Sunday, December 30, 2018

New Year 2019

It is an apt time to both reflect on 2018 and focus attention on the coming 2019. It is going to be an interesting year. I profess no prescient ability to predict why, but in my experience every year is interesting, sometimes you just have to look a little harder. Where will 2019 take us? Are we willing to look for the interesting, the important, the compelling?

Should we make resolutions, knowing perhaps we have a propensity to not follow through very consistently? Oscar Wilde was somewhat critical of resolutions, noting: "Good resolutions are simply checks that men draw on a bank where they have no account." Eric Zorn was a bit more encouraging when he said:

"Making resolutions is a cleansing ritual of self-assessment and repentance that demands personal honesty and, ultimately, reinforces humility. Breaking them is part of the cycle."
So perhaps there is value in making them, even knowing we are not necessarily likely to follow through persistently or consistently? In a recent Twitter exchange, a Tweep (someone that tweets) waxed eloquent on the ubiquitous "better shape" goal: "all I know is the gym is full on 1/2, not as much on 2/2, and back to the regulars on 3/2." Well, what does that tell you if you are there on 3/2 to notice that?

Resolutions and our annual New Year focus is about our future. Maybe we should resolve to save more for our retirement? The future is for the young. A few minutes with some actual young people sure does a lot to reassure us that the future may indeed be bright. We need these kids to be focused, successful, and we need their social security contributions even more. In 2014 and 2015 I wrote about the impending failure of our long-promised retirement. It is in the news yet again. Might lots of really successful young people paying lots of taxes perhaps yet support me in my golden years? But I digress.

A key message I try to emphasize with young folks is the challenge of a changing world. The world will continue to change around us. We cannot prevent that, but we can control how we individually react to the change. A large part of reaction, if it is to be positive, lies in understanding the change, our world, and the effects each have in either anchoring us or carrying us forward. Are we to cling to our past or embrace our future?

In appreciating where we are and focusing on our future, we are all aided by knowing our skills, our strengths. I am reminded of an interesting line from The Bourne Identity. In it, amnesia has the lead struggling with not remembering his past, and wondering about his present. Our protagonist struggles with his identity. Finally confronting the evil CIA official, Conklin (Chris Cooper), who has plotted against him, Jason Bourne states his understanding of his purpose: "you sent me to kill Wombosi." Conklin corrects his misperception: "kill Wombosi? We can do that any time we want. I can send Nikki to do that." Nikki (Julia Stiles) is an office worker in the Paris safe house from which Bourne has worked. I have always found the offhand Conklin denigration of Nikki in that line troubling. She should have told him he was a misogynist tool.

In this exchange, the struggling Bourne accepts that killing is not actually the skill that he brings to the table. The skill upon which he had placed primacy turned out not to be that for which others valued him. Is it possible that we each may similarly hold views of ourselves and our value that others do not share? Might our contribution to the communities in which we find ourselves (geographically and theoretically) be more than what we individually perceive?

The professional world involves exchanges, an economic force in which some task or knowledge that one possesses is of value to someone else. There is an exchange of some monetary reward for that corresponding value. It is perpetually an imperfect market in which determining value is a struggle both for appreciating our own skills and for determining what is appropriate for us to pay for the skills of others. We may strive to maximize our reward, but key to that is understanding what value we bring to the exchange. How it is valued, monetized (years ago, Forbes published an overview of how to ask for a raise. It is enlightening), is another factor, but first what is that value we bring?

How do we demonstrate worth, achieve our best, if we do not understand what skill(s) it is we bring to the equation. For example, perhaps anyone could be a judge (even Nikki? I feel sorry for Nikki), but a particular judge "performs the job with _________." The same sentence could be repeated substituting your occupation for "judge." The point is not the title, the task, or the vocation, but how do you deliver that? What do you do, in the performance of the day-to-day that brings real value, value that makes you special?

I think that bit of retrospection is worthy as we focus on the next year. How will you deliver value? But, as important is that you are not just a supplier of services, but just as persistently a consumer. Do you suppose that those with whom you work understand and appreciate what value they bring to the economic and professional relationship with you? Here is an easier question, have you taken the time to tell them: "_________ (insert name), have I ever told you that I respect and appreciate the way you _________?" If it is "patience" you find valuable, why not say so, and compliment it? The same might be true for any number of thoughts: persistence, promptness, professionalism, practicality (oh, there are so many adjectives).

For my 2019 New Year, I am going to strive to be conscious of what I bring to my interactions this year. I will try to appreciate what value I bring and how. But, I am also going to be more descriptive in my praise of others. I am going to strive to tell people more than "thank you" or "you are valued," and to add thereto what I perceive as their strengths, contributions, and value. I am hopeful that this will help them better understand their value in the exchange. Perhaps other's better understanding of that value, that skill, that attribute will encourage and motivate them. At a minimum, perhaps it will help them know they are really valued and appreciated.

Perhaps that resolution (and others) may be minimally valuable if you believe the Wilde approach. But, even if it is as Zorn suggests, there is potential for my growth even if this resolution ends in failure. In the end, I will have tried. And, best case, perhaps I grow and encourage others to grow around me. Happy New Year 2019. I hope that the year is all that you wish it to be.

Thursday, December 27, 2018

Proving Appellate Jurisdiction

Recently, the discussion of timeliness was addressed in Time is Critical. For some reason, decisions regarding timeliness continue to make the news. In November, The Court of Appeals of North Carolina published Bradley v. Cumberland County and Key Risk, Case COA18-334 (2018). The outcome, described in detail in this 11 page decisions, is dismissal of the appeal. 

Essentially, there was a dispute regarding workers' compensation benefits. A trial was held by a Deputy Commissioner, which is similar to the Florida Judge of Compensation Claims. A key difference is that the orders of a Deputy Commissioner are typically appealed to a state's "commission" or "commissioners" or "board." It is an administrative review process prior to reaching a constitutional court. North Carolina is in that model, and the trial judge's decision awarded the injured worker benefits. 

The employer appealed that decision, which was reviewed by the "Full Commission." The Commission reversed part of the trial judge's order and affirmed part. Dissatisfied with that outcome, the injured worker sought review by The Court of Appeals. To this point, there is nothing exceptional about the case. That is, trial decisions and Commission reviews occur daily around the country (in Florida, appeals to the First District are the first appellate review for JCC decisions; In 2017 the First District handled 206 appellate filings regarding workers' compensation, about 4 per week). 

The process engaged in North Carolina raised an issue though. The injured worker's attorney "printed the notice of appeal on his firm’s letterhead and addressed the notice to Commissioner Phillip A. Baddour, III of the Industrial Commission," and requested acknowledgement. The Court noted that "the notice indicated that it was filed with the Industrial Commission 'via Electronic Filing Portal.'” However, there was no indicia that the "Industrial Commission received Plaintiff’s notice of appeal," and if received when. This is a "filing" issue. The notice also "failed to state the court to which appeal was being taken." This is also a second "filing" issue. 

Furthermore, the notice included a statement saying a copy was provided to the employer's attorney: “cc via email: Dayle Flammia, Counsel for Defendants." However, the notice did not " include a certificate of service in the record on appeal demonstrating how and when Plaintiff served opposing counsel with a copy of the notice of appeal." That is a "service" issue, apparently an absence of the "when" and to what particular address. 

