Thursday, May 25, 2017

My Workers' Comp Accident

This story starts late in the afternoon in southern Michigan, a million years ago. I was driving a delivery truck, 12 to 14 hours per day, around northern Indiana, Ohio, southern Michigan, and Illinois. The payload was always ice, but the description often varied (8 and 20 pound bags, and blocks up to 100 pounds). Many of the blocks were delivered to Amish families that utilized iceboxes to store their food. 


That afternoon, I was driving north on a gravel county road, which dead-ended in a "T." When I engaged the air brakes, I was surprised by the spongy response. Unlike a regular automobile, these trucks have air brakes. They also do not have a mechanical braking system (emergency brake effectuated with a cable). This vehicle instead had a parking break, which operated off of the same air system as the pedal brakes.


If you are driving your car, and the brakes (which in most vehicles are hydraulic) are not as responsive as you need, you can use the "emergency brake," but should do so cautiously (engaging it slowly to avoid skidding). With no such mechanical brake alternative, I lacked that option that afternoon in Michigan. I worked the gears, feathered the brakes, and eventually brought the vehicle to a safe stop. The truck was a "cab-over" (the driver sits on top of the front wheels), and I came to rest with my tires barely on the pavement of the crossroad, and the cab hanging out over a farmers drainage ditch. It is fair to say that this was disconcerting. 


There were no cell phones back then. I lacked ready access to communication. I backed out of my predicament, and rolled slowly down the county road to the next opportunity to pull off. At the side of a cornfield, I opened both back doors wide, and allowed my load to begin melting. I climbed the side of the cab and turned off the refrigeration unit. My best logic told me that the lighter the vehicle was, the more effective my dysfunctional brakes would be. I quickly realized ice melts slowly, so I climbed into the truck, and began breaking bags across the rear threshold. Soon, the truck contained only empty bags, and on the ground was a mountain of ice. 

Empty, I proceeded at 15-20 miles an hour to the nearest crossroads, found a payphone (Millenials, in the old days we old fogeys put coins into a box, called a "payphone," found at gas stations and other stores, and the box allowed us to communicate with others over a system of wires strung on poles, which we colloquially called "phone poles"). I called the depot and reported my predicament. The ultimate decision was to limp to a local repair shop, which happened to be closer to me than the depot. 

A long couple of hours later (at less than 20 miles an hour), punctuated by car horns and a few imaginative hand gestures, I pulled into the dealership lot. I was happy to see another ice company rig just across the street idling. The dispatcher had managed to track another driver, stop-by-stop, and I had a ride home. That is likewise an archaic point. The dispatcher had to call store after store asking "has our driver been there today," and asking them to have the driver call the depot when she/he arrived. Cell phones have certainly changed the world. 

I worked the next morning, and several days thereafter, driving a substitute truck. There is nothing wrong with loner vehicles, but there is comfort in familiarity. I was therefore pleased at about 4:00 on Saturday morning to find my usual rig back at the depot, loaded, and awaiting a long day. It may be important to the story to realize that the truck had been retrieved from the dealership empty. It had been driven to the depot empty. Loaded at the dock, and driven less than 200 yards to a storage area at which the refrigeration unit could be plugged in. The rig had not been road-tested with a load. 

I rolled down the depot driveway, barely pausing at the highway in the predawn light. A rolling right turn brought me northbound, and I continued a series of gear-driving and rolling turns out through the countryside with no traffic. I was making for a main highway, not by the most traveled roads, but by the quickest route (side roads). That time of day I shared the roads only with the occasional raccoon or possum. 

About 8 miles out from the depot, I encountered my first long stretch of straight highway, and accelerated. These trucks were not built for speed, and best-case could maintain almost 60 mph. I entered a low land, shrouded in fog, and anticipated my next turn. It was a familiar route I drove habitually. 

I broke from the fog bank about 100 yards from a T-intersection. At that speed, it should have required 150 to 180 feet to stop. However, when my foot went to the break, my perception was that nothing happened. A state trooper would later tell me that the left rear wheel of the truck did engage, and in fact locked for a distance of approximately 30 feet before the skid marks abruptly stopped. He found it curious that none of the other tires left any evidence of engaging. 

So the vehicle failed to decelerate. In the seconds I had to comprehend the situation, there was little I could do. I rolled through the T-intersection, struck a telephone pole guy wire, ripped the phone pole in half (again, telephone signals used to run through those wires strung on these poles) struck an arrow sign (to direct that traffic to turn left or right), and my left front bumper struck a large tree. Things become a little bit foggy at that point in the story.  

When I regained consciousness, there was no windshield on the truck, and it was on its side. There was a great deal of dust, and I was contending with a significant headache. I stepped out of the truck through the windshield, onto a table. I realized that the truck had pivoted on the large tree, and spun top-first into the living room of the small house behind it. 

Unable to exit through the hole in which the large truck was lodged, I stepped to the front door of the home, and exited onto the porch. Framed in a large pane window of the porch was the face of the homeowner. Startled from her bed that pre-dawn Saturday morning, peering through the glass, she had but one inquiry: "is anybody dead?" Later, I would find humor in this matter-of-fact inquiry. But at the time it seemed a perfectly logical question. The fortunate answer was "no." 

I asked this lady for a telephone. However, I found myself unable to make a call (did you forget the part about the telephone pole I hit? I did momentarily). A short walk to a neighbor provided access to a phone. The company dispatcher sent a truck and crew, and the vast majority of ice had been rescued, re-stacked, and sent down the highway for alternative delivery before the first police even arrived on the scene. In the middle of the countryside, response times are not what city dwellers have perhaps come to expect. 

Though I proclaimed my fitness, the company owner insisted that I and my helper be transported to the nearest hospital for evaluation. I have a vague recollection of him insisting to me that "that's the law." Whether that's true or not, in retrospect I have often believed that this hospital trip had something to do with Worker's Compensation insurance. But, I believe it was kind of my employer to insist on a trip to the hospital (his wife drove us).

