Sunday, October 22, 2017

Fee Cap in West Virginia

A recent decision of the West Virginia Supreme Court is an interesting contrast to Florida precedent. In April 2016 the Florida Supreme Court concluded in Castellanos v. Next Door Company that the statutory constraints on Florida attorney fees in Section 440.34, Fla. Stat. are unconstitutional. On October 10, 2017 the West Virginia Court decided Bandy v. Murray American Energy, Inc., Case No. 16-1165, and rejected constitutional challenges of similar fee constraints.




Bandy involved litigation of some psychotherapy care in 2016. The benefits were denied by the employer/carrier, but the Office of Judges ordered the benefits provided. An administrative appellate process, the Board of Review, affirmed that decision. The claimant sought $500.00 in attorney's fees regarding the Board of Review litigation, to which the employer objected. The employer argued that claimant’s attorney had already received an aggregate equal to the $2,500.00 maximum allowed attorney fees for obtaining medical treatment, following earlier litigation. The Board of Review denied the $500.00 fees.

The claimant sought Supreme Court review, contending that the $2,500 statutory limitation of attorney fees "during the life of a claim is unconstitutional." The claimant contended this limitation arbitrarily "interferes with the ability of claimants to access the judicial system," and denies "due process of law." The limitation allegedly limits "financial incentive on the part of attorneys," and thus makes it difficult for injured workers to find counsel that will represent them. 

West Virginia Code §23-5-16(c) provides several limitations on attorney fees. In (a) it limits contingency fees to "twenty percent of any award granted." This contingency is also limited in calculation to the value of "benefits to be paid during a period of two hundred eight weeks." In West Virginia, fees exceeding the limits are "unlawful and unenforceable as contrary to the public policy." The same twenty percent limitation applies to any "final settlement, pursuant to paragraph (b), subject again to the overall limitation of regarding 208 weeks of benefits. 

The Florida Statute, Section 440.34, similarly applied a formula and limited fees to: 

20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. 

Thus, the percentages in the Florida statute are more limiting than the West Virginia twenty percent. However, the Florida statute allowed that percentage fee on any benefits obtained, not subject to a chronology of benefit entitlement (208 weeks) as West Virginia's. Thus, depending on the facts of a particular situation either formula fee might produce a greater attorney fee.

But, the provision at issue in Bandy is the fee provision regarding the "successful recovery of denied medical benefits" under paragraph (c). That provision provides "additional" fees payable by "the private carriers or self-insured employers," "following the successful resolution of the denial in favor of the claimant." An attorney seeking such a fee must "submit a claim for attorney fees and costs within thirty days following" the order awarding the medical benefits.

The "additional" fee may not "exceed $125 per hour and reasonable costs." Furthermore, the fees "In no event may" exceed $500 per litigated medical issue" and in the course of the "claim" may not exceed the total of $2,500. In "determining the reasonableness" of fees, four factors are consider: the "experience of the attorney, the complexity of the issue, the hours expended, and the contingent nature of the fee."

Thus, the West Virginia fee limitation interpreted in Bandy is perhaps more akin to the "medical only" fee limitation in Section 440.34(7) Fla. Stat.: 
the judge of compensation claims may approve an alternative attorney’s fee not to exceed $1,500 only once per accident, based on a maximum hourly rate of $150 per hour, if the judge of compensation claims expressly finds that the attorney’s fee amount provided for in subsection (1), based on benefits secured, fails to fairly compensate the attorney for disputed medical-only claims. 
The West Virginia statute afforded a slightly more modest hourly rate ($125 v. $150), and a more constrained "per issue" limitation of $500 (Florida not limited by issue). However, West Virginia allows an aggregate of $2,500 for all medical issues in the course of a claim, compared to Florida's limitation of $1,500 for any "accident."

In short, the two fee statutes have similarities, but notable differences. Comparing them effectively would therefore likely require applying them to various factual scenarios.

The Court was persuaded in Bandy, however, that claimant's ability to hire an attorney had not been prejudiced by the limitation. The Court detailed when counsel was hired, and various benefits that claimant received thereafter. This appears from context to illustrate the Court considering the attorney fee issue in a broad, holistic manner. The Court's discussion of fees other than those under the "additional" paragraph (c) fees seems logical only in that holistic context.

The Court rejected the claimant's characterization of this challenge as a "constitutional issue," concluding instead that it was "in fact a policy argument." The Court held that such policy arguments “are more appropriately directed to the Legislature.” The Court affirmed the "Board of Review’s denial of attorney fees," concluding that the "statutory maximum for payment of attorney fees in relation to" denial of medical benefits had been paid.

A major point that is illustrated by comparison of Bandy and Castellanos is that various courts may reach differing conclusions. They are called upon to consider specific facts and to apply particular state statutes. While all courts would consider constraints of the U.S. Constitution, various statutes and facts might also be subject to constraints of state constitutions, with courts thus considering different constraints.

But, the very nature of our federalist system has so far facilitated the development and evolution of over fifty-six workers' compensation systems in America (50 states, District of Columbia, Puerto Rico, Guam, Virgin Islands, Federal workers' compensation, Federal Employee Liability Act, and more). In this federalist system, there will be different outcomes in different states as state law is interpreted and applied.

Though that makes workers' compensation fascinating for those who study it, it likewise makes it frustrating and confusing for many that benefit from workers' compensation. People who travel in their employment and employers doing business in various states are among those who may find distinct experiences depending upon various state laws. 


Thursday, October 19, 2017

Volunteer and Scope

Workers' compensation is a social contract, codified in statutes, to provide benefits of a defined nature to individuals that are injured at work. Employers are liable to employees for workers' compensation benefits defined by statute, and in exchange are immune from civil law damages suffered by the employee. This is the "grand bargain" of workers' compensation. 

