Thursday, June 29, 2017

Outstanding Florida Millennials Recognized

Almost two years ago, I was invited to attend an informational meeting about an organization called Kids' Chance. I was familiar with it generally, but the meeting was nonetheless very informative. Kids' Chance provides scholarships for the kids of workers seriously injured in a workers' compensation accident.  A few months later, in December 2015, I attended the organizational meeting of Kids' Chance of Florida (http://www.kidschancefl.org/). 

The spring of 2016 was busy as this fledgling organization sought to become organized and functional. In August 2016, at the ripe old age of eight months, KCOF awarded its first scholarships. Fifteen thousand dollars awarded in its first year. It is unfathomable to me that a year has passed since, seems like last week. Last Thursday, Bob Wilson wrote a post about this year's scholarships (don't tell him I told you, he said "don't tell anybody"). He announced that KCOF awarded nine scholarships this year, totaling $33,000. As this toddler organization nears its second birthday, a total of $48,000 will have been dispensed to deserving young people. KCOF also purchased two Florida Pre-Paid tuition plans this year, which will be deployed in 2018 and 2019. It is growing, developing, helping, and planning for its future. 

I want to also mention the Friends of 440 Scholarship Fund, Inc. It has a similar mission, and some overlap of purpose. It awards scholarships to students who are connected to workers' compensation either because of an injury to a parent or guardian, similar to Kids' Chance, or because a parent or guardian is involved in this industry. Thus, it has some similar goals, but a somewhat broader approach. The Friends of 440 has been awarding scholarships since 1992. It has awarded over $1.6 million dollars over those years, and awarded $64,000.00 in 2017. To date, the Friends of 440 has impacted the lives of over 800 students, with 31 of those being awarded in 2017!

The Friends of 440 has had an amazing impact across Florida. Last year I wrote a post about the Friends' scholarship selection process, How I Spent my Saturday. It struck me then how exceptional those applicants were. They were "focused, intelligent, conversational, respectful, gregarious, effusive, enthusiastic, grateful, dignified, poised, and downright impressive, with a particular emphasis on impressive." I did not make it to the Friends' interview meeting this summer, but I am sure it was more of the same. I am pleased that there are some students that are being assisted by both the Friends and Kids' Chance. 

I did attend the Kids' Chance of Florida meeting that Bob Wilson blogged about though. I enjoy reading Bob's posts, and his perspectives are always pertinent, witty and wise. But, in his post last week he did not mention a few things that I think are also worthy of mention:

These Kids' Chance scholarships are helping fund the pursuit of degrees in accounting, business, psychology, engineering, medicine, and more. These exceptional young people have set their sites high. Dreaming big dreams is the foundation of achieving big things. 

Despite the challenges of an injured or ill family member, these students have been engaged in their family lives, schools and communities. The Kids' Chance students are involved in athletics, DECA (for students interested in marketing, management and entrepreneurship), Interact (a Rotary Club affiliate), Key Club (Kiwanis affiliate),  The American Red Cross, The National Honor Society, Helping Hands Club, and a spectrum of other academic and professional fraternities and societies. 

Some of these students graduated high school with 4.0 grade point averages (of higher; back in the day a 4.0 was the highest, but that has changed). Some graduated high school with an Associate Degree. Some submitted college transcripts documenting their outstanding college grades, which mirrored all that high school achievement (I never had a 4.0 semester in college, but some of these students have). Some were named to the dean’s lists, or similar recognitions. 

Some were employed during high school. They volunteered for such things as environmental efforts, tutoring of younger students, elementary school field day, the annual breast cancer walk, the Head Start Program, helping families in need of social services, and as Sunday school volunteers. As one example of a letter of recommendation said, one student contributed to “countless community service activities." Another letter said one student was "leaping tall buildings to achieve” dreams. 

I am frankly astounded by these students. They are rising up against challenges that many will never face. They are setting (and achieving) goals professionally and personally. They are the building blocks of a better tomorrow, through academic success, hard work and community involvement. These were the kids my mom told me I should hang around with when I was in high school!

Now, let's face the fact that young people today can get a bad rap. That is nothing new. I remember the older generation talking down "these kids today" back when I was one. This spring, I attended a local high school awards night and learned there are a great many who are achieving, persevering, and succeeding. The successes are inspiring. But, remember that these kids of the workers' compensation world have each overcome some additional challenges, emotional, financial, and familial to reach this point. They are great examples of dedication and focus. I am proud of them (I struggle not to tell you their names and particulars, but I also respect their privacy). 

2018 will see Kids' Chance of Florida into its "terrible twos." It is known as an age of struggle in any life, with growing independence, confidence, and achievement. I look forward to seeing Kids' Chance enter this next phase of its success, maturation, and grow. I know from watching the Friends of 440 that the effort, dedication, and focus of many professionals can achieve tremendous outcomes, positively affecting many lives. Did I mention that Friends has disbursed $1.6 million dollars assisting over 800 students over 25 years!?!? Well Kids' Chance is going to be able to say something similar one day soon, and it is off to a phenomenal start. I tip my hat to both organizations.

The goals of these two groups is similar. I am proud of their shared goal of providing educational assistance to the kids of those who suffer injuries at work. It is a laudable goal, and it is working right here in Florida. But even more, I am proud of these young people who are so determined to be successful and contributing members of our society. I am confident that there is not one among them that will not be turning back, when safe on the other side of this educational quest, and helping us or someone else to build a bridge for the youth who must yet pass this way. 

And finally, I am thankful that there are dedicated professionals pouring their time, effort and emotion into these special students. I congratulate and applaud all of the people that volunteer for these worthy organizations. Thank you all for helping to build a bridge for these outstanding young people, who are our future!

Tuesday, June 27, 2017

The Meaning of Legislative Words

I have spent a fair portion of my spring reading bills and watching hearings. the 2017 session was lively and interesting. Much of a bill's procession can be seen on a schedule. During the committee process in Florida there are agendas for meetings. The bill you may be watching is either on the agenda for a particular meeting or not. Being on the agenda does not tell you what time it will be discussed, or really even in what order. But, it tells you that the discussion will be during that time allotted for the meeting.


