Sunday, September 30, 2018

Drug Monitoring Back in the News

Prescription Drug Monitoring Programs (PDMP) returned to the news in August, but quietly. A website for IT-related health issues, published the results of a study at Dartmouth-Hitchcock (a New Hampshire research hospital) regarding the impacts of PDMP on patient care. In a study of 1,057 patients, the researchers concluded "PDMP use negatively affects clinical efficiency," and does not offer "much benefit as a tool for reducing opioid prescribing."

New Hampshire is among states that have legislated the requirement for checking the PDMP prior to prescribing. Florida passed HB21 in 2018, and it became effective July 1, 2018. This increased "regulation of prescribers and dispensers," according to the final legislative analysis. Notably, this Florida legislation also limits the duration of initial prescriptions to three or seven days, but excludes various diagnoses from such limits, including "cancer, terminal illness, palliative care, and serious traumatic injury." Have you ever wondered what is or is not "serious" trauma?

For the first time in Florida, the law now "requires a health care practitioner to review a patient’s PDMP history before prescribing or dispensing a controlled substance." In the interest of full disclosure, I have long advocated for PDMP use: The PDMP is Showing Progress (2013); If it's Worth Having, Is it Worth Checking? (2015); If not, What's the Point (2016); PDMP and Doctor Shopping (2017). Research has demonstrated that PDMP are valid tools in the reduction of "doctor shopping" and drug-seeking behavior. 

Another major addition of HB21 is the foundation for establishing a broader perspective on this challenge. It authorizes the Florida Department of Health to afford PDMP access to "certain federal agencies who prescribe or dispense controlled substances," increasing the breadth of the impact. Furthermore, the Florida Department of Health is empowered "to share and exchange PDMP data with other states if certain conditions are met." The state limitations on data are important when patients can travel to other jurisdictions. That is perhaps more important in instances like Philadelphia, Pennsylvania and Camden, New Jersey where merely crossing a bridge might frustrate PDMP efforts. But, Florida's "pill mill" history aptly demonstrates people are sometimes willing to travel much longer distances. 

Thus, as Florida joins the mandatory PDMP jurisdictions, the New Hampshire study is of interest. That study examined an abbreviated period of "the six months before and after" New Hampshire mandated that providers check this particular hospital's "PDMP and opioid abuse risk calculator for all patients receiving an outpatient opioid prescription for acute pain." The data demonstrated patients that did not receive an opioid prescription following PDMP consultation. That does not mean that the PDMP data led to the absence of such a script. Thus, the researchers retrospectively consulted the PDMP for those patients to determine if each was a "high risk" such that the decision not to prescribe might be attributed to the PDMP. 

Researchers complained of the burden of PDMP access at that hospital. They noted this required accessing "an external website requiring a separate login and password." They were also seemingly critical of software features that required the providers to document the patient's medical record regarding the PDMP inquiry. It seems a bit disingenuous to be critical of requirements that medical records are documented. Anyone that has ever reviewed a hospital chart has seen instances in which a patient's vital signs are checked many times daily, and each time dutifully recorded in the patient's chart. And, most of the time those recorded signs are all normal. Recording what goes on with a patient, normal or not, is simply part of what medical professionals do. 

The researchers concluded that before the New Hampshire mandate, "80 percent of patients were given an opioid prescription" and that following the effective date of the law, this decreased only to 77 percent. They concluded that “The PDMP query and risk calculator did not lead to a prescription being withheld for any patient in our series." And, the researchers concluded that the "mean number of opioid pills prescribed decreased more significantly" in the pre-mandate six months "than in the six months after the mandate was put in place." 

On these findings, the researchers concluded no benefit to the PDMP consultation in the hospital setting. They concede that PDMP "can be effective in outpatient care settings and for patients with chronic pain," but contend that for hospital physicians the process is "unnecessarily burdensome." The report is not clear on how the researchers reached the conclusion that PDMP is effective for outpatient, as the performed no such research. Frankly, that conclusion somewhat suggested "deflecting" as in "why don't you regulators go pick on someone other than me."

The researchers noted that those physicians who consulted the database invested a "median" of thirteen minutes for the PDMP and risk assessment functions. No explanation for the abandonment of mean (add all instances and divide by volume) in favor of median (the value that is in the middle of any range) in that part of the analysis. Gregg Easterbrook once said "torture the numbers and they will admit to anything," a scathing criticism of statistical analysis. But, anytime a report focuses attention on a median or a mode, without reporting the mean also, it may raise eyebrows. That median only means that more people took 13 minutes than took any other amount of time. 

This mean/median divergence in the reporting becomes more curious when the researchers return to mean in evaluating the "mean turnover time between cases at Dartmouth-Hitchcock’s outpatient surgical center," which they assert "is 15 minutes." To that "mean" time, the researchers add the median of "up to 13 minutes per patient" to conclude that "patient turnover time" essentially doubles and thus the PDMP requirements "inhibit clinical efficiency." Reading the information, one might ask why the researchers measure one factor in "apples," the second in "oranges," and presented their ultimate conclusion in "fruit salad." 

Reading the study, I was reminded of WorkCompCentral coverage of PDMP last spring: Research on PDMPs 'Insufficient,' Study Claims. That provided an overview of a study that evaluated "17 past research studies" and concluded that "there is insufficient evidence to determine whether PDMPs reduce fatal or non-fatal drug overdoses." That analysis also suggested that use of "PDMPs may have unintended consequences relating to heroin overdoses."  There is a suspicion among many that depriving people of their opioids through prescriptions may lead them to less sanitary and controlled opioid supplies on the street. 

As regards the risk of other overdoses, from heroin or Fentanyl, this study concluded that a PDMP "might reasonably drive opioid-dependent persons to substitute their preferred prescription opioid with heroin or non-pharmaceutical Fentanyl.” This is perhaps incongruent. The study authors question the efficacy of PDMP, and then concede that PDMP are working in controlling access to prescription narcotics. Their criticism is seemingly not that PDMP do not work, but that they do work and therefore people seek other, illicit, alternatives. Those illicit alternatives are undoubtedly more dangerous, both in the quality of product and the risks of obtaining. 

In fact, the WCC reported research substantiated that "evidence from 10 studies" out of the 17 examined, "suggested a reduction in fatal overdoses with PDMP implementation." Furthermore, there are questions about more than overdose. One source quoted by WorkCompCentral noted that "PDMPs are intended to curtail doctors’ over prescribing of opioids." 

Thus, perhaps the PDMP process could limit access to narcotics in the first instance, reduce the development of dependency or addiction, and curtail the demand for illicit substitutes? If the demand for, and therefore use of, illicit alternatives was thus decreased, some might argue the propensity for overdose from those alternatives might similarly decrease? That decrease in narcotic prescription is substantiated in research from the Workers' Compensation Research Institute (WCRI), the National Council on Compensation Insurance (NCCI), and others noted in the WorkCompCentral story.  And, that may refute the New Hampshire assumption that hospital prescriptions are somehow unique or appropriately excluded from PDMP processes. 

The WorkCompCentral story reminds us of two other critical points. First, though all states now have PDMPs, not all states require that physicians consult before prescribing. Florida has only implemented that mandatory nature this year. Furthermore, the interstate travel challenge remains nonetheless. Until PDMPs regularly and seamlessly share information, those truly dedicated to obtaining medication inappropriately may still succeed. To those with real focus may suffer nothing more from the PDMP process than some level of frustration or inconvenience. 