The Court of Appeals explained that a court must have "jurisdiction," that is authority, in order hear a case. And that authority is dependent upon jurisdiction being “properly invoked by an interested party.” That invoking, it noted, is described in "both statute and our Rules of Appellate Procedure." The compliance with those procedures "is the linchpin that connects the appellate division with the trial division and confers upon the appellate court the authority to act in a particular case.” And when that procedure is not followed, the Court does not have authority and "cannot review the case on the merits." The failure to follow the rules, and document that process, is fatal to the review. 

The Court explained the North Carolina Workers’ Compensation Act provides a right to appeal Industrial Commission cases, and specifically references the "rules of appellate procedure." Those rules require the party filing the appeal to "demonstrate timely filing of a notice of appeal by including in the appellate record some form of acknowledgement from the Industrial Commission stating when the Commission received the notice of appeal." Asking for acknowledgement is not sufficient, the party seeking review must obtain and provide that acknowledgement. 

The case was noteworthy because it addresses email service. The Court noted that "generally, service by email is not allowed." But, "parties can serve papers by email in one limited instance: for documents filed electronically to the North Carolina Appellate Courts’ electronic-filing site." And, as with workers' compensation appeals in Florida ("Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days of the date the lower tribunal sends to the parties the order to be reviewed"), the notice of appeal in North Carolina is filed with the "the court that entered judgment," not with the Court of Appeals.

Unlike Florida, North Carolina has not authorized electronic service of documents except when filing with the appellate court. The document in this case was not filed with the appellate court, but with the Commission. Therefore, the use of electronic mail for service of a notice of appeal is not appropriate in North Carolina. The use of email in that setting "is a technical violation of Rule 26 of the Appellate Rules." However, that "technical error" might be overlooked if "all parties clearly received notice and the error did not materially impede review." In this instance, there was no argument that the employer did not receive "actual notice" and therefore the use of email did not warrant dismissal of the appeal. 

The Court was able to similarly overlook the certificate issue. It noted that the procedural rules "require proof of service in the form of a certificate of service." The failure to include one "violates Appellate Rule 3," and that is "jurisdictional." However, as the failure in this case did not "constitute a 'substantial or gross violation of the Appellate Rules,' it does not necessitate dismissal." These two conclusions illustrate a oft-cited maxim that cases, generally, should be decided on their merits. Technical requirements of the law are frequently overlooked when the result is not demonstrably prejudicial to another party. 

In a third example, the Court noted that the injured worker "neglected to designate in the notice of appeal the court to which the case was being appealed." That was noted as another technical error, but the Court noted "a violation of this sort does not necessarily warrant dismissal of the appeal." While such an error could be fatal, the Court concluded that an appeal from the North Carolina Workers' Compensation Commission can only be in the Court of Appeals. As that is the only appellate path, the failure to so state in the notice did not result in the employer in this case being misled. 

Therefore, of the four errors discussed, three (service by email, omission of the certificate of service, and failure "to designate the court to which appeal was being taken") were deemed not fatal to the appeal. However, the fourth error was. The Court noted "there is no indication that Plaintiff’s notice of appeal was timely filed." The Court explained the "notice of appeal does not bear a time stamp, file stamp, or any other designation that the Industrial Commission received the notice of appeal." Though the attorney requested an acknowledgement when the notice was filed, the injured worker did not prove receipt. 

The Court stated it would not "assume the notice of appeal was timely filed." Unlike the other errors, which could result in dismissal only if they had caused prejudice, the Court concluded that the timeliness issue was more absolute. As there was no proof of the timely filing, the Court concluded that the injured worker had not satisfied his burden of demonstrating The Court of Appeals jurisdiction. It was incumbent on the party seeking review to both follow rules and to demonstrate or prove having done so. 

Similarly, the Florida First District has concluded that its jurisdiction may be invoked only by filing a notice of appeal within "30 days of the date the Judge of Compensation Claims mailed the final order to the parties." If the notice is not timely filed, then the "Court lacks jurisdiction and must dismiss the appeal." Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007). There, the Court rejected an argument that this time (30 days) should begin to run when "counsel received the order," because that would be unworkable because the "courts would have no way of confirming when a party received an order." Thus, Troche reinforces the similarity of jurisdiction. But, it also illustrates the logic behind the North Carolina Court dismissal. That is, knowing when an act occurred. 

In Florida, the notice of appeal would be filed with the "lower tribunal" ("Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days"; Rule 9.180(b)(3)). And, unlike the North Carolina Rules, the Rules of Procedure for Workers' Compensation Adjudication require all filings (except by parties that are unrepresented) to be electronically filed. Rule 60Q6.108(1). When documents are electronically filed in the Florida OJCC, they are imprinted with a date and time stamp such as:


And, if documents are delivered by hand or the U.S. Mail, they are date-stamped before they are uploaded to the case docket in the clerk's office, such as:


Thus, the timeliness may be determined to some extent (when the document was uploaded in example one, but only when someone actually date stamps it in example two). However, in the event one (unrepresented) would send a notice of appeal in hard-copy, instead of electronically, there may be value in using Certified Mail or some other method that affords tracking of delivery (such as a parcel company).

There is value in being able to prove when a notice of appeal was filed. The Court will look to that party to demonstrate the Court's jurisdiction (or "authority"), which is dependent upon that timely-filed notice. In the Florida system, anyone filing a paper document in such circumstances should monitor the case docket to discern when the document was uploaded and more importantly what the date stamp reflects. And, in the event some error appears to occur, the party should thereafter promptly file any evidence to the contrary (certified mail or parcel company indication of OJCC receipt on some date prior to the date stamped on the uploaded document).

The Bradley analysis is a cautionary tale. Multiple errors are illustrated, and despite several of them the Court was able to be forgiving and lenient. Those technical errors might nonetheless have been fatal in different circumstances (actual prejudice to the employer). But, the appellant was luck regarding three errors. The cautionary tale is that rules should be followed, thoroughness should be paramount. A party seeking review of a decision should rely on competence and completeness rather than luck and lack of prejudice. The rules are a critical path to success, which the appellant learned the hard way in Bradley.  


Tuesday, December 25, 2018

Stress and the Workplace

The Law Prof Blog recently provided a review of a law review article published by Lewis & Clark Law Review: Compensating Injury and Disease Caused by the "Sedentary Workplace." The authors advocate an expansion of workers' compensation to provide coverage for a variety of medical issues that are not "injury by accident" (the original intent of workers' compensation), nor even "occupational diseases" (one of the worker benefits added to various systems which some allege altered the "grand bargain" with no corresponding benefit for employers). 

The advocates encourage employer intervention in the general wellness of employees upon the premise that workplaces' sedentary nature is notably more prevalent today. Reading that post reminded me of a recent article published by the British Broadcasting Company (BBC): How your Workplace is Killing You.

The BBC recites a variety of instances in which workers died. Each death, in some degree, was attributed to "workplace stress," overwork, or shock resulting from some notable change in the workplace. In addition, it cites a European study concluding that 275 "million working days lost annually from absenteeism 'are stress related.'” Stress, it seems, is a pernicious process. 