The chamber floors are a little harder to predict. A bill may be listed on the "calendar" for a given day, but that does not mean that it will be called up. And, that possible time window is not the 3 hours for some committee meeting. If the bill is listed on a day's calendar, it can be called anytime that day. I recall one bill years ago that was listed as third or fourth on the calendar when a chamber convened at 10:00 a.m. I watched all day on the video, and finally gave up. The next day I learned it had been called at 8:00 p.m. and passed. Watching legislation made can be an exhausting process.

So, the 2017 session involved a great deal of interest in SB1582 and HB7085. As the end of session neared, the House had passed its bill, and the Senate Bill was listed on the floor calendar, and from call-to-order through adjournment, a great many watched and waited. Some had a specific interest, a feature of one bill or the other that was valued or disliked. I was more curious at that stage than anything else. But we watched, waited and wondered. In the end, neither bill was sent to the Governor.

In the course of the waiting and watching, however, I became acquainted with CS/CS/HB937. That name signifies that since the House Bill ("HB") 937 began its life, there have been two "committee substitutes," or "CS,' that changed the original language in some way.

The bill caught my attention because the discussion on the Senate floor included mention of "addiction." Anyone that reads this blog is likely to know that I have been a critic of opioid and heroin misuse, and have attempted to explore how our society can address the many deaths in which drugs are implicated. When I caught the word "addiction," my attention was refocused. 

And, while CS/CS/HB937 can be characterized as being concerned with addiction, it is not about drugs. It is about gambling. Gambling was the subject of other bills this session also, but this one is specifically about lottery gambling. It is a form of gambling that has become institutionalized in Florida, with state control and much of the money generated going to the state education system.

If the bill becomes law, there will be warnings included in lottery advertising. It was presented to the Governor on June 14, 2017 and so the Governor's decision will be known this week. One of the bill sponsors likened these warnings to those that have been included with cigarette advertising in recent decades. The bill would require the use of a series of warnings on that lottery advertising, including:

1.  "WARNING: GAMBLING CAN BE ADDICTIVE."

2. "WARNING: LOTTERY GAMES MAY BE ADDICTIVE."
And it was these two sentences that spawned much of the debate on the Senate floor in May. One Senator essentially questioned whether gambling is an "addiction" or a "compulsion." Another question was raised as to whether studies had supported that gambling is not an addiction. It was a discussion focused on specific words, meanings, or interpretations. I was later questioned about that debate, it had caught more ears than mine. Why would the Senate, with so much business to do, be so focused on specific words?


Addiction is defined by Mirriam Webster as 

compulsive need for and use of a habit-forming substance (such as heroin, nicotine, or alcohol) characterized by tolerance and by well-defined physiological symptoms upon withdrawal; broadly : persistent compulsive use of a substance known by the user to be harmful

And, Mirriam Webster defines "compulsion" as

an irresistible persistent impulse to perform an act (such as excessive hand washing) her compulsion to repeatedly check and recheck the stove to be certain that it is turned off; also : the act itself Gambling is a compulsion with him.
The two words do seem to convey a similar sentiment in terms of the behavior exhibited. But these dictionary definitions support that "addiction" and "compulsion" are not synonyms. The key words in "addiction" are perhaps "substance," and "well-defined physiological symptoms." These are missing from "compulsion," whose key definitional terms in this context might be "an act" and "irresistible." Perhaps "irresistible" is not included in "addiction" because that definition begins with the word "compulsive"; thus, perhaps compulsion is a broader subject, within which certain "substance" issues form a sub-category of "addiction?"


The Scientific American contends that gambling is an addiction. Psychguide.com describes both forms of gambling and offers the logic that drives some people to this "gambling addiction," which it nonetheless describes as a "compulsive." 

Researchers at the University of Sydney contend that gambling is not an addiction. They note that the "symptoms such as tolerance or withdrawal, which are central features of addiction, are rarely seen in gamblers." Others question the models or standards through which we define "addiction." One fascinating example by Stanton Peele is worthy of review. He essentially concluded that gambling as an activity can be "addictive," but seems to agree that medically it is mislabeled as an "addiction" per se. This may be parsing words, but after all he is not just a doctor, but a lawyer as well. 

Peele eloquently draws some intriguing distinctions. Perhaps the most valuable thought he provides on this, however, is 

any powerful experience in which people can lose themselves can become the object of an addiction. The result of this immersion is deterioration of the person's engagement with the rest of his or her life, which increases the person's dependence on the addictive object or involvement.
And, in that context, it is perhaps possible to accurately say that any activity can be "addictive," without characterizing the activity as an "addiction?" Perhaps I find writing this blog addictive?


More importantly, Peele explains why there is debate about gambling and addiction. He contends that gambling and gamblers are generating 

continued and increasing attention — due to state reliance on gambling for revenues and government and private marketing of the gambling experience
He suggests that there could be some perception that as society we are enabling and encouraging behavior that can be addictive, and which may lead to untoward outcomes. He seems to suggest that in their drive for revenue, states have become complicit in promoting a social problem. As I read his analysis, I wondered if we might apply the same analysis to the exponential opioid distribution in the 1990s, and the many dollars that it generated? There is no Florida sales tax on prescriptions, but that is not nationally universal. And, those sales generated commissions for sales persons, wages for manufacturers, etc. There was undoubtedly state revenue from the boom in opioid sales. 


And so, back to the Florida Senate. As mentioned, a fellow observer asked why legislators would be so focused on individual words. The purpose of CS/CS/HB937 is clear, and the distinctions between "addiction" and "compulsion" seem, to some observers, to be a case of semantics. That perception, at least so far as it generates discussion, has some validity. 

The fact is that law is made of words. Some will react to that sentence viscerally because of their belief system. In America today there are multiple views on the law. Some contend that documents such as the U.S. Constitution and statutes should be read and interpreted according to their words. Others, contend that these writings are merely expressions of sentiments, and that law should evolve based upon how judges feel more so than upon what those laws actually say. Because of this, both camps are likely to have equal but quite opposite reactions to the simple premise that "law is often made of words."

And, that is why the legislature might struggle with the words. Why should these statutory warnings about gambling say "addictive" or "compulsive," or either? Though my inquisitor was dismissive of this debate (concluding it a "silly" debate), and though it could be perceived as picking nits, I would posit that there are several good reasons to both select the right term, and to do so thoughtfully. 