But what of the volunteer? A recent decision by the Louisiana First Circuit Court of Appeal provides some interesting insight into the volunteer, employment, and the "course and scope" of employment that is so often discussed in workers' compensation, Beasley v. Nezi LLC, d/b/a Subway, 2016 CA 1080, (Fla. 1st Cir. 2017). The appeal arose not from a workers' compensation proceeding, but from a civil case filed in the District Court in Baton Rouge, Louisiana. 

Ms. Beasley was injured when she slipped and fell in a Subway restaurant, of which she is an employee. Generally speaking, most employees in America are limited to workers' compensation when they are injured at work. However, Ms. Beasley filed a civil lawsuit seeking damages from the store, instead of filing a workers' compensation claim. She alleged that the day she fell was her "day off." From her perspective, she was no different on that day than any other member of the public else that visited Subway.

But, Ms. Beasley was one of the managers of the Subway store. Though it was her "day off," she was called by a Subway employee and told that "the ice machine was not operating." Often, people like ice in their soft drinks. If you live in the south, where it is hot, you may find this ice preference is more of a necessity than a preference. And, by definition, it is simply not "iced tea" if the recipe does not include ice. 

Ms. Beasley apparently recognized the importance of the ice. She called a supervisor to seek ice, but learned it could not be delivered to the Subway in time for the expected lunch rush. Ms. Beasley therefore "decided to obtain the ice herself and deliver it to the restaurant." 

It was as she walked to the ice machine in the Subway that "she slipped and fell in a puddle of water." Her lawsuit alleged that the fall was caused because Subway "allowed water from a leaking water heater to accumulate on the floor." That was admittedly a bit unexpected; reading the court opinion, I frankly anticipated that the water resulted from the malfunctioning ice machine.

Ms. Beasley's lawsuit disregarded the "exclusive remedy" of workers' compensation by alleging "she was not within the course and scope of her employment" the day of the accident; it was her "day off." She noted that she was not paid for that day, and that her presence in the restaurant was "[a]s a favor and purely gratuitously." She was acting on her own, and was not "subject to anyone's direction or control" in electing to appear there with ice.

The employer objected to the matter proceeding in the District Court, and successfully sought to have the case dismissed. The District Court concluded that it had no authority, or "jurisdiction" in the case because Ms. Bealsey's injury was a workers' compensation accident. The Circuit Court (appellate court in Louisiana) agreed, and explained the concept of "course and scope" of employment.

First, the Court explained that "Jurisdiction is the legal power and authority of a court to hear and determine an action," and "to grant the relief" that is sought. The Court noted that "original jurisdiction" regarding workplace accidents is "vested exclusively with workers' compensation judges." Thus, if Ms. Beasley's accident was within the course and scope, then the only judge that had authority over her case was the workers' compensation judge.

As in many states, the test of whether an injury is work related is a two-part analysis of whether the injury was from an accident (1) "arising out of'' and (2) "in the course of'' employment. The court explained that these are interrelated, but "distinct" parameters for determining work-relatedness.

The "principal criteria for determining 'course of employment' are time, place, and employment activity." In other words, when, where, and what (was the employee doing) are critical to the determination of whether an injury was in the "course of employment." The Court noted that therefore an
accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer's premises or at other places where employment activities take the employee.
The Court also explained the legal requirement that the injury "arise out of'' employment. This is not a time, place and activity requirement, but a causation requirement. It "relates to the character or origin of the injury." The inquiry is "whether the injury was incidental to the employment." 

It is noteworthy that the Beasley Court repeatedly cited the Louisiana Supreme Court analysis McLin v. Industrial Specialty Contractors, Inc., 851 So. 2d 1135 (La. 2003) to explain these principles. Suffice it to say that the concepts of both "arising out of" and "course of employment" are not novel issues in Louisiana jurisprudence. 

The Court noted that whether Ms. Beasley was scheduled to work, obligated to deliver the ice, or paid were "not necessarily determinative." The Court explained that she was a manager, and went to the Subway for "an employment-related issue," and therefore the "origin of her injury is employment." She was called precisely because she was employed as a manager, and she responded for the same reason. The Court explained that her actions were "inextricably linked to her employment." 

There is a side-lesson in this decision also. The Court noted that when Subway moved to dismiss this complaint, Ms. Beasley provided the trial court an affidavit, which was attached "to her opposition memorandum." And, that affidavit might provide the evidence to support the lack of employment relationship, and allow the case to proceed in the District Court. However, "the affidavit was not introduced into evidence." As such, the affidavit was "not a part of the reviewable record." Sometimes technical issues can befuddle even the best attorneys. 

Most appellate courts do not consider facts and evidence that is not part of the record. Of course, other appellate courts consider and rely upon non-record evidence. Some even rely on evidence outside the record from such dubious sources as Wikipedia. But, most appellate courts limit analysis to the evidence that is in the record, meaning evidence that was presented at the trial and considered by either the trial judge or jury. In Beasley, the lawyer failed to introduce the affidavit into evidence, and was therefore precluded from relying upon it in the appellate court. 

The Court concluded that dismissal by the trial court was appropriate because the facts in evidence supported that Ms. Beasley was engaged in work activity when she slipped and fell, despite the fact that she was doing so voluntarily and without additional compensation. 

Judge Holdridge disagreed with the conclusion and provided a dissenting opinion. Judge Holdridge focused on the Louisiana Constitutional premise that the "district court shall have original jurisdiction of all civil and criminal matters." Noting that workers' compensation is a statutory exception to that premise, Justice Holdridge contended it is clear that workers' compensation jurisdiction is "only for 'claims or disputes arising out of' the Workers' Compensation Act.'" 