A sign of returning sensibility occurred when we walked into the emergency room. Remember, we had driven through walls, and were covered in dust and insulation. I wish today someone had photographed us (yes, there were no cell phones, and to take a picture you had to remember to bring an actual camera). At the registration desk, a young lady in a pink and white striped outfit (back in the day these volunteers were called "candy stripers"), asked us, aghast, "what happened to you." My helper, being more coherent, replied "we hit a house." The young volunteer gasped "oh my God, where?" My infinitely more humorous helper replied, deadpan, "in the living room." He and I found this hilarious, but no one else in the ER laughed. 

There were stitches and Band-Aids. As I recall, there were x-rays, and other testing. A bottle of pills was provided, with instructions for monitoring and follow-up. And I was forbidden from returning to work "until cleared by a physician." At the first opportunity, approximately four days later, I obtained the coveted medical release and returned to the depot, checked out a different rig, and resumed my routes. I never saw a doctor again for that accident, never received any indemnity benefits, was never assigned an impairment.

I recall an episode of the situation comedy Night Court some years later (season 6, episode 6). In it, Judge Stone listens intently as a man describes his near-death experience in fantastic detail. When he concludes, Judge Stone says something like "you must be the luckiest man alive!" The litigant replies, deadpan, "no, Dan Quayle is" (you gotta have a few miles on the odometer to find that one funny, but it is funny). Lucky? I have to admit that I have had my share of luck and more, a great deal of it that Saturday morning. 

The last I knew, that destroyed truck was at the depot where it had been towed that Saturday. I was told that there was some degree of legal wrangling over possession of the vehicle. It seems that the manufacturer, the dealership, and the owner, were engaged in some serious litigation regarding why that vehicle failed to stop that Saturday morning. Each thought that they were the best choice to store the truck. As I later learned in law school, preservation of evidence can be an important issue. 

I suffered no lasting effects (watch the wise-cracks there). There was no impairment assigned, no surgery, no ongoing care. But, I suffered a workers' compensation injury one day many years ago on a lonely highway in northern Indiana. This experience came back to me at a conference in 2016 where there was a spirited discussion about Worker's Compensation. A participant addressed the group and asked the simple question "how many at this table have had a Worker's Compensation accident?" It was troubling to see only a few hands go up. It took me a few seconds to add mine to the company; my accident was long ago, in a galaxy far away, and I have not had to live with any residual effects. It had frankly faded from my thoughts and took a moment to return. 

I have been fortunate in many ways. I have held more than 25 jobs in my career, and overall have been fortunate to avoid serious injury. I have been hurt at work on several occasions (cuts, burns, abrasions, contusions), but the truck accident was my only worker's compensation hospital trip. More importantly, an accident of that magnitude could have easily resulted in fatality, or serious injury, and yet everyone (driver, helper, homeowner) somehow walked away. But, the experience is important. As there is discussion of worker's compensation reform across America, the voice of the injured worker must be heard. Likewise, the voice of employers who have first-hand experience with injured workers must be heard. 

The world of Worker's Compensation is full of so-called experts. They have read the books, run the numbers, watched the game, but have never been on the field. They can tell you what the studies say, and regurgitate the things they've heard from others and memorized, but they lack first-and experience. While they may have empathy and intellect, they lack experience. I have listed to many over the years, puffed full of their conclusions and perspectives. They have not written a paycheck, met a shipping deadline, handled the lunch rush, or otherwise lived through the reality of the workday that so many endure and conquer out there every day. They are observers. Smart perhaps, well-meaning perhaps, but observers none the less. 

I'm not saying that the lawyers, actuaries, doctors, risk managers, and adjusters lack perspective. I am merely suggesting that the people who have run businesses where injuries occur, and the people who have actually been hurt, deserve a place at the table. They too have a perspective. It is not that their perspective is necessarily better than anyone else's. It is not that their anecdotal experience is more valuable than the so-called experts. But, I am convinced that their perspective is just as important as the rest. 

And, there is likely merit in looking for experience in hose others who claim expertise. If it is a doctor, it should be a doctor that has treated injured workers. Insurance experts should be those who have adjusted or managed cases. Attorneys should be those who have actually represented parties in litigated disputes. There is a perhaps place at the table for those who have only read about it all in books and studies, but there should be far more seats at the table by those who have lived American workers' compensation hands-on. 

Experience is a teacher, sometimes a very hard and unsympathetic teacher. And those who have lived the life, stumbled and recovered, have perspective in the real world that we sorely need. My little accident pales in comparison to so many I have worked on since. I cannot speak to the challenges of surgery, therapy, chronic pain, dysfunction, and a whole litany of challenges (but I feel I barely missed that). But, I have investigated, litigated, mediated, and adjudicated my fair share. With my experience, what I know for sure is that I do not know it all. Those who have suffered serious injury, those who have worked with those who have suffered serious injury, those should be listened to in the debate about the future of comp.



Tuesday, May 23, 2017

It is about Communication

Not a great many motions cross my desk anymore. There are times when I am covering a judge's docket for vacation, and there is the occasional Motion to Waive State Mediation, but motions are not a daily issue as they are for most judges. I was recently provided with a motion that caught my attention, and it is perhaps educational to the workers' compensation community. 

This motion was electronically filed, and so displayed both a filing date and time. 

The ensuing order reminded the parties of  Rule 60Q6.115(1), that the moving party must 
personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. Any motion filed without this certification shall be summarily denied. (Emphasis added).
I have written before on "personally confer." See The Spirit of Conferring. The goal of the rule is communication. Not talking "at" someone, but speaking "with" someone. That might be in person, by phone, by email, by text, but it must be "with" and it must be a discussion. Conferring is a word that means an interactive exchange of ideas, not ultimatums or threats. 

This particular motion stated that counsel had "conferred with counsel for the  ____, or made effort to do so." It continued that "it does not appear that the _______ agrees with the Motion/relief sought." (Emphasis added). The motion requested a hearing, not because of any exceptional circumstances, and not unequivocally, but only if an order "granting relief sought is not entered." In other words, if you agree with the motion please enter an order, but if not, please hold a hearing. 