In interpreting statutes, courts are supposed to follow rules of interpretation. The first and foremost of these is the "plain meaning" rule in which law are "interpreted using the ordinary meaning of the language of the statute." In other words, a statute that requires leashes on dogs would not be interpreted expansively to require leashes on the feline, bovine, or swine. 

The Florida Supreme Court has steadfastly held that "the legislature is presumed to know the meaning of words and the rules of grammar." Therefore, the "only way the court is advised of what the legislature intends is by giving the generally accepted construction," to the words themselves and to the "manner in which it is punctuated." Florida State Racing Com'n v. Bourquardez, 42 so.2d 87 (Fla. 1949). For a a sincere, but perhaps whimsical, review of a recent punctuation peccadillo, see I Never Knew Oxford had a Comma. Legislators are expected to know words and meanings, and how courts interpret those law they pass can critically depend upon them. That is a valued reason to debate word choice. 

Some contend that courts too often eschew the "plain meaning," and instead deviate to personal perceptions of what the legislature "meant," its "legislative intent." Advocates of this departure assure that they select this path when the meaning of words is not clear, either in that statute or when read along with some other statute. Others argue that these departures are merely courts seeking to create law rather than interpret it. Much depends on the perspective of the interpreter. 

An interesting discussion of that conflict is in Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 129 (Fla. 2004). After reminding that "the Legislature is presumed to know the meaning of the words it chooses," the Court provides an overview of the elusive "legislative intent." In that case, one judge dissented, citing "legislative history" for foundation. The one judge expressed the "intent" of a legislator that offered an amendment when that bill was passed. The Court explained that

the problem of using a single legislator's comments to 'prove' the intent of the Legislature, however, is that the clause at issue was not even included in the amendment the representative offered.
The attempt to discern intent came from comments made when that language was not part of the bill. And that, in a nutshell is the challenge of interpreting "intent." When that statute in Knowles was passed, the clause upon which the dissent relied to suppose intent was not the bill sponsor's clause, but was "inserted into the amendment on the floors of the two houses of the Legislature," an "amendment to the amendment," much perhaps like a "committee substitute" for a "committee substitute." 


As Justice Scalia noted in Crosby v. National Foreign Trade Council, 530 U.S. 363, 390–91 (2000):

the only reliable indication of that [legislative] intent—the only thing we know for sure can be attributed to all of them—is the words of the bill that they voted to make law.
There is a value to the debate of word choices. Courts will assume that legislatures choose carefully and thoughtfully. So, legislatures should. Perhaps not because of future debates that they see coming, but in case there are debates coming unpredicted and unforeseen, debates about what words mean or what the legislature itself meant. 


With the selection of "addiction" over "compulsion," might there be implications regarding how someone suffering through a "powerful experience in which people can lose themselves" might be perceived or treated medically? Might treatment be afforded for addiction, where none would be for "compulsion?" Might there be differences in how someone having "lost themselves" might be perceived if that is an "addiction?" In that choice of words, might the legislature be seen as expressing intent regarding the perceptions of others?

Or, might a simpler explanation apply to the selection of "addiction?" As the learned Senators exhibited in this year's debate, there is no universal agreement on describing the inclination toward gambling. As illustrated above, there are arguments among the brightest as to whether "addiction" or "compulsion" best describes what to some is nonetheless this "powerful experience." And, when a warning is necessary, perhaps it is best to use a word that is easily recognized, a word that carries a disagreeable connotation? In that perspective, perhaps warning someone that they could become "addicted" is more likely to produce results (conscious, intelligent consideration of the act) than a warning of potential "compulsiveness?" 

In the end, the meaning of words does have impact. Courts will presume that legislators knew the meaning of their words, and that resulting statutes are intended to do as they say. Canine leash laws should not be implied upon loose bovines any more that statutory definitions should be loosely and retrospectively relabelled as presumptions. Statutes should be clear, words should be carefully chosen, and people should be able to understand them. Courts should respect those words when stated, and avoid inserting words of their own to facilitate their conclusions. 

Whether warnings are added will be seen this week. That is the other forgotten piece of the legislative process: once the legislature agrees, the Governor's opinions mean a great deal.

Update, June 26, 2017 - this bill was vetoed by Governor Scott. 




    Sunday, June 25, 2017

    Waiver and Estoppel

    Human beings may alter behavior based upon legislative and regulatory consequences. Certainly, the legislative enactment of a fine for speeding may result in slowing vehicles on roads, an intended consequence. But, there may be other instances in which legislative construction may similarly produce consequences less intended or unintended. 

    This year I had the opportunity to testify before the Florida House of Representatives regarding Worker's Compensation reform. An intriguing question was whether there are elements of our system which "encourage" litigation. The question, in retrospect, seemed to focus upon attorneys fees that result from litigation, but a broader answer occurred to me.

    Generally, parties to a lawsuit, may take positions at various stages through the litigation. Having taken one position, a party may be legally prevented from later taking a contrary position. In its broadest legal description, this is known as "waiver," or "estoppel." 

    Florida has some waiver provisions in its Worker's Compensation law. For example, if an injured worker files a claim for compensability of a condition, and the employer carrier accepts that condition and provides Worker's Compensation benefits, that employer carrier may thereby waive the right to later deny the compensability of that condition. 

    Phrased differently, the employer carrier may be "estopped" from denial. Under the current law, that waiver will not apply during the first 120 days after the accident, if the employer/carrier invokes the statutory right to "pay and investigate." This is set forth in Section 440.192(8):
    Within 14 days after receipt of a petition for benefits by certified mail or by approved electronic means, the carrier must either pay the requested benefits without prejudice to its right to deny within 120 days from receipt of the petition or file a response to petition with the Office of the Judges of Compensation Claims.
    Another waiver provision in the statute is found in Section 440.19(4). Section 440.19(1) and (2) provide a statute of limitations for the filing of claims regarding a work injury under the Florida law. Section (4) essentially says that an employer/carrier must raise the statute of limitations defense immediately, that is in its initial response, or the defense is waived: 
    Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits.
    An example I used in the House was a hypothetical back injury. Imagine the injured worker has suffered a potentially surgical back condition, and is under the care of the physicians selected by the employer/ carrier. The treating physician identifies a co-morbidity of high blood pressure (HBP), and believes that the high blood pressure must be brought under control before surgical intervention for the back can be attempted. That logic may or may not be explained by the physician, she may merely prescribe the HBP medication. 

