Tuesday, January 31, 2017

Thoughts from the Hall of Fame

Last week week was intriguing. Wednesday, I attended meetings in Tallahassee. Friday, I attended the 2017 Florida Workers' Compensation Hall of Fame induction dinner in Orlando. At the last dinner in 2016, I found myself seated between Richard Sicking and Al Frierson. Either of these two brings a wealth of experience and personality to a conversation, but to sit between these icons was amazing. More on last year's gathering is here. I was disappointed that each was absent from the 2017 gathering. 

It was an honor to be present as three new inductees were added to the rolls. It was particularly noteworthy that one was a sitting Florida Judge and another was a well-known former Judge. Judge Robert Dietz has spent a lifetime in workers' compensation, as a defense attorney, mediator and now as Judge in the Melbourne District. Former Orlando Judge Richard Thompson, now an executive with Zenith Insurance, has likewise dedicated his career to this field. The third inductee was Michele Adams. She is Vice-President of Risk Management Services at Walt Disney World Resort, and is an icon of the workers' compensation world. 

Their accolades and accomplishments were mentioned by Hall of Fame President Steven Rissman. The fact is that there is simply too much to say about each inductee. If Mr. Rissman had attempted to list all of their achievements, we would still be sitting there listening. The inductees are involved and engaged in the world of workers' compensation, and their communities. I have heard each speak about workers' compensation, risk, and the challenges of this system, designed to serve employees and employers. Each is truly deserving of this recognition and appreciation.

It was an incredible gathering. To my left sat Judge Dietz, then Judge Lazzara, Mary Ann Stiles, Dan Hightower, Glen Weiland, Tom Koval, G.W. Jacobs, Jim McConnaughhay, Steven Rissman, Karen Gilmartin, Michele Adams, George Kagan, Bob O'Halloran, Judge Rosen, J. David Parrish, Ray Malca, Gerald Rosenthal, Tom Conroy, Richard Thompson, and Marc Salm. 

It was disappointing that some could not attend. I particularly missed seeing Al Frierson, William Douglas, Rosemary Eure, Joe Keene, Alan Kuker, Jack Langdon, Claude Revels, and Richard Sicking.  There were others missing, each of great import. But these in particular struck me. 

Left to right Richard Thompson, yours truly, Steve Rosen, John Lazzara and Robert Deitz
Photo by George Kagan, all rights reserved. 

There were stories told. A humorous anecdote of two young lawyers, George Kagan and Gerald Rosenthal, driving about California in search of their deposition brought laughs. In a day before GPS and smartphones, these intrepid adversaries set forth in unfamiliar territory in a rented Ford Fiesta, using a tool they called a "map." This, apparently, was a diagram of topography, roads, and towns, printed on paper and commonly sold at gas stations. According to the story, it was common for a passenger to read (or misread) this "map" and provide directions for the driver. 

There were toasts and recognitions. There were expressions of differing recollections and perceptions. In a group like this, there is no shortage of experiences and achievements. It is a group within which there are many perspectives on where Florida workers' compensation has been. I enjoy listening to the various recollections of history and the prognostications on where it may head next. 

Where it may head next is a subject that has been bantered in recent months as the Florida Legislature has geared up for its annual session. It astounds me how a state of Florida's size and complexity can meet its many challenges with a part-time legislature (I know the members and staff work on issues all year, but the regular session itself is a mere 60 days each year). Last week, workers' compensation was the topic of discussion in a House Commerce Committee Subcommittee (Insurance and Banking) workshop. That meeting began at 3:30 in the afternoon and ran past 6:00. Perhaps the long hours could be the secret of getting so much done in a short session?

Time will tell whether 2017 brings legislative change. Bills have been introduced. Committees will meet. When the session begins, I may try to summarize some of those bills here. 

Returning to Friday, I recalled a quote attributed to John Kennedy in 1962. He was hosting a White House dinner for Nobel Prize winners. He said "I think that this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone." I reminisce about the talent and intellect gathered around a table in Orlando last week and have similar thoughts about those gathered. These are the names upon which Florida workers' compensation has been built. 

In that regard, I am annually humbled by being included in this group. A sentiment very aptly addressed by another member in a post-dinner email to the group, who said "I still feel I belong at the 'kid's table' with this group." It is a gathering of iconic personalities. Each is larger than life in some way (just ask us). I found myself contemplating (on a long ride home after dinner), who will be the iconic leaders of tomorrow? Who has begun the journey that will end with a recognition that they devoted a career to Florida workers' compensation? 

I am certain that they are out there. They are representing clients, running programs, innovating, reforming, advocating, writing, speaking, explaining, and building. They have vision for the future of workers' compensation. Certainly, they do not all share an identical vision, nor do those who shared dinner last week. But, they have vision for the future. 

Perhaps the real worth of those honored is that they have pursued competing visions, fraught with disagreement and differences. But, they have done so without being disagreeable (well, "too disagreeable" perhaps). Sure, I am am certain there have been hurt feelings along the way, and occasions of distrust and even anger. But, they find themselves able to gather around a table for dinner and remembrances are met with laughter. Frustrations and failures are acknowledged, but successes are celebrated. 

It is important for professionals to understand that this is the way things should be, and can be. There can be accomplishment in this system. There are a great many good people in this system. We will not always agree unanimously on the "how," "what," "when" or "why" of particular aspects of workers' compensation. We may each suffer individual defeats, disappointments and frustrations from workers' compensation. But, it is a noble effort in which we all find ourselves. 