Thus, there are critics of the PDMP process. Some physicians lament the time they must devote, others question the net effect on the singular concern of overdose. There seems a general sense that PDMP should not be perceived or advocated as either a universal or infallible solution to what is admittedly a complex issue of dependency and potentially addiction. However, the bottom line remains that too many Americans die from overdose. PDMP have been demonstrated to reduce scripts. While they may not be the "end all" solution, there seems sufficient data to support that they are "a" contribution to the solution. 

Florida will look to HB21 and its changes. In the months and years to come, time will tell if the significant restrictions of this law ameliorate dependency, address drug-seeking behavior, and ultimately drug overdose. It is hoped that whether HB21 is the solution or not, that a solution is nonetheless found. Too many people are dying. That fact requires no study, it is incontrovertible. Too many. 





Thursday, September 27, 2018

Time for Appeal

On July 9, 2018 the First District Court's decision in Altemar v. Lifespace Communities crossed my desk. Unlike any other appeals in Florida, the First District opinions in workers' compensation cases prominently identify the trial judge by name. In this instance, the Judge was Timothy Basquill. That slowed me a bit. Judge Basquill has not been on the bench for a significant time. 

The final order in this case is available to the public. It was entered and published on April 8, 2016. According to the Court's online docket, the appeal was filed May 11, 2016. A "cross-appeal" was filed May 25, 2016. For clarity, an appeal signals that one party is disastisfied and finds error in the trial judge's decision. A cross-appeal signals that another party in the case likewise finds (usually "other") error and seeks review. The two parties may be focused upon a singular issue or have various bases upon which each advocates reversal. 

The Court's analysis is brief, 357 words, in two pages. That is frankly more discussion that the majority of Florida appellate decisions warrant. Most appeals in Florida conclude with simply "affirmed" or "denied," very brief conclusions with little explanation. These are referred to as "per curium affirmed" or "per curium denied," and essentially inform the party seeking relief (called "appellant" or "petitioner") that the Court will not change the decision of the trial judge. However, these decisions do not inform the appellant/petition why the Court is not changing the trial decision. There has been much discussion of these "per curium" decisions, and complaints about them.

The Record on Appeal in Altemar v. Lifespace Communities was submitted on August 4, 2016. That was 85 days after the notice of appeal was filed. Almost 30 days later, the claimant filed a motion for extension of time to file the initial brief (a written argument regarding the reason and argument for changing the trial judge's determinations). That was granted, and the brief deadline was extended to October 5, 2016; the brief was in fact filed October 4, 2016. 

The claimant also filed a motion to supplement the record. The record is all of the testimony and documents that were submitted by the parties when the case was submitted to the trial judge for determination. There are occasions when that record inadvertently does not include something which was actually considered by the trial judge; errors occur. However, as often, some party asks the appellate court to consider evidence that was not presented to the trial judge. It has always been curious to me that appellate courts are willing to consider new evidence in the course of an appeal. 

The decisional law is replete with examples of appellate courts declining to even consider various arguments and complaints on appeal. Those courts have held that error at the trial must be noticed by a party during or before trial, and "preserved" by voicing an objection in order for the party to be allowed to later seek appellate review. There are hundreds of Florida decisions that note something was "not properly preserved." There is an exception to that conclusion, however, when "fundamental error" is demonstrated to the appellate court. 

Though that "properly preserved" analysis is repeatedly and regularly employed by appellate courts, declining to consider arguments or analysis on appeal that was not voiced at trial, there is the contrary perceived willingness of appellate courts to nonetheless consider testimony or documents (evidence) in an appeal that was not presented at trial. That evidence is generally presented to the court with its permission, sought by a motion to supplement the record. Some might argue that if such evidence is important enough to consider, it is important enough to present to the trial judge and not just important enough to present later to the appellate court. 

Returning to Altemar, on October 20, 2016, the employer/carrier ("cross-appellant") filed a similar motion for extension of time to file its "answer brief;" The Court granted that also, extending the due date to November 21, 2016, and the "answer brief" was filed that day. 

The appellant (claimant) then filed a "reply brief," the opportunity to comment upon the issues addressed and raised by the "answer," on December 16, 2016. The "cross appellant" (employer/carrier) sought an extension to file its "cross reply," which was granted by the Court. That was filed January 17, 2017, before the extended deadline set by the Court. The Court did not conduct an oral argument (an opportunity for the parties lawyers to both present their arguments and answer questions the appellate judges may pose). 

On July 9, 2018 the District Court rendered its brief decision. This was 789 days after the notice of appeal was filed, just under two years and two months. This was 535 days after the final brief was filed January 17, 2017, almost 1.5 years. 

The Court concluded that the Judge of Compensation Claims erred in according the expert medical advisor (EMA) opinions "a presumption of correctness with regard to the Claimant’s need for attendant care." The Court concluded that "the evidence does not demonstrate a sufficient disagreement in the opinions of the health care providers on that ground." The appointment of an EMA is mandatory, the Judge "shall" appoint "If there is disagreement in the opinions of the health care providers"

The Court has repeatedly reversed Florida trial judges for declining to appoint an expert EMA. Pointedly, the Court has concluded that a trial judge cannot make determinations of the credibility or persuasiveness of a medical opinion in determining there is or is not a conflict. Chapman v. Nationsbank, 872 So.2d 390, 392 (Fla. 1st DCA 2004); Brown v. Vanguard Sec., 7 So.3d 572 Fla. 1st DCA 2009). 

However, in Altemar, the Court reminds that the trial judge is charged with determining that there is a conflict (not that there "was" a conflict). It cited Guerra v. C.A. Lindman, Inc., 146 So. 3d 527, 529 (Fla. 1st DCA 2014)(reversing order appointing EMA because there was no disagreement in the opinions of the health care providers, in that the opinions of some of the doctors' opinions or conclusions were stale because of the passage of time). 

The Court in Altemar further explains that distinction, holding that the trial judge, in deciding whether to appoint an EMA, must decide whether the two medical providers each rendered "a definitive opinion" regarding the issue as to which there is an alleged "disagreement." In this instance, "whether attendant care benefits were medically necessary" or whether such necessity "was caused by the compensable accident." 

Clearly, there are two aspects of EMA opinion that are worthy of discussion. First, whether an EMA should be appointed. Second, the import of that doctor's resulting opinion testimony. The first is addressed sufficiently above. The second is focused upon the precise issue(s) the expert addresses. When addressing the specific conflict for which she or he was appointed, the doctor's opinions are cloaked in a presumption of correctness. But, if the doctor opines on other medical issues, those opinions may also be considered by the judge but those opinions are contrarily not presumptively correct. The Court in Altemar concluded the EMA opinion in question was not worthy of that presumption of correctness; in retrospect, there was not enough of a conflict.

There is thus a series of questions that may be pertinent in deciding a motion for an expert medical advisor. First, is there a direct, specific conflict (one expert says "a" and the other says "not a")? Second, are those two opinions both current (one says surgery "is" needed, another says it "was" not needed when the patient was last seen two years ago)? If these lead to the determination of that an EMA must be appointed, the judge may then struggle with the appropriate specialty (simpler if the conflicting experts are both the same specialty, such as orthopedic surgeon; harder if one is an orthopedic surgeon and the other a neurosurgeon; perhaps harder still if one is a surgeon and the other is not, etc.). 

And, it is important to address these questions thoroughly. It is important to address all issues at trial thoroughly. If a party fails to do so, it may be in the position of seeking later to supplement the record for the appellate court to consider evidence never presented to or considered by the trial court. That bears repeating, a party may fail at trial by not presenting all the available evidence, and then prevail on appeal by showing the appellate court documents or testimony that it neglected to present at trial. Some will question why appellate courts regularly decline to consider arguments not "preserved," but agree to consider evidence never presented. 

