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. 

Tuesday, June 13, 2017

Revisting the Obligation to Object

I received an email regarding a recent post. The post had to do with objecting to procedures, see Wondering Whether to Object. The bottom line of that Ohio case was essentially about preserving your record, and speaking up about procedures.

My correspondent provided a Florida case. It supported the "speak up" advice, but it also got me thinking about the history of this Office. I like to think that this "is not your father's" Office of Judges of Compensation Claims (a reference to a very old and unsuccessful ad campaign of a company since closed), and this decision from the First District Court supports that. 

In Jellison v. Dixie Southern Industries, Inc., 857 So.2d 365 (Fla. 1st DCA 2003), the Court was confronted with an appeal that raised two issues that the court decided "merit brief discussion." The first was staleness of the final order, and the second regarded a procedure by which the judge declined to prepare the final order and instead relied upon the lawyers to do that work for the judge. The laziness of asking the lawyers to do the judge's work used to be somewhat common in Florida workers' compensation, and was condoned by the appellate courts in cases like Dade County v. Turnbull572 So.2d 540 (Fla. 1st DCA 1990). 

The delay in Jellison was notable, though not the worst I have seen recorded. In this case, the trial occurred on August 20, 2001. The judge mailed a letter to both attorneys on March 13, 2002. The parties were instructed to each submit proposed orders within ten days. The Court noted that the Judge "made no oral findings at the conclusion of the hearing," and that the judge had "given no indication how she was going to rule."  

On April 18, 2002, two hundred and forty-one (241) days after the final hearing, the Judge entered the final order, which was then appealed. According to the Court, that order was "almost identical to the order submitted by the E/C." Incidentally, that coincidence was the same complaint raised by motions in Dade County.

On appeal, Jellison complained that the Judge's order was stale and that the findings were not supported by competent substantial evidence.  The Court reiterated that it "will not consider arguments which were not presented in a meaningful way to the lower tribunal." Any issues or arguments about an order being stale "must be preserved for appeal" by making an objection. Similarly, concerns or issues about the content of such an order should be raised with the judge issuing the order. The Court explained that such objections can be "filed at any time." 

The Court footnoted that final orders are "clearly" to be "issued within 30 days of completion of the hearing." It noted that this particular judge at that time had "several cases" before the Court in which "untimely letters to both parties" had been similarly utilized. And it cautioned regarding the harm that such "proposed" orders could work, saying that "signing a proposed order without any significant changes in situations where an inordinate delay has occurred creates the impression that lawyers are deciding cases rather than the judges." 

All valid points. In the 2006 OJCC Annual Report (p. 31), we acknowledged that 42.4% of final orders were not issued within the statutory 30 days. The longest period between trial and a final order issued in 2006 was 1,323 days, which is over three and one half years. That time period makes the 241 days in Jellison seem perhaps a mild delay by comparison. The 2016 OJCC Annual Report (p. 36) provided contrast. It noted that in 2006-07, the longest period between trial and entry of the final order was 2,911 days, which is about eight years. But, for 2015-16 only 12% of final orders were not entered in 30 days. And, the longest time between trial and order that year was 278 days.  I see that 278 days as unfortunate but a vast improvement from the 2,911. 

I am not aware of any Florida Judges of Compensation Claims who are currently not preparing their own final orders. And the timeliness of final orders has improved dramatically since 2006. This "is not your father's" Office of Judges of Compensation Claims. The credit for these improvements goes to the judges who preside in the 17 districts around the state. They are moving cases to trial and entering timely final orders. They are not to my knowledge adopting orders prepared by lawyers any longer, and thus this system is avoiding any "impression that lawyers are deciding cases rather than the judges." 

Jellison reminds that it is important to speak up about process and procedure. If there is something occurring in a case, it is up to the parties to file or voice an objection. This affords the assigned judge the opportunity to consider such objections, and potentially to ameliorate or eliminate prejudice or harm by altering process or procedure. And, Jellison reminds us that the "good old days" may not have been quite as rosy as they are sometimes remembered. 