This perhaps merges with the hypothesis of the Lewis & Clark article: If Sitting is the New Smoking, What does this Mean for Employers? A Look at Potential Workers’ Compensation Claims in the Sedentary Workplace, 22 Lewis & Clark Law Review 965 (2018), equating lack of activity with smoking. The BBC illustrates the threat of stress, noting "an analysis of almost 300 studies found that harmful workplace practices were as bad for mortality, and as likely to lead to a physician-diagnosed illness, as second-hand smoke." Thus, to the extent sitting is the new smoking, one might wonder if simultaneously stress is the new cancer? 

From whence does the stress come? The BBC cites a litany of "long working hours, work-family conflict, economic insecurity arising from job losses, not having regular or predictable work hours, an absence of job control and, in the US, not having health insurance." As an aside, that last one makes you wonder. There was a time that everyone in the US was mandated to have health insurance. Obamacare Facts says this was true from 2014 through 2018. According to the Kaiser Family Foundation, some 28 million remained uninsured in the midst of that mandate. 

Returning to the BBC and stress, some contend that "the workplace has become an important public health problem." It notes that "chronic disease" kills people, and that "chronic disease comes from stress and the unhealthy behaviors such as smoking, drinking, taking drugs, and overeating that stress induces." From there it summarizes that "numerous surveys show that the workplace is a leading cause of stress, and it is thus one important cause of the health care crisis." 

The BBC author contends that "workplace stress costs the American economy some $300bn" annually, that "harmful management practices" lead to 120,000 "deaths annually in the US," and that stress causes "extra health-care costs" of $190bn annually. From these contentions, it concludes that the "workplace" is the "fifth leading cause of death, worse than kidney disease or Alzheimer’s." 

The good news, according to the BBC, is that this can all be fixed reasonably easily. It contends that, quite simply, "work practices that are bad for people don’t even help the company." Thus, stress is not necessary. The easy answer is simply "giving people more control over how and when they do their jobs." This will purportedly decrease stress, lead to happier and therefore healthier employees. These employees will purportedly be more proficient, more productive, and less likely to quit. 

The BBC author also advocates that employers should not cut jobs. Decreasing or downsizing creates stress. Furthermore, the economy should not encourage the “gig economy.” These gigs lead similarly to "economic insecurity." Furthermore, employers scheduling employees to work only when they "will be needed means that workers often face fluctuating incomes and don’t have much ability to arrange for coping with family responsibilities." It is more logical, in the author's perspective, for companies to schedule employees with the focus on employee expectations and needs, and ignore whether those employees are actually needed for work. If sales or demand decreases, the employers should nonetheless keep all staff working in this perspective. 

The BBC encourages that business, that is workplaces, should balance the needs of "shareholders, customers, employees and the community." This, the author refers to as “stakeholder capitalism.” The author laments that "stakeholder capitalism," once prevalent, has evolved (or devolved) to a focus in which "shareholder interests dominate." The focus of the business it seems has become singularly about the purpose of starting a business, to make money for the owner(s). Instead, the author advocates for a return to a spirit of "stewardship" in employer leadership. The author cites a variety, though seeming minority, of businesses in which this broader "stewardship" is exhibited. 

How do these implement a diminished stress? Some examples are:
People get paid time off and are expected to use it.
Managers don’t send e-mails or texts at all hours.
People work, go home and have time to relax and refresh.
Organizations offer accommodations so that people can have both a job and a family life.
People are treated like adults and have control over what they do and how they do it
(People are) not micromanaged. 
The World Health Organization (WHO) has also addressed stress in the workplace. It provides analysis of what is work stress. It proceeds to define a healthy workplace conscious of the impact of stress. The BBC, it seems, is not alone in its call for Utopian environs.  

The BBC author contends that employers, and industry as a whole, are financially incentivized to decrease stress (figures above); that there is value in assuring "employees are as healthy as possible." He admires companies that provide health insurance and promote lifestyle balance. The author advocates that "people need to choose their employer not just for salary and promotion opportunities, but on the basis of whether the job will be good for their psychological and physical health." That is, essentially, that employees should seek employment that minimizes their stress, balances their life, and affords them the benefit they seek. This emphasis on the individual and making choices seems at odds with the article's theme. 

He concludes that profit should not be the only goal of business. Instead, business' success should be measured in the "health of their workforce." In a holistic and socialist (or even communistic) spirit, business should be about the workers in his perspective. And, since he perceives that business is not able to see the obvious benefits he recognizes and espouses, "governments . . . need to focus on the workplace." The workplace causes stress, and "workplace stress is clearly making people sick" unnecessarily. Therefore, he advocates it is time for government to step in and remove the stress. 

This blog recently focused momentarily upon the monumental task of making American workplaces safe, a task upon which the government focused with the passage of the Occupational Safety and Health Act in 1970. The mandate handed to the Occupational Safety and Health Administration (OSHA) is responsible for a vast volume of workplace definitions, rules, and regulations. According to its own data, OSHA inspects 39,000 workplaces annually. The United States Census Bureau reports that there are 6,795,201 workplaces (in 2015). OSHA is inspecting about 6/10ths of one percent (.573%) of workplaces annually. Represented another way, it would take OSHA about 174 years to inspect all of the workplaces in America. In short OSHA has not come close to fulfilling its present mandate. 

And, by what standard would it define and enforce stress standards? OSHA has established limits on "safe exposure limits" regarding a variety of chemicals in the workplace, discussed in a Princeton post on January 2017. These may be "permissible exposure limits" (PEL), "recommended exposure limits" (REL), or "threshold limit values" (TLV). The PEL is a "safe level of exposure." REL are more "guidelines," than rules, and focus on exposure for "workers over the course of their working life." TLV are similarly guidelines, used as supplemental information "not as a freestanding exposure limit." What would be the PEL for stress. Would testing be sporadic and anecdotal (like blood pressure or blood sugar that can fluctuate throughout a day)?

In Florida, the effects of those federal standards have been discussed in various appellate decisions. For example whether “failure to provide a safe work place or to follow OSHA guidelines does not constitute an intentional tort.” Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986). The definitions promulgated by OSHA have been relied upon by Courts. Fossett v. Southeast Toyota Distributors, LLC, 60 So. 3d 1155 (Fla. 1st DCA 2011). Those definition's relevance has also been questioned. Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Fla. 4th DCA 1988)("what possible relevance could the OSHA definition of employer have?"). 

The safety regulations promulgated by OSHA have been applied to reduce benefits due an injured worker. McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177 (Fla. 1st DCA 1982). Would the fact that a worker was exposed only to some "safe" or "recommended" level of some substance preclude the award of state workers' compensation benefits for resulting injury? That seems unlikely. OSHA compliance is not mentioned in the cases often cited as controlling occupational disease, see Lake v. Irwin Yacht & Marine Corp., 398 So. 2d 902, 904 (Fla. 1st DCA 1981). 

The defining and enforcement of stress standards might well be a morass, and potentially of limited efficacy and enforcement. 