    Say that recommendation for HBP is either not noticed by the employer/carrier, or there is a conscious decision not to provide the treatment as it is seen as not related to the work accident (seen for whatever reason as a request to treat an unrelated condition, not as a request to control a condition to facilitate or allow treatment for the back). 

    Therefore, a petition is filed seeking payment for a HBP medication, of nominal value ($40.00). An adjuster might initially be inclined to provide this prescription, get the patient cleared for surgery, and move the injured worker towards recovery and return to work. That is, if all the information is known. However, doing so may render the employer/carrier liable for HBP treatment for the rest of the injured worker's life. Providing a prescription today may estop the carrier from denying that HBP care in the future. An interesting waiver trial decision is here.

    If that prescription is $40.00 per month, or about $500.00 per year, and the injured worker has a 35 year life expectancy, then this expense could be as high as $17,000. Thus, the adjuster is perhaps not making a decision about a $40.00 expenditure. He/she may be making a decision that could have potentially significant future impacts, even if it's never more than medication to control blood pressure. The impact is potentially more significant if the HBP later requires more extensive care and treatment, or perhaps becomes disabling at some point in the future. 

    The statute of limitations decision is not significantly different in the analysis process. A call is received seeking authorization for a treating doctor to see the injured worker in follow-up, or to authorize a prescription. The adjuster may not have time at that moment to make a knowing, educated decision as to whether the statute of limitations has or has not run on the claim. But, the worker wants to be seen or to receive that medication immediately. If the adjuster authorizes care, then the case will be revived regardless of whether the statute has already run. Later, an auditor or supervisor with more free time may second guess or criticize a decision that revives an otherwise closed claim.

    The injured worker may acquiesce in denial by the adjuster, and elect not to follow-up with the physician. That worker may her/himself pay the cost of ongoing medical care. Or, a petition may be filed. The response to that petition may be delayed while the statute of limitations or compensability question is answered or analyzed. At a minimum care may be delayed, or litigation instigated, or a worker pays for care that should perhaps have been provided. None are the outcome the worker wants, which is authorization for that appointment or prescription. 

    From the claimant's perspective, there is benefit in future certainty. As I say that out loud, there's probably benefit to any of us in future certainty of any facts in our lives. However, the "waiver" laws that provide that certainty in some instances may create a bigger situation, currently, from what might otherwise be a relatively insignificant, and easier to make, $40.00 decision. 

    Should the law encourage the carrier to take the chance on the $40 prescription, and expedite the injured worker care? Should the law encourage the carrier to provide the doctor visit, expedite care? If not for the waiver/estoppel provisions discussed, the potential long-term effects of today's decision, the adjuster might well simply provide that care and treatment. That care might be provided more rapidly, perhaps while the patient is in line at the pharmacy. The injured worker might benefit significantly from the ease of obtaining that care immediately, today. 

    Is the injured worker better off with the prescription today, which may or may not actually be related, but which will expedite the care he needs for his low back? Or, is the injured worker better off with an insurance carrier that perhaps instead sees the potentially significant downside, and is therefore perhaps encouraged to litigate or at least delay based on the potential dispute of the relatedness of the high blood pressure condition now?

    Waiver may skew behavior. Under the Florida Worker's Compensation law, an employer/carrier who receives a claim for a benefit, and does not assert the statute of limitations in its initial responsive pleading, waves the statute of limitations forever. A carrier that provides care beyond the 120 days may waive ever denying that treatment, and may be liable for other treatment for that condition.

    Thus, when that $40 prescription is received, an adjuster might ordinarily find it beneficial and expeditious to simply approve the prescription. However, if that action may waive the statute of limitations on a claim or render a condition compensable forever, the adjuster may be disinclined to a rapid decision, and instead undertake an investigation. If provision of the prescription today did not forever effect the statute of limitations defense, the adjuster might today be inclined to provide the $40 prescription without a great deal of present analysis or investigation. 

    The waiver and estoppel provisions in the statute alter the cost/ benefit analysis that perhaps is part of every payment decision. To the extent that these waiver provisions were removed, in no way actually altering the injured worker's present position, then faster and more rational decisions based on today's expense might be made in these cases.

    What the injured worker would lose with such a change would be certainty about the future. The certainty that if a carrier pays for something long enough, the worker will be entitled to it forever. The certainty that if a mistake is made after the statute of limitations has run, then the case is reopened thereby forever. These are undoubtedly beneficial to injured workers, and they preclude some volume of litigation today. But, is it possible that these provisions facilitate or even encourage other litigation today?


    Wednesday, June 21, 2017

    Pennsylvania High Court Magnifies Protz

    In September 2015, I penned As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional. That reference to Florida waiting for its Supreme Court to address any of the then pending constitutional workers' compensation challenges. Those cases have finally been addressed, See Westphal is Over, Questions Remain and Castellanos is Decided by Supreme Court. I have heard criticism of the Florida decisions, some directed at outcome and other directed at the extent or clarity of explanation. Courts are here to make decisions, and that usually will mean that someone is not happy. I therefore tend to find the criticism of explanation or clarity more interesting.

    The Pennsylvania Commonwealth Court Protz decision in 2015 found fault with Pennsylvania's legislature's process in adopting impairment guides. It is worth noting that the concept of impairment guides is not some ancient and inexorable truth. In fact the first American Medical Association Guides were conceived in the 1950s and the first publication was 1971. That is not ancient history (watch it there you Generation X, Y, Millennials, Centennials, etc., some of us were alive "way back" in 1971).

    In Protz, the injured worker underwent an Impairment Rating Evaluation or "IRE." The IRE physician assigned a rating (PIR) using the AMA Guides 6th Edition, which at that time was "the most current edition." That is critical because the Pennsylvania legislature required by statute that all IRE be performed using "the most current edition." As time passed, following that statutory enactment, the Guides changed. The Guides that were "the most current edition" when the legislation was passed (4th Edition) were no longer "the most current edition" when Ms. Protz underwent her IRE.