Finally, in support of being through at trial in both presenting evidence and argument, parties should remember that it could take two years after trial to learn the ultimate outcome of the case. Getting the evidence and argument right at trial is critical. 


Tuesday, September 25, 2018

Pay and Control

In workers' compensation, we sometimes find ourselves embroiled in the debate about whether someone was or was not "on-the-job" when some accident or event led to injury. As a general proposition, most states ascribe to something called the "going and coming rule," which generally excludes our commute from both being work time and injuries during the commute from being workers' compensation. There are a variety of exceptions to that general rule though. 

Another issue in American employment is the perception that various regulations or laws might reach conflicting or at least inconsistent conclusions about a specific fact pattern. This has been discussed at length as regards defining employment, and whether someone is an employee or an independent contractor. Some states have multiple legal definitions of "independent contractor," which can result in a person being an "employee" for some purposes like workers' compensation, but not an "employee" for others, such as unemployment compensation. This can be confusing. Misclassification is one of the issues identified by national workers' compensation leaders as important in discussing workers' compensation. And, perhaps decreasing misclassification would be facilitated by simplifying the definitions, and increasing consistency?


Even when there is agreement on such a subject within a state, there is potential that workers in one state will find definitions and compensability different in one state from what might be seen in a different, even neighboring, state. The distinctions between states are of significant concern to workers' compensation community members, though perhaps of less concern to most specific individuals injured on-the-job. But, even a specific person with a specific injury may find their own state laws do not necessarily reach consistent results as some federal law might. 

Two recent news stories led me back to this discussion of consistency. One involves Taco Bell and the other Starbucks. In each instance, the facts include people who are employees, and likely subject to the requirements of some state workers' compensation system. They are also subject to federal wage and hour laws. 

The Street reported that the California Supreme Court concluded that Starbuck's payroll policy and practice violates federal wage and hour laws. Some lawyers see the decision as indicative of a major policy change, and predict "a slew of class action suits against employers." Essentially, Starbucks was accused of requiring employees to "clock out before completing tasks which were mandated by the company." So, at the end of a shift, the employees had to clock out and then complete a "store closure procedure" that involved transmission of various data "to Starbucks headquarters." 

Starbucks argued that this task was covered by an exception to the federal Fair Labor Standard Act, called the "de minimis doctrine." Under that exception, if there is time that is "insignificant, infrequent, and difficult to record," then such work time time may be appropriately not compensated. Disappointed with the California Court's conclusions, Starbucks is said to be appealing that decision to the federal Ninth Circuit Court. 

Sources cited in that story predict that the decision might also implicate employers who "round" time for employees. The suggestion is that rounding worked hours up or down would potentially be problematic under the California court's ruling. It is difficult to see how an employee would be injured by their work hours being rounded upward (more hours = more pay, or am I missing something?). The seemingly more likely grounds for a lawsuit would appear to be the rounding down. 

The Epoch Times recently reported on an employment dispute regarding Taco Bell. That company decided to put some restrictions on certain employees during their designated meal break. There was a perception that workers were using their "employee discount" to purchase food, but then leaving the premises with it to either share it, sell it, or give it to non-employees. So, the company rule made a distinction for breaks between those who used their meal discount and those who did not. 

Employees who brought their own food, purchased food elsewhere, or did not eat, were allowed to do as the pleased, where they pleased, during their meal break. However, those who purchased Taco Bell food using their discount were precluded from leaving the premises with that food. It had to be consumed on-site. The employees balked and filed a lawsuit. Reuters reported that the employees alleged that this 
"violated a state law requiring companies to provide uninterrupted, duty-free meal breaks or pay premium wages instead." 
The oft-maligned Ninth Circuit Court of Appeal, which deservedly or not is seen by some as an outlier of legal analysis, concluded that Taco Bell was not thus exercising control over the employees. The Court reasoned that "employees were free to use the thirty minutes in any way they wished." If their wish was to use their employee food discount, that decision to accept a benefit came with a restriction, remaining in the restaurant. The court also rejected an ancillary claim that the "value of discounted meals" should be added to the employee's base pay rate, which is used to calculate the appropriate compensation for overtime. Similarly, that base pay rate might be used for determining workers' compensation benefits in various jurisdictions. 

The issue regarding the meal break was thus dependent upon the determination of "control." Is the Starbucks decision less so? The conclusion of the California court is seemingly that requiring an employee to remain, to complete paperwork, is an exertion of control over that person. And, if remaining under the control of the employer, then appropriately remaining on-the-clock. The distinction suggested at Taco Bell is that the employee was left to make the critical decision of whether to choose unfettered use of the meal break or to give up some control (freedom) in exchange for some benefit (discounted food). 

But, consider instead whether these admittedly non-workers' compensation conclusions would necessarily be consistent with questions of work injury compensability. Critical to that is remembering that such compensability conclusions would be a determination of each specific state's workers' compensation law, and that the conclusion could be different depending upon what state some injury occurred within.

If the Starbucks employee is required to complete the paperwork, even though she/he has clocked out, and suffers an injury while completing it (or even walking from the time clock to a table to complete it), would the injury be compensable? 

What if the Starbucks employee elects to complete this paperwork at home, after a long shift. Rather than remaining at the employer's premises, the employee gathers papers and commutes home. Then, after pouring some tea, she/he trips/falls while walking to the living room to sit and finish the required transmission of data (day-end paper or computer work). Is the accident at home therefore compensable under workers' compensation, because the employer should (or does) pay the employee for the time? If instead the employee (with the paperwork in hand for later use at home to transmit that data) has the trip/fall while travelling home, or even walking to the car, is that compensable under workers' compensation? 

If instead of data transmission from home later, the paper in hand when the employee leaves the premises is instead taken for delivery to the company bookkeeper on the way home? Would a trip/fall on the way to the bookkeeper's office (or bank, or other errand) be compensable? 

Similarly, if the employer uses "rounding" and will thus pay the employee up to 3:00 even though she/he clocked out at 2:50, and the employee departs for home and suffers a trip/fall at 2:58, off-premises, is it work-related because the employee remains on-the-clock? 

If the employee on a meal break elects to purchase discounted food, and thus is made to stay on-premises, and suffers a trip/fall on the way to the table, is that a work injury because of the employer "control?" If an identical employee suffers an identical trip/fall but is carrying their homemade PB&J, instead of a recently purchased discount Chalupa, is her/his accident not compensable due to the absence of employer control? 

Is is practical to expect the outcomes of these various potentials to be consistent? Consistent that is in that the Chalupa and PB&J are treated the same; consistent in that control or lack of control is treated the same; consistent in that "at work" for wage and hour purposes is the same as "at work" for workers' compensation, unemployment, etc.; consistent in that what is compensable in Alabama would be compensable in Connecticut?

Will there be facts critical to wage and hour decisions that are less relevant in workers' compensation? Could someone be entitled to pay for some time, and yet not entitled to workers' compensation for an event or accident during that time? These potentials are a great challenge for workers' compensation. The distinctions befuddle lawyers, adjusters, judges, and more. If we are challenged, we need to remember how the injured workers and employers must feel.


Sunday, September 23, 2018

The Hot Seat and Impairment

On September 20, 2018 the Worker’s Compensation Hot Seat hosted by Bob Wilson welcomed Dr. Christopher Brigham and Alan Pierce, Esquire. It was a lively discussion of the implications of the American Medical Association Guides to Permanent Impairment, with particular emphasis on the Sixth Edition.


After dealing with a few minor technical issues, there was an informative discussion. Mr. Pierce focuses upon recent appellate decisions finding constitutional fault with the Sixth Edition impairment ratings. He focused first upon Protz v. Workers' Compensation Appeal Board (Derry Area School District), and the perception that decision finds constitutional fault with the Guides. That may overstate the case, as the Protz courts (both the Pennsylvania Supreme Court and the Commonwealth Court found fault) are focused in their analysis not on the substance of the Sixth Edition, but upon the procedure by which they were administratively adopted. These analyses were of the delegation of state authority. 