We are affecting people's lives. We are responsible as stewards of an incredibly critical system. I am hopeful that there are young people reading this. In their daily struggles with this system, I am hopeful that they are also encouraged by the rewards of engagement in this system and helping those who it touches. 

I am grateful for the Hall members. But, I am more grateful for the future members out there, working to move this great endeavor forward, whatever that may mean to them individually. Through their thoughts, ideas, and efforts, we will see workers' compensation evolve and develop as we fade and the next generation steps forward to lead.

Here's looking forward to next January and the opportunity to do it all again. 

Sunday, January 29, 2017

Appellate Lessons, Explanation, Contrition, Persistence

There are a great many decisions handed down each week in American workers' compensation. There are over fifty jurisdictions, inhabited by hundreds of millions of people, and disputes arise. Some quickly resolve, some are mediated away, trial adjudicators are charged with others, a handful see appellate review, and an exceptional few attract the attention of any jurisdictions highest court. Adjudications are written for the parties to that case, it is how they learn the outcome. 

But, adjudications may be of value to others. Sam Levenson said "You must learn from the mistakes of others. You can't possibly live long enough to make them all yourself." It is also much less painful to learn from the mistakes of others. This is one of the great values of our legal doctrine of Stare Decisis, or "let the decision stand." Lawyers rely upon rulings in one case, with an expectation that other similar cases will be decided in a similar manner. Decisions are published, and in our technological age they are increasingly available inexpensively to anyone with Internet access.

In Florida, the vast majority of appellate decisions in workers' compensation come from the Florida First District Court of Appeal. The workers' compensation law directs that appeals of workers' compensation judge decisions are heard by that court, see section 440.271, Fla. Stat. Of course, workers' compensation issues may arise in other courts, leading to some appellate interpretations from the other four District Courts, see Brock v. Wastepro, discussed here

Appellate decisions in Florida are most often the result of consideration and deliberation by three appellate judges, and are known as "panel" decisions. It is possible that such a panel might change its mind on a decision; parties ask for that outcome through a "motion for rehearing." Periodically, all of the judges on a court might decide to rehear a particular decision, called a "rehearing en banc." 

Last May, the First District published a decision in O'Conner v. Indian River County, (Case No. 1D15-4986, May 20, 2016.). The May 2016 panel decision in O'Conner was withdrawn following a rehearing by the panel. The new decision was published on August 2, 2016. This case had some similarity to the litigation in Miles v. City of Edgewater, and the Court noted that the party seeking appellate review (the "appellants") were represented by the same attorneys that represented the claimant in Miles. Those attorneys requested the trial judge to approve retainer agreements between claimant and counsel, and then sought to challenge the constitutionality of Florida's workers' compensation law. 

In the May decision, the Court described the procedural history of the case. It noted that the petition for benefits (PFB) seeking workers' compensation had been dismissed by the claimant. The claimant then sought review by the Court by filing a petition for writ of certiorari (not an "appeal," per se, but a request that the Court review something within its discretionary jurisdiction).  It noted that a "petition for writ of certiorari was the only possible way for Appellant to challenge the retainer and fee order in this case because he had dismissed the PFB." Therefore, "there was no final order that could be appealed."

After the PFB was dismissed, the Employer/Carrier sought "prevailing-party costs." In Florida workers' compensation, the side that wins at trial may recoup some measure of expenses from the party that does not win. In this case, the trial judge ordered the injured worker to pay some of the employer's costs (spent defending the now-dismissed petition). The injured worker filed an appeal of that cost order. The "notice of appeal," which starts an appeal and describes what it is about was "twice amended." According to the Court, "each version indicating that he was appealing the final order assessing costs."

However, when the initial brief was filed (a brief is the written argument describing why the appelate court should take the action sought), "the real reason for his appeal" bcame apparent. The injured worker was actually challenging "the earlier-entered retainer and fee order." The Court concluded that through this process, "appellant’s counsel attempted to use this cost appeal to gain a second presentation of his argument concerning the retainer and fee order." It noted that "in no place did he (Claimant) indicate that he was not actually challenging the cost order on appeal but only the order addressing the retainer agreement." 

When the issue became more apparent, the Court "issued an order to show cause," which is a way for a court to ask a question. In this instance, the question was why this appeal "should not be dismissed and sanctions imposed." The response essentially said that the attorney “reasonably expected” the appellate court would consolidate the petition for review of the retainer order and the appeal of the cst order into one review. In other words, the attorney thought the Court would straighten out any procedural flaws on its own. 

The Court was unconvinced by the various arguments, and concluded that the purpose of the cost order appeal was "to use it as a pretext for making constitutional arguments about the fee statute despite the fact that counsel knew or should have known that the retainer and fee order was not reviewable." The Court noted that "it is incumbent upon every member of the Bar to be honest and open with the courts of this state." Finding no basis to conclude "counsel was deliberately trying to mislead the court" it nonetheless concluded "this was the net effect of their actions."

The Court said that "counsel chose to appeal a cost order for which they advanced no argument in support of reversal." The Court said this suggested "either that they put their interest in invalidating the fee statute ahead of their client’s interest in having the cost order reversed or reduced, or they appealed the cost order without having a valid argument in favor of reversal." regardless of which of these was chosen, "counsel’s actions and lack of candor required the court (and Appellees) to expend unnecessary time and effort on this appeal." 

The Court concluded the May decision by awarding appellate attorney fees against the injured worker, and in favor of the employer, regarding "their attorney’s time spent on this appeal." And, the injured worker sought rehearing, or a reconsideration of the decision. In August, the Court granted the motion for rehearing, and withdrew its May decision. 

