, as we have seen in Iowa. In 2011 Iowa Governor Branstad first sought workers' compensation administrator Godfrey's resignation. When that was rebuffed he cut Godfrey's pay significantly. A lawsuit remains pending regarding that executive agency dispute. 

But, in the end, Gilliland's effectiveness as Chair may be impaired by the simple conclusion that regardless of future performance his tenure will close in ten months. Whether he can or cannot be forced to withdraw, it seems clear that the Governor can elect not to reappoint him when his term expires. Though Commissioner Gilliland concluded in his letter to the Governor that he believes “it is in the best interest of the injured workers, employers, insurance carriers, employees of the Commission and the people of the State of Oklahoma” that he “remain at the Commission,” it appears as clearly that this conclusion is, at best, up to him for the next ten months. And, it is possible that all of this publicity and discussion alone may itself impair the Commission in coming months. 

So, some believe that the Governor’s request for a resignation was a normal administrative action, in which an agency head would be replaced. A Gubernatorial spokesperson said “it is perfectly appropriate and legal for the governor to request any appointee’s resignation at any time.” And there is ample support for that contention across the continent regarding administrative agencies generally. 

Others perceive this request as executive branch meddling with a state court. One community leader quoted by the Tulsa World said that “under the tradition of separation of powers, it is inappropriate for people to try to affect those decisions” (of the Commission). I certainly think that everyone is entitled to their own opinion(s), but the characterization of “separation of powers” as a “tradition” is curious; separation of powers is a constitutional construct that is at the foundation of American constitutional government. The question, really, is whether this situation actually implicates separation of powers. 

According to WorkCompCentral (“WCC”), the governor’s request for Commission Chair Gilliland’s resignation has drawn criticism, some of which comes from those who oppose the 2013 workers’ compensation reforms, including the very creation, and empowerment, of the Commission. One critic told WCC that “it seems the governor's office has ‘a very clear idea of the results they expect’ from commission decisions, and ‘if you don't give them what they want, you will be removed from the process.’"

Commission Chair Gilliland’s refusal to resign drew praise from some of those same system and reform critics. One said “he considered it ‘a serious miscarriage of justice to try to influence a judge,’ and that Gilliland was praiseworthy for “having the courage to resist attempts to influence decisions in workers' compensation cases." This system-critic also said that Gilliland is “one of the most respected lawyers in Oklahoma City, and his integrity is unquestioned.” Not faint praise from any perspective. 

It is important to remember that there is a certain element of criticism in any change. We as beings do not traditionally react positively to change in many instances. And, it seems that our propensity to accept change may be affected by how accustomed we have become to the current status quo when change comes our way. There are changes advocated constantly in American society, business, government, and more. And, how we each react to those changes is critical to both our function and our psyche. In that context, the 2013 change in Oklahoma was significant, and it is perhaps inevitable such systemic change will bring disagreement and discord?

I met Robert Gilliland at a meeting of the Southern Association of Workers’ Compensation Administrators (SAWCA) in Williamsburg, Virginia. It was July 2015 and he happened to sit next to me at the annual Regulator’s Roundtable. Discussion centered initially on the variety of issues and constitutional challenges to statutes around the country, and I delivered a short update on the Florida litigation in Padgett (A Rose by Any Other Name), Castellanos, and Brock. Workers' compensation for the last few years has been interesting here in Florida too after all. 

I recall feeling like there were many active challenges and issues in Florida at that time. And then Robert Gilliland delivered an overview of Oklahoma's creation of a whole new agency, and the challenges, legal and logistical. They were two years into a whole new administrative process at that time, and facing multiple constitutional challenges to it and to the revolutionary concept of an opt-out that included employer immunity. I remember after he spoke of those challenges, I leaned over and told Robert “thanks for being here." I found the Oklahoma experience and challenges intriguing and educational. 