Because this is an "exception" to the constitutional jurisdiction of the District, Judge Holdridge noted, Subway should not be allowed to claim workers' compensation immunity and exclusivity unless it can prove "that the injury to the plaintiff arose out of and was in the course of her employment." But, Subway presented no proof, and merely relied upon the allegations and evidence submitted by Ms. Beasley. Judge Holdridge urged that therefore the allegations of Ms. Beasely must "overwhelmingly prove" that Subway is "entitled to a judgment," that is the dismissal of the civil lawsuit. Judge Holdridge contended Subway did not meet that burden. 

The Court's analysis and holding supported the outcome sought by Subway in this case, that is that Ms. Beasely is limited to a recovery in workers' compensation. However, the decision also presents the corollary in future workplace accidents. Employers in Louisiana now know that "off duty" workers, not being paid or directed in their activity, may nonetheless be in the course and scope of employment and therefore entitled to workers' compensation benefits.  


Tuesday, October 17, 2017

North Carolina Practice of Law

In a surprise to many, the North Carolina Industrial Commission has begun advising that only licensed medical doctors will be allowed to perform surgery on injured workers there. There was significant dismay expressed that the Commission would begin such a transition, particularly without a formal opinion from the North Carolina Medical Board. There has been discussion of the implications of this decision. Some feel it will add to costs, because those who have been to medical school apparently charge more to perform surgery than those who instead learned medicine on-the-job.

Certainly, that would be an interesting story; as certainly, the foregoing is facetious and a just a bit sarcastic. My apologies. The real story that recently hit the news, Industry Surprised by Sudden Decision to Enforce Lawyer-Only Filing Statute, was reported by WorkCompCentral 

It says that an attorney for the Commission recently began "spreading the word" that motions filed by insurance adjusters would no longer be accepted by the Commission. In other words, adjusters in North Carolina would no longer be allowed to file pleadings in legal proceedings on behalf of their employers (carriers or servicing agents) and their employer's clients. 

Several sources were quoted in the story. Some were critical that the Commission did not seek an opinion from the North Carolina Bar regarding what is or is not the practice of law. Some were concerned that hiring attorneys to file motions would add to costs. And, some were critical that there was no formal rule-making process or public comment period on what they perceive as the Commission's new "policy." In short, a fair few quoted by the story "weren't happy about it." One opined that "it's unfair," to take such action "without really speaking to all the parties." 

The Commission attorney commented for the story. He explained that the Commission has not made a policy, but has decided to
begin enforcing laws such as § 84-4, which forbids anyone but a licensed attorney from preparing legal documents or appearing at a proceeding before the Industrial Commission.
The Commission's attorney referred the WorkCompCentral to North Carolina Statutes, section 84-2.1, which defines what it means to "practice law" there. The statute includes "performing any legal service for any other person, firm or corporation, with or without compensation." That appears to be fairly broad and inclusive. The definition makes specific reference to "court proceeding," which arguably is not descriptive of the administrative process of workers' compensation. But, the definition also further references the "preparation and filing of petitions for use in "administrative tribunals and other judicial or quasi-judicial bodies."

Based upon this statute, the Commission has made a decision. It says that it "does not have — nor has it ever had — any discretion or authority to waive those legal requirements." This, sometimes dredges up the logical argument "but this is how we've always done it." Neither North Carolina nor workers' compensation have any corner on the market of applying that argument to issues. 

Florida's Supreme Court enacted procedural rules for workers' compensation almost fifty years ago, in 1973. Their action led the Florida Legislature to statutorily delegate executive branch rule-making authority to the courts thereafter. Forty years later, following repeated judicial amendments to those rules and assumptions of jurisdiction, the Court decided in 2004 that it lacked jurisdiction to make procedural rules for an executive branch agency. In fact, it noted that it had never had such jurisdiction. (remember the Emily Litella character on Saturday Night Live?)


The decision, In Re Rules of Workers' Compensation Procedure, the Court recounted the history of its foray into executive branch rule-making, and explained that the Florida Office of Judges of Compensation Claims is not a "court." It then explained the basic constitutional concept of separation of powers, and concluded that the courts cannot make rules for the executive. Such an intrusion by the courts is not even appropriate when the the third branch, legislative, asks the court to do so. And, a fair few read the opinion with surprise. Then, they read it again and essentially said "well sure, that's pretty obvious."

There is merit in questioning the status quo. It is important that we not mindlessly meander through life performing functions solely because "that's the way we always do it." Certainly, there is no justification for change merely for the sake of change. Certainly, there is value in precedent and the legal maxim of stare decisis. This brings consistency and predictability that judicial processes should bring to people. 

Should the Commission have provided more formal notice that it would interpret a statute differently henceforth? Perhaps there is some merit in publicizing change in any setting. Preparing and informing customers is a positive. It may be particularly positive when it appears a sizable population is engaged in an activity (completing and filing forms), which a governmental agency has traditionally allowed and accepted. That population could face consequences. 

Apparently, adjusters and others have been completing and filing forms with the Commission. If they are no longer permitted to do so, because the Commission has concluded that action is the unlicensed practice of law, then that implies these adjusters and others have been engaged historically, before this time, in the unlicensed practice of law. And, the law suggests that such a violation would be a Class I misdemeanor. That is, a criminal act. Essentially, might telling someone they broke the law put them in a defensive posture?

If the Commission had undertaken some rule process, or formal proceeding, then their action might have been interpreted as creating a "new" paradigm. That new rule or new order might be seen as changing the status quo, and thereby prospectively precluding activity, while not necessarily suggesting that past activity was previously inappropriate. But, what would one base a conclusion of "change" upon? If the Commission had made a change in its interpretation, might it have faced criticism for a "new" interpretation for which no basis or reason were stated?