In the amended decision in August, the Court affirmed the order awarding costs to the employer; "because Appellant did not present any substantive argument for its reversal." The Court "admonish(ed) Appellant’s counsel for their lack of candor concerning the order at issue in this appeal." The Court compared the factual basis of O'Conner with Miles. The Court noted that in Miles there was a final order, following trial, which was appealled and which addressed earlier retainer fee orders.Though similar to O'Conner, not the same. Because in n, the injured worker voluntarily dismissed the PFB and "so there was no final order to appeal."

The Court stated that "the improper use of this appeal as a second chance to obtain review of the fee order is troublesome." The Court cited "Appellant’s attorneys’ mistaken, albeit apparently good faith, belief that the fee order was reviewable in this appeal of the costs order," and "counsel’s failure to adequately apprise the court that Appellant had two pending proceedings in this court both challenging the same order despite having multiple opportunities to do so." And reiterated that "in no place did appellate counsel indicate that Appellant was not actually challenging the costs order on appeal."

The Court concluded by "accept(ing) counsel’s contrition." It reversed its earlier decision and relieved the attorneys of responsibility for attorney fees, concluding that "the admonishment in this opinion is a sufficient sanction."

There are a few important lessons in this series of events. Foremost is that people are not always going to do the "right" thing, and perhaps not even the "best." We will all make errors and mistakes. In the day-to-day, there will be instances where our mistakes will be called to our attention. When that happens, there is value in contrition, or "the state of feeling remorseful." Admitting error, owning error, and moving forward in a process to alleviate effects of error is a positive course. 

Also, it is likely that more is better than less in terms of providing notice. The underlying effort illustrated here was directed at challenging the constitutionality of a statute. When the cost-order appeal was filed, that notice could easily have included a sentence or two regarding Miles, the earlier denial of O'Conner's retention agreement(s), and the (then) pending petition for review of that denial. There seems no downside to providing some reference to the "big picture." It appears a great deal of time and effort might have been avoided here with some limited explanation of what was actually sought (constitutionality decision) and how that was interrelated with the cost order. 

And, finally, it is apparently good to keep pressing your issue. This August decision illustrates the benefits of persistence. It may not be frequent for appellate courts to grant rehearing, and to reverse itself, but it does happen. 

Thursday, January 26, 2017

Police Officers and Course and Scope

A recent case from Texas is an interesting illustration of workers' compensation compensability, particularly as it relates to police officers. County of El Paso v. Orozco involved a deputy sheriff and travelling. It was decided in December 2016. What is or is not compensable in workers' compensation is defined by state laws, so the fact that there is a particular outcome in Texas does not mean it would be the same elsewhere. Nonetheless, it is interesting to consider. 

In workers' compensation, we depend upon definitions. I have lamented that some do not appreciate that the Devil is in the Definitions. Injuries and illnesses happen to us all. I am struggling right now with a peculiar pain my shoulder. I am not sure when it started, or what I was doing. I just noticed that it hurts, and only when I reach for items in a particular way. I cannot tell if it is getting worse, getting better or whether I am just getting used to it. Did I hit it, strain it, or am I just getting old? Is it related to my work? 

Two questions workers' compensation would ask about an injury is whether the it "arises from" my employment, and whether I was acting in "the course and scope of employment" when the injury occurred. Workers' compensation struggles with these two definitions, each intended to limit workers' compensation liability to that which is related to employment, as opposed to all of the other potential causes. 

This discussion gets complicated when employees travel, or perform work at locations other than a clearly identified employer premises. A legal maxim was developed, and many states have codified it, called the "going and coming" rule. The upshot is that most of us are not covered by workers' compensation during the time we travel from our home to the workplace each day, nor after work while we travel from the office/job back home. There are exceptions though. 

Deputy Orozco died in an automobile accident while travelling home. He had been at an “extra-duty” assignment, where he was paid by a local school to maintain order at their premises. A multitude of police do this daily at various locations across the country. In the Florida panhandle, it is common to encounter police cars with flashing lights in front of churches when services end and many will try to turn onto a busy road. This deputy was in uniform and was driving "a marked patrol unit." 

The Court noted that the deputy's regular duties included "patrolling the county, enforcing traffic laws, and answering calls," but as a member of the crisis negotiating team he was "on-call twenty-four hours a day." Therefore, arguably, this deputy could be "on duty" at any moment, and perhaps unpredictably. 

In September, 2005 the deputy was working at a college campus in "secondary employment." He was allowed to wear his official uniform and drive his county-owned patrol car. The type of assignment was on in which "the actual or potential use of law enforcement powers is anticipated." Thus, though he was not being paid by the county, he was permitted to exhibit the authority of the county in various ways. When the duty ended, he contacted the county dispatcher and told them he was heading home. 

His drive home was not uneventful however. As he drove on the interstate, a vehicle in opposing traffic "lost a wheel." In millions of miles of driving, I have seen a lot. I have never seen a vehicle lose a wheel, and believe the odds against witnessing this are simply astronomical. I am not saying it cannot happen, just that it seems rare to me. Google "car loses wheel," though and you will find stories and video. 

This wheel "bounced over the center divider and struck Ruben’s windshield, tragically resulting in his death." There is simply no way to describe this event as anything but an "accident." If the odds are long against the loss of a wheel or seeing a vehicle lose a wheel, the odds of it striking another car have be even longer. And the odds of it striking the driver specifically are even longer. It is tragic and sad, but sometimes there will be injury even when the odds are long and every reasonable precaution is taken. Safety training and accident prevention are critical, but still accidents can happen. 