Mr. Pierce's references to recent Kansas decisions appeared more relevant to the complaint of diminution of benefits as a result of the shift in the impairment listings. Mr. Pierce enunciated multiple examples which illustrated significant decreases in impairment ratings for particular maladies or injuries. See Kansas Appeals Court Overturns 2013 Law, involving a calculation of permanent partial disability under the Guides, a dispute that for now remains ongoing. Whether the Kansas Supreme Court will alter the Appeals Court determinations remains to be seen. In the example of Protz, some may see the potential for the Kansas Court to affirm or reverse the Appeals Court, to alter the decision, maintain the analysis, or to take an entirely different approach. 

Dr. Brigham noted that "impairment" is distinct from "disability," seemingly concurring with the theme of a recent post here regarding Fixing the Wrong Problem. I was left with the impression that Mr. Pierce does not disagree with the distinction of "impairment" versus "disability." However, he noted that multiple jurisdictions have based their entitlement standards for permanent partial disability upon these impairment ratings. As such, those ratings are being applied, in his perspective, as an indemnity tool rather than medical tool. Similarly, I did not sense that Dr. Brigham really disagreed with that application contention. 

I was somewhat surprised that both speakers seemed willing to acquiesce in some legislative effort to make this inappropriate reliance more equitable or "fair." While both seem to accept that using impairment ratings to calculate disability benefits is inappropriate, both seemed willing to see legislatures continue to misuse the guides, and impairment ratings generally, but to also adopt methodologies to increase disability benefits. One suggestion is to multiply those impairment ratings by some legislatively selected rate (times two, or times one and one-half, etc). But, there seems consensus that impairment is not appropriate for determining disability. I struggle with how that becomes appropriate if the associated dollar values change. This seems incongruent. 

The American Medical Association (AMA) has periodically issued new editions of the Guides in order to keep pace with advances in medical treatment, diagnoses and philosophy. The stated goal of each new edition is to provide a fair and authoritative impairment guide based on the most recent medical advances. 
The focus of the Guides is medical in nature, regarding both the science ("advances") and the art ("philosophy") of assigning some numerical value to the effects of injury or illness. That is not an imperative of medicine, and never has been. Medical science has never been dependent upon impairment specifically, nor inability or ability generally. Medical science is dependent upon and interested in diagnosis, treatment, and recovery. It is the legal system that has dragged the medical experts into the debates of maximum medical improvement and impairment ratings. See MMI and other Artificial Distinctions

Both speakers agreed that the Sixth Edition clearly sets forth an admonishment or warning that there are imperative reasons why these ratings should not be the sole foundation for determination of permanent partial disability benefits. It appears that Dr. Brigham position is that the medical process of the Sixth Edition is an improvement, and should therefore be respected. It is Mr. Pierce‘s position that the AMA’s knowledge that the legislative or regulatory bodies are inappropriately employing the Guides should render it incumbent upon the AMA to seek out those mis-users, and actively advocate their mending of their ways. 

Listening to the discussion, I was reminded of a chisel that I purchased some years ago. It was intended for mortar or concrete, and therefore had a very specific warning label that it "should not be used for cutting metal." That suggests the manufacturer might have suspected people were using their product to cut metal. Though I have owned it for years, no representative of the manufacturer has ever stopped by to evaluate my use of their tool or to suggest how I might use it better. It may similarly be asking too much to think that a publisher of a book is any more obligated to correct those who might misuse it (despite an explicit statement as to how to use, printed in the very book itself). 
As a society, America has become accustom to warning labels. As I have repeatedly discussed such warnings in college classes, the feedback I perceive supports that a fair volume of Americans have been over-warned. They are so accustomed to such warnings that labels and warnings are now often ignored. The cacophony of warnings has rendered us snow-blind. That effect, our collective conditioning to be less than impressed by warnings, results from the sheer volume of warnings and the processes that have led to them. Who is responsible for this cascade, this avalanche, of warnings and labels? Who is responsible for our collectively ignoring them now? 

An example Dr. Brigham cited under the AMA Fifth, involves a cervical spine condition, that includes a presentation of symptoms and complaints in an upper extremity. He explained that under the accepted medical science, there is a surgery that is appropriate for treatment of this malady, a treatment which is seen as generally effective in ameliorating it’s symptoms. Despite this, he explained, the Fifth Edition calls for a higher impairment rating post-surgical repair than it lists for the malady if left untreated by surgical intervention. He explains that results like this are counter-intuitive, and inconsistent medically. 

Dr. Brigham described a process which he has undertaken to study the variation in impairment rating, comparing the Fourth Edition to the Fifth, and to the Sixth. His conclusion is that the Fourth and Sixth are reasonably similar as regards a variety of studied maladies. However, the Sixth Edition, he notes, makes significant departures from the Fifth. In that regard, the question not asked was whether the various jurisdiction's reliance upon the AMA Guides Fifth Edition was unconstitutional because the ratings expressed therein increased payments to injured workers to the detriment of those jurisdiction's employers. If changes in benefits to a party's detriment alone can tip the constitutional scales, then does it matter which party? 

In that vein, it might perhaps be difficult to quantify how a Sixth Edition retreat to the Fourth Edition impairment levels is a significant diminution in benefit entitlement. In fairness, acting as co-host of the Hot Seat, I was focused upon The speaker's points and arguments. It is entirely possible that I misconstrued or mis-remember this Fourth, Fifth, and Sixth discussion of distinctions and overall impacts. However, in the interest of stimulating conversation, my recollections are re-stated here. 

Dr. Brigham similarly explained that the process for determining impairment ratings in prior editions were inconsistent in terms of the upper versus lower extremities. He explained that therefore the Sixth Edition was intended to provide methodological consistency, which may explain some of the deviation or difference in specific impairment listings. I inferred that advances in medical treatment and success rates might also have influenced those changes. 

I was struck by the comments of both guests, from the standpoint of application of expertise. I have written in the past regarding the insistence of laws and lawmakers to require non-medical opinions of medical expert. This almost certainly includes the opinions regarding maximum medical improvement (See MMI and other Artificial Distinctions), and following the seminar, is perhaps as applicable to the concept of impairment rating. 

There appears to be some agreement from both perspectives that disability is a concept that includes more than simply medical assessment. While physicians may be best qualified to make determinations or form opinions regarding a patient’s ability to perform various movements functions or tasks, there seems agreement that the physicians are equally unqualified to render functional or vocational opinions regarding how those physical abilities either qualify or disqualify a given individual from a particular employment, or other activity. 

Mr. Pierce focused several times upon the fairness of outcomes. He noted that a particular person's ability to find, secure, and maintain employment might be affected by more than "impairment." It seems his concerns are primarily that states have elected to use these impairment ratings as the singular, or at least primary, determining factor in calculating permanent partial disability benefits. That is likely inappropriate based upon the consensus that "impairment" and "disability" are not the same thing. 

He was also focused on the admittedly difficult concept of "fair." The application of the impairment guides, without consideration of the impacts and contributions of vocational background, age, education, and more may produce inequitable, or "unfair" outcomes when they are applied to a spectrum of individuals suffering similar physical symptomatology. His comments in this regard were seemingly supportive of permanent partial disability benefits based upon a broader population of factors than merely impairment ratings, regardless of the standard or edition selected. 