As an industry, we witness innovation and effort in various jurisdictions. There are attempts to streamline processes, innovate with technology, and deliver service to injured workers and employers. I have been fortunate to know a great many state workers' compensation administrators, board members, commissioners, directors, judges and more. I have been consistently impressed with how focused they all are on serving their states and the constituents of their workers' compensation systems. I do not always agree with them, but on the whole I find them sincere and well-intentioned. We learn a great deal from each other, and from the events in each other's states. 


I will be watching Oklahoma's current discussion, as I have watched it for years regarding the opt out. I will be interested to see how the current contentions and disagreements work out in time.

Thursday, October 20, 2016

Interesting Science and the Litigation Process

Science is intriguing. In the legal field there are innovations and technological advances. We feel sometimes like we are on the cutting edge of certain things. But, lawyers and judges are really just about process and procedure, rights and responsibilities. We deal with what is, for the most part, rarely with what might be. We are not innovators in the way that scientists are. We struggle for truth and justice, but science is struggling to understand the very foundations of our existence, and that is interesting and intriguing.

I recently ran across an article in The Atlantic. The headline caught my attention. That happens a lot, but unfortunately I thereafter find few articles worth reading all the way through. This one, How Your Cat Is Making You Crazy, was an exception. I read it twice. No, it is not about cat behavior and antics and aloofness, every cat owner has a story about their cat (chewed this, hid that, likes, dislikes, etc.). This one is actually about taking over the very function of the human mind, and it is fascinating. You read that right, taking over the human mind. 

The tag line of the article is "could tiny organisms carried by house cats be creeping into our brains, causing everything from car wrecks to schizophrenia?" That is intriguing. Essentially, The Atlantic tells us that Jaroslav Flegr is a scientist who has drawn focus to parasitical influences on neurology. Remember, one might decide any particular scientist is an Expert or Faker

But to reach that conclusion, we first have to consider the science and the conclusions. Flegr believes that a "single-celled parasite," a protozoa excreted in cat feces, has the ability to subtly manipulate personality. The effect can result in unexpected behavior. Some effects of this parasite have long been well-known. Toxoplasmosis has long, since the 1920s, supported physician advice for pregnant women to avoid cat feces and litter boxes. But Flegr believes the impact of this parasite is more pervasive than previously known. 

Conventional wisdom has been that this protozoa can have detrimental effects on those with weak immune systems. It has been blamed for dementia symptoms in patients with immune implicated diseases such as HIV. Scientists have believed that this parasite does not effect the healthy, but upon infection it merely lies dormant in the body. That conclusion is beginning to change.

Flegr believes that the impact of this parasite is broader. Flegr believes that the "dormant" parasite "may be quietly tweaking the connections between our neurons, changing our response to frightening situations, our trust in others, how outgoing we are, and even our preference for certain scents." That last one is fascinating. I have long noticed that people have different perceptions of scents. Sometimes I note a strong scent and others around me do not notice. Other times, someone around me will complain of a scent, but I do not really notice it. We are, after all, very different people. 

Dr. Flegr believes this parasitical protozoa can work even more profound effects upon us; he "believes that the organism contributes to car crashes, suicides, and mental disorders." It may even be responsible for killing a "million people a year." That is a significant volume. That is about twice the volume of Americans expected to die from cancer this year. While Flegr's analysis is worldwide, this comparison to American cancer deaths provides some scale for comparison. 

Dr. Flegr concedes that people do not readily accept that their behavior may be controlled or influenced. In other words, we all believe we have free will and are reluctant to think we are controlled (Madison Avenue has been proving us wrong for eons). It is notable that his conclusions, to some, "sound an awful lot like fringe science, right up there with UFO sightings and claims of dolphins telepathically communicating with humans." But, there is a trend toward growing acceptance of his conclusions according to The Atlantic. Scientists at Stanford, and the Stanley Institute are lending credence to some of the conclusions. 

Recently, studies have suggested "the parasite is capable of extraordinary shenanigans." Research supports that infected rodents exhibited demonstrably different behavior: "much more active in running wheels," and "less wary of predators in exposed spaces." Both of which might increase the odds of a cat consuming them. Why on earth would a rat want to encourage the cat to consume it?