The deputy's widow sought workers' compensation benefits. The Texas Division of Workers’ Compensation ("DWC))(which adjudicates disputes similarly to the Florida's Office of Judges of Compensation Claims does) heard the claim. The testimony established that while the deputy was "driving home he was required to take any action necessary, and to respond to 'anything that he observed on the way.'” Both the "sheriff and his chief deputy agreed that Ruben was in the course and scope of his employment at the time of his accident." However, the Sheriff conceded that the deputy was not paid for his time driving home, and that whether he was "on duty" or "off duty" was a "fine line."

The trial judge concluded that the deputy was in the course and scope of employment, and ordered benefits for the widow. The County appealed to the Appeals Panel of the DWC, which disagreed, concluding that the deputy "was not acting in furtherance of law enforcement at the moment of the accident." The Panel said he had completed his assignment and was "merely on his way home." During that trip, the deputy was not performing an “on duty work assignment.” 

The widow sought a judicial review of the Panel decision, and thus the case was heard by the Texas Court. Both the widow and the County asked the court to summarily decide whether the deputy was "in the course and scope of his employment for the County" when this accident occurred. 

The Court noted that at the time of the accident, the Deputy was returning home. 

He was paid for his assignment by a University, not the County

He had not been contacted by the police dispatcher to respond to a call or to engage in police duties.

He was not responding to an emergency such as a citizen in need of assistance

He was not engaged in a law enforcement duty of preserving the peace. 

The Court concluded that "at the time of the accident," the deputy was not "performing a task of crime deterrence and enforcement of traffic laws simply because he was driving down the Interstate in a marked patrol vehicle." It said that there was "nothing which would distinguish (deputy) Ruben (Orozco), at the moment of the accident, from any number of other commuters." It therefore held that the deputy's "activity was not in the course and scope of his employment," and thus the accident was not compensable. 

As I read the opinion and drafted this post, I was reminded of another deceased police officer. KATC.com reported in January regarding a suicide attempt by a shooter on the New Orleans bridge. After a significant standoff, the man shot himself. The standoff began when authorities sought to take him into custody as a suspect in two killings. 

He was accused of killing a woman and "an off-duty police officer" that had stopped to assist her. The Chicago Tribune reported that the woman was pregnant. Allegedly, the shooter had fired at a woman named Simone Veal, who fled in a car. The shooter pursued her until she was involved in a collision. The off-duty officer, Michael Louviere, had finished his shift at 6:00 a.m. and was driving home to another jurisdiction when he came upon the scene. He "stopped to help." Similar to the Texas Deputy, Officer Louviere 

was returning home. 

had not been contacted by the police dispatcher to respond to a call or to engage in police duties.

But, he also was 

responding to an emergency such as a citizen in need of assistance

engaged in a law enforcement duty of preserving the peace. 

Without a doubt, the outcome for officer Louviere and the pregnant woman is tragic. 

Two points are worth consideration. First, would these last two conclusions be sufficient to bring his actions within the "course and scope" of his employment, despite his being out of his jurisdiction and off-the-clock? Second, remember that the determination of "course and scope" is made by reference to state law. Therefore, the decision regarding the compensability of young officer Louviere's injury and death will be made according to Louisiana's definitions of "course and scope" and "arising out of," not Texas'. 

The devil is in the definitions, of that there is no doubt. And, there may be motivation in them as well, for better or worse. When a police officer witnesses a vehicle accident do we want her/him to question geographic jurisdiction? When a police officer sees a pregnant woman in need of help, do we want her/him to stop, or to head home because ze ("ze" is a genderless pronoun with broad applicability) is off-the-clock? Does it make sense that there is perhaps a distinction between stopping to render aid and suffering a one-in-a-million accident on a highway?

These are the kinds of situations that challenge workers' compensation and all who struggle to comprehend and apply how it does work. It is as challenging for the veritable handful who struggle with how workers' compensation "should work." 

Tuesday, January 24, 2017

Another AI Invasion, Meritocracy?

I recently wrote about Artificial Intelligence, or AI, and how it is taking over aspects of the hiring and management processes. As a gatekeeper for hiring managers, AI is sorting and ranking applicants. If you hope to woo a recruiter, it is increasingly likely you must first impress some computer somewhere. 

Recently, the British Broadcasting Company, BBC, questioned whether AI was the path to meritocracy, or more simply a merit-based society or sub-culture. In Beyond 'Brogrammers': Can AI create a meritocracy?, innovative and intriguing efforts by silicon valley to manage silicon valley are discussed. 

There is a perception of homogeneity in certain industries or societies. There is also empirical data that supports human beings have biases and prejudices, often indiscernible or even unconscious. In Silicon valley, there is a perception that hiring, evaluating, and promoting computer programmers is driven by factors other than performance. Some contend that human connections are more important than ability, and that new hires often "went to top schools" that they are "hired by their friends or former fraternity brothers" based upon familiarity and homogeneity rather than ability.

That bias exists may not come as a surprise to some. But, others contend we see it in the world around us in various forms, if we are observant. There are those who contend that consciously or not many humans' behavior is directed by a vast spectrum of assumptions and beliefs that we have, and of which we may not necessarily even be consciously aware.