It occurs to me that the perceived strength of impairment ratings, guides, and statutes that rely upon them is that they bring consistency and simplicity to what might otherwise be difficult and perhaps fact-intensive decisions? I recall few cases I adjudicated that were involved with impairment rating disputes. That may suggest that their use as a tool creates consistency and increases simplicity. But, the same could be said for using a tape measure, and awarding a volume of weeks of permanent partial to each patient based upon their height or waist measurement. Either would be objective and replication would be simple. But, would height be a reasonable tool for measuring disability, even if it would be admittedly easier, objective, and consistent? 

At the conclusion of the September 20, 2018 Hot Seat Seminar, host Bob Wilson opined that this was the best Hot Seat yet, despite the brief initial technical challenges. Having had several days to reflect upon the quality of discussion, the integrity of both guests' opinions and inquiries, I concur with that assessment. This discussion was enlightening, challenging, and helpful. And, lucky for you, the entire program is available to be replayed at your convenience, just click above. 

In the end, however, the discussion did not solve the disputes or remedy the respective issues associated with the Guides. But, the discussion did perhaps continue to help build dialogue and discussion, which are crucial to progress in workers' compensation. As we share perspectives and ideas, the result will be positive. Positive in the sense of us all being better informed and educated regarding the difficult concepts that underpin these systems. Armed with our understanding and respectful of differing views and perspectives, conversation can raise awareness, stimulate thought, and in the end may help the legislative leaders improve these systems for both employees and employers. 

I encourage you to visit www.WCHotSeat.com and listen to the recording of the webinar. You can sign up for our next program, which will focus on the broader effects of a workplace injury. In fact, you can sign up to be automatically registered for our future events. I find value in the perspective gained from the outstanding experts that have appeared on the programming, and thank them all for their contributions to my understanding and knowledge.

Thursday, September 20, 2018

Opportunity to be Heard

What is the scope and purpose of the Florida Office of Judges of Compensation Claims (OJCC)? In a nutshell, this agency delivers process to those impacted by workplace injuries, the employees and employers. In Florida, the process of adjudicating and mediating disputes is a distinct role of the OJCC. The regulatory functions of Florida workers' compensation are primarily relegated to the Florida Division of Workers' Compensation, a separate agency within the Department of Financial Services. 

The OJCC is essentially a provider of due process. Employees and employers have disagreements regarding a wide spectrum of issues, such as: was this person an employee, did an accident occur at work, did injury occur from an accident, is particular medical care reasonable and necessary, is the worker capable of returning to work, and more. Some of those issues may clearly controlled by one specific statute section or some decisional precedent (what occurred in a previous case). 

But, it is not uncommon for issues to arise that are not so clear. It is the job of lawyers to both refine and define both facts and law, Their role is to bring ingenuity and imagination to conflicts, and to utilize those skills to advocate for an outcome that is favorable to their respective client. They search for distinctions, exceptions, and reasons why their client should arguably prevail. 

And, the role of this office is to provide due process for those disputes. Due process is essentially an opportunity to be heard. That implies the opportunity to both present evidence (witnesses, documents, etc.) and to confront the evidence that is presented by those who oppose your perspective or arguments. That opportunity is facilitated by the other basic element of due process: notice. The parties who seek a determination are entitled to know that proceedings, a hearing, a trial (that opportunity to be heard"), will take place. 

When a party believes that the trial judge should not act, they are obligated to ask the judge not to. This might include seeking a continuance, or asking the judge to recuse her/himself from a case. Similarly, when parties want the judge to act, they are also obligated to ask. This might include asking that trial be set or that an order be entered. Despite the statutory requirement for entry of a timely compensation order, the OJCC was not know for timely trial orders, or even timely trials, before the twenty-first century. 

If the trial judge does not accede to the request of a party, then it may be possible to ask some superior adjudicatory body to intervene. When I use the term "superior," I am reminded of a testy exchange between Captain Dodge (Kelsey Grammer) and Admiral Graham (Bruce Dern) in the spoof comedy Down Periscope. Admiral Graham admonishes Dodge: "You are addressing a superior officer," to which Captain Dodge replies "No, merely a higher-ranking one." A humorous bit of word-working. 

Of course, a party might disagree with a trial judge's ruling and yet take no action. The party might conclude that decision is not "final" and therefore not something an appellate body would review immediately. The party might therefore wait until the case is ultimately decided and then seek appellate review on that and perhaps other previous decisions. Or, the party might seek immediate ("interlocutory") review through an "extraordinary writ." These, by their very name are "extraordinary," (exceptional, noteworthy, remarkable). If the party is seeking action, the writ of mandamus would be appropriate; if seeking to halt action, the writ of prohibition. 

A July 30, 2017 story from Guam contends that a worker there has been denied a hearing on her claims for workers' compensation. Guam is an unincorporated territory of the United States, and its residents are U.S. citizens. Its status is similar to the U.S. Virgin Islands and Puerto Rico. And, a worker there filed claims for benefits regarding a fall "while attempting to open a door for a co-worker in August 2015." She alleges that this resulted in a broken left leg. 

It appears to be a dispute that might occur in any workers' compensation system. The worker alleges that the fall resulted in injury, but her employer claims "she failed to establish a 'causal connection' between her work environment and her injury." Disputes such as these are commonly referred to collectively as "compensabilty" disputes. Finding herself not provided with workers' compensation benefits, the employee requested that workers' compensation commission (WCC) order her employer to provide benefits. In that regard, her claim is like many others around the country, in that (1) there is a dispute, and (2) an administrative agency is responsible for adjudicating it. 

In March 2017, the worker submitted the paperwork requesting a hearing. However, the WCC has not scheduled a hearing on her claim. The Guam Daily Post reports that she had waited for 16 months, and finds herself frustrated by the delay. She therefore has sought the attention and assistance of a superior court, and has asked it to intervene and order the WCC to perform its function - to provide a hearing. As of this publication date, no follow-up story has been found, leaving the possibility that neither the superior court or the WCC has acted in the almost two months since the story was published in the end of July. 

As is not uncommon in litigation, the injured worker has focused upon multiple entities. She seeks that order to compel the WCC, the Department of Labor (DOL), or the director or administrator to provide a hearing. The WCC Administrator has reportedly said that the WCC is waiting for "the Attorney General to provide legal counsel for the hearing." There is an implication in the story that some finger-pointing is occurring. 

The Guam Federation of Teachers (GFT) has been involved with assisting the employee in seeking a hearing. Its representative reminded the WCC that "justice delayed is justice denied." It appears that the WCC has been asked for, and reminded of the need for, a hearing. It is seemingly axiomatic that a hearing is the only path to sorting out the dispute between this employee and employer. 

That statement will likely raise the ire of those who advocate for the premier form of "alternative dispute resolution," mediation. Undoubtedly, mediation is a fantastically successful, efficient, and proactive method for resolving people's disputes. But, it is but one method, a voluntary method. People can meet, discuss, and agree. Those agreements are binding as they are contracts. But, at their root, they are voluntary, and require parties to be ready to meet and discuss. 

And, sometimes voluntary resolution of disagreements is dependent upon the existence of some other method. In some instances, it may be that the "alternative" may drive the voluntary. That is, if there is no potential for an adjudication, an order compelling action, then perhaps there is less motivation for the agreement in mediation? Perhaps parties are more likely to act voluntarily if there is some mandatory "alternative" that will engage if they do not? Whether a case is adjudicated or resolved through mediation, the existence of the adjudication process plays a role as either the solution following failure of negotiation or as the "alternative" best avoided by particular parties in a particular case.  