Is it practical to define and measure stress? If one accepts the BBC author's conclusion that conflicts between work and home commitments cause stress, is it demonstrable that work is more responsible for that conflict than is home? Is it rational to suggest that government "focus on the workplace" as regards stress, in some effort to ameliorate or eliminate stress from the workplace? If so, in light of the challenges OSHA has already illuminated, what volume of researchers and writers will be required to define and draft such regulation? How many additional OSHA inspectors will be required to enforce them? Will that pull resources from the existing OSHA mission that is, at least according to some, as yet unfulfilled regarding safety? 

Or, is this call for government intervention in the experience of stress unfounded? Perhaps it is not practical to have a Utopian and stress-free world, at work or otherwise? Is the interest of business focused on the owner/shareholder, or is "stakeholder capitalism," and an additional focus on the community preferable? Left to the marketplace, there seem many obstacles to employer recognition and alleviation of stress. Is it thus left to each of us, as the author suggests, to make choices for ourselves regarding what stress to tolerate and what to avoid? 

Is the premise sound? Is workplace stress killing us all? Or, is stress itself killing us all, regardless of whether that comes from work, home, family, or otherwise? Admitting that workers' compensation is a socialistic solution to the perils of work injury, is anyone ready to add the challenges of stress to that solution? Certainly, any malady might become workers' compensation in such a context (I would not have caught cold had I been better rested; I would have been better rested but for work; thus workers' compensation to cover my cold and missed work). To what extent would this advocated expansion stretch?

Shall government step in and save us all from stress? Too many today do not recall the fall of communism and the spectacular historical failures of socialism. Is the "workers' paradise" less stressful? Are there lessons for younger generations to be learned today from Venezuela, and its embrace of a controlled economy for the benefit of the people (who have been fleeing for all of 2018)? Does the past success of government, government ownership, or government control inspire confidence that it is the solution? It is interesting to contemplate, and it stresses me out.


Sunday, December 23, 2018

Is Pain Surmountable?

There has been plenty written about the dangers of Opioids. I have written repeatedly about the challenges Opioid use has affected. Florida, and much of America, is experiencing far too many Opioid overdoses and deaths. And, some of the patients are repeat customers. There have been reports of patients saved repeatedly from overdose, some needing help more than once in a day (Boynton Beach, 2017), another needed reviving twice in a 12 hour period (the first required hospitalization, Flagler County, 2018). 

Jacksonville News 4 reports that city is spending $15,000 a month ($180,000 annually) purchasing the Narcan it uses for such events. The population of Jacksonville is about 1.5 million, the population of Florida about 22 million. In a non-scientific thumbnail, using Jacksonville's estimate and its 7% of the state's population, the Narcan expense might be as high as $2.6 million a year statewide. overdose is expensive in impact on lives and financially. 

I was somewhat surprised recently to hear a radio host decry the efforts of state leadership to combat the problem. He criticized the recent limitation on prescriptions and excoriated the attorney general's lawsuit against opioid manufacturers. His polestar was essentially that any and all decisions about treatment should be between the doctor and patient. Limits on pain pills are anathema to him. One statement was essentially that government should get out of the way of physicians. 

The radio host is not alone. There are various critics of constraining pain medication access. And, there are some tragic outcomes. A Vermont man committed suicide when denied pain medication. Some contend "millions of patients who are dependent on painkillers are being abandoned by the medical system." Last spring the Washington Post labelled this Unintended Consequences. That article features a patient driving 367 miles monthly to obtain "an opioid prescription no doctor nearby would write." Is there room to discuss whether that patient experience is because that prescription is itself inappropriate, or whether regulations or prosecutorial fear are precluding an otherwise appropriate prescription?

Coincidentally, a psychiatrist recently penned an opinion piece published by Florida Politics that took a similar tone regarding drugs used to treat opioid addiction. He asserts that there is a process "systematically denying physicians the option of offering patients an FDA-approved and widely accepted opioid addiction medication." The article stresses that this limitation exists despite "several (alternative medications) that are currently in use and are considered effective." There is no criticism of the one that is approved, but the doctor stresses that "different patients react differently to different medications," suggesting that perhaps other medications might be better suited to a particular patient's needs.

Thus, some want government out of the pain medication regulatory process. Others want government out of the process of treating those who have become dependent on those medications. There are critics, it seems, in all directions. And in the midst, people continue to have pain, and too many are dying. 

In the midst of considering these recent pain stories, a WorkersCompensation.com story caught my attention: California Startup Wins FDA Pain Device Challenge. This documents a contest directed at the "FDA's ongoing commitment to address the opioid crisis." The Food and Drug Administration (FDA) effort: 
"was intended to spur the development of medical devices, including digital health technologies and diagnostic tests, that could provide new solutions to detecting, treating and preventing addiction, addressing diversion and treating pain" 
The contest attracted 250 entrants. Submitted solutions included medication dispensers to control dosage, virtual reality, magnetic stimulation, overdose detection, and more. Eight were selected for recognition. This is out-of-the-box thinking to address a clear issue. The fact is pain exists. If you doubt it, try it (most will not want to try it, empathy is better). And there is support that pain can become chronic, that our bodies can adjust to (adapt to) modalities like opioids, thus perhaps leading to increased dosages of pills. It is a conundrum to be sure. 

But solutions are somewhat elusive. A colleague recently sent me an article from the Associated Press (AP) regarding a South Carolina man seeking pain relief. He was prescribed a "medical device" that "wouldn’t fix the nerve damage in his mangled right arm," but "would cloak his pain, making him 'good as new.'” It is a story of alternatives, promise, and ultimately failure.

Instead of miraculous relief, this patient today says he is "a prisoner in his own bed, barely able to get to the bathroom by himself." The device was a "spinal-cord stimulator," and the Associated Press claims "medical device companies and doctors have touted" them "for years" as "a panacea for millions of patients suffering from a wide range of pain disorders." It claims that they are "one of the fastest-growing products in the $400 billion medical device industry." 

The AP says that the FDA tracks patient complaints about "4,000 types of devices." Of those, these stimulators "account for the third-highest number of medical device injury reports," amounting to "80,000 incidents flagged since 2008" (the last ten years). That is a small percentage, however, as "some 60,000 are implanted annually." If that rate has been consistent since 2008, that is about 600,000 of the devices implanted and the 80,000 complaints amounts to about 13%. It is unlikely each of those are as serious as the example reported by the AP. Is that an acceptable rate of discontent?

The AP contends there are broader issues with the FDA complaint and regulatory processes, including: 
Devices are rarely pulled from the market, even when major problems emerge. 
(FDA pushes) devices through an abbreviated approval process, then responds slowly when it comes to forcing companies to correct sometimes life-threatening products. 
Proponents, however, claim that new devices are safe and that the approval process is appropriate. Critics complain about the volume of dissatisfied, and sometimes more profoundly affected, patients. It is clearly an area in which there is disagreement and various perspectives. Should that be a concern as various companies race to deliver new options to those fighting pain? 

Another idea is revising medication recipes to achieve pain relief without addiction. The news has been focused recently on one, "called AT-121." It "successfully relieved pain in rhesus monkeys without resulting in harmful side effects or causing the monkeys to become addicted." And it is not alone. Another touted by the news is NFEPP, which has shown to have "dampened pain responses." And, there are more. Many showing promise, but none yet "the" solution. Perhaps that thinking, that there is one be-all and end-all is fallacious? Maybe such a "the" solution mind set is an unattainable goal?