Motion hearings are not usual in Florida workers' compensation. The Rules of Procedure for Workers' Compensation Adjudication (Chapter 60Q, Florida Administrative Code) say that "The judge shall not hold hearings on motions except in exceptional circumstances." In order to justify a hearing, parties are supposed to show "good cause" in either "the motion or response." See Rule 60Q6.115(4). That a party does not prevail without a hearing is not in itself an exceptional circumstance or good cause (usually in a dispute one party wins and the other loses; losing on a motion is not "exceptional").

The good faith effort at conferring was also interesting. It was an email to opposing counsel sent about three and one-half hours before the motion was filed. In today's paradigm of electronic transmission, both the email and the motion included time documentation. The email did not start a conversation (that is "confer," see Rule 60Q6.115(1), above). The email provided a document and essentially said "tell me if you object." Three and one-half hours later, counsel filed the motion and represented that counsel had complied with the rule and "personally conferred." After three hours it "did not appear" the other side agreed.

The email attached to the motion did not support that anyone "personally conferred." The email supported at best that counsel had communicated, or provided notice of the motion before filing. Three and one-half hours before filing. Is that "good-faith effort?"  

“Personally,” per the Webster’s Dictionary means “in person <attend to the matter personally>.” This does not mean telling your staff to call someone else's staff and convey a sentiment or ask a question. That may be communication, but it is not "personally." The rule requires that the person that signs that motion picks up the phone, sends an email, sends a text, etc., herself/himself, i.e. "personally." 

“Confer” is defined by Webster’s as “to compare views or take counsel.” To “confer” does not mean an ultimatum, it means a conversation or discussion about the resolution of the subject matter; an exchange of ideas and positions, in an attempt to reach common ground. Regardless of the form of personal communication, the goal remains: an exchange or discussion. "let me know if you object" is simply not a conversation. 

And, finally, it bears mentioning that whether a party objects to a motion is good information to know. Periodically, we receive phone calls about motions, usually asking "is there an order." The short answer to that one is often "please look at the docket." But, sometimes the question instead is "why is there no order." And a common answer to that is "the 15 days for a response have not passed."

Recently, an attorney's staff conveyed to a judge's staff, "the judge does not have to wait 15 days, the opposing party does not object." That lack of objection was eventually documented with a response. But, the attorney's staff was frustrated because they had spoken to opposing counsel's staff after filing and then knew there was no objection. The judge had looked at the motion, however,  and it did not say that. The judge was not willing to enter an order, on that motion that did not say "does not object," upon the telephonic assurances of what the moving attorney's staff thought opposing counsel's staff said about the motion. 

If there is no objection, say so in the motion. If the lack of objection comes to light after filing, the non-moving party should file a response and say "there is no objection." Too time-consuming? 
sorry, that is the process, and it provides the opportunity to speak up, which we call due process.

Litigation is stressful. There are deadlines and constraints, rules and processes. But, it is probable that much of the stress can be diminished if people would talk to one another. In a world of texts, cell phones, email and more, it is just not too much to ask that litigants talk about their differences before they jump to filing a motion, a motion that may not ever have to be written, proof-read, and filed. Personally (I mean you, not your assistant) confer first, then put the response in your motion. 




Sunday, May 21, 2017

The Waffle House Index

If you read Bob's Cluttered desk, you might think that the Waffle House Index has something to do with violence, controversy, or worse. If you live in the south, you know Waffle House. If you know Waffle House, you know not to try ordering french fries; Waffle House has hash browns, and as Larry the Cable Guy says, "you're a Communist if you don't eat it smothered and covered."


You may not know Waffle House, having never spent time in the south. Or, you may be one of those healthy folks that decries fried food and thus avoids the fare. I was introduced to Waffle House when I drove through the night one Thanksgiving to visit an injured friend in the south. After exiting the interstate three times to be disappointed by well lit but closed fast food joints, I finally ate at Waffle House (of which there had been one at two of the four total exits chosen). See, Waffle House is open 24/7/365, and for the most part they will cook you whatever you want, whenever you want it. 

In addition to these significant cultural contributions, Waffle House has contributed to the subject of crisis management. The Federal Emergency Management Agency (FEMA) is likely to be the first federal government "boots-on-the-ground" following any disaster. They are often preceded by the Red Cross, the Salvation Army, or a van full of volunteers from a church. But as far as federal relief, FEMA is probably there first. Some take comfort in that more than others. 

So, what do Waffle House and FEMA have in common? This is the part where Bob Wilson's sense of humor would likely flourish, or perhaps run amok, like two people fighting over dishwashing privileges. No, FEMA has to some extent adopted the Waffle House disaster response process as a measuring stick of just "how bad is it." As mentioned, Waffle House is always open. And from that business model came the Waffle House Index adopted informally by FEMA. 

According to Wikipedia (a reliable and authoritative source according to the Florida First District Court, see Trejo-Perez v. Arry's Roofing, 141 So.3d 220 (Fla. 1st DCA 2014)), the Waffle House index is used by FEMA to measure "the effect of a storm and the likely scale of assistance required for disaster recovery." Waffle House, it seems, has a reputation for only closing in the most dire of circumstances, and reopening rapidly thereafter. And so, an administrator of FEMA once observed on arriving after a disaster "If you get there and the Waffle House is closed? That's really bad. That's when you go to work."

From that observation, FEMA developed a three-level index to measure the severity of a disaster. According to Wikipedia, they are:
Green: the restaurant is serving a full menu, indicating the restaurant has power and damage is limited.
Yellow: the restaurant is serving a limited menu, indicating there may be no power or only power from a generator or food supplies may be low.
Red: the restaurant is closed, indicating severe damage.
This index came to my attention last year when it was featured in the Washington Post following Hurricane Matthew's meandering up the east coast. The Post described the Waffle House Index, and then described the efforts to evacuate Florida ahead of that particular storm. It says that Weathermen declared it "a storm like no other," that "millions along the East Coast were instructed to evacuate," and that the Governor said "this storm will kill you.” That all seems clear enough? But Floridians did not flee. 