In experiments with rats, the parasite has been shown to alter the rodent's aversion to its primary predator, cats. The scientists conclude that a rat's natural aversion to cats is in fact reprogrammed by the parasite and the rat becomes attracted to the very thing that presents danger. Cat urine is avoided by uninfected rats, but it contrarily seems to attract infected rats.

The scientists suggest that this alteration is accomplished because the parasite needs the cat to multiply. The parasite can survive in other hosts, it reproduces only in cats. The parasite cannot prosper and spread without the help of the cat. Thus, the purpose of the protozoan's life in other hosts, like a rat, is to somehow travel from the rat host back to a cat host; you guessed it, the parasite needs the rat to be eaten. In this way it returns to a host that facilitates multiplication, propagation of its species if you will. 

To alter the rat's natural behavior, the parasite "rewires circuits in parts of the brain that deal with such primal emotions as fear, anxiety, and sexual arousal." In what scientists call "bizarre neurobiology,” experts think various parasites may share this ability to neurologically influence a host. An expert from the Stanley Institute suggests that similar host influencing could be evidenced by viruses like rabies, in which nervous system agitation accommodates spread of the virus from host to host. Another scientist contends that "there are truckloads of" organisms "behaving weirdly as a result of parasites."

Dr. Flegr's research with the parasite at the root of Toxoplasmosis began in 1990. His university colleagues were studying detection of this parasite and he agreed to donate blood. he learned he was carrying (hosting) the parasite and began to wonder if its presence could explain his own diminished fear responses, something he had noticed for years. Something he had labelled a "self-destructive streak."

His resulting research demonstrated that the parasite is excreted by cats, "typically picked up from the soil by scavenging . . .rodents," and returned to a feline through rodent consumption. But humans can acquire it because grazing animals or rainwater have been exposed to cat feces, directly or as contaminated water is exposed to vegetables which are later consumed with insufficient cleaning. Flegr thus blames food habits for infection rates. He blames the French attraction to undercooked meat for infection rates "as high as 55 percent."


Americans harbor infection rates of 10 to 20 percent. He theorizes that the parasite's "intent" is ultimately rodent infestation, which spreads the organism geographically. But, he believes the larger mammals (humans, etc.) are "accidental hosts," and that we are "a dead end for the parasites." as we will not be consumed by a cat. Thus, once in the human or other large mammal host, the parasite is perhaps still spread through waste, but is less likely returned to a feline host in which it is capable of reproduction.


But, he asserts that the parasite may nonetheless work similar neurological changes on our system. Changing our behavior despite the fact that changing our behavior will not enhance the chances of a cat eating us. The alterations, intended by the parasite to increase its chances of having the host consumed by a cat and leading to propagation, might be worked on the neurology of any host, even the "accidental" or "dead end" ones. The Atlantic reminds us that "mammals from mouse to man share the vast majority of their genes." Thus, Flegr's conclusions about neurological manipulation may be of concern; "we might, in a case of mistaken identity, still be vulnerable to (neurological) manipulations by the parasite."

This parasite could be influencing how we (some of us, perhaps many of us; 319 million Americans, if 10% infected that is 32 million people, roughly the population of California) perceive our world. What scents we perceive and how we react to them, how we perceive and react to danger, our very "fight or flight," reactions. This is very intriguing. Could a parasite be controlling your neurological responses?

As I read The Atlantic article, I found their relatively new focus on otherwise healthy human neurology fascinating. It occurs to me that the Toxoplasmosis infection process and effects has been known on some level for at least one hundred years, and yet scientists are only now learning more about it. The work of science is intriguing and thought-provoking. We seem to know a little more each day. Scientists are out on the leading edge of this and other curiosities of our very world, our very being, and their work is fascinating. Each day brings new scientific developments and new beliefs. Not necessarily facts; remember when opioids were thrust upon the injured worker scene and acclaimed as the "no risk" solution to so much in the realm of injury? 