These news reports suggest that many are working on some solution to ameliorate pain. Those solutions may include new chemical recipes or new devices. The consensus is clear, pain must be addressed, without causing harm in the process.

It is a major issue for the workers' compensation industry, where injuries and pain are fundamental, daily, and too often debilitating. But it is, of course, a broader issue. It is complicated by the simple fact that each of us perceives and reacts to pain in our own way. We have similarities certainly in our biology and neurology, but we are each of us unique, at least somewhat. Thus, the astonishing spectrum of suggested tools to manage pain. Note for example the various forms that opioids are marketed under (20 main types, 40 name brand combinations, and more generics according to RehabCenter.net). Even within a subset of treatment alternative, opioids, there is great variety and diversity. 

The end of this discussion is troubling. First, there is a reality that people experience pain. Patients were led to opiods in the 1990s, doctors embraced opioids (some feel foolishly), there was hope, belief, and unrequited trust. That approach ended in disappointment, overdose, and death for too many. The Cato Institute reported last month that deaths continue to rise despite the recent recognition and efforts. 70,000 Americans died from overdose in 2017. How many more were close, saved by some fortuitous delivery of Narcan of similar miracle?

The medical community is awakened to the need for alternatives, and the news of those efforts is encouraging. But some of those remain hopes for the future while we are cautioned that others may be exchanging one problem or side effect for another, as illustrated by the stimulator news above. Doubtlessly, time will bring alternatives and progress. However, there are people who are in need of relief today. 

The sense of immediacy cannot be ignored. Patients, families, businesses, and communities need solutions. Solutions that provide a measure of pain relief and which do not present an untoward level of risk for malfunction, addiction, or other complication. That there is ongoing effort and even progress may be of little solace to those with chronic, debilitating, pain today. As we focus on the new start of 2019, it is time for a redoubled effort to find and implement relief that is compassionate, effective, and safe. This is not an insurmountable challenge, unless we let ourselves believe it is. 

Thursday, December 20, 2018

National Disasters and Planning Ahead

We near the end of 2018. It is time for you to consider resolutions for 2019, and this post is a suggestion. Recent months have brought cascading news regarding disasters. From eastern U.S. hurricanes to wild fires in the west. These events are devastating, and they share the commonality of preparedness. 

Hurricane Michael made landfall on October 10, 2018 as a strong category 4 hurricane. Michael has earned a place in history, one of the "four most-intense to hit the mainland United States since records began in 1851," according to the Washington Post. Ongoing analysis of the data collected during the storm may well result in it eventually being re-characterized as a Category 5. 

The Post notes that no one "would be surprised by such an upgrade." It recounts that some describe the Florida damage as similar "to the effect of a nuclear bomb." My personal observations there are similar. The Post paints a picture of changing building codes, and constrained development. It notes that some areas suffered extreme damage and others benefited from barrier islands and natural dune beaches. 

After a hurricane, it is common in this part of the world to hear "at least with a hurricane there is warning." But, notably, Michael made landfall "just three days after it was considered Tropical Depression 14 down near the Yucatan." The storm strengthened considerably in the 24 hours just before landfall; there was minimal warning of Michael, and almost no warning of a major hurricane. Despite the illusion of warning, the reality may provide little time. The Post also posits that " Michael should remind coastal residents that “you can always be hit by a Category 4 or 5 hurricane.” 

Michael is responsible for the deaths of 45 people, "at least 35 in Florida" according to one news source. Following the 2017 hurricane impact in Puerto Rico, there are those who advocate more inclusive calculations for measuring such impacts, but 45 is the figure currently being used in the press. There is no telling what number may be the ultimate conclusion by this time next year. 

Across the country, fires recently started in California. Wild fires have been in the news repeatedly there in recent years. Two major fires have been in the news recently, the "Camp fire" and the "Woolsey fire." There is conjecture that electrical equipment may have started the Camp fire, according to CBS News. By November 13, the Camp fire was responsible for 84 deaths making it "the deadliest in state history," according to ABC News. The total may yet increase.

There was not much warning for Michael, exacerbated by the way that storm strengthened as it approached land. Many concluded to ride out the storm, many others evacuated at the last moment as the truth became too clear. Be that as it may, there was less warning still for the wildfire victims. 

Fortunately, there is a great deal of advice out there for making a disaster plan. California has a checklist of things to think about. For those who prefer watching advice, there are Youtube videos also. Consumer Reports provides advice on documenting your home and possessions. Think ahead about fuel, prescriptions, non-perishable foods (a great excuse to eat something not-so-adult, like SpaghettiOs; and what is more non-perishable than the Twinkie?), and pets. There is so much to think about; it clearly makes sense to think about your potentials and your plans before that evacuation order, or even merely an evacuation suggestion, comes. 

After Michael, much of the news stories recounted the efforts of search and rescue (SAR). Similar stories came in later in the midst of the California fires. These intrepid folks trudged door-to-door, knocking, listening, and searching. Each approach to a structure or remnant was undoubtedly dreadful and each door marked "clear" was a relief. One of the best tips I discerned from the links above is that you should put a sign in your front window when you leave that says "evacuated." When the SAR get to your home, they can pass right by knowing that the house is clear. The time you save them could literally save someone else's life. 

Know what resources are there for you in advance. Floridadisaster.org has lots of resources and ideas for before, and phenomenal information and updates after. Preparation is not a "wildfire" or "hurricane" "thing," not a "California" or "Florida" "thing." Preparation makes sense wherever you are. Knowing the potential for disaster (storm, fire, earthquake, blizzard) makes sense. Planning your reaction and personal/family recovery makes sense. It also does not hurt that this country is full of people that will not hesitate a moment to lend you a hand. I described that in more detail years ago in Because We Need It, They Will Come

There is some comfort in their presence. There is relief in knowing that help will come. But, you have to remember that in the first instance it is all on you. Many advise you to be prepared to take care of your needs for at least 48-72 hours post-event. Some will not be aided even that quickly; there are many to help and there is much to do post-event. You have to think it through, make your plan, get yourself out, and take care of you and yours. At the outset, you are in large part on your own and dependent upon your preparedness and judgment. I have heard many a Floridian lament their failure to listen to warnings and evacuate. 

When you get out take a moment to list yourself with the Red Cross. Did you know that they have a "Safe and Well" site? You can fill in a quick form and let people know you are safe somewhere. From miles away, those you may not think to reach will perhaps be relieved to find you listed as "Safe and Well."

And finally, watch for frauds whether you are recovering from disaster or seeking to help others. Unfortunately, there are a few bad apples out there that seek personal gain from the pain and tragedy of others. NBC affiliate KCRA3 recently reported on a woman scamming the community, claiming to be the wife of a California firefighter. If you are considering helping, know your beneficiary. If you do not know them personally, check their status through a tool like CharityCheck101. The aid and assistance is always needed, always welcome, and so very gracious. But, don't let a scammer divert resources from those in need. 

