Tuesday, February 19, 2019

Distinctions, Differences, and Disparity

I recently penned Reminded of Death Benefits, including a discussion of a tragic event in Michigan in which an employee was found submerged in a vat of acid solution. He was rescued and treated by co-workers, transported and treated by first responders, and later died from his injuries. It was a story that reminded of the limits of workers' compensation benefits, and of some challenges. 

Expanding on that subject, today's focus is upon those who are so fortunate not to be the one who suffers the injury. There are many who may witness or even participate in recovery from untoward events in the workplace. As I wrote the post regarding the February 13, 2019 story of Mr. Hill, the news broke February 15, 2019 of a work-place shooting in Aurora, Illinois. Neither event is unprecedented, and many readers will see no commonality between a fall into acid and a workplace shooting.

But, the commonality is in those who survive such events. The Michigan death was tragic. Co-workers found Mr. Hill submerged in the vat of acid solution. He had suffered burns (possibly both chemical and thermal) over 100% of his body. The burns were serious, and Mr. Hill would later succumb to those injuries. 

However, his co-workers were the ones that found him. Several suffered burns of their own reaching into the vat to retrieve him. They provided the first aid they could, placing Mr. Hill in a "safety shower" in an attempt to rinse the caustic from his body. Mr. Hill was still "walking and talking" when first responders arrived to provide treatment and transportation to the hospital, according to The Detroit News

From an emotional standpoint, now, think of finding one of your co-workers in such a predicament. Imagine hearing the co-worker's complaints of pain, discomfort, and fear. Picture yourself providing first aid and care for your co-worker as you wait a seemingly interminable time for the professionals to arrive (even if they arrive in record time, it would perhaps seem like forever if you were there providing the care you could). Some co-workers reportedly suffered their own burns reaching into the acid to retrieve Mr. Hill, that is physical injury. But, what about emotional affects? 

In Aurora, eleven people were victims of a workplace shooting. Five were killed; so was the shooter. As is so often the case, the shooter "illegally had a gun." There will be discussion of gun control and stricter laws, but in many instances our present laws are already being broken or disregarded in these situations. The shooter is dead. Reportedly, he "just been fired before he started shooting." It is a reminder that termination from employment can certainly be an emotional experience; For those who have never had to terminate someone, it is worth noting that firing someone is also stressful and emotional. 

The shooter in Aurora, angry about his termination, appears to have re-entered the company facilities and taken retribution on those who participated in terminating his employment. Notably, the shooter had six prior arrests in Aurora and one in Mississippi. The authorities were summoned, and in the process of dealing with the shooter five police officers were also shot and wounded before the shooter was killed by the officers. I suspect shooting someone is stressful and emotional, even when doing so is to save the lives of others. 

From an emotional standpoint, imagine being one of the lucky Aurora employees able to go home that night and hug your family. Some of them, however, may have questions in their minds of what they might have done to aid those injured or killed. There is a phenomenon called "survivor guilt" that afflicts some. Even in the absence of such a feeling that you could have helped, survivors face the loss of co-workers and friends. 

In both Aurora and Michigan, there are workers this week who will struggle to deal with loss. They will struggle with what they saw, smelled, heard, and felt. They will deal with a spectrum of emotions and feelings that many of us fortunately will neither ever bear or perhaps fully understand. They will hopefully express their reactions, fears, and feelings to each other and professional counselors. But, they will likely be treated differently by the law. 

As a people, we granted authority to our government. The Constitution of this Republic is a grant of authority to the government. The people and the states have given that authority, for what was intended to be specific and limited powers. Despite that sentiment and intent, our governments (state and federal) have grown and expanded their influences into our lives. I am persistently amazed at how many people forget (or perhaps never knew) that ours is a government "of the people, by the people, for the people." In the vein, perhaps anyone with criticism of the government should remember Walt Kelly's witticism "we have met the enemy and he is us." 