Conversely, a conclusion that activity is, and has been, the unlicensed practice of law could potentially expose people to discipline. Whether an adjuster would be prosecuted might be influenced by conclusions of the North Carolina Bar, which opinion some felt should have been sought prior to the Commission interpretation. However, ultimately, the decisions regarding prosecution would more likely be within the discretion of one of the thirty North Carolina District Attorneys, depending upon where in the state such activities were performed.

So, there remain criticisms of the decision and the process. There are implications, and the future may bring further discussion and analysis. 

In Florida, an injured worker may represent her/himself in a workers' compensation case. A person may act as her/his own attorney. However, an employee of a corporation generally cannot represent that corporation in a legal proceeding, unless that employee is an attorney. This distinction is because the worker represents her/himself, while a corporate employee would be representing someone else, the corporation. For reference, here is an extensive, though perhaps not exhaustive, summary of Florida unlicensed practice of law.









Sunday, October 15, 2017

2018 Florida Legislative Proposal on Limiting Opioids

The Florida Legislature will at least debate drug abuse, overdose and addiction in 2018, the "Opioid Crisis." The news broke last week with the filing of House Bill 21 (HB 21). 

Anyone that has ever browsed this blog will know that I have been banging the Opioid gong for a while. We have seen some big gains this year in the war on drug abuse, dependency, and overdose. Last May, Governor Scott declared a public health emergency. The Center for Disease Control (CDC) published Opioid Guidelines. In August, President Trump declared the Opioid crisis a "national emergency." That coincided with the inaugural Hot Seat, and our awareness that we currently have 29 such national emergencies, dating back to President Carter (1977-1981). 

The scope of risk has been studied. There was a report last spring that concluded that "prescribing patterns for Opioids have long been thought to be linked to increased risks of continued use and addiction." Those risks "rise sharply in the first few days of use." Patients who use Opioids for three days have an increased risk of still using those drugs both one year later and three years later. And, the risk increases more after five days of use, see Addiction Risks Rise after Day Three of an Opioid Prescription. See also Opioid Dependence Can Start Within Just a Few Days.

Industry has begun to respond to these studies. In September, AOL and others reported that CVS Pharmacy would limit Opioid prescription dispensing for "certain conditions" to "a seven-day supply." CVS is reportedly the first national chain to impose limits. These limits will reportedly "apply to patients who are new to pain therapy."

Back in 2013, I noted that Dying to me don't sound like all that much fun. Then I chronicled the conclusion that there was "misuse and abuse" of medications. National attention was being drawn to Opioids, and Americans were dying. A persuasive point was the CDC statistics showing that overdose death was more prevalent than automobile accident death. The information was out there, but the market was slow to get it. We know Opioids are a problem. 

In 2015, I continued to highlight that drugs were killing Americans. In What can you do in 11.2 Minutes, I tried to illustrate the rate at which Americans were passing from drugs. We keep talking about it, until perhaps I sounded last spring Like a Broken (Drug Death) Record. They are killing people, depriving children of parents, depriving parents of children, and the fact is they are affecting us all. In 2016, more Americans died of drug overdose in one year than died in the entire span of the Vietnam conflict, see Hot Seat

There have been efforts. Florida has a robust Prescription Drug Monitoring Program, as do other states, see E-FORCSE and KASPER Cousins with a Cause. Florida started this effort in 2009. Florida requires physicians to report the prescribing of drugs, but has no requirement that they check this database before prescribing. In 2015, I questioned If it's Worth Having, Is it worth Checking? Other states have required physicians to check first. A year ago, I noted California joining this trend in If not, What is the Point? Early this year, I noted Maine Makes Opioid Changes, and last spring, I noted the success of Ohio in PDMP and Opioids in Ohio. Checking the data, it seems, works. 

Success was being made. And now, Florida seems poised to build on the success of restricting Opioid dispensing, and the closure of all those "pill mill" doctor offices/clinics (thank you Attorney General Pam Bondi). There will be debate and discussion in 2018. The impetus of that discussion lies with the Governor, the President, and now Representative Jim Boyd of Sarasota, the sponsor of HB 21. Reportedly, Senator Lizbeth Benacquisto will file a Senate bill to parallel Representative Boyd's bill in the Senate. 

There will be discussion. It is too early to say that there will be success or progress. But there will be discussion. Certainly, there may be good reasons for not checking the Florida PDMP before prescribing these drugs; there may be good reason for sending patients home with a thirty-day supply of these potentially addicting drugs; there may be good reason to not require physicians to be regularly educated about Opioids, standards, and addiction risk. I look forward to the discussion; I am ready to hear the reasons. 

What would HB 21 do?

HB 21 would require physicians to receive two hours of Opioid education every two years. They could enjoy this training in a "distance learning format," from the comfort of their own home or office. (Lines 108 - 115). Perhaps lawyers and judges could benefit from the same education. Perhaps everyone could. 

HB 21 defines "acute pain" and differentiates it from "chronic pain" and carefully avoids the troubling, but ever present "malignant pain." (Lines 155-160). The issue of malignant pain is a distraction  in this Opioid discussion and is best avoided. If someone is suffering from cancer or other life-ending condition, then there should be no limits on their access to pain medications. Malignant pain is not part of this discussion and not part of this bill. 

HB 21 requires Florida to 
adopt rules establishing guidelines for prescribing controlled substances for acute pain, including evaluation of the patient, creation of a treatment plan, obtaining informed consent and agreement for treatment, periodic review of the treatment plan, consultation, medical record review, and compliance with controlled substance laws and regulations. (Lines 300-306)
HB 21 limits most Opioid prescriptions to a "3-day supply." There is an exception that allows physicians to exceed this, and allows up to a "7-day supply." But that exception requires the physician to document the condition and the "lack of alternative treatment options that justify deviation." In other words, prescribe 7 days worth of medication if you need to, but explain why you need to. (Lines 309-325).