Have you made a disaster plan for your work and home? If you have not, it is past time. Think it through when things are calm. Then you will not have to when things turn unexpectedly frantic. Resolve now to have a plan in 2019. Make it, write it down, and be ready. Here's hoping you never need it, but make it anyway (You can occasionally eat the Twinkies anyway. You know, in the spirit of practicing and keeping supplies up to date?).

Tuesday, December 18, 2018

Louisiana's Medical Claim Process Upheld

In October 2018 the Louisiana First Circuit Court of Appeal rendered its decision in Barber v. Louisiana Workforce Commission, et. al. (this has not been released for publication yet, and is therefore subject potentially to change). This followed a trial court permanent injunction that precluded the Commission and its agents "from applying and/ or enforcing certain statutory provisions and regulations regarding the medical treatment schedule authorization and dispute resolution procedures."

The Court recited that the dispute originated from 2009 legislative amendments to the Louisiana workers' compensation statute. The purpose was "to establish meaningful guidelines for the treatment of injured workers." This is similar to the Medical Treatment Utilization Schedule (MTUS) enacted by California, discussed recently in IMR in Florida and IMR and Due Process. The California MTUS treatment guidelines were adopted from a publication of the American College of Occupational and Environmental Medicine (ACOEM), published by ReedGroup Ltd. Louisiana elected not to adopt any groups guidelines, but instead created its own. 

In the two recent posts, it is suggested that IMR as a process needs the foundation of at least treatment guidelines. It is probable that the adoption of a pharmaceutical formulary is as necessary to the success of IMR. Each of these standards provides an objective and transparent representation of the appropriate care in the broad sense of a particular diagnosis, subject to narrowing to a more specific focus potentially as regards a particular patient. 

When the Louisiana Legislature mandated the adoption of treatment guidelines, a constitutional challenge was raised. The Office of Workers' Compensation (OWC) created guidelines and defined a process for determination of medical disputes. Disputes were to be administratively determined by "a medical director employed by the OWC and administrative appeals therefrom to the OWC judges."

In June 2015, the trial court concluded that the treatment guidelines and regulations were "unconstitutional as violative of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Louisiana Constitution Article I, Section 2." It found fault in terms of specificity, "both substantive and procedural due process," and that the change "violates the separation of powers doctrine." The trial court therefore issued a "preliminary injunction" and precluded the state from "applying and/or enforcing" the treatment guidelines. See Another Unconstitutional Statute

The trial court was reversed in October 2015 by the Louisiana Supreme Court. It concluded that "the constitutional issue was not properly raised in the trial court." It identified other flaws in the trial court decision and transferred the appeal to the Appellate court for review of the judgement. This blog was critical of the trial court for allowing lawyers in the case draft the court's decision; drafting orders is the judge's job. In June 2016, the appellate court reversed the trial court injunction.

The matter thus returned to the trial court for consideration of the merits of the claims of constitutional infirmity. In March 2017, the trial court judgement was entered "permanently enjoining, restraining, and prohibiting defendants from applying and/or enforcing" the treatment guidelines and process. The Court also:
"enjoined, restrained, and prohibited the defendants from allowing anyone to attempt to communicate with judges of the OWC regarding pending workers' compensations claims."
The OWC judges were directed by the trial court to make decisions regarding medical claims based only upon "the facts and law presented to them on the record." This communication prohibition is consistent with both judicial independence and the prohibition on ex-parte communications with judges. 

The Circuit Court of Appeal addressed the separation of power complaint. It noted that the new legislative process, of review by the "medical director," was a significantly more rapid process than had previously existed. There was testimony regarding the overarching theme of workers' compensation, an:
"affirmative duty to provide all reasonable and necessary medical treatment and provides that such treatment shall be delivered in an efficient and timely manner"
The Court recited the purpose and restraints of delegated legislative authority and separation of powers. It explained legislative delegation, and the ability of an agency to promulgate rules generally, as well as the specific promulgation authority stated in statute. Ultimately, the Court concluded that the OWC Director's adoption of guidelines and procedure were not violative of the separation of powers clause. 

Turning to due process, the Court explained "substantive" due process:
"Substantive due process may be broadly defined as the constitutional guaranty that no person shall be arbitrarily deprived of his life, liberty, or property."
Focusing on the substantive, the Court concluded that a "claim for workers' compensation benefits" is a "property interest" protected by due process. But, the Court agreed with the OWC contention that the regulations and guidelines were 
"rationally related to the legitimate government interest of protecting injured workers from undergoing medically unnecessary treatment and doctors from rendering services without compensation."
Thus, the Court concluded the challengers had not proven "that the tacit denial provisions are unconstitutional."

The Court rejected the challengers' claims that the regulations were "fatally vague" and thus a violation of due process. The Court explained that the standard for vagueness is "when a person of ordinary intelligence does not have a reasonable opportunity to know what is prohibited" or a law which does not include "a standard to prevent arbitrary and discriminatory application." The Court concluded that the challengers did not demonstrate the regulations in this instance are "unconstitutionally vague."

Specifically regarding the process of medical denials being reviewed by the "medical director and thereafter to an OWC judge," the Court addressed the challenger's allegations that procedural due process is not afforded as "an injured worker is not provided an opportunity to be heard at any level." That is, there is no hearing. And, there is no opportunity to "object to information or documents," or any opportunity before the medical director to "present evidence, examine witnesses, or be informed as to what information or documents have been submitted to the medical director."

The Court explained that this challenge was one of "procedural due process." That right is to "be heard at a meaningful time and in a meaningful manner." How much procedural process is "due" is dependent upon the situation, as the Court noted it is "a flexible standard." The Court concluded that in an "administrative action, the judicial model of an evidentiary hearing is neither required nor even the most effective method of decision making in all circumstances," citing the United States Supreme Court. 

The opportunity "to present their case" must be "meaningful," but not necessarily a hearing. The Court cited the legislative intent, a "rational policy choice by the legislature," to determine medical necessity in advance "to avoid case-by-case disputes and variations and to streamline the process." Ultimately, it concluded "the private interest affected by the statutory and regulatory provisions at issue is substantial," but the procedure for medical determinations by the medical director was not shown to violate  procedural due process. It specifically noted that there is the right to review by an OWC judge that includes the right to present "additional evidence." 

Admittedly, the standard in the OWC judge proceeding is "clear and convincing evidence," but it is an opportunity nonetheless. This is important because it means a worker faces a significant burden in seeking an OWC judge alteration of the medical director decision. Of note, the same "clear and convincing" evidence standard has been adopted in regards to the opinions of Expert Medical Advisors  (EMA) in Florida. See section 440.13(9)(c). In Louisiana, "clear and convincing":
"means to demonstrate that the existence of the disputed fact is highly probably, in other words, much more probable than not."
The Court acknowledged that the challengers did not agree with the procedural process adopted by the Legislature. However, it noted that disagreement "does not establish that the process itself is arbitrary."