But, I also wondered whether the processes and Flegr's conclusions would pass the tests of Daubert? In other words, would this discussion, research and conclusion(s) be admissible in a Florida workers' compensation case? And, if it is not today, that does not mean that it will never be. Science evolves. Flegr's research may not be enough alone. His conclusions may be intriguing, but not yet admissible. But other scientists, studies, and conclusions may follow. They will confirm or refute findings. They may bring new perspectives to the analysis just as Flegr has. He may be a pioneer, but with more research his theories may be debunked. 

In time, we will see some scientific consensus, and as a dispute resolution process, we will see scientific consensus and belief affect how cases are perceived and decided. For better or worse, we are not the scientists. We think we are pretty good at determining the credibility of those who testify as scientists, but we are not scientists. So, we do what we do with procedure and process, listen and consider, and do our best.

But the scientists are questioning, testing, and perhaps progressing. It is intriguing to witness their quest, and the conclusions that they reach. Our job is to consider their process, their conclusions, and their consensus. In a particular instance, are they bringing truth, or yet another opioid epidemic of unintended or unforeseen consequences? Because, in the end, it is possible that some conclusions an advances may change our world, and others may just be spreading feces.

And the bigger question, did I really find this article interesting, or am I being manipulated by some protozoan influence?




Tuesday, October 18, 2016

Applicants Announced for OJCC Vacancies

The Statewide Judicial Nominating Commission will meet November 1, 2016 in Orlando. The meeting will be at the Doubletree Hotel, Orlando Airport, 5555 Hazeltine National Dr. Orlando, FL 32812. 

Their business includes interviewing nine (9) Judges of Compensation Claims (JCC’s) for reappointment: Hon. Wilbur Anderson (DAY), Hon. Diane Beck (SAR), Hon. Gerardo Castiello (MIA), Hon. M. Renee Hill (GNS), Hon. Margret Kerr (MIA), Hon. Daniel Lewis (FTL), Hon. Mark Massey (TPA), Hon. Stephen Rosen (SPT), and Hon. Thomas Sculco (ORL). 

The Commission will not ordinarily grant any requests for personal appearances to speak in favor of any of the above sitting Judges. However, the Committee will accept letters in support of the current Judges as long as they are delivered to the Commission Chairman and to Lisa Mustain, Division of Administrative Hearings by Tuesday, October 18, 2016, 5:00 p.m. Eastern Standard Time. Since the application deadline was extended, it is possible that late correspondence may be accepted. 

Also, there are three vacancies for which nominations need to be made: to replace Hon. Mary D’Ambrosio upon retirement (West Palm Beach); to replace Hon. W. James Condry upon retirement (position will be in Lakeland); to replace Hon. Charles Hill upon retirement (Miami). 

The application process was supposed to conclude on October 7, 2016. However, that week we had an unwelcome and uninvited Hurricane Matthew cruising up the east coast. That week, the OJCC had 11 of 17 offices closed for various parts of the week. The University of Florida cancelled a football game against Louisiana State. Even Disney World closed the parks due to the weather threat. As a result, the Commission Chair extended the application deadline through October 14, 2016. 

The volume of applications was lower that I had hoped. 

For Lakeland, the applicants are:

Lawrence Anzalone, who has practiced since 1981. A graduate of T.M. Cooley School of Law, he is currently working at Burnetti P.A. in Lakeland. 

Robert Arthur has practiced since 1992. Rob graduated from the Case Western Reserve University School of Law. He is currently the state mediator in Lakeland District. 

Mark Capron has practiced since 1994. He is a graduate of Marshall-Wythe School of Law and is currently a sole practitioner in Lakeland. 

Juliana Curtis, who has practiced since 1998. She is a Stetson graduate, and is currently working for Vecchio, Carrier, Feldman and Johannessen in Lakeland. 


For Miami, the applicants are:

Walter Havers has practiced since 2003. He graduated from the Florida State College of Law, and is currently one of the state mediators in Miami District. 

Jeffrey Jacobs has practiced since 1986. He is a Miami University School of Law graduated. He is a partner in the firm of Malca and Jacobs in Miami. 


For West Palm Beach, the applicants are:

Jeffrey Breslow has practiced since 1983. Jeffrey graduated the University of Miami law school. He is currently one of the state mediators in Ft. Lauderdale District. 