    The fundamental legal issue analyzed here is called "delegation." In American government there is a tremendous amount of "delegation," where the legislative branches (federal and state) have authority over a variety of issues and powers and they delegate that power and authority to others. This is the "administrative process," and is the foundation of a vast spectrum of executive branch agencies. Each is created by an "enabling statute," and those statutes delegate specific authority. This case is about a derivation of that commonality, more exceptional, delegation of government authority to a private organization. 

    Ms. Protz challenged the PIR assigned, asserting that the doctor should not have used the Guides 6th Edition, but should instead have relied upon the Guides 4th Edition which was in effect when the legislature adopted the Guides. The Commonwealth Court agreed with that argument in 2015, and instructed the Pennsylvania workers' compensation judge to reconsider her case using the Guides 4th Edition.

    The jurisdiction of the Pennsylvania Supreme Court was invoked shortly thereafter, and now about 18 months later the Court has rendered its decision. Its decision is broader than that of the Commonwealth Court, and the implications are worthy of consideration by anyone with an interest in American workers' compensation. Arguably, the Supreme Court's analysis could be more persuasive on other states than the Commonwealth Court analysis.

    It may be important, in a general sense, to consider delegation broadly first. The Pennsylvania Supreme Court was careful to temper its analysis with the precursor that delegation is in fact permissible. This is a critical point. How that delegation occurs, and the extent of that delegation must fit within constitutional parameters, but it is not per se improper. 

    What is prohibited by the "non-delegation doctrine" is not delegation per se, but "incorporating, sight unseen, subsequent modifications to such standards without also providing adequate criteria to guide and restrain the exercise of the delegated authority." (Slip opinion at P. 16).

    What is perhaps curious, in light of those statements, is that the Pennsylvania Supreme Court nonetheless concluded that the Pennsylvania statute is unconstitutional. As I discussed in As Florida Waits, Commonwealth Court Holds Pennsylvania Statute, North Dakota's Supreme Court was presented a near identical issue and concluded that language requiring “use of the ‘most recent’ or ‘most current’ edition of the AMA Guides should be interpreted to mean the most recent edition at the time of the statute’s enactment.” (Babitsky, §3.04) (McCabe v. North Dakota Workers’ Compensation Bureau, 567 N.W. 2d 201 (N.D. 1997). That Court's conclusion was based upon statutory construction and traditional analysis.

    Indeed, the Pennsylvania Court noted that analysis. It said that legislatures are not presumed to "intend to violate the Constitution" of the nation or state. Therefore, the Court reminded that "if a statute is reasonably susceptible of two constructions, one that would render it of doubtful constitutionality and one that would not, we must adopt the latter." But, the Pennsylvania Court did not adopt the latter, that is the construction adopted by North Dakota's high court.

    The Pennsylvania Court engaged in a brief analysis of what "most recent" would or could mean. It then concluded that it "must construe the 'most recent edition' requirement to mean the most recent edition in force at the time of the IRE" and rejected the possible alternative of "most recent" at the time of legislative adoption, which the North Dakota Court chose. The Pennsylvania Court rejected the interpretation that would have rendered the statute constitutional. There will perhaps be those who will be critical of the Court's espousal of a construction standard, followed by a seemingly contrary result. Or, perhaps some will believe at least that such an outcome might have been more thoroughly explained.

    The Pennsylvania Court next turned to "severability," a concept that will perhaps confound many. This is a legal maxim by which a problem with part of a statute or rule might be deemed improper, and that portion alone would be removed leaving the remainder alive and vibrant. Think of a mole or a wart, which a dermatologist might remove specifically, leaving the body around it untouched and unaffected. Many state statutes have severability clauses that suggest and support that outcome. The Pennsylvania statute has such a clause.

    But, the Court concluded that removing the "offending language" in this instance "would render the remainder of the Section 306(a.2) incomprehensible." The Guides, according to the Court are "critical context" to language in the statute that would otherwise be "hollow phrases." Thus, the Court concluded that this statute is a "paradigmatic (a "model" or "paradigm" example) example of a law containing valid provisions that are inseparable from void provisions." So, the Court concluded that both baby and bathwater must be disposed of together. That this is the outcome, from the election not to adopt a different interpretation of the language ("adopt the latter," see above) may be seen by some as troublesome and confusing.

    Coincidentally, the Court noted elsewhere (slip opinion, P. 8) that a trial court "must explain the grounds of its decision in a reasoned opinion which will serve as precedent to guide decisions in future cases." See A Kentucky Constitutional Decision for some thoughts on the value of predictability and precedent. Some may ask whether such an admonition applies equally to appellate courts. Seemingly, appellate courts should hold themselves to the same standards to which they purport to hold trial courts. 

    Ultimately, the IRE process in Pennsylvania is no more. The authority for that process, the entirety of Section 306(a.2) is unconstitutional completely. The infirm portion of the statute cannot be severed from the rest to allow any portion of that process to be used. 

    Aside from that direct effect, the case "holding," there are critical points that are also worthy of note.

    First, this decision is not an indictment of the American Medical Association, its process or intentions. The Court suggests some "parade of horribles" hypotheticals as to egregious conduct by which the Association could act inappropriately. Those examples may seem to some to be pure hyperbole and even insulting; some might suggest they were unnecessary to the opinion. The Court seems to desire to illustrate thereby the potential for bad behavior, thus bolstering the reason for delegation to be constrained by the law. In this regard, the analysis may make sense, but could likely have been explained better.

    The Court was critical of the General Assembly delegation to the AMA without required "procedural mechanisms" that are "considered essential" protections of process under the law. The Court was critical that this statute (Section 306(a.2)) did not require "the AMA hold hearings, accept public comments, or explain the grounds for its methodology in a reasoned opinion." Such requirements, the Court said, would allow for "judicial review." These foundations are therefore a critical element in Pennsylvania delegation. 

    Having assured the reader that the Court ascribed no ill will to the AMA, the Court then quoted critical comments from a 2004 article which the Court apparently found persuasive. Whether that article was part of the record (admitted in evidence) in this case, and had been subjected to the kind of inquiry that is legally required for such evidence remains unclear. If that article was not evidence, it is difficult to understand how those criticisms could be relied upon by the Court, having never been tested by cross-examination or other due process. Appellate courts are known to rely on information outside the record, such as articles and even Wikipedia (not subject to cross-examination and amenable to alteration and editing by virtually anyone with Internet access), but are contrarily critical of any trial judge who might do so. 