An artificial intelligence developer in Silicon Valley contends that research supports the existence of hiring and promotion bias in the programmer field. Ms. Masood claims there is proof that "there was a certain type of programmer that would still move forward in interviews," to that person's benefit and the corresponding detriment of those who were culled from the pool through the process. That predictability, she says, indicates that bias is driving decisions, and has led to the characterization of them as "brogrammers." She says that the outcome (who is hired, what they look like, or their experiences) proves bias in the process. 

Her new AI is named "Tara, which stands for Talent Acquisition and Recruiting Automation." Tara is a reader of computer code. Like Neo (The Matrix, 1999), Tara sees the world as a series of ones and zeros, all facade and superficial appearance removed, just ones and zeros. And Tara reads the code created by the various programmers without regard to "biographical information such as age, race, gender or where you have worked in the past or where you went to university." 

By intentionally eliminating these demographic data points, the evaluation of programming quality is performed solely upon "the work they have produced rather than who they are or who they know." And, thus, is focused on the establishment of "a meritocracy." Advocates contend that this AI, and its evaluative methodology, will create opportunities for "smart and entrepreneurial" people, even though they did not perhaps go to the right schools or associate with the right clubs or groups.

Tara has implications across the programming field. It could be used to evaluate programmers seeking employment, much in the way other task-testing is used to rank hiring candidates (I still remember taking "typing tests"). Likewise, it could be used within a company to evaluate employees for retention, promotion, raises, etc. Many companies seek objective, measurable performance for such purposes. However, objective indicia of proficiency and productivity are often hard to find in management. 

The concept also implicates management more directly. With an algorithm monitoring and measuring output and performance, it is practical that fewer managers will be needed. It is also predicted that opportunities for remote working and the "gig" or "freelance" workplace are enhanced by these performance measure systems. If performance can be evaluated objectively through automation, it may facilitate a work environment that does not depend upon specific work hours, physical presence, or "supervision" in its traditional sense. Performance could be measured and payment made based upon Tara's receipt of your work and satisfaction with its quantity/quality.

And, it may enhance the potential for meritocracy in the workplace. While this may seem focused upon a single industry, and not of too much interest to others, it signals a metric-based evaluation process. If an algorithm can measure quality and quantity of code, why can it not measure the effectiveness and efficiency of brick-layers (automated or real), or police officers (miles patrolled, people engaged, premises examined, reports generated), or maintenance technicians, or . . . you get the point. For any occupation, performance criteria might be developed. Through wearable technology and GPS, data might be constantly collected, and through an algorithm performance might be evaluated, in a true meritocracy. 

Such a process might skew employment decisions away from bias, or even the potential for or perception of bias. It might address the current perceptions in various industries. In the programmer field that Tara is addressing, it turns out that "in the US, women held just 25% of professional computing occupations in 2015." And, "more than 90% of those women were white. Just 5% were Asian, 3% African American and 1% Hispanic." Does this data support that there is bias in the hiring and promotion processes? If decisions were made by an automaton like Tara, without access to demographic information, would hiring and retention shift workplace participation, and therefore opportunity?

Some contend that computer industry woes run deeper. They concede that the demographic picture is not diverse, but say the reason is "there aren't many trained female computer scientists to recruit in the first place." There is some empirical data to support the perceived lack of supply: "women earn 57% of all undergraduate university degrees in the US, (but) they account for just 18% of computer science degrees." Thus, some portion of the demographic picture may be seen as driven by supply.

Others might argue that supply is perhaps driven by demand, that is the lack of opportunity for women may drive disinclination of women students to seek those degrees. If a particular field is seen as not providing opportunities to you, would you be inclined to invest in an expensive education that leads to that field?

And, there is conjecture that companies will continue to hire and promote "people they feel comfortable with." In that context, it is perhaps predictable that hires will come "from similar backgrounds," and possess similar life-experiences. There also remains the reality that other characteristics may be more difficult to digitize and measure. Perhaps the best measure of a programmer is the volume of code created, but perhaps the best measure of a police office may be interpersonal skills, team leadership, or other more esoteric factors, less subject to objective measurement? And, that may be true for a variety of professions and occupations.

Perhaps Tara is a harbinger of our future, with performance measured by numerical analysis dependent upon a spectrum of metrics. But perhaps she is an anomaly, effective in a specific profession that functions effectively with geographically dispersed contributors producing lines of code. Time will tell the extent to which AI performance evaluation invades our world. But, the fact is AI is here now, and many will explore ways to exploit it. 

Sunday, January 22, 2017

Like a Broken (Drug Death) Record

Much has been written about opioids and overdose. If you are involved anywhere in workers' compensation, health care, or insurance you have heard of the American opioid epidemic. My thoughts on opioids are reasonably known from posts like Dying to me don't sound like all that much fun, and What Worthwhile Can You do in 11.2 Minutes. I have touched on formularies in A Florida Formulary, and prescription drug databases in If not, What is the Point. At the end of the day, I think too many Americans are dying from drug overdose. 

I felt that way in 2012 when the overall fatality rate was almost thirty-four thousand (22,134 prescription and 11,641 illicit)(all in this paragraph from drugabuse.gov.). I still felt that way when the rate increased in 2013 to almost thirty-eight thousand (22,767 prescription and 14,775 illicit). The sentiment continued and grew when the rate increased in 2014 to over forty-three thousand (25,760 prescription and 17,465 illicit). I wrote about it in 2015: 2015 Injury and Fatality Study is Interesting. A key point in that Study was that overdose death had "more than doubled in the last 14 years."