Then came the ultimate warning, Waffle Houses "between Titusville, Fla. and Fort Pierce, Fla. are closed." What? Waffle House is closed? The Post quoted a tweet that summarized this information exchange and decision-making process
News: “Evacuate Florida”
Floridians: “Nah”
News: “Waffle House closed”
Floridians: “IT’S THE END OF DAYS!! SAVE US BABY JESUS!!”
As Larry the Cable Guy would say, "I don't care who you are, that's funny right there." 

The critical points to all of this are pretty simple. 

First, when the Governor tells you to leave, it is probably pretty good advice. The idea is to get you out of harms way. 

Second, planning for a disaster or business interruption is a great idea. Those that deal with disasters appreciate and respect the effort that goes into disaster awareness and preparedness. They plan now for what could happen later.

Third, despite all the planning and resources imaginable, even the most prepared might not be open during and immediately after a storm. There may be supply issues, utility issues, and more. 

And finally, while I am not sure it has anything to do with politics ("communist") as Larry suggests, you gotta try 'em "scattered, smothered, covered, chunked, diced, and topped" (onions, cheese, ham, chili, sausage gravy, diced tomatoes and jalapeno peppers) next time you're at the Waffle House, after a storm. And then see your cardiologist. 

But, before you return home after that storm evacuation, you might just call and see if they are answering the phone at your local Waffle House. Good information to have. 




Thursday, May 18, 2017

Attorney Complicity and Disqualification

When should a lawyer be precluded from representing a client in a claim or complaint? WorkCompCentral reported in April that an Attorney Complicit in Comp Fraud Can't Represent Client's Estate. That is a headline likely to attract attention. Attorneys participating in fraud will draw attention. The attorney in question was suspended by the Ohio Supreme Court in April 2015, but that suspension was itself "suspended" on the condition that the attorney "commit no further misconduct." There are those who feel state bar associations are too lenient on wayward attorneys, perhaps too forgiving of first offenses. 

Essentially, the Ohio Supreme Court found that the attorney represented Tracie Lytle in a workers’ compensation matter. For a period, Lytle collected benefits because she was medically unable to work. During that time, the attorney began "improperly employing Lytle while she was collecting temporary-total disability benefits." An investigation led to the attorney entering "into a plea agreement with the Ohio Attorney General’s office, in which she agreed to plead guilty to complicity to commit workers’ compensation fraud," and to pay "$7,709.92 in restitution." WorkCompCentral reports that the lawyer's conviction was later expunged ("erase or remove completely"). 

That reminded me of a case I litigated many years ago. This case involved a paralegal that had been injured in a fall at work in the 1980s, while employed by a fairly large law firm. Thereafter, that firm had disintegrated, and spawned at least four or five new firms. I  recall the paralegal briefly worked for one of those new firms, and later went to work for a solo-practitioner personal injury attorney.

That professional move could be viewed from a variety of perspectives (new challenge, promotion, etc.). There are both benefits and burdens in the solo practice. In my personal evolution through that business form, I was struck by the many responsibility changes, from mere lawyer to lawyer, supervisor, bookkeeper, billing clerk, property manager, and so much more. Small firms are a management challenge, and in this case the paralegal similarly evolved into office manager, paralegal, and more. That is sometimes what small firm practice requires. And, perhaps that occupational change contributed to stress and fatigue at work.

So, for a number of years, this paralegal/office manager worked without significant interruption for this solo-practitioner. She continued to undergo medical care for the injury that occurred in the 1980s. At some point the solo-practitioner for whom she worked became her attorney of record in some minor benefit disputes, none of which were litigated. Ultimately, however, the attorney filed for permanent total disability (PTD) benefits. To illustrate the paralegal's unemployability, and entitlement to PTD, the attorney fired the paralegal/office manager. 

The attorney perceived no conflict of interest, even after he was listed as a witness for trial. He intertwined his personal perceptions, as the paralegal/office manager's supervisor and employer, into questions to the medical care providers. He asked their opinions regarding her ability to perform various job functions. The attorney sought testimony from doctors premised on statements like "doctor, assume that Ms. ______ pain reached such a point that her employer concluded she could no longer work and fired her;" and "her pain was so bad that her employer had to afford her modified duties and work hours;" and "her pain was outwardly obvious even to her employer." 

This appeared to me to be a patent conflict of interest. But, the assigned Judge of Compensation Claims denied my motion to disqualify the attorney and denied a motion to compel the attorney's deposition. The Florida trial judge said at the hearing that there was no conflict because the injured worker no longer worked for the attorney, problem solved. Upon my client's instructions, I drafted a complaint to The Florida Bar, but a partner in my firm talked me out of filing it. I will always wonder how that trial (and perhaps appeal) would have worked out. I will never know for sure as the case, like so many difficult and complex disputes, thereafter resolved through a settlement. 

Back to Ohio. The WorkCompCentral story described the previously disciplined attorney being "disqualified" by an appellate court from "representing the estate of a 37-year old worker in a wrongful death action." Coincidentally, that deceased worker was "the same worker" that had defrauded "the state in a workers' comp claim," while working for the attorney. The story relates that Ms. Lytle passed while the fraud and complicity was being investigated, and that this same attorney that had employed her had then filed a "wrongful death suit against various doctors and pharmacies on behalf of her estate."

As an aside, Ohio has a serious problem with pharmaceutical deaths, see PDMP and Opiods in Ohio. Ohio is not alone in that regard, but it has been in the news. People are dying there from pharmaceuticals. 

The defendant in the wrongful death case objected to this attorney's involvement. The basis of the objection was that she "had personal knowledge that was material to the case" The defendant alleged that the attorney "would need to be called as a witness." According to the Court, the wrongful death defendants argued that Lytle's heart attack and death were in part related to "stress from the Bureau of Workers' Compensation fraud investigation," in which the attorney had previously conceded complicity. Therefore the attorney was an indispensable witness to the investigation, the fraud, the stress, and perhaps more. 