One example of government influence is the institution of workers' compensation laws across this county. Though few acknowledge it, workers' compensation is one of the first, and perhaps the most successful, examples of "tort reform" in America. We did not invent it (that distinction goes to the Germans or the British depending upon your definitions and descriptions), but it now exists in all American jurisdictions as well as in various federal laws. 

In a sweeping change to the U.S. Constitution, the Fourteenth Amendment was ratified in 1868, one of the "Civil War Amendments" that both ended slavery and set the stage for significant civil change in American society. A great deal of our societal progress in the twentieth century can find its roots in the Fourteenth Amendment, which is often referred to in shorthand as the "equal protection clause." 

That label comes from the last phrase of Section One of that amendment that says no state shall "deny to any person within its jurisdiction the equal protection of the laws." There is a common sentiment and belief in America that people should be treated equally by the law. Despite this constitutional admonition, there are some who believe that some laws in fact do treat people differently.  

Some see the disparity with which laws affect various racial groups and conclude flaws in equal protection. Some see disparity in political or electoral processes. Others see more general flaws in prosecutorial decisions. Anyone can agree or disagree with these or a raft of other arguments raised in the name of equal protection. One fact seems to be that Americans generally favor equal protection, but that there is a struggle to define what that means in various specific instances. 

And, the "grumpy old men in the balcony" have by this point in the post begun muttering "what does this have to do with workers' comp?" There are far too many who forget that workers' compensation is a law, and in this country the foundation for all law came from the people and is embodied in the constitutions, state and federal. These establish government, define boundaries between branches, and provide checks and balances. These constitutions, in themselves, are a check and balance on government. The grumpy old men should remember that societal pervasiveness in their retrospection perhaps. 

That long path leads us back to Aurora and Michigan. In each instance there are the victims that have passed away. Their families will be impacted by the methodology of the two states' workers' compensation death benefit structures. As pointed out in Reminded of Death Benefits, the families in Illinois and Michigan may be treated differently from each other. Workers' compensation depends upon state law, and each state's law has its distinctions. By virtue of being in Illinois versus Michigan, the worker's benefits may be different. 

But what of those left behind? The truth is that employees with purely emotional injury may be treated differently from those with physical injury. There may be employees in both instances that perhaps suffered both, such as the police officers that were wounded and saw the disturbing scene or the coworkers that both burned their hands and witnessed Mr. Hill's condition. But, there may also be those who have no physical injury, but emotional injury or issues, and their state's law may treat them differently. 

Some states do not afford workers' compensation benefits to those who suffer only emotional injury. These states engage an "impact rule" that predicates entitlement to workers' compensation on a physical injury. When such a physical injury results in emotional injury, these jurisdictions will provide care and benefits related to that resulting emotional injury, but not for emotional injury standing alone. In that, there are those who see an issue of equal protection. They see two employees in the acid accident, one who burned their hands rescuing Mr. Hill and another who merely helped, hands on, with his care and treatment while awaiting the professionals. Those two employees, one with a physical injury and the other without, might have their emotional injury treated differently in various states. 

There are also a number of states, and the volume is seemingly expanding, in which people with certain occupations are treated better by the law than those in other occupations. In those states, a "first responder" like a firefighter, paramedic or police officer with no physical injury may be entitled to workers' compensation benefits for emotional injury alone while other employees are not. The law in some states presumes that a paramedic witnessing a shooting victim should be compensated for purely emotional injury, but that shooting victim's coworkers, lacking a physical injury, should neither receive compensation or treatment for their emotional injury. 

In an incident such as the Michigan acid immersion, a first responder emotionally affected by the appearance and circumstance of Mr. Hill might be entitled to workers' compensation while a coworkers without physical injury may not be. In an incident like Aurora, a police officer or firefighter perceiving the wounded might be entitled to benefits, while a mere coworker without physical injury might not be. Some see equal protection concerns in such laws that elevate some workers to special status, and entitle them by law to benefits unavailable to other workers. 