In 2015, a report concluded that the figures were even higher. That report claimed the total for 2013 "the most recent year for which data is available," the total was not thirty-eight thousand, but 46,471. It noted that this exceeded both the death rate for motor vehicle accidents (35,369) and firearms (33,636). We are approaching the time when overdose will kill more than these two combined (69,005= 35,369 + 33,636). The DEA Administrator was quoted that "drug abuse is ending too many lives while destroying families and communities.” You think? That 2013 total is like wiping out the entire town of Lakeland, Florida (according to one source). 

The American Society of Addiction Medicine says that in 2015, the death rate for drug overdose increased yet again, reaching 55,403! In 2012, they note that enough opioid scripts were written "to give every American adult their own bottle of pills."

There are some voices out there crying out for this to be addressed; kudos to Dori Meinert, Mark Pew, Peter Rousmaniere, Michael Gavin, and a handful of others. This subject is getting attention. But is it getting better?

Then some interesting stories caught my eye. 

In September, police responded to a call in Birmingham, Alabama and found a dead 30 year old male and an unresponsive 35 year old woman. These two overdosed and left their children "ages 7, 3, 2, and 1-month" to fend for themselves. 

In September, Police in Liverpool, Ohio stopped a car for erratic driving. Two adults had overdosed. A four year old was "restrained in a car seat." There was a story in October of a woman overdosed in the front seat of a van, "still holding a syringe in her left hand" in "rural Indiana." Both of these represent children comparatively lucky; they survived the behavior of those who were supposed to care for them. If a fatal vehicle accident had occurred, would those deaths be included as "overdose"? Not likely. 

But, in December, the Washington Post reported that 5 month old Summer Chambers passed in Johnstown, Pennsylvania. She was apparently the third person to die in her household. The District Attorney told a news conference that Summer's young parents apparently died of a drug overdose. The chemical of choice is suspected to be heroin. Summer will not be listed as a fatality of drug overdose, but she was. 

In January, Fox News reported that a ten-month-old was "exposed to fentanyl," which is an artificial opioid drug. This little fighter "had to be revived twice." She was taken by ambulance to one hospital and later airlifted to Tufts in Boston. The mayor of Methuen, Massachusetts said "the opioid epidemic knows no boundaries."

A news story in January caught the attention of the world as it was repeated, tweeted, and re-tweeted. A Florida Trooper happened upon a vehicle at the side of Interstate 4 close to Daytona Beach. Inside were three children from eight months to four years old according to CBS. They were reportedly watching a movie in the still-running vehicle. Their parents were dying beside the car. Presumptive evidence of drug use was found for one parent. Testing is pending, but what else explains two thirty-somethings getting out of the car on the Interstate and dying together?

According to Mothers Against Drunk Driving, the use of pharmaceuticals is staggering. A few points (all italics are direct quote):

About 4,000 drivers are killed each year with drugs in their systems. 

57% of fatally injured drivers had alcohol and/or other drugs in their system – 17% had both. 

Drugs other than alcohol (e.g., marijuana and cocaine) are involved in about 18% of motor vehicle driver deaths. 

More than 22% of drivers tested positive for illegal, prescription, or over-the-counter drugs in blood and/or oral fluid tests. 

In 2013, 9.9 million people (3.8% of the population) reported driving under the influence of illicit drugs. 

Over half of all drivers admitted to a level-1 trauma center for traffic crashes had drugs other than alcohol in their system.

The bottom line is that drugs are directly killing people, lots of people. The 2015 total 55,403 comes out to an overdose death about every 9.5 minutes, all day long. At current growth rates, drug overdose will overtake the combination of cars and guns soon. The rates are high enough today to merit listing in America's top ten. Why is not listed there today, with figures that exceed at least suicide (42,773) and nephritis (48,146). Overdose is closing in on influenza (55,227), diabetes (76,488), and Alzheimer's (93,541). 

The numbers are increasing, dramatically, annually. The probability is that there are other victims involved, through vehicle accidents, neglect or abandonment. And, (the real tradgedy in my opinion) it is likely among the most preventable on the list. 

Michael Gavin, President of Prium, posted Survey Says? We Still Have a Long Way to go on Opioids in December. He has a point, but he may be understating it. We have a long way to go on this entire drug abuse problem. It includes Opioids, but it is deeper and broader than that. People are dying. As we continue this upward spiral of death, I find myself wondering how many will die before we take it seriously. Or perhaps we collectively just do not care? Whose problem is it?

Thursday, January 19, 2017

Artificial Intelligence in our World

The fact is that technology will change our world. It has, it is and it will continue. If this is somehow arguable, I fail to see it. We may discuss how, and how much, but it will change our world. Recently Bob Wilson wrote about Fukoku Mutual Life, a Japanese insurance company, that will replace claims adjusters with artificial intelligence. This kind of change has been predicted for some time, I have asked a few questions about the impact technology is likely to have on the working American. Change is upon us, and we will adapt or we will not. We will succeed or we will fail. 

Recently, artificial intelligence has been in the news in other contexts. Last July, Forbes magazine questioned How A.I. Is About To Disrupt Corporate Recruiting. The article starts with a simple premise, that "corporate recruiting is broken." The opposite conclusion might have been our first reaction. We have seen a proliferation of Internet-based  tools for building, submitting and prioritizing resumes and applications for work. There has been a migration to these tools, and a notable population of employers will no longer even accept a paper job application. It seems to some that recruiting has never been easier. 

But, Forbes contends that these tools have also created vast information dumps. The ease of submitting applications and resumes has led to larger and larger volumes of candidates in each application pool. It says that all of this massive response to an opening falls "into a black hole, never to be seen again." I have seen some evidence of this. Individuals seeking state employment can prepare a generic application and then ask the computer to submit it for any future job postings for which the applicant might be qualified. When we post an opening, we often receive hundreds of applications, some of equivocal relevance.