The procedural machinations thereafter illustrate the complexity and challenge of such a disqualification process. According to WorkCompCentral, an initial motion was filed when the attorney refused to give deposition testimony on grounds of the attorney-client privilege. In denying that first disqualification motion, a trial judge ordered the attorney to testify. 

Following the deposition, a second disqualification motion was filed and an order was entered scheduling that motion for hearing. The day before the ordered hearing, the attorney filed an appeal of the procedural order that set the hearing. That appeal was later dismissed, the court concluding that procedural order was "not appealable." The trial court then set another hearing on the second motion to disqualify and "two days before that hearing," the attorney "dismissed the suit." It was apparently close to this time , in 2015, that the attorney was coincidentally disciplined by the state for the fraud complicity described above. 

In 2016, the attorney re-filed the previously dismissed lawsuit, and yet another motion to disqualify was filed, granted, and appealed. The Ohio District Court of Appeal affirmed that disqualification. The Court noted that the "Ohio's Rules of Professional Conduct expressly prohibit an attorney from serving as an advocate in a proceeding in which the attorney is likely to be a 'necessary witness.'" The Florida Bar Rules of Professional Conduct provide similarly, see Rule 4-3.7. The Court also reminded that the conversations between attorney and client were not privileged because "privilege does not apply to conversations that relate to an unlawful or fraudulent transaction."

It is notable that the Court also said that "disqualification of an attorney "is a drastic measure, which should not be imposed unless absolutely necessary." Where the attorney is an indispensable witness to the factual foundations of a case, that may be the only practical outcome. As I read the Ohio story, I reflected on that paralegal so many years ago, and the Florida judge's inability to see or understand the conflict. It was frustrating that the judge could not understand the patent conflict, or was at least unwilling to order such a "drastic measure." I still wonder how an appeal or that bar complaint might have resolved. 

Perhaps this will be a reminder for some of the "indispensable witness" and the disqualification rule. 


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Monday, May 15, 2017

At AIS Regulator Forum 2017

Each Spring, the National Council on Compensation Insurance (NCCI) produces a three day program on workers' compensation, the Annual Issues Symposium (AIS). It has featured some outstanding presentations over the years. It was at the AIS a few years ago that I got to hear Salim Ismail. His speech inspired me to much broader consideration of the technology revolution, and where our world of work is heading, included in posts such as How Will Attorneys (or any of us) Adapt? and Universal Income - A Reality Coming?

This year, I was given a short, but coveted spot on the agenda at the Regulator Forum held on Wednesday, before the wider-audience presentations of Thursday and Friday. It will be a great opportunity to overview the perceptions of constitutional infirmity in American workers' compensation. And, because it will be a short presentation, I have prepared this post for an overview, both to reinforce for the attendees and for those who will not travel to Orlando to see it.

There are multiple constitutional challenges being litigated around the country. Certainly, Oklahoma has seen its share. A few years ago, there was a proposal to split the Florida Supreme Court into two courts, one for civil and one for criminal cases. If the trends continue in Oklahoma, they may need to split their court in two, one for workers' compensation constitutionality appeals and another for "everything else." Just last week, another challenge was announced, this time to the appointment of a new Chair of the Oklahoma Commission. 

But in the brief moments I have at AIS, I will be focusing on the constitutionality of statutory limitations, legislative delegation, and equal protection. These are based in various constitutional provisions, but include the First Amendment, the Fourteenth Amendment, the Due Process Clause, Separation of Powers and more. 

There are various cases worthy of discussion. It is imperative to remember that each may be in a variety of procedural postures. Some are trial court decisions, pending potential appellate review. Others are intermediate appellate decisions, either presently pending state supreme court review, or espousing holdings nonetheless still subject to such further review. Others are state supreme court decisions which would seemingly be the "last word," but for the somewhat alarming failure of courts to follow stare decisis, and their own pronouncements. 

The Cases:

On April 20, 2016, the Florida First District Court of Appeal rendered Miles v. City of Edgewater Police, 190 So.3d 171 (Fla. 1st DCA 2016). The Court noted Florida's statutory limitations on fees address only claimant (recovering worker) fees. The limitations did not apply to defense fees. Furthermore, the Court concluded that the limitations on fees, to protect workers' proceeds or benefits, were illusory protections if they prevented workers from retaining counsel, and thus obtaining those benefits in the first place. Some key points made by the Court:
(1) content-based speech restrictions.

(2) The interest in regulating attorney's fees” to protect “the amount of benefits secured” could not “be implicated if securing any benefits was effectively prevented by Claimant's inability to secure counsel.
(3) application of the statutes to this scenario is arbitrary and capricious, because only the attorney's fees paid to claimants' attorneys are regulated.
On April 28, 2016, the Florida Supreme Court rendered Castellanos v. Next Door Company, 192 So. 3d 431 (Fla. 2016)(SC13-2082). The Court concluded that the fee schedule in section 440.34(1) is unconstitutional. That decision was much anticipated in Florida. A decision holding that section unconstitutional as applied in that case would have yielded significant work for the state's courts. No Florida Judge of Compensation Claims can conclude something is unconstitutional, and so all future cases would necessarily have had to proceed to the courts.

The Florida Supreme Court avoided traditional constitutional analysis. Instead, it insinuated a "presumption" into section 440.34(1)(a statute that in no clause uses the word "presumption") and essentially held that any statutory limits that deprive parties of some opportunity for a judge to make exceptions are an "irrebutable presumption," and thus unconstitutional. What this ruling will eventually mean for mandatory criminal sentences and other statutory minimums and maximums remains to be seen. Some key points made by the Court:

(1) a reasonable attorney's fee has always been the "linchpin" to the constitutionality of the workers' compensation law.
(2) the "patently unreasonable" $1.53 hourly fee award.
(3) See also Castellanos is Decided by the Supreme Court, and A Procedural Progeny Potential of Castellanos.