Certainly, the circumstances in either event may present sights, sounds, smells, and other sensory experiences that are disturbing. But, there are those who find it curious that among those without physical injury, the law would provide compensation and treatment for the professionals trained for such tragedy, but provide nothing for co-workers who: (1) knew the victim(s) personally, and (2) who will likely deal with the aftermath such as cleaning and securing a premises, and (3) will have to return to work in the same premises and have persistent daily reminders of the event, tragedy, and emotions. 

In fairness, there is debate whether such discriminatory laws are permissible or appropriate. There are those who see no equal protection argument. Their logic is founded upon the nature of first responder occupations, and the parade of various horrors to which those employees are unfortunately too regularly exposed. Certainly, those people all rush into many situations from which the rest of us flee (fire, violence, etc.). Without a doubt there are good people who serve in these roles, and a societal debt for their services and sacrifices. 

However, it is a fair point for debate. What is being covered for whom? Are there logical justifications for distinction? Should the laws treat people with common experience and exposure differently merely because of their job titles? Should the deputy in the Parkland high school parking lot be entitled to benefits for emotional injury, but not the school teachers and staff that witnessed the actual shooting, injuries, and death?

Sunday, February 17, 2019

Reminded About Death Benefits

There are times when a headline catches attention. In early February 2019 this one caught mine Workers scrambled to pull man from vat of sulfuric acid. Two main points in this story are worthy of discussion. First is the reminder that workers' compensation does not provide compensation for pain and suffering, despite the probability that most or all injuries involve some degree of pain. Second, there is marked disparity among jurisdictions regarding the volume of indemnity benefits potentially due from a workplace death, and those death benefits may be of significantly less duration than benefits for disability. 

This story reported that a 54 year-old, Daniel Hill, died after falling "into a vat." He "was fully submerged in the 10 percent to 12 percent sulfuric acid solution," as his "co-workers worked desperately to pull him" out. The solution was also heated to "160-degrees," and some co-workers burned their hands in the process of removing him. 

The co-workers put Mr. Hill into a "safety shower," and emergency personnel arrived to treat and transport him to the hospital. The local Fire Chief reported that Mr. Hill was "was walking and talking" when emergency responders arrived. But, he died about 11 hours later, secondary to "pretty extreme burns." The news reports that Mr. Hill is survived by a wife, children, and grandchildren. 

The employer is in the process of a "comprehensive investigation." It is also "cooperating fully with the Michigan Occupational Health and Safety Administration investigation" (though the article also uses the acronym "MIOSHA," suggesting it is "safety and health" instead?). A statement from MIOSHA said that "this type of investigation may take several weeks or months to complete." The story notes multiple prior safety issues at the employer for which fines were imposed. 

The implications for this event from a workers' compensation perspective are worthy of discussion in both a micro (this case) and macro sense. The first consideration is what compensation will be paid in the event of a workplace death. 

Michigan provides up to $6,000 for funeral expenses for a work-related death. Mich. Comp. Laws Ann. § 418.345. There is also indemnity benefit payable "to the dependents of the employee who were wholly dependent upon the employee's earnings for support." That is "80% of the employee's after-tax average weekly wage," (which may be capped by a statutory maximum) "for a period of 500 weeks from the date of death." That is almost 10 years (520 weeks). Those benefits may continue even after that 500 weeks for a dependent who is "less than 21 years of age." There is also a process for payment to those "only partially dependent" for support. Mich. Comp. Laws Ann. § 418.321.

Michigan lists various individuals that are "conclusively presumed" to be dependent upon the employee. This includes a child of the employee, under 16, who is living with the employee when death occurs. It also includes children under 16 who do not live with the employee but are children "by a former spouse" or "who has been deserted by" the employee. If there is someone "wholly dependent," that person (or persons) is/are entitled to all of the death benefits, and if more than one then the benefits are shared equally. If there is no one "wholly dependent, then the benefits are paid to anyone "partially dependent." Mich. Comp. Laws Ann. § 418.331.