Forbes suggests that an artificial intelligence (AI) named Mya is the "hope on the horizon." The author found this AI "sensitive to my needs, responsive, inquisitive, direct." This tool is designed to interact with applicants, both posing and answering questions. The goal is for Mya to deal with specific concerns and narrow the focus of recruiters. Mya will do the screening, and the recruiters will purportedly spend their time more efficiently, focused on "interviewing and closing offers." Certainly, a candidate may have questions Mya cannot answer, but Mya will ask the recruiter, and funnel answers back to the applicant, learning in the process. Mya may, over time, need to ask fewer and fewer question of the recruiter. 

Mya is expected to review applications, and to eliminate unqualified candidates from the pool of potentials. Thus, through sorting and culling, Mya will save recruiters time. Through communication with applicants, Mya will enhance their knowledge base, learn from them, and further cull the applicant base. In the process, it will shield those hiring officials from a multitude of questions and concerns. Developers think that the communication and attention Mya brings to the process will enhance recruiter performance and their image with job applicants. 

More recently, the British Broadcasting Company (BBC) noted another artificial intelligence role in the hiring process in Speech analysis could now land you a promotion. It describes the use of voice analysis by computers. Applicants and current employees are directed to call a number and interact with an AI computer that asks seemingly innocuous questions about the caller. The computer analyzes how the questions are answered. Not the substance so much as the manner of response. 

Through analysis of the responses, candidates may be selected for interview or hire. Employees may be selected for training, evaluated for promotion, or assessed for competency. The conversation with the AI is recorded, and how the human responded is quantified, measured, and evaluated. The AI uses characteristics like "tone of voice, choice of words, sentence structure" and evaluates the human regarding "openness to change, enthusiasm, empathy." 

The platform was built by investing significant time building parallels. Human subjects were tested using a variety of personality tests and techniques, and then their voice and speech patterns were recorded, categorized and catalogued. From that research, speech trends and indicators were identified, and the AI's parameters set. The programmers claim that the system is currently sufficient for decision making about 50% of the time, and further human interaction is required in the remainder. But that percentage is expected to improve. AI, by its very design, is expected to learn and improve with time.  

Some psychologists say that people decide how they feel about others very rapidly. One claims that you have about 7 seconds to impress someone. But the AI is quicker still. It "sums up your character" in a fraction of a second, and produces a series of "charts and diagrams" to describe you and your attributes for the recruiter or manager. 

Proponents admire the efficiency of the process. They also point to the breadth and depth of analysis, and say that no human could perform such in-depth analysis. They claim that "your voice reveals volumes about you," and that the AI can "decode you," breaking your attributes and proclivities into "500,000 aspects of speech." And from this, the computer will know all, define you, and effectively channel you into the appropriate future. Oh, Brave New World

The proponents claim that this technology will empower managers and human resource efforts. They stress that AI is "not intended to replace" human interaction. However, it will notably decrease the effort that leads to selecting which people are engaged face-to-face. It sounds like it may also alter the content of those face-to-face encounters. And human jobs will be lost in the process. 

While proponents claim this process will benefit applicants, the sentiment is not unanimous. Critics contend that these processes, at least initially, will disadvantage some, perhaps those who are not native-language speakers. They also contend that some will be able to manipulate speech patterns to enhance their prospects. Is it practical to believe that humans might actually manipulate computers? If a hacker can hijack a computer for data, or to impersonate, in other contexts, might they do so in this context? Maybe we will hire "voice coaches" to teach us how to speak effectively in order to gain an interview?

Universal acceptance of this process is not expected. But, proponents claim that it is the future, innovative, and cutting-edge. They suggest that companies that seek innovative thinkers may be the first to engage this technology. The mere decision by an applicants to embrace this process or not, may itself lead those companies to decisions about an applicant's suitability to work in a forward-thinking company. Those who eschew the innovation may be immediately and irrebutably seen as not viable contributors to such an innovative organization.  

If you doubt technology will change your world, you really need to get out more.

Monday, January 16, 2017

What about the "BAD ACTORS?"

In December, WorkCompCentral announced California's implementation of a law signed in September 2016, in DWC to Start Kicking Rogue Medical Providers Out of Comp in February. That headline caught my attention because of the National Conversation on workers' compensation that began last May and has blossomed since in three settings: Dallas, Orlando and New Orleans. 

One of the critical points raised in the National Conversation has been the perception that there are "bad actors" in the world of workers' compensation. Attendees have stated that they exist, the industry knows who they are, regulators know who they are, and "nothing ever happens" to them. One attendee tied this perception to another common workers' compensation criticism, regulation. The attendee perceives that regulators respond to "bad actors" by implementing new, broad, expensive, and bothersome rules and regulations that burden all of workers' compensation for the sins of the "bad actors." 

More confusing, the perception is that the regulators fairly uniformly fail to enforce their new regulations or police the "bad actors" nonetheless. The process is perceived as pass regulations, fail to enforce them, witness transgressions, lament injuries and damage, and start over with pass more regulations. The industry perceives that only regulations affecting insurance carriers are enforced, and that the "bad actors" are rarely addressed. 