The medical decision-making process outlined by the Louisiana Legislature is thus upheld by the Court of Appeal as regards all challenges raised in Barber. This outcome is not inconsistent with the California Court conclusion in Stevens v. Workers' Compensation Appeals Board, discussed at length in the two prior IMR posts mentioned above. A notable distinction, however, is that the Louisiana decision is not predicated upon a specific state constitutional provision or "plenary power," as mentioned in Stevens

The singular important point on which the Barber Court affirmed the trial court regarded the evaluation of OWC judge's performance. Though there was testimony that administrators were cautioned not to direct judges as to how they should rule in a case, the Court held that " an independent and honorable judiciary is indispensable to justice in our society." It conceded that OWC judges are not part of the judiciary, but acknowledged their judicial function. It stated that due process guarantees require the "essential" element of "an impartial decision-maker." 

As such, the the Court affirmed the trial court
"judgment permanently enjoining defendants from allowing anyone to attempt to communicate with OWC judges regarding pending workers' compensation claims."
Administrative oversight of the finder of fact, the adjudicator, is not wholly precluded. However, the decision-making process has to be protected from both interference and the implication of interference or imbalance. This is consistent with the fundamental of judicial independence, which every adjudicator must strive to maintain. And that will be the subject of a future post. 




Sunday, December 16, 2018

IMR and Due Process

The Florida workers' compensation marketplace was recently introduced again (This blog introduced the concept in July 2015: Another Unconstitutional Statute - and its not Florida) to the idea of Independent Medical Review (IMR) by the publication of a report by Florida Tax Watch. The fundamentals of the IMR process are discussed in IMR in Florida? Beyond the overview of IMR, however, is the oft-noted "due process concerns" of the IMR process. Though IMR is reasonably recent, having been enacted by the California Legislature in 2012, there is some California decisional authority on that precise point. 

In 2015, the California First District Court of Appeal decided Stevens v. Workers' Compensation Appeals Board, 241 Cal.App.4th 1074 (Cal. Ct. App. 1st 2015). It includes some history of California statutory changes in 2004 and again in 2012. The 2004 changes created a process called "Utilization Review," (UR) and established that "a request for treatment cannot be denied by a claims adjuster and must be approved unless a clinician determines that the treatment is medically unnecessary." The 2004 law also required the adoption of treatment guidelines, titled the "Medical Treatment Utilization Schedule," (MTUS).

California UR, the Court noted, is not bilateral. The UR decision can be challenged by the injured worker, but not by the employer. For employers, the UR process is binding. If the UR determines requested care to be appropriate, it must be provided, and the employer has no recourse except to provide it. The Court explained that thereafter the 2013 statutory changes "built off the 2004 legislation and established a new procedure, 'Independent Medical Review,' (IMR), to resolve workers' challenges to UR decisions."

Ms. Stevens challenged the "the constitutionality of the IMR process." The arguments included violation of separation of powers, the state Constitution's requirements that workers' compensation decisions be subject to review and the system “accomplish substantial justice,” and principles of due process. The Court was not convinced of any of these grounds, and concluded that California IMR is constitutional. 

As to the challenges related specifically to the California Constitution, the Court noted that "the Legislature has plenary powers over the workers' compensation system under article XIV, section 4 of the state Constitution." Furthermore, the Court concluded that IMR affords the injured worker with sufficient due process as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution. Essentially, the Court concluded that the ability to provide written argument to the physician throughout the IMR process was sufficient. 

Ms. Stevens' July 2013 claim was for four medications and provision of a home health aide following a work accident. Notably, this case discusses "compensability" as it relates to the claimed benefits, but there was no dispute regarding "the general proposition that Stevens suffers from pain and other ailments and is entitled to receive" medical care. The UR process involved review by "a board-certified anesthesiologist," who denied the requests in "an extensive, nine-page" decision, sent to Ms. Stevens. 

The Court's recitation of the grounds for denial focus on the medical purpose and efficacy of the four medications (Ativan, Flexeril, diolofenac cream, and hydrocodone). The UR physician's conclusions and denial were essentially that other alternative treatments would be better, or at least should be tried before the claimed medication. Ms. Stevens disagreed, and asked for a UR evaluation with "a different 'Physician Adviser,'” a re-review. Stevens was afforded and took "the opportunity to submit additional evidence for the (second) internal review." 

A second "board-certified anesthesiologist" reviewed the request for care. For it, Ms. Stevens submitted "a seven-page report by Dr. Jamasbi dated August 14, 2013, addressing" the first UR decision/denial. The second UR physician nonetheless also denied "the request for the four medications." That was similarly provided to Stevens in a written, nine-page report. This illustrates how the UR process affords the injured worker two opportunities to submit evidence, the initial UR and an "internal review" that involves a second physician and can include additional documents. 

On the basis of the second UR denial, Ms. Stevens sought an IMR. She was allowed to, and did, again submit additional medical documentation for the IMR review. Thus, there were a total of three opportunities to submit documentation. The IMR "final determination" was issued "in February 2014," and upheld the UR denial of home health aide and the four medications, based on the MTUS. 

The denial did not identify "the IMR physician," but stated "the IMR reviewer was “Board Certified in Pain Management, had a subspecialty in Disability Evaluation, was licensed to practice medicine in California, . . . had been in active clinical practice for more than five years, and was currently working at least 24 hours a week in active practice.” The IMR determination "became" the determination of the Director of the Division of Workers' Compensation (director) as a matter of law. (§§ 3206, 4610.6, subd. (g)). That legal function made the IMR decision "state action" for the purpose of the due process discussion and analysis. 

The injured worker appealed the IMR/Director decision to the Workers' Compensation Board. The Board denied that appeal and affirmed the IMR/Director, noting Stevens had not proven "one or more of five grounds for appeal listed by the Legislature in section 4610.6(h) by clear and convincing evidence.” The Legislature provided specific reasons for which the IMR could be disregarded by the Board. As regards the "clear and convincing," there are those who find the California IMR similar to the Florida Expert Medical Adviser process in Section 440.13(9)

The Appellate Court reiterated that the California Constitution "gives the Legislature 'plenary power ... to create ... and enforce a complete system of workers' compensation.'” The use of "plenary" suggesting "absolute or unqualified" power. Some suggest that is a distinction relevant to Florida's consideration of IMR, as there is no similar Florida grant of "plenary" power, affording such unfettered authority regarding workers' compensation. 

Notably, in enacting the "IMR process," the California Legislature made specific findings as to the "then-existing system of resolving disputes about treatment requests." It concluded the process
"was 'costly, time consuming, and [did] not uniformly result in the provision of treatment that adhere[d] to the highest standards of evidence-based medicine, [and this] adversely affect[ed] the health and safety of workers injured in the course of employment.'” 
It reached similar conclusions regarding the pre-IMR process for appointment of "qualified medical evaluators (QME) to examine patients and resolve treatment disputes. 

The Stevens Court stressed the independence of the IMR providers, the requirement of adherence to the MTUS, and the requirement for detailed decisions regarding requested reviews. The availability of appellate review by the Board, for specific grounds, also affords a level of due process according to the Court, although its power is limited to ordering a new IMR. And, ultimately, the decision can be reviewed "in the Court of Appeal" as in Stevens, but notably the record may not include all of the documents involved in the various medical reviews. Each of these was found to include elements of due process. 

The Court concluded that "both workers and employers benefited from the 2004 and 2013 reforms." Primarily, the Court noted the speed and efficiency of decisions, the UR finality if in favor of the employee, and the reduced "insurance costs by creating uniform medical standards and reducing litigation." Thus, at least arguably, the benefit of "standards" is perhaps less about IMR than it is MTUS, UR, and perhaps the California pharmacy formulary. 