That brings us back to the requirement that "due process" exist. The concept of "due process" is enshrined in the United States Constitution, in both the Fifth and Fourteenth Amendments (a professor I once knew used to say "we liked it so much, we put it in twice"). It is astounding how often someone will voice their belief that Constitutional rights have nothing to do with workers' compensation. That is naive at best. Your Constitutional rights are fundamental to both workers' compensation and the process for determinations of your benefits. That Constitutional due process is a hearing, an opportunity to present evidence, to be listened to. It is not a promise that any particular party will prevail, be satisfied, or be happy. It is a promise that each party will be listened to. 

The issue of "happy" is worthy of note. Some believe that half the parties to any trial will be unhappy with the outcome. That "half the people" statement is one I have heard often from various judges. Unfortunately, because of the nature of litigation, it is not uncommon that everyone involved in a trial is unhappy with the result. For example, they may prevail, but nonetheless receive less than they sought. They may prevail on some issues, but not on others. The may prevail, but find themselves perturbed by the amounts they expend in litigating the issues. There are a multitude of potentials, and unfortunately sometimes everyone involved in a case is less than happy with the outcome. 

The delay in Guam seems antithetical to due process. Of course, there are cases that cannot be adequately prepared for trial without many months of preparation. But, whenever delay is thus understandable and excusable, that excuse should be described publicly, in an order. Somehow, the Guam system is failing in this example to provide due process. It will be interesting to see if the Guam courts intervene in response to the employee's writ and order that due process be afforded. 

In Florida, the workers' compensation law says that hearing shall be conducted within 210 days of the filing of a petition. If that is not occurring, you are welcome to contact david.langham@doah.state.fl.us (it is appropriate to provide a copy of any such inquiry to all of the parties to the case). Certainly, not a "superior" judge, or even one with "rank," but as certainly still able to question why a hearing is not being scheduled. 

That needs to be clear. In Florida, whether to hold a hearing or not, and when, is a decision for the judge assigned to hear a case. The Deputy Chief Judge cannot change such a decision. But, that does not mean that such an inquiry might not provide you with answers as to why a particular case is not proceeding with the speed you might wish. Or, a party in Florida could elect to proceed to the District Court of Appeal and seek an order of Mandamus (extraordinary writ) to compel such a hearing to occur. 

The point of this agency is due process. There are disputes, and our obligation is to provide both adjudication and the "alternative" of mediation of those disputes. And, we have the obligation to be transparent as to that process. When hearings are delayed, there should be orders clearly explaining why.




Tuesday, September 18, 2018

Comp Laude 2018 is Around the Corner

On October 10, 2018, the annual CompLaude program will include the People's Choice presentations. That is only 22 days away, which is a bit disconcerting (more on that in a moment). These are approximately 6 minute Ted talks presented by those selected by a committee of judges each year. This program was inaugurated in 2016, an idea of David DePaolo. I wrote about it then in Something New for CompLaude 2016. The People's Choice speakers for 2018 were announced last week. 

The People's Choice Ted Talks are not all there is to Comp Laude of course. There are a variety of educational programs throughout. Details are in the published agenda. Perhaps the most compelling program of this gathering will be the Complex and Catastrophic Claims overview on Tuesday morning. 

Or, perhaps it will be the inspiration of Ben Nemtin describing his recent "bucket list" experiences as documented in his book What do you Want to do Before You Die? Last year, as part of my registration for the event, I received a copy of Dr. Robert Pearl's book Mistreated, and was grateful to both read and hear his thoughts. I am hopeful that this year I will acquire Mr. Nemtin's book and be equally inspired by his thoughts. 

Or, perhaps the most memorable program will be Turning the Churn, an introspective on how people and their perceptions "shape opinions and affect outcomes."

And, I am so very proud that many workers' compensation luminaries that I know who are finalists for Comp Laude recognition. I wrote about them all recently in 2018 Comp Laude Finalists Named

But, I admit I am not ready for the People's Choice. And, I need to be. I am humbled to have been selected to deliver a Ted Talk, my first. Without props or slides, I will pour out some ideas for 6 minutes and see where they land. I have a mere 22 days to prepare this, and the pressure is on. 

Here is what I know about the People's Choice presentations. One will be about interpersonal relationships and interactions, dealing with the world we live in and those with whom we interact. Another will be about connecting with people and investing passion and caring in our tasks. A third will address compassion in our work, building a "culture of compassion" that encompasses relationships and contributions in the world of workers' compensation. Yet another will be about the reaction and growth we might or might not experience when confronted with a traumatic event, an examination of dealing with challenges or tragedy. 

A fifth will be about the trauma of injury, its impacts both physical and emotional; this presentation will be in first person, powerful, and focused upon how employees can enjoy positive outcomes after accidents. Another will be about our perceptions of the millennial generation, their motivations, their strengths, and their potentials; millennials will run the world soon enough and we need to recognize how that impacts both that generation and all the others. And, a seventh will explore how we control our outcomes, how our attitudes influence our perceptions, and how we can learn from experiences and grow. 

Yes, one of those will be mine. No, I am not sharing which. The speakers (in alphabetical order, which does not match the order in which I described their topics above) are: 

Brian Allen - Vice President, Government Affairs, Mitchell 
Brittany Busse - Medical Director of Telehealth, Kura MD, Inc. 
David Langham - Deputy Chief Judge, Florida 
Carlos Luna - VP of Marketing & Business Development, Risico 
Kristy Sands - Vice President – Marketing & Communications, Gallagher Bassett 
Marques Torbert - CEO, Ametros 
Bill Zachry - Senior Fellow, The Sedgwick Institute 

I am proud to be on the list, humbled to have been selected, and a bit overwhelmed by the short preparation time. If you want a taste of the People's Choice, the presentations from 2017 are available here. It is going to be an entertaining and educational hour. David intended it to be so, but also to be motivational and inspirational. I am looking forward to it, and hope to see you there. Now, back to work on my six minutes!

Sunday, September 16, 2018

The Rash to Repeal our Rights

The news recently reminded me about rights in this country. I was reading the BBC News on September 3, 2018 and came across "Malaysia Women Caned for Attempting to have Lesbian Sex." The article notes that "homosexual activity is illegal under both secular and religious laws." And, Malaysia "operates a dual-track legal system," where "Muslims are bound by Sharia" on certain issues, "while members of other faiths follow civil law." This entire paragraph may tend to make us thankful for our Constitution, our protection of equal rights, and the concept of equal protection under the law. 

We are blessed that our Constitution recognizes rights. It does not grant them, it guarantees them. Many a student has struggled to recognize this distinction and its critical importance. Before the Constitution was drafted, our founders began their divorce from Britain with an itemization of complaints "submitted to a candid world." In it, the founders declared our independence and described the actions of the crown that had led to their decision. 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" 
It is critical to us all that these are not beliefs, but "truths." They are not arguable, but are "self-evident." And, we posses these because we "are endowed by (our) Creator" with them. In this powerful language is recognition of a simple truth, we have rights because we exist. We do not gain them through governmental grace or grant, but we are born with them. While that Declaration language is clear, it is not part of the Constitution; it signals intent certainly, but it is not the Constitution itself. 

After that 1776 Declaration, there followed the Articles of Confederation adopted in 1777, ratified in 1781. A decade later in 1787, Congress approved a convention to "revise the Articles." That convention instead adopted the United States Constitution on September 17, 1787. It was ratified in 1788, but contained no bill of rights. This omission, according to the ACLU, rendered it "deeply flawed." Initially, twelve amendments were later proposed, and ten were soon ratified, those first ten amendments have since referred to as the "Bill of Rights." 

According to the ACLU, "the Bill of Rights established soaring principles that guaranteed the most fundamental rights in very general terms." One might well take issue with this characterization of "established," and instead argue that those principles had long existed and were merely "recognized" by these amendments. But, the immediately subsequent use of "guaranteed" aptly reinforces that those rights existed and were recognized, not granted, by the very people whose grant of power created the government itself. 