HB 21 requires pharmacists to verify the identity of patients receiving such prescriptions. Those patients must present photo identification issued by "a state or the Federal Government," or the pharmacist must "verify the validity of the prescription and the identity of the patient with the prescriber. (Lines 601-605; 627-630).

HB 21 substantially rewords Section 893.055, Fla. Stat. regarding the Florida PDMP (E-FORCSE). (Line 1044). And, the law would place a new requirement on the physician 
A prescriber or dispenser or a designee of a prescriber or dispenser must consult the system to review a patient's controlled substance dispensing history before prescribing or dispensing a controlled substance.
If the PDMP is not available ("not operational"), then the prescriber would have to document the reason for not checking the PDMP and "shall not prescribe or dispense greater than a 3-day supply of a controlled substance to the patient." So, with the PDMP not operational, the "7-day" option is not available. Failure to "consult the system" would result in the issuance of a "nondisciplinary citation to any prescriber or physician who fails to consult." (Lines 1255-1273).

HB 21 requires annual reporting to Florida's elected leaders regarding the success of education programs, progress in decreasing medication obtained by fraud, improved patient care, reduced "drug diversion," and "increased coordination among partners participating in the" PDMP.

HB 21 is 114 pages long. It addresses a great many details and would make many changes. The foregoing is but a summary of a few. In this time of Opioid crisis, there are a few things that seem clear to those who have been following, chronicling and discussing Opioids:

1. Pain is real
2. Pain is a complex, multifaceted issue
3. People are dying and being damaged by Opioid use
4. Those Opioids are both prescription and "street" drugs
5. Prescription drugs have in some instances been seen as a "gateway" to street drug use
6. Addiction is real
7. Addiction is likewise a complex, multifaceted issue

There is no physician that wants to see a patient in pain, and no patient wants pain. But, medicine has to strive to approach pain relief in a responsible manner. There is evidence supporting that Opioids can be a danger to patients. There is ample evidence that PDMP programs have been effective in decreasing inappropriate distribution of these drugs. What HB 21 will not do is magically and instantly correct all risks and issues with Opioids. That panacea either does not exist, or has not been discovered. But, the fact that all issues cannot be completely solved does not excuse failure to try. 

There will likely be critics of these proposed legislative efforts. There will be those who will raise addiction as the primary issue, and they may ask why more is not done for those already in the grip of addiction. Certainly, there are many in that situation and in need of intervention or assistance. They are the victims perhaps of prior prescriptions and Opioid availability. But, if this legislative effort can prevent or even delay new patients from dependence on Opioids, then it is an admirable start. Drugs are killing people. Preventing dependence is important. And, that does not mean there is not a need for further efforts assisting those already dependent. 

Finally, medicine must address pain. The history of Opioid medication is troubling. The death toll is staggering, with predictions that the next decade could bring 500,000 Opioid deaths. But that does not change the fact that people experience pain. Following injury or surgery, people need to understand that pain and they will naturally look to medicine to assist them. Medicine needs to respond with treatment and care that addresses that pain in a manner that does not lead to addiction, dependency, and death. It may be that there is, in a given situation, a "lack of alternative treatment options" (Lines 309-325), but that does not mean medicine cannot seek them.

I wish this were a simple problem with some simple solution. It is not. Pain is real, Opioids have been our collective solution, and pain drugs can damage and kill people. That is an inherent conflict that confounds us. There has to be a way to solve that dilemma. And, frankly, the time has come for that national discussion. How do we deal with pain without merely substituting a different problem like debilitation, addiction or death?






Thursday, October 12, 2017

Judicial Commenting

It is a recurrent theme, Judges and social media. A recent post suggested the Nancy Reagan approach ("just say no") for judges. While there certainly are some safe topics for judges to discuss, there are also some that might best be left alone. And, perhaps it is not "where" the statements appear (social media), but that they appear anywhere, or were made at all?

Last November, the San Antonio Police posted regarding the arrest of a suspect in the killing of a police officer. Seeing that announcement and photo of the suspect, County Judge James Oakley "posted to the SAPD Facebook page the comment, “Time for a tree and a rope . . ..” The comment also appeared, through the functions of Facebook apparently, on the Judge's "own Facebook page."  An important lesson about social media is that information can spread and propagate. A posting in one place can quickly appear in others. 

Once the image of that post began to appear in the media, the Judge removed the post "and issued a public apology." Eighteen complaints were filed against the judge with the Commission, in part perhaps due to the publication of the image in various media. There were multiple issues expressed, including "vigilante justice," "apparent disregard for due process," and "racial insensitivity." 

The Judge defended his (by then) deleted comment, asserting that he intended no racial or gender reference, and merely reflected "personal feelings that this senseless murder of a police officer should qualify for the death penalty." He also said that the reference to a rope was derived from a "humorous advertising campaign for Pace Picante Sauce from the 1980s." Frankly, I had forgotten that old ad until reading this story. 

The Commission cited Canon 4A(1) of the Texas Code of Judicial Conduct:
a judge “shall conduct all of the judge’s extracurricular activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.” 
It concluded that the Facebook posting "cast reasonable doubt on (Judge Oakley's) capacity to act impartially in the performance of his duties, in violation of Canon 4A(1)." It also found fault based upon a provision in the state constitution that forbids conduct that “casts public discredit upon the judiciary or administration of justice.”

The Commission concluded that a public reprimand was justified for Judge Oakley, and that he should attend the "30-hour educational training program for new judges." The Commission noted that Judge Oakley had not previously undertaken that training, despite his tenure. It appears that he had been on the bench for about two years at the time of his Facebook posting, according to Wikipedia (a seemingly respected source of information relied upon by courts, see The Internet, Evidence, and Defamation).