In Florida today, we have a great many attorneys who may not remember the long delays waiting for orders. They may not have ever experienced a judge who cajoled or coerced the filing of "timeliness waivers." And it is important that we recognize that our Judges today are doing the job of hearing their issues and preparing timely orders. If this is not your experience, please email me,

Sunday, June 11, 2017

Notice and Opportunity to be Heard

A recent Missouri WorkCompCentral story attracted my attention, Court Reverses Order Directing Payment of Attorney Fees Into Attorney's Trust. It reminded me of the classics of due process in American jurisprudence, notice and the opportunity to be heard. It also reminded me that in some instances, there is no time like the present. 

Due process is a comprehension challenge for many people. It is one of those legal catch-phrases that are often bantered on the television, but unfortunately too often not really understood. I have had many a conversation with lawyers that made me wonder whether they missed that day in Constitutional Law class. 

Due process can be perplexing. When I teach Constitutional Law, I find that students are persistently eager to quantify things. They want to know "how much" due process. Or, as I rephrase that question "when evaluating due process, how much process is due?" A fair question. But unfortunately (or not), it is a question not capable of a very definitive "quantifying" answer. The best answer, as much as many hate it, is "enough." There should always be enough due process. 

When confronted with that answer, the student almost always objects. This answer for them is to vague, indefinite, and unfulfilling. We all seem to like concrete answers (at least when we are doing the asking). But, "enough" is the correct answer. If we are accused of some petty infraction, we might find ourselves deprived of the right to engage in discovery before trial. Some would argue that is a denial of discovery denies due process, but the courts weigh the right to due process against the potential for harm. In a petty infraction, we may legally receive less process than if we were accused of a capital offense. 

Back to Missouri. In this case, an injured worker sought benefits for permanent total disability in 1996. The trial judge ordered Missouri's "Second Injury Fund," or "SIF," to pay those benefits and imposed a lien against the benefits to pay the attorney that had represented the worker in the litigation. 

The attorney was over sixty years old at the time. Twenty years later, now over eighty years old, the attorney filed with the Commission and asked that the SIF pay those ongoing fee deductions to the attorney's living trust if the attorney happened to pass before the injured worker. Age has a way of intruding on our thoughts sometimes.

The Commission responded with the first crucial element of due process, notice. When there is to be an action that might affect the rights of parties to litigation, it is imperative that the parties have notice of that fact and of any hearings or proceedings that might affect the outcome. The Missouri Commission sent notice to "all the interested parties and requested a response within 30 days if anyone objected."

No objections were filed, and so "the commission issued the requested order." The injured worker thereafter objected to the order "roughly two weeks later." She explained that she did not receive either the notice or the order, until after the order was entered.

The injured worker's objection to the order was denied. The Commission's denial order explained that the first order did not decide whether fees would be due following death; the order merely said that if fees were due pursuant to the 1996 order, then those fees would be paid to the living trust. 

The injured worker appealed, and the attorney "died at the age of 87 while her appeal was pending." (Remember that "no time like the present" thought?) The Court reversed the Commission, because of the allegation of no notice being received. That does not mean that someone saying they did not receive notice will be the end of an analysis. The Court explained that the Commission should have listened to the injured worker's objection, and determined whether her allegations of no notice were true. 

Just saying you did not receive notice is not alone sufficient, that statement has to be believed by the tribunal. The tribunal cannot skip the step of determining credibility and deciding whether such an allegation is true. Therefore, in many instances such as this, a hearing may be required so that the judge or commission can view testimony first-hand and decide to believe or disbelieve the objection/allegation of no notice. 

Because the Missouri Commission failed to do so, the appellate court concluded that the order directing payment to the living trust should be reversed. This outcome leaves uncertainty for the parties, one of whom is now dead and dependent upon someone else to prosecute his claims. 