Jill Forman has practiced since 1999. She is a University of Florida College of Law graduate. She is currently an associate attorney at Pallo, Marks, Hernandez, Gechijan and DeMay in Palm Beach Gardens. 

Jeffrey Jacobs has practiced since 1986. He is a Miami University School of Law graduated. He is a partner in the firm of Malca and Jacobs in Miami. 

Marydenyse Ommert has practiced since 1999. She is a graduate of St. Thomas University School of Law. She is currently senior associate at Hernandez, Hicks &Valois in Ft. Lauderdale. 

Ken Schwartz has practiced since 2001. He graduated from University of Hawaii school of law. He is currently a sole practitioner in Boca Raton. 

Carol Stephenson has practiced since 1983. She graduated from the University of Cincinnati School of Law. She currently works as legal counsel for Liberty Mutual Insurance Company.

The Commission will meet telephonically on Monday, October 24, 2016 at 2:00 p.m. Eastern Standard Time This meeting will be to discuss any procedural issues of the Commission specifically for the November 1, 2016 meeting. This telephonic commission meeting will be open to the public by dialing 888.670.3525, and entering code number 249 217 2867# when prompted prompted.

Sunday, October 16, 2016

Two Emails I Recently Received

I recently received some interesting emails. They were both critical of workers' compensation. 

I find workers' compensation fascinating. I have spent a great many years involved in the industry. I have represented injured workers, major insurance companies, fortune-50 companies, "mom and pop" small businesses, and everything in between. I have tried cases, mediated and adjudicated. I have discussed workers compensation on presentations, written papers, and published articles. I have talked about it with doctors, lawyers, workers, employers, vocational experts, physical therapists, actuaries, government officials, legislators, and more. I have invested a great deal of time in this concept of workers' compensation. 

But, in the end, workers' compensation is about workers and employers. The rest of us are ancillary. Recently, at the National Summit, an attendee proposed that where this industry goes awry or is less than informed results from the lack of engagement of the "silent constituency." He noted that the group that is never heard from is the worker who has not yet been injured, what he called the "future injured worker." They do not engage because workers' compensation is not yet affecting her or him. They vaguely know of it, and perhaps have perceptions of it, but it is not currently, individually, personally affecting them. 

I use those adjectives and limitations because workers' compensation is affecting each worker and each employer every day. It cannot help it. There are costs associated with maintaining a safe workplace, every resource devoted to safety cannot be devoted elsewhere. Certainly, safety is worthwhile and should be promoted. But, programs can be expensive. There are similarly costs associated with regulatory compliance, injury reporting, return-to-work, disability, medical reporting, and more. All of this is an expense to business and a focus of some degree of management time and resources. 

But once an injury happens, there is a tendency to be dissatisfied with workers' compensation. I suffered a variety of work injuries in my life. I have been fortunate that none were serious or catastrophic. I have been lucky to have had cuts stitched, burns salved, and brief periods of missed work. But, that is simply not the case for everyone. Accidents occur daily and the severity of injury, speed of recovery, extent of disability and more are all variable from situation to situation. 

One recent correspondent contends that workers' compensation "needs a major overhaul." The writer says the system is "full of corruption on all three sides." That phrase made me pause. Three sides? Then came the explanation, this includes "attorney plaintiffs, attorney defendants, and . . . judges." These three sides, according to the note, are corrupt and require attention. 

The writer explained that the judges "no longer can read case files, they are just trying to clear their dockets." The defense "attorneys don't care and follow only what insurance carriers stipulate to do what is needed to settle case." And, the "plaintiffs attorneys who no longer fight for client (because it's in their best interest to settle and get paid)." As a result of these three parties, the correspondent says that the rights of the "injured party" are unaddressed and unenforced. The writer urges that reforms fix this, but is not specific regarding a legislative or regulatory course. 