There was a significant period of history in which those guarantees were interpreted as barring infringement by the federal government, but not the states. Then, in 1868, the Fourteenth Amendment was ratified; there are notable similarities between the Fourteenth and Fifth Amendments. A major distinction of the Fourteenth however is its language "no state shall." This protects "privileges and immunities," precludes deprivation of "life, liberty or property without due process," and guarantees "equal protection of the laws," all in reference to state power. This marked the beginning of a new relationship of federalism in the United States. 

As an aside, two points. First, note that the Fifth and Fourteenth each  departs slightly from the "Life, Liberty and the pursuit of Happiness" in the Declaration. Happiness, it seems was revered in the inception, but less protected in the execution? Or, does it signal a greater appreciation of property in the execution? Second, I note the absence of the Oxford Comma that recently was deemed legally significant. Are "liberty or property," separate thoughts or inextricably co-joined? But, that digression I save for another day.

Following ratification of the Fourteenth Amendment, the U.S. Supreme Court rendered various decisions through which the guarantees of the Bill of Rights were expanded from only precluding infringement by the federal government to precluding state infringement as well. These Court analyses were referred to as "incorporating" those protections through a combination of their individual respective language and the broader language of the Fourteenth Amendment. 

Though that analysis could perhaps have been broad, simple, and rapid, it was instead conducted through various individual cases in a process the Court labelled "selective incorporation." The sequential process is said to be required by an overarching premise of our legal system that legal interpretations will occur in actual "case and controversy" in which parties with a personal interest in the outcome ("standing") confront each other and express their perspectives. 

Constitutional law can be difficult to understand, and sometimes hard to predict. It perhaps began with the U.S. Supreme Court itself decided to be the arbiter of all things constitutional, see Marbury v. Madison, 5 U.S. 137; 1 Cranch 137; 2 L. Ed. 60 (1803). That is a truth that many Americans do not contemplate often. The Supreme Court's role regarding decisions of constitutionality is not expressed in the Constitution. The power undertaken by the Court in this regard is antithetical to the overriding spirit of American government, that the power rests with the people, and therefore the power of government is limited to that which the people grant. Instead, this power was assumed by the Court based upon its interpretations of implied power, and has been retained since. 

That is not the limit of the Court's interpretations based upon implication and perceived context. The Court has recognized the rights stated in our Constitution. But it has protected other rights, not mentioned in the Constitution, but "implied." For example the U.S. Constitution guarantee of a right to privacy is not explicitly stated in the Bill of Rights, nor elsewhere. That is not to say that we do not have such a right. In fact, beginning in the twentieth century, the U.S. Supreme Court concluded that such a right does exist, despite not being mentioned in the document. The Court concluded that this right is founded upon the guarantees of "liberty" in both the Fifth and Fourteenth Amendments. 

The Court concluded that privacy rights were broad, including: 
"the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390 (1923). 
This implied Constitutional protection for rights not enumerated in the document itself refers to these as "penumbral" rights. An excellent example of the judicial process engaged is Griswold v. Connecticut, 85 S.Ct. 1678 (1965). This decision has been described as "creating" a right to privacy, in relation to contraceptive decisions and state laws. But that language is deceptive, upon the premise discussed above that rights are neither created or granted, but exist in us because we exist. Again, the more apt term might instead be "recognized." 

The Griswold Court noted that "The association of people is not mentioned in the Constitution nor in the Bill of Rights." This surprises many, who mis-remember from secondary school that the First Amendment specifically addresses "freedom of association." The Griswold Court did so conclude, not because the amendment says so, but because it concluded that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees." The rights recognized in the Bill of Rights, according to Griswold, are not exclusive. The penumbras that surround them, the implications they evoke, are "necessary in making the express guarantees fully meaningful." 

Though it figured significantly therein, the First Amendment did not stand alone in the analysis of the Griswold Court. The Court  additionally included in this "privacy" analysis the penumbras of the Third, Fourth, Fifth, and Ninth Amendments. There were various explanations as to the manner in which the Third, Fourth, and Fifth protected privacy and liberty. From those protections, the Court concluded, came the penumbral right of privacy. 

There was not unanimity in Griswold; two justices dissented, an expression of disagreement. Three others joined in a concurring opinion, in which they agreed with the outcome (recognition of privacy) but expressed somewhat different analysis. Written by Justice Goldberg, this concurring explanation emphasizes the guarantees of "liberty" in both the Fifth and Fourteenth Amendments. Justice Goldberg (and the justices that joined this concurrence) conclude that "the concept of liberty" protects privacy. The analysis bolsters that conclusion citing previous court decisions holding the "Due Process Clause protects those liberties." 

Justice Goldberg provides more illumination, however, regarding the Ninth Amendment. He concluded that the wording of the Ninth established that "the Framers of the Constitution believed that there are additional fundamental rights." Though not enumerated in the Constitution, he contended that those "additional" rights nonetheless "exist alongside those fundamental rights specifically mentioned" and that they are equally "protected from governmental infringement." 

Griswold is explanatory of the concept of penumbral rights generally and the rights to association and to privacy specifically. However, a more detailed explanation is perhaps provided by another decision eight years later. While Griswold is familiar to scholars, the American public is generally more familiar with Roe v. Wade, 410 U.S. 113 (1973), at least by name. Roe cited Griswold, and reviewed the "right to privacy" in depth. This again included discussion of "privacy" implications of the First, Fourth, Fifth, and Ninth Amendments. The Roe Court held "this right of privacy" regardless of whether its foundation is the Ninth or Fourteenth, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 

From these examples and many more come the accepted recognition of critical points: our rights are inherent; and the Constitution protects them whether they are stated outright therein or implied. The existence of those rights are protective of us in a way that the Malaysians discussed in that recent news story might only imagine. But, are we appreciative of, protective of, those rights?

In 2015, Fox News reported on a "filmmaker and satirist" visiting Yale University. The premise was to ask students to sign a petition supporting the repeal of the First Amendment (which protects the rights of expression, of religion, and from religion). The story reports that "a solid majority" of those approached were willing to sign the petition. Several were reportedly enthusiastic in their approval for the proposition of removing this reference to expression and implied association. 

In June of 2016, A blog by Mark Bennett contended that "It's Time to Repeal the First Amendment." At the conclusion, he added that "as well as the First, obviously the Second (Amendment)." He asserts that the founders of this country were fallible and that they may periodically have been wrong. He argues that the First Amendment is "one of those times." Mr. Bennett cites various perceived failures of the founders in support of his argument against their infallibility.

In support of his contention that repeal of the First Amendment would be positive for America, he describes the amendment process somewhat obliquely, noting the adoption of the Twenty-First Amendment and its repeal of the Eighteenth. Such amendment to repeal the First, he argues, would enhance American liberty and protect privacy in an age of technology that was simply never imagined by the founders of this country. He cites the potential for someone with "a communication device that can easily offend or embarrass you and countless others," a potentiality I have written of, Assume Everyone is Watching, and Evolving Issues of Body Cameras.

In 2017, the Daily Wire reported on perceptions of "a flawed judgement" in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). A political candidate was quoted concluding that this decision "perverted our electoral system" and presented "a gateway to corruption." The Wire reporting was critical of the candidate and of perceived distinctions regarding sources of money. Citizens presented a challenge to financial limitations on campaign contribution alleging that violated the First Amendment protections on "freedom of speech." That candidate advocated amendment of the Constitution regarding constriction of the freedom of speech recognized in Citizens

In Citizens, the Court explained that laws precluding speech must be "subject to strict scrutiny," meaning that the government starts from a position of disadvantage. This is one of the "standards of review," commonly employed by the Court in analyzing constitutional challenges. Under "strict scrutiny" review, the government action or legislation is presumed to be unconstitutional. The government therefore bears the burden of demonstrating that the action or law both "furthers a compelling interest and is narrowly tailored to achieve that interest." There have been those who characterize the second of these, narrowly tailored, as requiring proof that there is essentially no other way to achieve that compelling interest. 