In addition, the Commission ordered Judge Oakley to have "four (4) hours of instruction in the area of racial sensitivity with a mentor." The opinions does not specify, but presumably that would be mentoring by another Texas judge. 

This is not the first time that a judge has experienced scrutiny over the use of Facebook. An interesting instance was discussed in Will you be my Friend. More recently, Judges and Facebook have been examined again, and the Florida Third District Court (in Herrsein v. USAA, Case no. 3D17-1421, August 23, 2017) has seemingly softened earlier prohibitions on judicial face-booking, as discussed recently in Social Media and Judges. The implication of that decision may be a wider Florida judicial participation in social media generally, and Facebook specifically. 

It should be remembered, however, that the Herrsein decision is specific to the decision the court was called upon to make. That is, whether the relationship of "friend" in the colloquialism of social media is meaningful in determination of disqualification or recusal under the Code of Judicial Conduct. Herrsein may be seen by some as not addressing whether a judge may (or should) engage on Facebook, or have "friends" on Facebook, but only addressing specifically whether a judge should or must be disqualified based upon such connections.

With the previous admonitions regarding Facebook participation, published in 2010 by the Florida Judicial Ethics Advisory Committee (JEAC), a great many Florida judges have simply avoided social media generally, and Facebook specifically. The Florida JEAC conclusions are not shared universally in other states, and thus Facebook participation by judges varies state to state. With the seeming relaxation on Florida judge's social media participation, lessons from other states may be of increasing interest.   

Some contend that Judge Oakley's comments and reprimand are not a social media issue however. They remind us that it is the nature of his comment, and not the platform that are noteworthy. Consider that many online publishers offer readers an opportunity to comment on news stories. Such a comment could as easily be spread and publicized. We can likely agree that the judge's comments have been no less troublesome if posted in response to the arrest announcement on a local news site?

There is sound logic in concluding that the comment venue (social media versus news site) is less relevant than the comment content. That said, it is possibly harder to identify the comment-maker on a news site, while social media is clearly tied to the person making the statement. A recent case in New York illustrates the challenges of discovering the identity of those who post comments or reviews online. 

There are therefore multiple issues for consideration. Perhaps the critical issue however, is the content of communications. Judges should focus on remaining impartial, and avoiding statements demonstrating bias, or partiality. Following the language of the Code, avoiding comments that could "cast reasonable doubt on the judge’s capacity to act impartially." Perhaps the focus on this content, aside from any distracting analysis of platform or social media, can help us focus on the meaning of the words, and their potential for damage and discredit?


Tuesday, October 10, 2017

The Sleuthing Judge

In Florida, Judges are governed by the Code of Judicial Conduct. This specifically applies to the Florida Judges of Compensation Claims, not because we are part of the judicial branch (we are not), but because the very statute that establishes this agency says so.  See Section 440.442, Fla. Stat. 

The Code is a broad set of prohibitions on activity, and inspirational ideals for judges. The underlying principle of the Code is that
Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law.
In addition to defining what activities are permissible, debatable, and inappropriate, the Code provides guidance on the issue of disqualification. That is, when a judge should not preside over a case. In Florida, this is in Canon 3E:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.
There are then various examples of specific instances in which disqualification is appropriate. These are examples, the Code is clear that disqualification is appropriate in those instances, but is "not limited to" those listed instances. 

Recently, the Tennessee Supreme Court interpreted a similar provision from the Tennessee Code of Judicial Conduct in Holsclaw v. Ivy Nursing Home Inc., No E2016-02178-SC-T10B-CV.

There, a party requested the trial judge to "recuse" from the case. The defendant filed a "motion for recusal of the trial court judge," which was denied. As an aside, anytime a party in Florida workers' compensation seeks relief, a motion is the appropriate vehicle. See Rule 60Q6.115(1), F.A.C. Periodically, an attorney will ask the "what do I do next" question regarding some conflict. It is surprising that so often they do not realize the "next step" most often to seek relief from the trial judge and the vehicle for that is a "motion."


The FLJCC is not a court, see In Re Rules of Workers' Compensation Procedure, 891 So.2d 474 (2004). Therefore, the Judges are not governed by the Rules of Judicial Administration generally. One exception is the disqualification topic, upon which the Rules of Procedure for Workers' Compensation Adjudications have specifically incorporated Fla. R. Jud. Admin. 2.330. See Rule 60Q6.126(1). That rule sets forth procedure for seeking disqualification of a trial judge. Thus, the Code provides for the "when" and "why" of disqualification, and the Rules of Judicial Administration provide the "how."

In Holsclaw, the trial judge denied disqualification. The Tennessee Court of Appeals reversed that decision and ordered the trial judge removed from the case. The Tennessee Supreme Court granted review, and reversed the appellate court, reinstating the trial judge's authority to hear the case. One Justice of the Supreme Court dissented from that decision. It is worthy to note, therefore, that multiple appellate jurists concluded that disqualification was appropriate in this case. Two appellate court judges and one Supreme Court justice concluded that would be the better course.

The plaintiff in Holsclaw alleged the defendant fired her in retaliation. The Supreme Court noted that two trial judges "recused or removed themselves," before the case was assigned to Judge Stanley. This language is somewhat important. Judges "recuse" themselves, and can be "disqualified" by others. When a party seeks to remove a judge from a case, the appropriate motion is a "motion for disqualification," not a "motion for recusal." A technical point to be sure, but worthy of understanding nonetheless. 

Eventually there was a motion filed for plaintiff to be evaluated by a rehabilitation counselor. If the plaintiff had agreed to this request, it would likely have proceeded without a motion. Motions are tools that indicate a dispute exists which requires the intervention of the judge. Usually, when a motion has been filed, one can presume there is a disagreement. 