The second email led with "I know you may not be interested in my opinion of the WC Laws." I hear that lead in, or similar, often when conversations occur about workers' compensation. There is a feeling that listeners are few and far between. There seems sometimes to be a perception that the status quo is acceptable to most (or many) and that change is discouraged. However, I hear from others that the tendency towards statutory change is too prevalent across America. So, some perceive comp as too prone to change, and others as too resistant. That in itself is intriguing. 

The second writer says that she/he perceives workers' compensation is "very bias to the worker and there are no rights for small WBE and DBE businesses." I was not familiar with either of those acronyms, so I did some Googling. 

According to the U.S. Department of Transportation (yes, Transportation, or "DOT"), a DBE is a "disadvantaged business enterprise." DOT says that DBE are "for-profit small business concerns where socially and economically disadvantaged individuals own at least a 51% interest and also control management and daily business operations." The definition of "disadvantaged" presumptively includes "African Americans, Hispanics, Native Americans, Asian-Pacific and Subcontinent Asian Americans, and women." A "WBE" is a woman business enterprise, according to the National Women Business Owners' Corporation. So, we might conclude that WBE and DBE similarly identify women-owned businesses?

The second writer goes on to lament that such businesses are "at the mercy of the WC carriers and they do not even notify us when there is a claim." The complaint is that "contracts for WC are written to benefit the carrier only," and that "small business(es) have no voice." The writer seems experienced, claiming that "even when we (small business) speak, no one will listen or even cares that we are struggling to be heard and have an advocate for us. Might we posit that there is perhaps a population of "employers" of "future injured workers?" These may be concerned about cost and premium, but may not fully engage in the workers' compensation debate because, like the "future injured worker," it has not "become real" yet?

The second writer complains that small business (or perhaps DBE/WBE) is not engaged or addressed by the WC industry, noting that "there are no services for small business resources at the WC (Workers' Compensation Institute?) in Orlando. I found that interesting. I went back to the WCI360 program for 2016, presuming that WCI is that to which the writer refers. Perhaps there is room on that program for a small business "track." 

The second writer also complains of courtesy and disrespect. She/he felt at one point as if "treated like gum under there (their) shoe." She/he related arriving at a workers' compensation office for a scheduled mediation, only to learn it had been cancelled. There was frustration at wasted time and at the discourtesy of not being advised when something is cancelled. I know from experience that mediations are often attended by insurance and the injured, and employers may elect not to be involved. Is it possible that such a habit perhaps leads to forgetfulness about the employer (who is one of the two critical parties to this system: employees and employers)?

The gist of this second email was clear, and multiple details were provided. Certainly, some of the circumstances and examples described would be difficult for anyone to grasp, even with a daily exposure to workers' compensation. Simply put, the range of potentials and possibilities for complexities and complications in workers' compensation are vast. As daunting as this system can be for any of us, we have to remember how daunting it is for the fortunate people who experience it sporadically or even singularly. Their one exposure to this law and system may be overwhelming, at best. 

What solutions exist? One that occurs to me is communication. Another is effort directed at understanding the concerns and questions of both employers and employees. I am hopeful that with the aid of search engines, some find this blog of assistance regarding questions and concerns. I know of a fair number of blogs out there in the market, written by attorneys, vendors, service providers, and more. Perhaps some or all of that helps in some degree, 

Beyond communication, it seems likely that simplification has merit. There has been a tendency perceived in which workers' compensation has become increasingly complex procedurally. I have heard lawyers and others lament how difficult it is to understand. Perhaps it would be a good idea to focus on the core issues of why workers' compensation is necessary, on the fundamental purpose, and reduce confusion, regulation, and complexity. Would it be a better system if it was easier for everyone to understand?

And, perhaps reminding ourselves of the challenges would be positive. If we each remember that on a given day, the situations we confront involve people just like us. They are employees and employers, but they have similar concerns. They seek recovery from injury, return to work, minimization of lasting effects, and respect. Perhaps the thing they all seek the most is respect? If we as a marketplace cannot offer immediate and simple change anywhere else, perhaps we could each make that change today, with feeling more empathy and exhibiting more respect?

I am sure that these three points are not the "be all" and "end all." But, perhaps they are a place we as an industry, collectively and individually, might consider starting?