This analysis and structure is not uncommon. Florida similarly provides for work-place death in Section 440.16, Fla. Stat. This provides a benefit for funeral expenses and for indemnity payments to dependents. Some would argue perhaps that the division of those benefits among a group of dependents is more complex under the Florida law, but it is consistent in that there is a statutory division set forth. In Florida there is no distinction between the "wholly" or "partially" dependent though. 

In a macro sense, one of the striking things about workers' compensation death benefits is the tendency for states to limit entitlement to them. This may be based upon dependency, or even relationship. See, Ideological Shift, 2015, and Marriage, the Law, and Workers' Compensation, 2014. In various states there are requirements that must be met in order to prove entitlement to death benefits. And, sometimes there is even dispute regarding how a death occurred. In many cases, the circumstances of death are less than clear. In the absence of witnesses, the causation may be a challenging hurdle to overcome. As an example, how did Mr. Hill come to be in the acid vat?

It is notable that workers' compensation is a statutory substitute for tort liability. The benefits provided by workers' compensation replace damages that might be due in a civil lawsuit against an employer. The employers and workers have each gained through this statutory contract, which has been described as a "grand bargain." For example, employers have gained immunity from civil lawsuits, but have lost the ability to avoid payment due to lack of fault. Similarly, employees have gained a more certain and rapid recovery for a greater spectrum of injury (fault is largely irrelevant), but the kinds and amount of benefits are more limited. There are more examples, but these illustrate the give and take that is the "grand bargain."

That exchange came to mind reading the Michigan story. Mr. Hill was burned over 100% of his body. Notably, burns can be characterized in degrees. Very Well Health provides a good overview of how burns are characterized as well as the risks associated with first, second, and third degree burns. The news reports are not clear regarding what degree burns Mr. Hill suffered, but they were sufficiently serious to result in death.

It is possible that his burns were related to both chemical and temperature. The sulfuric acid was diluted (10%-12%). It was also heated to about 160 degrees. The boiling point of water is just over 200 degrees. And, a brief exposure to boiling water can result in first or second degree burns or "scalding." The government recommends you set your water heater thermostat no higher than 120 degrees to prevent scalding. Thus, Mr. Hill was in liquid that was hot enough to burn. 

Furthermore, sulfuric acid is capable of causing both "chemical and thermal burns." The Material Safety Data Sheet Online describes that the chemical burning damages the skin, and that secondary thermal burning can then result through dehydration. There are also dire warnings about the potential harm from eye contact, and from internal organ damage if it is ingested. 

It is therefore likely that Mr. Hill was in a great deal of pain following his rescue. His coworkers responded just as the experts recommend, with immediate "flush (of) the affected area gently with lukewarm water for at least 30 uninterrupted minutes." It is certainly likely that first responders or emergency physicians professionals thereafter provided him with pain medication. But, Mr. Hill most certainly suffered a painful experience. Workers' compensation provides no compensation for what in tort situations is referred to as "pain and suffering."

Mr. Hill had a spouse, children and grandchildren. Whether some or all of those was "wholly dependent" or not will be for the Michigan Magistrate to determine. In the event that none was "wholly," then there will be an analysis whether any were "partially dependent." Determining who is entitled to death benefits can be fact-intensive and time-consuming. And, in a macro sense it is certainly possible that an employee might suffer a work-related death and have no dependents, but many loved ones nonetheless. 

The median household income in Michigan in 2017 (the last year for which there are figures available) was $54,909. That would equate to an average weekly wage (divided by 52) of $1,055.94. Assuming that for the purpose of a mathematical example, The dependents of Mr. Hill will likely receive about $844.75 (80%) per week for 500 weeks, a potential total of $422,376.90 over the next almost 10 years. 

But, in Florida, that indemnity total would be different. Section 440.16, Fla. Stat. includes a statutory cap that Michigan's statute does not. Florida law provides that the indemnity benefits for death "shall not exceed $150,000." Of course, the statutory delineations and definitions vary from jurisdiction to jurisdiction. However, it is not uncommon for death benefits to be more restricted than disability benefits. 