Under California's new law, "health care providers who have been convicted of billing fraud and other criminal acts relating to the practice of medicine could be kicked out of California’s workers’ compensation system by February." That sentence bears consideration and contemplation. Stated otherwise, California is saying "criminal convicts could be punished." National Conversation attendees might ask why the tenor of this is permissive ("could") instead of mandatory ("shall"). In what context should criminal convicts continue to participate in workers' compensation medical care? For that matter, why should they participate in any medical care in California? That begs the broader question, why let them participate anywhere?

California reports that "there are also thousands of providers who have been prohibited from participating in California’s Medicare system." These may also "meet the criteria for mandatory suspension under" the new California law. The list of providers suspended from California Medicate (Medi-Cal) exceeds "16,000 providers." Is anyone reading this and saying "that doesn't seem like very many?) That is equivalent to the approximate entire population of El Segundo, California! For you Floridians, that is more than the approximate population of Maitland City, Florida. 

This perhaps illustrates the sentiment of the National Conversation attendees. It appears California knows who some 16,000 "bad actors" are. It also appears that since 1972 California has been suspending medical providers from treating the old through Medicare, but left them free to continue providing care to California workers. 

The MediCal list is here. It includes providers: (1) convicted of a felony; (2) convicted of a misdemeanor involving fraud, abuse of the Medi-Cal program or any patient; (3) suspended from the federal Medicare or Medicaid programs for any reason; (4) lost or surrendered a license, certificate, or approval to provide health care; or (5) breached a contractual agreement with the Department that explicitly specifies inclusion on this list as a consequence of the breach. These appear to be the "bad actors" or at least they arguably belong in that category, perhaps with others. But this year, 44 years after the list was started, they may no longer be eligible to treat injured workers. 

Despite several Internet searches, no similar listing specific to Florida was located. 

California's move to restrict providers is dissimilar to the federal government's trend regarding the "bad actors." Medicare acknowledges that there are providers who have been disqualified from receiving reimbursement for services, based on their own behavior. But Bloomberg reported in 2014 that Doctors Banned From Medicare May Get an Easier Shot at a Second Chance. Medicare is striving to bring back the "bad actors" who have (1) acted inappropriately, (2) been caught, and (3) been stricken from the system. 

Bloomberg says that Medicare "pays millions of dollars to doctors whose licenses were revoked." Medical licensing is a function of states, and so a doctor might lose a license in one state only to be licensed by another. The article cites an example of a "doctor convicted of embezzlement in Ohio and barred permanently from practicing medicine there was granted a license in New Mexico." The failure or refusal of New Mexico to investigate this physician, or to care, resulted in the embezzler reacquiring access to Medicare patients and money. The embezzler physician reportedly "collected $660,000 from Medicare in 2012." 

In its recent effort, California has targeted the "bad actors" and limited the bureaucratic discretion in dealing with them. According to WorkCompCentral, the "division must suspend any person whose license, certificate or approval to provide health care has been revoked." and, it must "suspend any person who or entity that has been suspended from Medicare or Medicaid due to fraud or abuse." This language ("must") seems to limit discretion, and might lead to some consistency. 

The phraseology also suggests that a provider having been forgiven by Medicare for past fraud or abuse might still be suspended ("that has been suspended," not "that is suspended"). Is there some valid reason for letting the bad actors back in? A great line from a recent Star Wars installment, The Force Awakens, comes from the villain Kylo Ren. When asked where the "others are," he responds "do you mean the murderers, traitors and thieves you call friends?" When referring to the "bad actors," might one similarly question "do you mean the frauds, embezzlers and thieves you call doctors?"

Some believe that it is unfair to permanently punish providers for events in the distant past, or who "made a mistake." WorkCompCentral quotes one medical society director of government relations as believing that it is inappropriate to kick a doctor out of the workers' compensation system who has been "convicted, punished and then returned to practicing medicine." Thus, there appears to be at least some sentiment for ignoring certain fraud and abuse depending on circumstances. There is some sentiment that not all frauds, embezzlers and thieves are necessarily bad people. 

There are often discussions about federal intervention in workers' compensation. The vast majority of expositions on the topic that I have witnessed do not favor federalization. However, there are those who suggest that there is room for federal regulation in support of workers' compensation and medical care generally. Perhaps medical care reimbursement is an area in which such supporting regulation could be efficacious?

Perhaps federal law should mandate:
(1) any provider convicted of violating the controlled substance act in any jurisdiction shall remain forever ineligible to prescribe any controlled substance in any U.S. jurisdiction.
(2) any provider ineligible for reimbursement for any medical program in any state as a result of criminal conviction, involuntary relinquishment of eligibility, or voluntary relinquishment pending investigation or discipline, shall be forever ineligible for reimbursement through any federal reimbursement program or any state program that utilizes or relies upon any federal funding of any description (medical or otherwise).
(3) Any provider that ceases licensure due to criminal conviction, involuntary relinquishment of license, or voluntary relinquishment of licence pending investigation or discipline, shall be reported to the (newly created) Federal Reimbursement Approval Unauthorized Database (FRAUD).

It may be impractical to catch all the "bad actors." It may be impossible to stop all of the fraud and criminal activity. But, perhaps there is room for some common-sense effort to deal with the "bad actors" that we do know about. 

While some may lament efforts, and instead feel sorry for the frauds and criminals that might have to find new vocations, perhaps strong efforts against the "bad actors" we know might deter and disincline bad behavior by others? Having invested resources in catching and disciplining the "frauds, embezzlers and thieves you call doctors?" perhaps their departure from our midst needs to be permanent?

It will be interesting to watch California's efforts under their new law. How many of those on the Medicare list will actually be expunged from eligibility regarding injured workers this February?