    Second, delegation is not unconstitutional. There will be some who may jump from this Court decision to a simple and contrary conclusion. But, the careful reader will discern that such a conclusion is an oversimplification. The Court has not said that; it has said that this delegation is unconstitutional. Delegation is constitutional in Pennsylvania (and other courts have agreed regarding various states). In Pennsylvania, the appropriateness of this delegation is dependent upon the law including "concrete measures to channel" discretion, and "safeguards to protect against arbitrary, ad hoc decision making."

    Delegation is constitutional when it does not extend unfettered discretion, affords a method of review and monitoring. One might argue that delegation is constitutional in Pennsylvania in the context of the Assembly adopting the AMA Guides, "most recent" edition, if the Court had adopted the statutory construction adopted by North Dakota's high court. That delegation, arguably, would pass the tests espoused by the Pennsylvania Court. 

    Finally, there may be misconception that delegation is only appropriate when it conveys authority to another government entity, the kind of delegation that is discussed above and which is responsible for the formation of a vast spectrum of executive branch agencies. There is suggestion in Protz of that government versus private distinction. The Court noted that "private entities are isolated from the political process, and, as a result shielded from political accountability." But, recognizing that Pennsylvania precedent is hostile to  the delegation to private entities, the Court cautioned these precedents "have not unequivocally supported the . . . view that the General Assembly cannot, under any set of circumstances, delegate authority to a private person or entity."

    The key point, according to the Court, is not whether the delegation is to a public agency or a private entity. The key point is "traditional constitutional requirements (i.e., 'policy choices' and 'adequate standards') are necessary whenever the General Assembly delegates its authority 'to any other branch of government or to any other body or authority." (emphasis in original). The issue the Court focuses upon is not the "if" of delegation, but the "how."

    So, there will now be many discussions and debates about Protz. Does this analysis suggest broader issues? Some will suggest that there are implication for legislative adoption of treatment guidelines, pharmaceutical formularies, or medical service reimbursement schedules, to name a few examples. Will constitutional challenges similar to Protz seek to undo these and other delegations? Will it matter if some, such as the Medicare reimbursement constraints, are the product of our federal government and all of the due process that would seemingly entail? Will this Pennsylvania determination, interpreting the Pennsylvania constitution, lead to similar challenges and outcomes in other states? 

    Fasten your seat belts, it may be a bumpy ride ahead!





    Tuesday, June 20, 2017

    The Opportunity to be Heard is Important

    The Florida First District Court of Appeal rendered a decision in Jiminez v. United Parcel Services, Case no., 1D16-4959 on June 19, 2017. The case is interesting, and reminded me of a case I decided several years ago. 

    The Claimant, Mr. Jiminez filed a petition for benefits, which was dismissed for lack of jurisdiction. As I have written before, jurisdiction is another way of saying "authority," and thus the Judge in this case concluded that he did not have the authority to hear the claim because it challenged the constitutionality of section 440.12(2), Fla. Stat., which provides:
    (2) Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week. However, if the employee’s wages at the time of injury are less than $20 per week, he or she shall receive his or her full weekly wages. If the employee’s wages at the time of the injury exceed $20 per week, compensation shall not exceed an amount per week which is:
    (a) Equal to 100 percent of the statewide average weekly wage, determined as hereinafter provided for the year in which the injury occurred; however, the increase to 100 percent from 662/3percent of the statewide average weekly wage shall apply only to injuries occurring on or after August 1, 1979; and
    (b) Adjusted to the nearest dollar.
    This is commonly referred to as the "maximum compensation rate." It is based on a calculation of the "statewide average weekly wage." A similar cap on benefits is part of multiple workers' compensation statutes in the United States. Several years ago I witnessed someone ask why states rely on these "maximum rates." That is interesting, and I have addressed it some in What is the Max Rate Payable? and What is Comp Worth? There is plenty to debate and discuss regarding both the existence and extent of maximum rates. 

    But, procedurally Jiminez is also an interesting decision. The Court's opinion reminded me of a case I heard over a decade ago, Anderson Columbia v. Brown, 902 So.2d 838 (Fla. 1st DCA 2005). The trial order is here (see if you can find my egregious typographical error; spell check leaves you hanging sometime), and the appellate decision is here. I concluded in Anderson that the discovery sought in that case was "of little relevance to the issues before me." However, I recognized that the discovery "may or may not be relevant to the Court of Appeal in this matter."

    The parties in Anderson conceded that I had no authority to make any determination of constitutionality regarding the statute. That is a power and authority that is beyond Florida Judges of Compensation Claims. For more on that distinction, and the way in which some other states may differ regarding judicial authority, see Another OK Court Challenge. As the issue the parties in Anderson were disputing was a constitutional decision, I agreed with their consensus that I had no authority to decide the issue. 

    However, I concluded that it was appropriate for such issues to "be raised in this proceeding, for preservation of the record." I therefore concluded that whether the documents sought in discover were or were not relevant to the issues before me, they might be relevant to a decision for "the tribunal which will decide"; the constitutional issue, before the First District Court. 

    The issue before me was not whether the statute was constitutional or not, nor whether the documents sought in discovery were relevant in that question or not. The issue before me was whether those documents should be produced in discovery. Discovery is not governed by whether requested documents are "relevant," but (back in 2005) whether that discovery was "reasonably calculated to lead to the discovery of admissible evidence." In other words, was it likely that the documents sought would contribute to the understanding of the matter by either being admissible or helping the parties find evidence that was admissible. 

    I ordered that the documents be produced. The Employer/Carrier sought relief or protection from the Florida First District Court of Appeal. The Court agreed with my order. Essentially, the Court concluded that it is appropriate for parties to make arguments, to make a record, before a Judge of Compensation Claims on issues that the Judge cannot decide. This record then is the foundation for the Court, exercising its broader jurisdiction as a constitutional court, to decide those issues which are not within the Judge of Compensation Claims' jurisdiction or authority. 