It is possible that any disability from a work injury may last for years. There are serious work injuries that result in total disability, and various workers' compensation laws strive to replace income in those situations. For disability that is permanent in nature and total in character, statutes might provide for indemnity payment for as long as a worker lives, or until the worker reaches some age threshold, such as a retirement age. Regardless, it is likely that those disability limits will be more generous than either Michigan's 500 weeks or Florida's $150,000. 

There are those who criticize this mathematical outcome. They argue that the most permanent of injuries, death, should not be less compensated than other injuries. There is also criticism of the "dependent" analysis that is common in workers' compensation statutes. They find incongruity in the potential that a worker might have no dependents and thus there would be no indemnity due to the worker's loved ones. They argue that death benefits should operate more like a life insurance policy in which death results in a sum-certain payment of some amount. The advocates of this more certain payment see an employee designating a beneficiary rather than a legal determination of dependency. 

These are interesting discussions and arguments. Regardless of perspective, it is probable that many or most in the workers' compensation community can find legal provisions with which she or he disagrees. When the National Conversation occurred, one of the main topics of interest was benefit adequacy. As the workers' compensation community debates system sufficiency and benefit adequacy, death benefits are often a subject of conversation. Mr. Hill's accident is a reminder of those points. In March, the Workers' Compensation Hot Seat will address benefit sufficiency in broad context. 




Thursday, February 14, 2019

The Accouterments of Modern Business

I recently posted about a Florida Bar investigation and consent agreement in A Disciplined Attorney and Repercussions. I do not know Mr. Bradley Douglas (I don't think, though I meet many people and I am not good with retention of names sometimes). When I first ran across the Supreme Court order in that case, I searched the Internet to help me identify, or perhaps remember, Mr. Douglas.

I was first surprised when the "images" Google search yielded no photos that were the Bradley Douglas for which I was searching. Eventually, I located a video. Using my rudimentary computer skills, I included in that post a screen shot of the YouTube video, the only success I had in my search for an image.

This is not the first time I have struggled to find a photograph on the Internet. In my work with the National Association of Workers' Compensation Judiciary (NAWCJ), I have often struggled to find photographs of, and information about, individuals appointed to various judicial positions around the country. It is not uncommon that an announcement in the NAWCJ newsletter features a state seal image in lieu of some appointee's photo. It has persistently struck me as curious that data is widely available for some people and yet completely unavailable for others. 

Often, successful searches for photographs and background biography information are successful when there is a law firm website. But, as often I am surprised to find a particular lawyer has no website. Al Gore "took the initiative in creating the Internet" decades ago. It has become the "go to" source of information in our society, invading and permeating our existence in so many ways. And yet, many lawyers do not have even a rudimentary website (name, picture, practice area list, address, phone number). 

Certainly, there is expense associated with constructing any website. But, a website is a relatively inexpensive opportunity to introduce one's self to clients. prospects, and your community (I know some lawyers who thrive on referrals from other attorneys, their "community"). It is an opportunity to put a face with a name, overview areas of practice or expertise, inform, and expound. I know so many lawyers that are engaged in outstanding charity and community service, and yet so few who provide information about that on their website. 

Notably, lawyers that elect not to make that commitment to a firm website will nonetheless have an Internet presence of sorts. Searches will likely yield references on Avvo.com, Mapquest.com, Kudzu.com, Justia.com, legaldirectories.com, and more. Those sites strive to compile and provide information regarding people without their involvement or consent. And, in more than one instance, I have been told that information on some of those sites is not accurate. 

For Florida lawyers, of the search results will likely be for a member profile at The Florida Bar, www.flabar.org. The Florida Bar has invested significantly in technology over the last 15 years. It has a dynamic and diverse website full of information, as well as a significant following on social media platforms. Each Florida Bar member is afforded a profile page. Some might argue that platform is "free," and others might contrarily argue lawyers each pay for it with their dues. But, does that distinction matter? 