It is likely that the SIF paid fees to the living trust, following the attorney's death but before the appeal was decided. Will that money be refunded to the SIF for payment to the injured worker or to hold until further proceedings are held to determine entitlement to fees? 

Is the living trust or the estate entitled to fees from the ongoing permanent total disability benefit payments from the SIF despite the death of the attorney? It seems that would have been a good question to have posed and gotten answered back in 1996. (Remember that "no time like the present" thought?) Of course, we all doubt our mortality and when you are only sixty-something you likely feel you have many days left. Life expectancies have just improved so much in recent decades, and frankly no one likely wants to think of their own death. But, death is unavoidable, and you just never know. 

As Florida enters an era in which such fee arrangements might become more prevalent, see Miles v. City of Edgewater, 190 So.3d 171 (Fla. 1st DCA 2016), there might be similar issues. Attorneys may wish to trend toward addressing issues such as attorney demise, estate rights, etc. in drafting such agreements. 

It is possible that the attorney's estate might now litigate further regarding this attorney fee entitlement. It is possible, when an attorney passes, that there might be any number of similar ongoing obligations that could require attention. Regardless of context, attorneys and others should consider how liabilities and promises might be implicated by passing. To the extent those are considered and memorialized before passing, the burden on survivors and the estate might be minimized. 

But, the real point is that notice is critical to due process. How much process is due after that may be subject to debate, may be weighed against benefits/burdens, and may not live up to our subjective anticipations ("enough" to you may not seem "enough" to another). Despite perceptions of "enough," the notice is a must. Notice must be sent. When someone says notice was not received, there must be an inquiry. If an objection based on failure of notice is to be denied, there must be explanation of reason(s). 

Thursday, June 8, 2017

Another OK Court Challenge

Oklahoma's workers' compensation system was back in the news recently. WorkCompWire reported that Governor Fallin named Megan Tilly to replace Robert Gilliland as Chair of OK's Workers' Compensation Commission. That appointment has been challenged in a lawsuit. WorkCompCentral has reported that an earlier (last year) Fallin Commissioner appointee, Jordan Russell, has been similarly challenged in a lawsuit filed by another "claimant's attorney." 

In October 2016, Governor Fallin reportedly requested current Chair Gilliland's resignation. Commissioner Gilliland declined to resign, but there was conjecture then that he would not be reappointed upon expiration of his term in 2017. That conjecture has come true. 

It is fair to say that Oklahoma's workers' compensation system has been challenged in recent years. Their statute was amended significantly in 2013. The most news-grabbing element of that legislation was the now famous Oklahoma Opt-Out, but other changes were also significant. Until 2013, Oklahoma workers' compensation benefit disputes were heard by a court system. In the 2013 reform, the legislature revamped that process, phased-out the court system, and transitioned to an administrative hearing process. 

The structure adopted in 2013 is not dissimilar from several other states. The Oklahoma workers' compensation system is now managed by three Commissioners. They are responsible for the regulatory system, including issues like carrier reporting, participant compliance, litigation rules and more. The Commission also hires and manages administrative law judges (ALJ), who have taken over the adjudication of disputes from the old court system (now called the "Court of Existing Claims"). And, the three Commissioners are also the primary appellate body, reviewing the decisions of the ALJs, which might thereafter nonetheless be appealed to the state courts. As with some other systems, there is no requirement that these (effectively) appellate judges/commissioners have any legal training whatever. 