    Anderson Columbia has been periodically relied upon by the Court since that time. In Punsky v. Clay County Bd. of County Com'rs, 60 So.3d 1088 (Fla 1st DCA 2011), the Court said "That does not mean, however, that claimant was prohibited from creating a record in support of his constitutional challenge." In Russ v. Brooksville Health Care, Ctr., 109 So.3d 1266 (Fla. 1st DCA 2013) the Court reiterated "A JCC's inability to rule on constitutional issues does not preclude a claimant's right to build an evidentiary record in preparation for a constitutional challenge." In Govea v. Starboard Cruise Service, Inc., 212 So.3d 456 (Fla 1st DCA 2017) the Court reminded the "Claimant was not prohibited from creating a supporting record below." 

    The Court has concluded that a party seeking to build such a record is entitled to "an evidentiary hearing." That hearing opportunity is the procedural path by which the party can mount a constitutional challenge. The opportunity to be heard, which includes the opportunity to conduct discovery in some instances and to submit evidence, is a constitutional right of immeasurable value and effect. It is discussed in recent posts like Notice and Opportunity to be Heard and Wondering Whether to Object.

    That does not mean that the maximum rate statute is or is not constitutional, or that it is or is not appropriate public policy. The real point at this stage is that if someone makes such a challenge to a statute, it makes sense for them to have an opportunity to discover and submit their evidence (build a record) so that a court with the appropriate authority (jurisdiction) of the constitutional question can decide that issue. 

    Jiminez v. United Parcel Services just reminds us of that process.





    Sunday, June 18, 2017

    A Move Toward Federal Influence?

    In 2016, there was a great conversation about American workers' compensation. It included a great many of the thinkers involved in these many systems which cover millions of workers and their employers. The issues raised at the three summit meetings last year have been summarized in various settings, like The Conversation, Interests, and Compromise. A complete list of the issues was printed

    When the Conversation planning started, there was significant discussion of Federalization. Some U.S. Senators and Representatives had written to the Secretary of Labor expressing concerns about these systems. Business Insurance wrote that the elected officials were concerned primarily "about a pattern of detrimental changes to state workers' compensation laws and the resulting cost shift to public programs like Social Security Disability Insurance." The financial health of SSDI (or lack of it) has been in this blog before. 

    That Congressional interest further stimulated writing and speaking about workers' compensation, where it has come from and where it is. But the clamor has subsided somewhat. The sense of urgency seems gone. One group that recruited me in 2016 to help write a report, "for the new administration," simply decided to drop the idea. Others have struggled to maintain forward momentum against a seemingly growing sea of indifference, competing personal interests, and contrary institutional inertia.  

    But, federalization seemed a hot topic in 2016. By the time the Summit, or "National Conversation," convened it turned out that federalization was not a primary concern of the participants. In fact, when the issues were listed, and topics were divided into three strata, "federalization" was listed last in the second group of priorities. Not that it is not concerning, but its immediacy or relevance was not perceived as paramount. The listing has provided perspective in this and other ways. 

    At the last Summit meeting in New Orleans last November, there was discussion of the federal government. Not in the context of taking workers' compensation over, but in the context of how the federal government might impress influence on state systems. A somewhat common theory proposed was a move towards "protecting Social Security's interest" in a manner similar to the 1980 adoption of 42 U.S.C. Sec. 1935. 

    According to Medicare expert Roy Franco, that concept of "protecting Medicare's interest" took about twenty years to bear fruit. It was in 2001 that the Centers for Medicare and Medicaid Services (oddly abbreviated "CMS" rather than "CMMS," but what do I know?) began to "appreciate" workers' compensation and take an interest. Anyone that works in workers' compensation knows the impact that interest has ultimately generated. Some might suggest that remaining unnoticed by the federal government has benefits. 

    Some Summit attendees hypothesized that a similar law focusing on "protecting Social Security's interest" might be advocated. The fiscal angle is obvious, can the Congress find funding for this massive social program without either raising taxes or decreasing payments?  There are many who believe that shrinking federal programs is impossible or impractical, and so they see the only choices in simply how to fund what has evolved. 

    That federal impact discussion brought a great many perspectives. Would the federal government take an interest in affecting workers' compensation in some manner short of federalization per se? I have had a fair number of discussions of that since November. 

    I was somewhat surprised recently to see Bill to Streamline Adjuster Licensing Expected to Resurface in Congress on WorkCompCentral. This story laments the bureaucracy involved in adjusting workers' compensation claims in America. It is axiomatic that bureaucracy leads to expense, and expense tends to get passed down to those of us that pay taxes on income, purchases, property, etc. It is also a fact that costs affect what businesses charge for services, and that includes insurance companies and the costs they face with the regulation of their employees, including adjusters. 

    The proponents of this federal "streamlining" law claim that "on average" the adjusters dealing with workers' compensation cases "hold licenses in 10 states," and some hold as many as sixteen. And there are a fair number of adjusters, purportedly 125,000. An industry group identified the volume and the licensing challenges in a recent survey. 

    They therefore seek to streamline the licensing of adjusters, a subject heretofore a focus only of various state laws. WorkCompCentral reports that "34 states require claims adjusters to obtain licenses. But only 11 states use the uniform license application developed by the National Association of Insurance Commissioners." Reportedly "some states have reciprocity agreements for adjusters . . ., but others do not." So, adjuster licensing may be very similar to workers' compensation benefit laws, a patchwork of state requirements. The advocates want federal law to "require states that license adjusters to adopt uniform licensing requirements and reciprocity agreements." One advocate describe the "patchwork of inconsistent state rules" to be "so duplicative" and "so wasteful.” 

    The proponents concede that their goal is not a foregone conclusion. In fact the same bill failed to pass in the last Congress. Despite that, the bill is being reintroduced. They punctuate their position by noting recent bills passed in Louisiana and Mississippi. This perhaps paints a picture of not just a "patchwork," but a fluctuating "patchwork."

    As a long-time member of The Florida Bar, the subject of reciprocity is not new to me. Attorneys licensed in Florida cannot practice law in other states through reciprocity. In fairness, that is because Florida does not provide that privilege to attorneys licensed elsewhere. It is a mutual denial of reciprocity. It is increasingly uncommon in the practice of law, with many states participating in reciprocity agreements. 