The Court concluded that Stevens' California Constitution challenges failed because of the plenary authority granted to the Legislature. That grant of power was intended to "remove all doubts as to the constitutionality of then-existing [workers'] compensation laws.” The Court concluded that the evolution of this "plenary power" clause "compels the conclusion that Section 4 supersedes the state Constitution's due process clause with respect to legislation passed under the Legislature's plenary powers over the workers' compensation system. 

The Court was equally unmoved by the "principles of due process under the federal Constitution." It noted that "to prevail on a federal due process claim, plaintiffs must show that the state deprived them of a property or liberty interest without affording sufficient notice and opportunity to be heard." The Court expressed some doubt that such a decision as to appropriateness of medical care either "constituted state action" or "implicated a protected property interest." 

It conceded that the due process issue is not settled by the United States Supreme Court, and discussed some similar factual medical necessity determinations in other cases, as well as some distinctions. In light of that uncertainty, the Stevens Court proceeded assuming that both "state action" and a "protected property interest" were present, so as to implicate the due process clause (of the Fourteenth Amendment by direct application, or potentially the Fifth Amendment subject to selective incorporation). 

The Court concluded that Ms. Stevens was "afforded ample process." It noted this included the IMR process, but more. It found the ability to submit documentation and written explanations through UR and IMR persuasive. And, the Court balanced the constraints (seemingly "confrontation" and "cross-examination" against a "governmental interest" previously determined to be "strong," as regards other medical decision (in group health) IMR processes in California. It noted that ultimately, "the risks of erroneous deprivations under the workers' compensation system appear to be fewer, and certainly no more, than the risks under the" other California IMR process previously upheld. 

The Court specifically rejected the argument that due process was violated by the anonymity of the IMR physician. The physician is a "decision maker" and not an adversary. The Court found no legal protection for a party "to cross-examine such decision makers." The person making an "initial decision" ("a clinician [that] determines that the treatment is medically unnecessary") might be subject to such examination, "to discover what that basis was." But, the Court explained, in California workers' compensation, patients "are given detailed explanations of the reasons for a denial" and "given multiple opportunities to submit evidence and challenge those decisions." 

The Stevens Court also rejected due process concerns centered on the limited nature of available appeal. First, it noted that whether the "due process clause" guarantees "any review" is unclear. There may be no constitutional right to appeal. Furthermore, the Court concluded that "the IMR process is itself a review." And, furthermore, it found efficacy in "the Board's authority to review an IMR determination," despite the statutory limitations. The real limitation on the patient, according to the Court, is "the MTUS." (There was no challenge to the MTUS or formulary in Stevens). 

Notably, one ground of the due process challenge was that the IMR statutory time limits are not subject to any "meaningful enforcement procedures." The process is intended to be completed within 30 days. But, the Court concluded that failure of the IMR to comply with such a time constraint did not invalidate the IMR outcome. The 30 day limit is instructive, directory, but not mandatory. That suggests that while IMR is intended to be more rapid, its promise may be illusory in some situations. 

Of note, the Florida Courts have repeatedly concluded that the time constraints upon Judges of Compensation Claims holding hearings and making decisions are similarly "directory," see AT&T Wireless v. Frazier, 871 So. 2d 939 (Fla 1st DCA 2004); Brown v. Pumpian, 504 So. 2d 481 (Fla. 1st DCA 1987). See also Miller v. Oolite Industries, Inc., 336 So. 2d 1152 (Fla.1976); Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150 (Fla.1976). 

Stevens is not the last California word regarding due process concerns. In September 2018, the California Fourth District Court of Appeal rendered Barri v. Workers' Compensation Appeal Board, 28 Cal.App.5th 428 (Cal. Ct. App. 4th 2018). This is not an IMR analysis or decision, but it refers to Stevens in the context of due process. In Barri, the challenge instead involved a medical provider seeking payment (in California that is called a "lien"). The government cited Stevens and the "plenary power" in support of its actions. 

Though the Court ultimately concluded the government action was appropriate in Barri, it expressed reservations as to the extent of the "plenary power." It noted:
"The Legislature cannot carte blanche exercise its plenary powers and create legislation (1) unnecessary to the workers' compensation system or that (2) conflicts with the federal due process clause." 
Thus, while the concerns raised in Stevens and Barri were not found violative of due process, the Barri Court suggests that due process remains a factor to consider even in light of the "plenary" provision of California's Constitution. What that would require or preclude precisely remains unclear. However, there is suggestion that "plenary" is perhaps not altogether unrestricted. 

Some now advocate Florida adopt the IMR process. Others will argue that California first instituted UR and the MTUS. Though Florida has heard debate of treatment guidelines over the past decade, neither such guidelines nor a medication formulary have been adopted (or some argue even seriously considered). IMR would ultimately be dependent upon the existence of each of these critical elements. California's course was to adopt those changes first, in 2004, followed by IMR eight years later, in 2012. Some will argue that if IMR is the goal ultimately adopted by the Florida legislature, that a similarly sequential process would be appropriate or even necessary. 

There will likely be debate of the importance of "plenary" authority. Some will find the presence of that language critical in the Stevens analysis. They may argue that without that authority, the IMR process fails to satisfy the other protections of the Florida Constitution. Notably, Florida does not have such a "plenary" power provision. Others, may argue that the Stevens Court focus on Section 4610.6(h) occurred only because that section exists in California, but that the Court could have (or would have) reached the same decision if "plenary power" did not exists, merely upon other grounds. 

There will also likely be some discussion of the persuasiveness of Stevens as an appellate decision. Some will argue that this is not a decision of California's highest court. The California Supreme Court did not review it. The United States Supreme Court was asked to review, but declined. Stevens v. California Workers' Compensation Appeals Board, 137 S.Ct. 384 (2016). Proponents of this argument may point to the many Florida District Court decisions that concluded attorney fee constraints in Section 440.34 were constitutional in the years leading up to the Florida Supreme Court decision to the contrary in Castellanos v. Next Door Company

In response, there will also likely be those who find the Castellanos argument unpersuasive. Some find that decision an unsupportable deviation from the standards of constitutional review. Arguably, the Castellanos Court did not address constitutionality following the expected precedential process, but inferred a "presumption" neither stated nor, they argue, appropriately demonstrated there. The Castellanos critics may perhaps argue that the dissent there was more persuasive and that a different result might well come from the Florida Court having a second chance in the future to review such a case. In that regard, the argument may be that the string of District Court cases were in fact correctly decided, and the Castellanos Supreme Court majority conclusion is atypical or aberrant, and therefore an erroneous, result.

Any or all of these arguments might be worthy of consideration or at least discussion. And, the arguments would likely require years of litigation and consideration. The constraint on Florida attorney fees passed in the 2003 reforms were litigated for years. The provisions of section 440.34 were again legislatively amended in 2009. The Supreme Court eventually decided Castellanos in 2016. Potentially, therefore, the next decade of Florida workers' compensation could be as interesting as the last, in the event that IMR is elected as the Legislature's chosen path.