Last year, when the Gilliland resignation was requested, the attorney now challenging Ms. Tilly perceived a "separation of powers problem" with Fallin's request, according to WorkCompCentral. At that time, there was some perception that Gilliland was being forced out "because of a decision by the commission." While the decision was not identified in either Fallin's resignation request or in Gilliland's response, many reportedly presumed that the dispute revolved around the Commission decision in Vasquez v. Dillards. The challenging attorney found Executive Branch management by the elected chief executive troublesome 

Vasquez was notable for two reasons. First, the Commission concluded that it, the Commission, acted as a "state court of competent jurisdiction." In the vast majority of jurisdictions, administrative bodies are not "courts," and therefore lack the inherent authority to make determinations regarding constitutional challenges. But, the Commission in Vasquez found such authority for itself in Oklahoma Statute 85A O.S. 211, which says:

Commission shall act as the court of competent jurisdiction under 29 U.S.C.A. § 1132(e}(l) and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due the claimant under the terms of the claimant's plan to enforce the claimant's rights under the terms of the plan or to certify the claim as right to future benefits under the terms of the plan. (Emphasis added).

Some may have viewed that Commission conclusion skeptically, but any tribunal always has the authority to decide whether it does or does not have authority or jurisdiction. In that regard, the Commission acted within its authority. After deciding that it had the authority to act, the Commission held that the 2013 Oklahoma Opt-Out was unconstitutional. Both of those conclusions were later affirmed by the Oklahoma Supreme Court, removing any doubt as to the Commission's authority; the authority to "act as" a court. 

The Oklahoma attorney challenging Commissioner Tilly has now filed a lawsuit, according to the Oklahoman. His legal challenge is statutory, but according to the Oklahoman, his motivation in challenging Tilly is that she "is the daughter of Fred Morgan, who is president of the Oklahoma State Chamber," who "helped write the 2013 workers' comp law." Because of that relationship, the attorney purportedly perceives a "a conflict of interest," and he believes the Oklahoma courts should intervene to preclude her appointment. In short, he disagrees with the law and decries Commission leadership by one so close to an author of that law.

Regarding last year's resignation request, the same attorney reminded WorkCompCentral of the Oklahoma Supreme Court affirmance of Vasquez, and the logic that "commissioners 'perform an adjudicatory function in deciding the fate of injured workers' benefits.'" Because of that authority, this attorney asserts that the Commission must be "treated as a court." He therefore asserted in 2016 that Governor Fallin's request threatened the very fabric of the law, the constitutional construction of government, the separation of powers. He perceived that gubernatorial request as the Oklahoma executive branch encroaching upon the courts, an independent branch of government (if they are to be "treated as a court," in his mind they must actually be a "court"). 

The actual statutory (legal) basis of this attorney's challenge to Tilly's appointment is in section 85A-19, which provides 
The Commission shall consist of three (3) full-time commissioners, each of whom must have been involved in the workers' compensation field for at least three (3) years, appointed by the Governor: one of whom is chosen from a slate of three selected by the Speaker of the House of Representatives, with all three confirmed by the Senate. 85A OK Stat § 85A-19 (2014). (Emphasis added).
The challenging attorney contends that Tilly lacks the three years required. According to Governor Fallin's appointment announcement, Ms. Tilly has been an assistant attorney general, and for more than three years she has managed "the attorney general’s multicounty grand jury unit." Furthermore, she has "assisted the workers’ compensation, insurance and Social Security fraud unit of the attorney’s general’s office." That experience with the criminal system, as it involved insurance and workers' compensation, is the foundation of her qualification under the three year requirement. This challenge is similar to the Commissioner Jordan Russell challenge; his workers' compensation experience is through work for the OK legislature. 

The challenging attorney essentially seeks a judicial interpretation of "involved." The legislature did not define what it meant by "involved." Merriam Webster defines "involved" simply as "being affected or implicated." In the absence of some statutory definition of "involved" it is likely that Oklahoma's courts would turn to this ordinary definition. And so, perhaps the question will simply be whether Ms. Tilly was "affected or implicated" by workers' compensation for three years. That does not seem to be an exceptionally difficult standard. Some might argue that if the legislature intended a more demanding standard, it could have used a word other than "involved," or defined its intent for that word. For example, Florida Judges are required to be "knowledgeable in the practice of law of workers' compensation." Perhaps that is a more stringent standard, perhaps not. 