The plaintiff's opposition was essentially that other evaluations had already been conducted, and that the requested examination would essentially be irrelevant in light of a prior concession that she suffered "a vocational disability." Of note, at least some of the previous evaluations were in a workers' compensation case that was also ongoing between the plaintiff and defendant. That is also not uncommon, for an employee to have both workers' compensation litigation and civil litigation ongoing at the same time. And, the facts and issues sometimes become intertwined. 

Judge Stanley told the parties she was inclined to grant the motion for evaluation. She noted her experience was primarily with "vocational disability experts," and expressed a lack of familiarity with "rehab counselors." She questioned the parties: "Are these dudes even qualified to testify as experts?" And in furtherance of that curiosity, she "called the director of the department at the University of Tennessee" and that professor 
kind of filled me in on what the program, the certification is, what these guys do and don’t do, you know, enough for me to at least conclude that this is the type of certification for a person that I might let testify as an expert.
Specifically not ruling on whether the rehab counselor could be an expert witness, the judge indicated she would order the evaluation. Of note, neither party made any objection after the judge described this phone call to the university. 

Thereafter, the defendant moved to disqualify Judge Stanley, alleging that the trial court “did not constrain itself to consideration of the facts presented by the parties,” “conducted an independent investigation,” and “acquired knowledge from an extra-judicial source.” From this, the defendant argued that the "the trial judge had personal knowledge of disputed evidentiary facts concerning the proceeding.” The judge denied the disqualification motion. 

The Tennessee Appellate Court concluded "the trial judge engaged in an independent investigation that allowed the judge to gain personal knowledge of disputed facts." It concluded that this investigation gave “an appearance of impropriety" and warranted disqualification. A concurring judge stressed that the record did not support "that the trial judge is biased or prejudiced," but that the judges "inquiry" call "could reasonably create the appearance of impropriety.” Notably, one Court of Appeals judge dissented, and would have held the denial of disqualification was appropriate. 

The Tennessee Supreme Court noted from the Code that 
[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,
Notably, this the same standard is in the Florida Code. This, according to the Supreme Court would require recusal or disqualification 
in any proceeding in which “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.
The Supreme Court stressed that this "objective" test is used "because the appearance of bias is just as injurious to the integrity of the courts as actual bias.” 

The Court focused on the "personal knowledge" allegation in support of disqualification, noting that the Court had not previously defined the meaning of "personal knowledge." It elected to adopt a definition enunciated by the Minnesota Supreme Court that “personal knowledge” is 
'knowledge that arises out of a judge’s private, individual connection to particular facts' and not including information that a judge learns 'in the course of her general judicial capacity or as a result of her day-to-day life as a citizen'
Accepting the Minnesota definition, and finding this prohibition a "narrow" one, the Court noted the test is whether “a person of ordinary prudence would have a reasonable basis for questioning [her] impartiality.” Applying that test, the Court concluded that Judge Stanley had no personal connection to the case, and that the "merits of the case (were not) affected at all by the judge’s conduct." It therefore concluded that the trial judge need not be disqualified. 

The Court also considered whether the trial judge's call was "improper ex parte communication or independent investigation" under a second Canon. As the Florida Code does, the Tennessee Code precludes a judge from initiating, permitting, or considering ex parte communications. That is communications "to the judge," but "outside the presence of the parties or their lawyers, concerning a pending or impending matter.” This Canon also says a judge shall "refrain from conducting an independent investigation into the facts of a matter."

The Court concluded that the call to the University was an ex parte communication on a "pending matter." It examined the Code's "exceptions to the prohibition against ex parte communication" and found none apply. The Court also held "that this communication between the trial judge and Dr. Mulkey qualifies as an independent investigation." However, the Court concluded that its conclusion of both ex parte communication and independent investigation did "not end our inquiry."

Essentially, the Court held that beyond a finding of violating the Canons, the Court "must determine whether the trial judge’s impartiality might reasonably be questioned" by “a person of ordinary prudence." The Court noted that 
At all times in the proceedings, the trial judge was open, honest, and forthright about her communication with Dr. Mulkey. At no point did the trial judge discuss the Defendant’s expert specifically with Dr. Mulkey. She did not investigate the Defendant’s proposed expert. She merely ascertained what the CRC program at the University of Tennessee entailed so that she could understand what type of certification
The Court concluded that the judge improperly communicated, ex parte, and improperly investigated, but since she was open and straightforward about that, and limited her investigation, then no "person of ordinary prudence" would "reasonably question" her impartiality. 

Justice Page dissented. He "perceive(d) an appearance of impropriety." Justice Page stressed that “the preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial." And, thus, it appears that Justice Page questions the trial judge's impartiality. 

Either the majority concluded that Justice Page's perception was not "reasonable" or that he is not of "ordinary prudence" in reaching their conclusion that recusal or disqualification was not required. Seemingly, the majority's conclusions might reach similar conclusions regarding the two appellate court judges who concluded that disqualification was appropriate. 

Holsclaw provides some important lessons on disqualification. Primary among them is that interpretation of the Code is based in part on perceptions. This motion was considered by multiple appellate judges and there was not unanimous consensus. Second, despite violating the Code with both improper ex parte communications and investigation, the Tennessee Supreme Court does not view disqualification as required. In fact, the Court seemingly concludes that violating the Code is not necessarily inappropriate. 

Finally, the time required for a case to thus proceed through the appellate process is apparent. When I speak publicly, I am often asked why the legal system takes so long with decisions. Motions are made in trial proceedings, and decisions are made. Appeal on an issue such as this can occur before trial even occurs, and can take months for an appellate court to decide. If a higher court, as here, intervenes, that can mean months more. And, the end result of Holsclaw is that the case now returns to the trial judge for further proceedings. The trial now picks up where it left off for consideration of the disqualification motion by the judge, the appellate court, and the Supreme Court. 