On May 18, 2016, the Supreme Court of the State of Utah struck the "sliding scale fee schedule and an overall cap on the maximum amount of attorney fees. The schedule was created by The Utah Labor Commission, after the state legislature "delegated the authority to regulate those fees." More on delegation later, but this is an important element of the Utah decision. Injured Workers' Association of Utah v. State of Utah, 2016 UT 21. Some key points made by the Court:
(1) The regulation of attorney fees is included within the power to govern the practice of law.
(2)The Utah Supreme Court is vested with exclusive inherent and constitutional authority to govern the practice of law.
On May 8, 2017, a trial court in Alabama rendered Clower v. CVS Caremark, Case No. 01-CV-2013-904687.00 (Jefferson County, May 8, 2017)(Birmingham). This case addressed both indemnity benefits, discussed later, and attorney fees. The Alabama Code §25-5-90(a) limits claimant attorney fees to 15% of "the compensation awarded or paid.” The Court was unpersuaded by a 1921 Alabama Supreme Court case, Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803 (1921), which had determined similar workers' compensation limitations constitutional. The Court was persuaded that analysis, from a time when participation in the system was voluntary, was no longer persuasive. The Alabama trial judge relied upon the decisions in Castellanos and Injured Workers' Association of Utah, as well as Minnesota and Pennsylvania decisions. Many will remember a Florida trial judge acting similarly a few years back in a case that eventually became styled Florida Workers' Advocates v. Florida, only to be procedurally reversed. Some key points made by the Court:
Alabama Code §25-5-90(a) appears to be unique in the Code of Alabama 
The other statutes in the Alabama Code which address payment of attorneys’ fees speak in terms of “reasonable attorneys’ fees.”
What constitutes reasonable compensation has “historically been a matter for judicial determination."
Clower also struck a permanent partial disability cap on the grounds that it was (1) seemingly arbitrary, and (2) had been in the statute so long that inflation had significantly changed its effect. Individuals entitled to temporary benefits and permanent total disability benefits were paid based upon a calculation from the injured worker's average weekly wage. However, those entitled to permanent partial were artificially capped at $220.00 per week. This offends the equal protection clause in the eyes of this trial court. Inflation, said the worker resulted in:
unbridled and self-perpetuating rotting away of a “remedy” has left it too infirm to qualify as a “remedy” sufficient to meet the requirement that the Workers’ Compensation Act involve adequate “quid pro quo” to pass constitutional muster. 
This outcome shared similarities with a recent Kentucky decision in Parker v. Webster County Coal, 2014-SC-000526-WC (a case that ignored stare decisis, and of which I have been somewhat critical) That April 2017 decision concluded that a reduction in entitlement, regarding permanent partial disability benefits for those also entitled to Social Security, is unconstitutional. The basis for the Court's decision there is not what the parties plead or argued. Upon those arguments and allegations, the statute would stand firm following long-established Kentucky precedent. Instead, the Court created its own argument and then agreed with itself. 

The Court found that a small minority of individuals are not entitled to Social Security as a result of their occupations. And as such, those individuals would receive more workers' compensation than workers of certain ages that were entitled to Social Security. Thus, though not plead or argued by the parties, the Court found a path to illuminating unequal treatment that it concluded was a violation of the equal protection clause. 

Finally, recent analysis has been interesting regarding delegation. That concept of delegation is mentioned in authorities cited by Clower, and was the foundation of Protz v. WCAB (Derry Area School District), 124 A.3d 406 (Pa. Commw., 2015), a decision by the Pennsylvania interemediate appellate court. That court was asked to interpret a statute that required impairment rating assignment pursuant to the "most current" version of the AMA Guides to Permanent Impairment. The Court took no issue with the Legislature adopting such standards. However, by purporting to allow those standards to be periodically updated without further legislative action ("most current"), the Court concluded the statute impermissibly delegated legislative adoption authority to the AMA. 
See also, As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional.
That analysis will reportedly be reviewed by the Pennsylvania Supreme Court, which has been pondering the facts and law for well over a year. I say reportedly, because a Court that accepts jurisdiction may just as easily later dismiss jurisdiction, see Stahl v. Hialeah Hospital. It seems possible however that a final decision regarding constitutionality could be rendered at any time. As described in the post linked above, other courts have addressed similar statutory language and reached appropriate results without the constitutional analysis employed in Pennsylvania. It is important to remember that courts have an obligation to find solutions through statutory interpretation first, and resort to constitutional analysis only when all else fails. Some see the trend toward constitutional challenge intriguing from that perspective. 

So, where does that leave workers' compensation? Well, Florida tried in 2017 to make legislative adjustments to temporary partial disability, attorney fees and more. That effort failed on the last day of the 2017 session. See, Turn out the Lights, the 2017  Session is Over. The Alabama trial judge in CVS has stayed his ruling, in order that the state's legislature might react either in the remainder of its regular session or in a special session. But, it appears more likely that an appeal of his order would occur first. There have already been some critical analyses of the trial court's conclusions. 

Critics have asserted that the current climate demonstrates judicial activism. They point to the Pennsylvania court's impulsive leap to constitutionality, Kentucky's abandonment of stare decisis and Florida's insinuation of words ("presumption") into statutes. Others, disagree, contending instead that legislative and regulatory process have failed the "Grand Bargain," and that courts are left with no alternative but to create justice in the spirit of constitutional analysis and the protection of fundamental rights. 

My conversation at AIS 2017 will be brief, but hopefully spirited. The state of American workers' compensation is certainly as interesting, confusing, and challenging as it has ever been. Several years ago, I penned There's No Other Place I Wanna Be, and frankly my feelings on that have not changed. 

I look forward to seeing you at AIS in Orlando. 





Sunday, May 14, 2017

Time to Prepare for Hurricane Season

It was Hurricane Preparedness Week last week (May 7-13, 2017). It passed without attracting my attention. Perhaps it was better publicized or at least better noticed elsewhere. For many across the country, hurricane season is a stressful time. We relive memories of the bad storms, and obsessively watch the National Hurricane Center site for signs of the next one. We follow the Weather Channel more than the news. I periodically tweet the following as "my favorite picture on the Internet." If the text is not clear, it reads "Tropical cyclone activity is not expected in the next 48 hours." It seems a little ironic, but I do like that image.