Considering both arguments, there is little excuse not to use the platform. If it is "free," then it makes since to take advantage of that opportunity to introduce oneself to the legal community, potential clients, and more. On the other hand, if each lawyer is paying for the platform with their dues, then does it make sense not to use something for which you are paying? The process of accessing and updating that particular tool requires less than ten minutes and a simple cell phone photograph. 

Nonetheless, it is not uncommon for me to find a Florida Bar member that has not taken advantage of this Internet benefit. Foregoing the opportunity to upload a professional photo, these members display the default:

Courtesy, The Florida Bar

Not the most informative selection. Some members also decline to provide information in their profile regarding in which Circuit they practice, or their areas of practice. That is, they are simply not leveraging the opportunity to inform of their identity, location, and practice on a site for which there is at least no marginal expense.

More surprising are those lawyers and other professionals who elect to engage in social media. Seemingly, the only purpose of social media is to both be informed and to connect with others. This is a volitional choice to put oneself out there in the (too often) morass of noise and confusion of Facebook, Twitter, Instagram and more. Periodically, an attorney's name will appear on one of the OJCC social media feeds similarly without a photo. Note that these instances each evidence an attorney that has taken the time to engage in social media, but has declined to provide a photo. And, on more than one occasion has declined to provide even rudimentary information about themselves.

Courtesy, LinkedIn



The information age is upon most of us; it has overtaken some of us. Technological changes keep coming. The technology generation was born to a world of cellular phones and unlimited data. They are as familiar and comfortable with the Internet as previous generations were with newspapers, yellow page directories, and facsimile machines. As important as an internet presence arguably is today, there is every indication that its importance will only increase. 

For those who would be viewed as accessible, professional, and technologically aware, the time for leveraging their Internet presence would seem to be now. What message does someone of the technology generation glean from a failed Internet search for some professional? What does an incomplete social media profile communicate to those who are inextricably caught up in social media as a way of life? If you are one of those generic image users on the world wide web, perhaps it is time to consider a photo. If your social media profiles are incomplete, perhaps a few minutes would be a worthy investment. 

And, if you are in business today, perhaps a basic website is a worthwhile consideration. Maybe you could trade that antique fax machine gathering dust in the corner to some budding Internet entrepreneur in barter for some web-programming?




Tuesday, February 12, 2019

How can they Both Increase?

A headline in the summer of 2018 caught my eye. Fox News reported Exercise and obesity both on the rise in America. As one who has struggled with weight for decades, and for whom exercise is a hated necessity, that headline screamed oxymoron sentiments. 

The author concedes that the results of a recent study and survey seem internally inconsistent. The story notes, however, that "more adults in the U.S. say they are exercising at the same time more of them are becoming obese." In each instance, the results reflect what people are self-reporting when responding to a survey about themselves. In that regard, perhaps there is reason to consider our own tendencies for truth? At least one expert quoted by Fox suggests we may tend to overstate what makes us look good (exercise amount and height) and understate what makes us look not-so-good (weight, lack of exercise). 

The survey results indicate that "24 percent of adults last year (2017) said they exercise" consistent with "government recommendations." Notably, those recommendations can change, but more on that later. This represented an increase from only "21 percent in 2015." 

In the same survey, "31 percent of adults indicated they were obese last year." That is, they self-reported their perception that they were "obese." And, after decades of on-again/off-again diets, perhaps others join me in the category of people more than a little reluctant to refer to ourselves as "obese," despite what some chart at the doctor's office might say. But, the percentage of Americans self-identifying as "obese" has nonetheless increased. 

The Fox story notes that one explanation of this apparent anomaly is that the data responses "may reflect two sets of people," They characterize these groups as "the haves and have-nots of physical fitness." It contends that perhaps "the people becoming more active are already normal weight." That is, the increase in physical activity is occurring within the portion of the population that perhaps wants, for fulfillment and to prevent future issues, physical fitness; the group that least needs weight loss. 