It is therefore likely in the best interests of all parties that trial judges not engage in ex parte communication and not perform independent investigations regarding a case. Although the Tennessee Supreme Court concluded that both were excusable in Holsclaw, an appellate court in another state might not agree. And, it is possible that in some future case a trial judge's supreme court might not even grant review of such a decision. It is probably better advice that judges follow the Code as it is written, and thus avoid the appearance of impropriety, the motion for disqualification, and the delays of appellate review.





Sunday, October 8, 2017

Fraud on Everyone

A reader recently emailed me a link to a news story about fraud. It came without explanation or context, just a link. Perhaps it was inspired by an August Post on "Real" Fraud. But, that story was on my mind when a second fraud story hit the daily headlines. 

The first story from USA Today is Payroll Services Firm Owner Defrauded Small Businesses of $15.8M. Andrea Rudd of Powell, Tennessee plead guilty to tax evasion and both wire and mail fraud. She "took money from small businesses to cover payroll taxes and workers’ compensation insurance that she instead pocketed." The damage to the small business owners is obvious. Their taxes were not paid and they did not have the workers' compensation coverage that they believed they did. 

What may be less obvious to the casual observer is the impact on people who did not personally do business with Ms. Rudd. The people that worked for those defrauded businesses were likely not covered by workers' compensation. For working Americans, workers' compensation is a safety net. Some are critical of the volume of benefits provided, the procedural requirements, and more. But, workers' compensation is there for a huge population of American workers. When insurance premiums are not paid, however, coverage is likely not provided. Ms. Rudd seemingly defrauded more than the small businesses. 

If one of those "small business'" employees had been hurt on the job, they would likely have required medical care. That care would be provided, despite the potential that no one would pay for it monetarily. As I have written, when someone is hurt, the truth is that Someone has to Pay. But that may mean an employer, workers' compensation or health insurance paying monetarily for the treatment, or an employee going without care and paying with lost productivity, lost function, and pain.

Ms. Rudd "was sentenced to serve eight years in federal prison and ordered to pay more than $15 million in restitution."

More recently, Erin and Lean Finan, plead guilty to "mail fraud and money laundering" in a case involving Amazon, reported by Fox News. This suburban couple created false identities, ordered electronics, complained about their quality and received "replacements at no charge." They then sold the replacements to a middleman, who in turn sold them at a mark up to a "New York outfit." Presumably that outfit then resold the goods. 

The Finans "were ordered to repay Amazon $1.2 million, and they face up to 20 years in prison." They have not been sentenced yet, but may well go to jail. 

Just as Ms. Rudd's crimes are actually against more than the "small businesses," the Finan's crimes are against more than Amazon. One of the prosecutors noted that "Consumer fraud is absorbed by all of us through higher retail prices." That makes sense. When people steal someone's identity and open credit accounts, their gains are someone else's loss. Those losses are not absorbed, but are passed on to the rest of us as higher costs. For that reason, identity theft is a crime that most states (not Kansas) prosecute. 

Both the Finans and Ms. Rudd will be ordered to pay restitution. Restitution is a criminal law concept that reclaims monetary damages. Of course, Amazon could have sued the Finans, just as those "small businesses" could have sued Ms. Rudd. But, the criminal justice system provides restitution as a mechanism for recouping such damages in the course of a criminal prosecution. The criminal court orders the repayment of damages. And, both of these cases illustrate that those damages can be extensive. 

The headlines catch restitution stories. A suburban couple ordered to pay $1.2 million, or a local business owner ordered to pay $15 million grab attention. And, that is what headlines are all about, grabbing attention. But, after these restitution orders, and their headlines, do the wrongdoers really have a likelihood of paying those millions of dollars. 

USA Today quotes the U.S. Census Bureau saying that the average U.S. household income in 2014 was $73,298 or $65,751. USA Today does not explain which of these two quoted figures is accurate, or why two numbers are quoted. According to The Indianapolis Star, you would need $46,016 "to have enough money for needs and wants" there. It cautions, however, that the "median income for the city is $42,076." So, the Finans would presumably need $46,016 and yet perhaps they could earn the average, $65,671, leaving a surplus of $19,735. 

And, if they paid all of that surplus toward the $1.2 million in Amazon restitution, the entire debt would be paid in just under 61 years (without any interest of course). When the debt is thus paid, Erin (38) and Leah(37) will be 99 and 98 years old respectively. If Ms. Rudd paid at that $19,735 rate annually, her $15 million in restitution could be paid in only 760 years. By which time, of course, Ms. Rudd (38) will have been dead for several centuries. And, these projections conjecture that these felons will begin making these restitution payments immediately, while they serve prison sentences (to which Ms. Rudd has been sentenced already, and to which the Finans may be). 

These hypothesis are also based on the criminals being able to earn average incomes, and devoting significant portions toward paying restitution. Some would question if either of these are realistic. According to the Center for Economic Policy Research, "An extensive body of research has established that a felony conviction or time in prison makes individuals significantly less employable." And, human nature may suggest that the odds of a felon making such payments over the course of decades is unlikely. 

So, while the restitution figures and facts are good for headlines, are these restitution orders effective? Some will no doubt suggest that they empower the seizure and sale of a person's existing assets. Perhaps the sale of a home, cars, etc. will bring significant funds to contribute to the restitution total, and decrease the balance. But that is not necessarily the case. Assets sometimes do not bring expected value. And, sometimes defendants later ask the courts to reduce restitution, as reportedly a defendant recently did in North Carolina, after the asset sale brought less than expected. 

In the end, the only real recovery may in fact be what is owned by the defendant(s), and what that property can be sold for in its depreciated condition. And, the rest of the loss may just have to be made up for by the rest of us in higher prices for products and services? Maybe when we say Someone has to Pay, that essentially means us.