There are storms that attract national attention and fame. Names like Andrew and Katrina are widely known. Those disasters made national news and left indelible impressions on many. But, for most in hurricane country, the storm(s) that is most personally memorable is the one (hopefully just one) that you lived through. For me, at least for now, that will be Hurricanes Ivan and Dennis. The ten worst American cyclones according to The Weather Channel were:

10. Charley 2004, Punta Gorda and Port Charlotte, Florida

9.   1938 Hurricane, New England
8.   Sandy, 2012, Long Beach Island, New Jersey
7.   1935 Labor Day, Florida Keys, Florida
6.   1938 Southeast Florida, Lake Okeechobee, Florida
5.   Camille, 1969, Mississippi Gulf Coast
4.   Andrew, 1992, Homestead, Florida
3.   1926 Miami Hurricane, Miami, Florida
2.   1900 Galveston Hurricane, Galveston, Texas
1.   Katrina, 2005, New Orleans, Louisiana

The fact that half of that list ends with "Florida" does not escape me. But that does not represent any "corner" on the tragedy market either. Regions and cities on the Atlantic and Gulf coasts from New Jersey to Brownsville, Texas have each had their storms, destruction, loss of life, recovery, and stories of heroism and resolve. 

Hurricanes are nasty, destructive, and dangerous. But, unlike so many natural disasters (earthquakes, fires, tornadoes, etc.) these days we tend to get significant warning of hurricanes. That is not always be the case, but usually there are days warning. Those days give us time to pro act. In recent years, the accuracy of landfall predictions has improved significantly, which is also a blessing. 

It is a bit of a comfort to know in advance that one of these things is coming toward you. Preparations can be made, albeit perhaps frantically. There is a great deal of frantic behavior sometimes. It is time now to prepare for the season. As I write this and encourage you, I recall my first experience, Hurricane Ivan in 2004. I hope that it forever remains my worst hurricane experience.

I remember just before Ivan I was on a last-minute trip to a home improvement store for screws (my neighbor and I had exhausted our supply putting up plywood over windows), I ran into an acquaintance who was in line to buy 20+ sheets of plywood. We spoke briefly, and I went in search of screws. As I drove out later in my empty 3/4 ton pickup, I passed his very small SUV, with those 20+ sheets in the back. It looked like his vehicle's front wheels might lift-off at any moment. That overloaded vehicle image has always troubled me.

After boarding up, I ran from Ivan. That is good advice for anyone. Evacuation saves lives. But, it is admittedly difficult to plan. Even with modern prediction success, these things can be unpredictable. But, as a rule, the farther inland you get the better off you are.

After Ivan, getting back into Pensacola about 36 hours post-landfall was surprisingly easy. Many roads were strewn with debris, and there were buildings demolished, but access was possible. I found 700 South Palafox, in which the workers' compensation office is located, somewhat intact. The staff had parted company on earlier that week, fully aware that the next few days might be a challenge, but confident we would be back at work soon. Most of us left town that Tuesday or Wednesday, not really appreciating how bad it might get. Ivan made landfall on Thursday the 16th, at about 1:00 a.m.

Friday about noon, I drove up and found our landlord outside picking up debris. He surveyed the office with me, the dark and quiet were unsettling. We had wet ceiling tiles (later we learned the storm had displaced the air units on the roof and so we essentially had large holes in the roof), wet carpet, wet computers, desks, books, and more. I was lucky later that day to be allowed past the national guard and police to find my home reasonably intact, but surrounded by downed trees and branches. I was relieved and encouraged as I drove back west from Pensacola that evening, chasing the sunset.

On Saturday I accumulated equipment and supplies. Sunday, I headed back, fortunate to find some generators at various stores along the way. I eventually had four on the truck (each of which was welcomed by someone), along with an assortment of tarps, tacks, and tools. I visited the office first. In the 48 hours I had been gone, the landlord had hired a restoration company. An eighteen-wheel truck throbbed at the curb, its generators pushing current to the building through thick, snaking cables. Inside, there were dehumidifiers, fans, and work lights everywhere. The OJCC office was secure and had started its path back. I headed for my house, and on the way out of town, I pulled over for a string of incoming emergency vehicles and power trucks. Painted-on city names from across the state, the Carolinas, and even Canada remain indelible on my memory to this day.

The main bridge from Pensacola to the town in which I live was closed. I detoured miles to the east to reach home, and engaged in a lengthy discussion with the National Guard about reentering that town. They were reluctant to allow me to pass, warned me there were no services (water, electric, food, etc.), and encouraged me to turn back and stay out. I persevered. I began work Sunday afternoon on the yard debris. Over the next four days, I hauled 114 pickup truck loads of tree debris out of my little yard. On Monday morning, returning from one such haul, my path was blocked by an SUV. A uniformed officer required my driver's license. The Florida Capitol Police and others had arrived, neighborhoods were being secured. I was grateful to greet them many more times over the next week.

I cut and hauled many trees and branches. My greatest personal challenge was an Oak tree with a trunk diameter of about 30 inches that was down, but propped in the air on several limbs. I saved that task for last (I struggled mentally to comprehend how I would ever get it safely to the ground and partitioned). As I worked that week, crews hired by the city hummed around us, chainsaws, backhoes, dump trucks, bobcats, and more. A fellow on a bobcat seemed a near constant presence on my street as neighbors, without equipment, dragged or carried limbs to pile in the street, and this bobcat would periodically gather and haul them to the thoroughfare and a dump truck.

Wednesday morning, I was about to de-limb that oak tree (having conjectured which way it would tilt/fall when I did. I was half way through a limb when that bobcat rolled into my driveway and the driver drew his finger across his throat. We both shut down our equipment and discussed that tree. He suggested a new solution. The bobcat lifted/tilted that tree by one limb and I quickly lopped off several limbs. He then set that side down, repositioned, lifted/tilted another way and I cut again. He helped me like that for about 20 minutes, and that trunk was finally on the ground. I spent the rest of that morning cutting that tree into four to six foot pieces, each of which that bobcat drug down the road.