An interesting aspect of this Oklahoma lawyer's challenge is the attorney's perception of a separation of powers issues with the Governor's management of the Commission last year. The attorney contended then that the Governor, Oklahoma's chief executive, should not manage an Executive Branch agency, because it "acts as" a court. The argument seems to be that if it "acts as" a court, then the state's court system should exclusively supervise and manage it. No statutory authority for that conclusion has been located. Neither has any authority been found that a legislature cannot contrive an executive agency as it deems appropriate, short of some constitutional constraint. Whether it can create a court is up to the constitution, as is whether it can delegate authority to "act as" a court. But, neither of these seem to be the foundation of this challenge. 

In this current lawsuit this attorney is asking that the Oklahoma Courts actively interfere in that executive branch management. This is premised presumably on the "treated" or "act" language. That is, if it is treated or acts like a court, it must in fact be a court and subject to exclusive management of the state's court system, immune from the management of the Executive Branch. 

Executive Branch agencies like the Oklahoma Commission are created by statute in most instances. The statute alone provides the qualifications ("involved") for appointment, and the applicable "check and balance." The statute does not provide for judicial approval or interpretation of qualifications, although one might argue that interpreting statutes is what courts are inherently designed to do. The statute, through which the Oklahoma Legislature created the agency and conveyed authority to it, however, provides a "check and balance" in its plain language. The Governor's appointments to the Commission are subject to confirmation by the State Senate. 

Some will therefore argue that the legislature has thus created a process, which provides minimal definition ("involved"), and leaves interpretation of that to the executive. The Oklahoma courts may therefore decline jurisdiction over this attorney's challenge to Commissioner Tilly, concluding that this is an issue of Gubernatorial discretion. That outcome is perhaps even more likely because of the statutory Senate confirmation requirement. The statutory process for appointment involves part of the body (legislature) that granted authority (delegated), in interpreting that standard ("involved"). The Governor seemingly decides whether someone is qualified, and then that conclusion must be concurred by the legislature that granted the authority.

Thus, the legislature may make a decision that it agrees or disagrees with the Governor. The interpretation of what the legislature meant by that statute("involved") can be made by the legislature itself. This is arguably like asking me (legislature) to tell you what I meant in that last paragraph, instead of you asking your cousin Bernice (courts) what she thinks I meant. WorkCompCentral reported May 16, 2017 that the Oklahoma Senate Judiciary Committee recently voted to confirm Tilly and Russell. Presumably, that vote evidences the Senate's concurrence that Ms. Tilly is qualified under the statutory standard. 

Is it inappropriate for the State's chief executive to manage executive branch agencies? Is it more or less inappropriate if such an agency looks or acts like a court? By the same logic, is it inappropriate for a court to substitute its judgment of qualification for the judgment of that chief executive, and/or the judgment of the State Senate? Is separation of powers about the three branches themselves, or is it about how the subdivisions of the three branches act or look? If the state begins to allow judicial second-guessing of appointment processes in the Executive Branch, as advocated here, where will that court involvement end. Is that court involvement itself not a significant threat to the same separation of powers the challenger relies upon?

It is probable that any court action regarding this challenge will not conclude prior to the expiration of Chair Gilliland's appointment in August. The potential effects on this system may be interesting. Potentially, this challenge could impair, or at least cast shadow upon, the Oklahoma workers' compensation adjudication system for some time, as the "involved" issue is litigated. 

As likely, the courts will recognize the real separation of powers and decline to adjudicate the qualification issue, concluding that this is an executive branch management decision, subject to Senate approval that has been provided. Or, alternatively, that upon the concurrence of the Senate in these appointments, the issue has become moot. For the sake of all involved, challenged and challenger, hopefully the state's courts will render any decision in this case rapidly. 

UPDATE: on June 8, 2017 the challenger dismissed his petition for writ of prohibition. Tilly's Senate confirmation stands, and she will take office in August, according to the Executive Director of the Oklahoma Commission.