    I find myself wondering whether success on the adjuster proposal might lead eventually to discussion of national standards for licensing of attorneys? And, I wonder if there is benefit in federal action on this subject in any respect. There are those who believe that any federal government involvement in functions that have been state, such as workers' compensation, will only lead to continued and ever-increasing involvement. Those who advocate federal involvement in any element, such as adjuster licensing, may inadvertently break barriers and pave a path to federal involvement that they do not actually want. If "streamlining" works with licensing, why could it not work with benefit "sufficiency?"

    The Conversations will continue about workers' compensation. It seems that the discussion will not focus on federalization directly, but that concern may perhaps receive attention if peripheral issues like Social Security and adjuster licensing consistency remain at the fore. 

    Thursday, June 15, 2017

    A Button Labeled "Codger Mode"

    On a recent business trip, I encountered first-hand an "intelligent assist" automatic feature on a rented car. I had read about these features, for anti-collision and safety. But the hands-on experience was unpleasant and left me with the conclusion that I would avoid it in the future. Perhaps most disconcerting was that neither the rental company nor the car provided any warning or instruction on these automaton features, how they might affect me, or how to turn them off. 

    I left the rental company, pulled onto the highway and engaged the cruise control. As, is my habit with the cruise engaged, I then focused solely on the road and could now ignore the speedometer. Far ahead, a car pulled onto the road, and seemed to increase speed, seemingly maintaining the distance between us. My brain struggled with this, because I had expected to have to brake and slow when I saw the car pull out. I was pleased that it had seemingly accelerated to prevent that need. I was to learn I was wrong. 

    After a few miles of the two cars at the exact same pace, the vehicle ahead executed a right turn from the highway. Immediately, my rental vehicle surged forward markedly and without warning. Glancing at the speedometer, I realized that the other vehicle had not maintained speed in front of me at all. Instead, my rental vehicle had in fact slowed markedly, more than 10 miles per hour, from the speed to which I had set the cruise, in order to avoid collision. 

    My first reaction to this experience was simply that this vehicle was defective. Surely, if a vehicle is not going to perform like other vehicles, there would be some warning or instruction? I recently blogged about a motor vehicle accident that may have been in part caused by a lack of familiarity with a high performance car and its features. Once I entered the Interstate, this cycle (automatic deceleration, followed by sudden and violent acceleration) repeated itself multiple times. 

    In an unrelated issue, this car made a beeping noise every time I changed lanes, more on that below. This was a distraction as I struggled to adapt to the cruise control issue. Regarding the cruising speed, I began to notice that when a vehicle was approximately 100 yards in front of me, my rental vehicle would begin decelerating gradually. Once it dawned on me that this was not an unintended defect, but a purposeful design, I was intrigued as to how this worked. I was unable to turn it off however. 

    Initially, I was uncertain whether the deceleration was accomplished merely by less fuel (the cruise system), or whether the vehicle autonomously applied the brakes to maintain separation. Later in the drive, I topped a small hill to find a very slow-moving trailer ahead in my lane. This rental vehicle braked immediately and dramatically, slowing far more quickly than could be caused merely by decreased fuel flow. This car was effectively driving itself, with my only required input being to steer. 

    My curiosity was peaked. I began experimenting with the system. I found that even when the system caused deceleration, I could override its decision with the accelerator pedal. The autonomous operation was controlling the cruise control and the brakes, but not disabling the accelerator. I was therefore in control, but only learned that over time and through experimentation. And that incessant beeping continued unabated with each lane change. 

    I eventually found a dashboard display screen depicting the hood of the vehicle. I found that as I approached each potential obstacle, an image of a sedan would appear, indicating the presence of that vehicle ahead of me. Thus, if the pictures were carefully observed (instead of watching the road), a driver could facilitate a set speed merely by changing lanes or manually accelerating each time that icon appeared. But, from my few years of driving, the whole point of cruise control to me is not having to keep an eye on the instruments, and concentrating instead on the road. 

    The next intrusion of this automaton occurred about 70 miles into my trip. A new beep was heard, and looking at the instrument cluster I saw a message advising me to "take a rest." I travel on highways a great deal. I have been for many years of my life. Not since I was a toddler has anyone (or anything) told me when it is time for me to rest. I was a bit nonplussed by this car doing so. How would it know if I am tired? My habit is to stop when the gas tank is empty, and I have often driven 400 miles between stops, not 70 minutes. Was the car recording my non-compliance with its rest recommendation? Had there been an accident, would the "black box" have informed that I ignored rest advice? 

    Back to all that other lane-changing beeping; this vehicle annoyingly and persistently beeped. At first, it seemed random, and no amount of re-fastening the seat belt seemed to change it (that is the only thing that beeps on my 1997 vehicle). In time, I noticed the beeping was tied to changing lanes or otherwise approaching the lines painted on the road. Figuring this out again involved changing the dashboard screen display. There was an optional display setting I eventually found that displayed two parallel white lines. With some experimentation, I realized that the beeping accompanied one of these lines flashing from white to red. And, coincidentally, when it did so my tires on the red side of the car were then close to or on the highway paint stripes. This car could somehow "see" the highway. 

    Overall, I did not enjoy the experience. I will do my best to never rent a similar car in the future. I am thoroughly familiar with and comfortable with the vehicles of the twentieth century. This more recent adaptive technology was not comforting or helpful, but distracting and uncomfortable. I longed for a "normal" car. I realize that the time I can cling to the 1990s is limited. Eventually all these antique cars I am used to and enjoy will wear out and I will be thrust into the next paradigm.

    Perhaps before that occurs, manufacturers will become more adept at (1) disclosing the presence, features, and limitations of these devices and systems, (2) discover a method of these systems' interaction with the driver that does not involve making multiple changes to the display screen in the instrument cluster to understand, and (3) providing a method for us old codgers to "opt out" of their gracious assistance and instead drive like we learned back in the day (a simple, large, obvious dash button labelled "codger mode" would be nice). 

    Come to think of it, that would be a neat feature on a variety of things, like "smart phones," television remotes, and more. Have the features, feed the tech desires of the young folks, but include a single, simple, obvious button for some of the rest of us to "codger out." Maybe there could even be a warning for other motorists, with a flashing yellow light outside the car that alerts other drivers I have engaged "codger mode?" Think about it, hotels, car rental companies, and more could advertise their codger-friendly environments and products? It just ain't easy getting older.