On Thursday, with my home restoration nearing completion, the radio announced that the bridge to Pensacola was once again open. The officials had closed it, claiming it had to be inspected and reminding everyone that the I-10 bridge was destroyed. Locals would conjecture for months thereafter about whether the bridge actually needed inspecting or if closing it just helped keep the people out, as did the National Guard.

An important point, news was hard to get post-Ivan. The world went on without us. Taking a break one morning, I started my generator and sat before the television. I was hoping for an update on recovery, services, roads reopening. What I found was normal network broadcasting, national news, and nothing helpful about our local situation. In those several days, only local radio and the Internet provided any useful coverage.

Upon news of the bridge reopening, I was inclined to visit the office, but was interrupted by the low rumble of heavy trucks, trucks from two power companies, Canadian and Georgian. I was grateful they restored power through the new roof-pipe that had been installed that week (that big oak had ripped the old one right off the house).

It was therefore evening as I turned off Main street in Pensacola for the Comp office, and was blocked by a Sarasota County Sheriff. We chatted, and he eventually let me through. A genial cop, hundreds of miles from home, cheerfully helping to secure our downtown. I found that tractor-trailer still at the curb, but silent. The office power was back on. Dehumidifiers and fans were still everywhere. But, as our office is on the top floor, and as there had been holes in the roof, the damage was done. We lost every ceiling tile and all of the carpet.

We had departed for Ivan without much discussion of the "what ifs." The Pensacola office staff communicated in the immediate aftermath in large part through our landlord. Cell phone service was spotty, electricity and phone service sporadic. That Thursday evening, I learned that the landlord had seen each of the staff at one point or another, and that everyone was alright.

As I headed for home, the smell of food caught my attention. I realized it had been almost a week since I had eaten anything but the FEMA-supplied Meals Ready to Eat (MRE) and cold canned food. I wondered that my hunger for real food had not occurred to me until that smell. It had also been a week since I had a proper shower, but I was exhausted and frankly beyond caring. I walked into a restaurant, sat at the bar and ate. I was surrounded by many who were much cleaner and better dressed, and a fair few in as bad a shape as me. It was a great meal.

The OJCC office reopened in Pensacola on Monday, September 27, 2004. We had no carpet, and in places you could still look up through the roof at blue sky. We had one functioning air conditioner, and it was warm. Fans droned constantly throughout. A crane worked that week to reposition the other air handlers, and thus close our "sun roofs." And, our ever-present landlord disappeared one day that week, after complaining that there was no industrial carpet for sale in Pensacola. He reappeared about thirty-six hours later, having driven to North Carolina and bought carpet for our suite. Three weeks after Ivan hit, the OJCC office was back to normal. An astonishing recovery.

Ivan was not a "top ten" (above), but Ivan was a brute. Each year, the National Hurricane Center starts with a list of names that will be used, and some names are repeated over the years. But, there are storms that rise to a certain level of infamy, and those names are retired. In 2004, one of Florida's worst years, Charley, Frances, Ivan and Jeanne all hit Florida, and each was deemed appropriate for permanent retirement. There will never be another Ivan.

The next year, they retired Katrina and Dennis (Dennis hit Pensacola less than a year after our Ivan recovery). Many locals claimed Dennis was worse than Ivan, but there was not as much damage because "Ivan already blew away everything not nailed down." A year after Ivan, we had begun to regain our humor. 


What did Ivan teach us?

Plan. The time to plan for hurricane season is now, before it starts on June 1. Certainly, landfall warning is likely, but if one threatens you, your time will be short. Have that plywood on hand and ready (and screws). The last weekend in May, you can buy preparation supplies and skip the sales tax

Evacuate. They tell us to leave for a reason. History documents many catastrophic losses of life from hurricanes. A sure way to increase your survival odds is to follow orders and leave when they tell you. Buildings can be repaired, equipment dried out or replaced. We are more fragile than we think (Ron White reminds us "it is not that the wind blows, it is what the wind blows!").

Help. Neighbors and friends may not ask for help. That acquaintance I saw with plywood in his SUV surprised me. That load was dangerous. I wished I had offered my truck and back. I never dreamt someone would put a load like that on such a vehicle. He was doing what he had to, but I might have saved him some trouble. The next season, having survived Dennis, I drove into the Mississippi Gulf Coast after Katrina. I knew the feeling of being hit, and knew how the appearance of helping hands (from near or far) can bolster the spirit and speed the recovery. 

Cash. You may not be able to get it before you leave (ATMs may empty, banks may close), but it is good to get some before you return. It is impossible to use a debit or credit card anymore without a phone connection and electricity. You may be returning to a community temporarily without either. 

Have a contact list and rally point. Phone service may be interrupted, including cell towers. Is there some commonality  you can arrange to rely upon (leave message/note with ever-present landlord, leave each other notes at the office, etc.)? Use email, group-chat, or social media (that can be accessed away from home when there is a signal). It is a great comfort to confirm that everyone is alright. 

Return. Returning after a storm may be difficult. Roads close, bridges are damaged. It can also be challenging emotionally. Think through what you will do and how, if confronted with such developments. 

Plan. I include this one twice. Every family and every business should have a plan. Talk about the plan now. When that storm is threatening, everyone will be thinking of a million other things (what if this, what if that), and will be understandably distracted. Discuss the plan now, then revisit again if a storm threatens. 

The bottom line in much of this is to prepare, and prepare now. The National Hurricane Center has many resources to help you plan and be prepared. From June 1 through November, be aware and pay attention to posting of storm warnings. If a storm threatens, listen to the experts and officials about when and where to evacuate. 

I am hopeful that I have lived through my last Ivan. I am likewise hopeful that you never experience a storm like it. But, as Hurricane Awareness Week concludes and we look toward June first, think, discuss, and prepare.