In March 2018, Justice Stevens (ret.) of the U.S. Supreme Court editorialized in the New York Times regarding guns: "Repeal the Second Amendment." He reveled at the "civic engagement schoolchildren . . . demonstrated" in their spring 2018 gatherings. He conceded a perception of progress in the occurrence of debate regarding changes in gun laws, but advocated instead repeal of the Second Amendment, referring to it as "a relic of the 18th century." 

Justice Stevens briefly recounted perceptions of historical Second Amendment cases, and quotes former Chief Justice Berger's derogation of Second Amendment proponents. Justice Stevens' seeming agreement or reverence with precedent ends, however, with his critique of District of Columbia v. Heller, 554 US 570 (2008). That decision, "that there was an individual right to bear arms," he takes issue with, asserting that it "was wrong and certainly was debatable." Justice Stephens sees "the people" in that Amendment as a collective, not individual, right. 

In March 2018, Esquire reported on the editorial by former Supreme Court Justice Stevens. It noted that calls for repeal of the Second Amendment are not necessarily new. It cited efforts by Representative Owens to that end in 1992 and 1993. Rep. Owens explained that repeal would "eliminate the rationale that people should own guns because the Constitution says so." Rep. Owens, apparently conceded the individual right, and did so prior to Heller. He conceded that repeal "would not in itself outlaw guns - but would set the stage for the legislatures to start getting rid of guns."

However, that contention regarding the effect of repeal is seemingly not as clear as Justice Stevens, Rep. Owens, or the others discussed above might like. Chaos theory (which essentially "teaches us to expect the unexpected") suggests that our existence at this moment results from the confluence of millions of coincidences that both surround and preceded us. 

This was popularized early this century in the movie The Butterfly Effect. Promotion for the movie noted "It has been said something as small as the flutter of a butterfly's wing can ultimately cause a typhoon halfway around the world." The implication is that changes can have cascading or exacerbated effects. One line from the movie perhaps summarizes this "You can't change who people are without destroying who they were." Along this thought process, one might inquire whether you can destroy who we were, when we were endowed by our creator with inalienable rights?

Therefore, one who advocates the repeal of the First Amendment, due to their present feelings about privacy, might well consider that the protection or guarantee of their right to privacy is founded, at least in part, on that very amendment. Those who advocate repeal of the First because of their view of Citizens, might also consider the unintended implications that could arise from repeal or amendment directed at that particular analysis of speech. Might such alteration or repeal cascade into unintended consequences for either speech or association? Might the right to privacy itself be impacted?

It is also worth considering whether repeal affects any change. The presence of a recognition or guarantee of a right in the Constitution certainly supports that it is a fundamental right worthy of guarantees of protection. However, the inverse is not true. The absence of a recognition in specific constitutional text has not prevented the Court from either recognizing that as fundamental or from enforcing protection of it. 

The Legal Dictionary contends "no comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced." This logic is founded on the broad interpretation of our rights as a consequence of our existence and that what government powers do exist only exist because we conveyed to it. The Tenth Amendment makes clear that what the people did not give, the people retain. However, "a partial list" of such recognized penumbral or unenumerated rights "might include": "the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion." 

Thus, a valid question might be considered. Would removing freedom of expression or the "right of the people to keep and bear Arms" from the text of the Constitution necessarily change that these rights are nonetheless fundamental, inherent, and inalienable? Could mere repeal (an act indicating or suggesting a negation or rejection of protection), in itself, repeal protection? Some would suggest not. 

Some would argue that such a repeal would have to also include or be accompanied by some express conveyance of power from the people to the federal government. That is, they would suggest that such a repeal of specific right protections would not negate the accepted existence of the right nonetheless. The right, they would argue, exists and is fundamental whether stated in the Constitution or not. They would argue that to eliminate that right, the people would have to relinquish it specifically, through some grant of specific power to the federal government enumerating power, to the derogation of the people themselves. 

Seemingly, in the absence of such a grant of power, it is seen as possible that the Court could persist following a mere repeal in guaranteeing these rights, recognizing these rights, even if they were not specifically mentioned in the Constitution any longer. There is significant precedent to support the protection of rights despite their absence from textually specific protection. 

In this regard, the Bennett example of the Twenty-First and Eighteenth Amendments is intriguing. By adoption of the Eighteenth, the process eliminated the "manufacture, sale, or transportation of intoxicating liquors" in the United States "for beverage purposes." That amendment granted a power to the government, though not necessarily in explicit terms. That amendment could be seen as an affirmative and purposeful relinquishment of the right to make, sell, and transport liquor. But, note, the amendment did nothing to eliminate a person's ability to consume intoxicating liquor as a beverage. One might argue that the right to consume it, though penumbral before the Eighteenth, remained undisturbed even after ratification. 

The argument might thus be made that the Eighteenth relinquished commercial rights, more so than individual rights. That might be difficult to reconcile with the existing interpretations of the personal nature of both First and Second Amendment guarantees, and the overarching clarity of people's retention of rights found in the Tenth. In that regard, the Twenty-First restored protection of commercial rights, and eliminated a governmental power delegated by the people in the Eighteenth. 

Thus, clearly, the delegation of power to the government is not immutable. Having given power to the government, the people remain able to take that power back. That is the lesson of the Eighteenth and Twenty-First. The example of these two Amendments does not, however, suggest or support that repeal of a recognition or protection of fundamental rights would thereby necessarily empower the government to ignore such rights. Those rights would, following an amendment's repeal, nonetheless remain as fundamental and sacrosanct, in the absence of some specific grant of power. 

Certainly, there are those who would suggest that the nature of the Amendments themselves could be relevant to such discussion. They may see distinction in the manner of prohibition of the First Amendment: "Congress shall make no law" as compared with the Second Amendment: "shall not be infringed." But, each is clearly a prohibition on government action to impair rights. And, even if those amendments were repealed, the inherent rights that they protect would arguably remain in the absence of some grant of power to the government. 

Thus, the arguments of repeal are seemingly more complex than first noted. The rush to repeal might instead be a rash to repeal, neither considered nor studied. A rash and emotional reaction to perceptions and beliefs. In the National Review, Jay Cost responded to Justice Stephens' repeal gauntlet. He notes that the Constitution is hard to amend, and argues that it was so intended. He extols the checks and balances of this document, and warns of "an excess of majoritarianism."  Notably, majoritarianism might be blamed for the ban on Malaysian lesbian sex that led this discussion. There are certainly examples of majority-accepted laws in this country  that have been stricken by the precepts of our Constitution. It is constitutionalism that tempers the expediency of immediacy. 

The upshot is that we find ourselves in a constitutional republic in which the swings of majority whim are constrained and tempered by an overriding (by its own terms, Article VI., the "Supremacy Clause") structure and consistency. That structure is persistently challenged and interpreted. It is is not immutable, but delivers consistencies nonetheless. That structure or its specifics can be changed, but the fact is that it cannot be changed easily. Change does not come rashly, but ponderously. The advocates of the Equal Rights Amendment have recognized that for almost 50 years. Therefore, it seems likely our lifetimes will see advocacy of addition or repeal, perhaps in rash and rapid proposals, but amendment is simply not probable, for better or worse.