If that perspective is accurate, then perhaps there is another group of people who are not in a proactive posture. These individuals perhaps have slowly accumulated body mass or adopted sedentary habits. They may find themselves today on the wrong side of that doctor office chart, labelled as "obese" or worse. And, those people may not be exercising as recommended. 

The definition of obese has not changed. And frankly, there are flaws in how we define obese. The Center for Disease Control (CDC) explains how body mass index (BMI) is calculated. It is expressed on that website in the Metric system measures that our teachers predicted would become the accepted normal in America, which predictions, miles later, have proven not so accurate. But, essentially, the BMI is calculated by dividing weight by height. 

The CDC even provides a chart for your use in determining your BMI. Notably, the same CDC that says the calculation is based on "kilograms divided by the square of height in meters" provides a chart that is accessible to the rest of us (Americans), in which height in inches and weight in pounds directs us to our respective BMI. According to this chart, I am "obese." But, so is Dwayne Johnson (the Rock). No I am not comparing myself to the Rock, but just saying I am in good company perhaps. 

As mentioned, the government changed its activity recommendations in 2018. A National Public Radio (NPR) story in November 2018 noted the recent recognition that Americans are burning fewer calories, and that our "sedentary office jobs" are the cause. Sitting, the experts have concluded is not good for us, with some concluding that "sitting is the new smoking." I know a few who have spent hundreds of dollars to modify their workspace to allow standing as an alternative. Stand-up desks have become very popular.

Courtesy Heavy.com 

One workers' compensation community company can be said to have gone "all in" on stand up desks. WorkCompCentral recently reported that Texas Mutual has equipped each workstation in its new headquarters with these desks. This story notes however, that "a spirited debate continues over the benefits" of such equipment. There are studies cited regarding the impact on cardiovascular health, and perhaps the overall theme of that story might be aptly described as "the jury is out" on stand-up desks. Buying some trendy new equipment may or may not benefit us. 

And, the government recommendations for activity have recently changed. NPR reports that the government has "updated recommendations for physical activity." And, with that update, it is likely that the number of people reporting they are exercising "consistent with the "recommendations will increase even beyond "24 percent" in the next survey. That may not mean more are exercising, just that more are able (or willing) to "count" what they are already doing. 

The new guidelines are essentially a recognition that any activity, of any duration, can be beneficial. The new recommendations do not change the overall volume of activity recommended. The government says "adults need a minimum of 150 minutes a week of moderate-intensity physical activity." This essentially meant that you should perform some activity that "that gets your heart rate up," for about 20 minutes daily (average) and that you "do muscle-strengthening activity on two or more days a week." 

The new recommendations maintain those overall goals, but abandon restrictions for workout duration. Essentially, "the old message was you needed at least 10-minute bouts of aerobic activity for it to count toward the goal of 150 minutes." The "new guidelines conclude that all movement that helps you stay physically active is important." Thus, before walking counted if you stayed with it for ten minutes, and now strolling to the water fountain counts. It is astounding how many steps people take in a day, even seemingly sedentary folks. The popularity of fitness monitors and even cell phone apps is raising awareness of that activity. 

The goal, according to NPR is to change attitudes about activity. The hope is that people will take the stairs and skip the elevator. That they will periodically take a short walk "around the block." The hope is that activity would be more integrated in our daily routines, to our individual and collective benefit. 

The NPR article quotes a study about the cost of medical care associated with sedentary lifestyles. and the figures are compelling: "$117 billion in annual health care costs." That comes close to $400 per American per year. An interesting study cited on TheRichest reported the top ten physically active nations, including: The Netherlands, Burma, Mongolia, Cambodia, Greece, Malawi, Benin, Comoros, Mozambique, Bangladesh. TheRichest noted that this "list largely consists of countries with low income per capita that have more active lifestyles due to the exerting physical nature of their everyday work." 

But, there is also some evidence of economic impacts driving some behavior in the area of commuting. TheRichest report concludes that The Netherlands activity may be related to oil shortages 50 years ago, that resulted in "a cycling craze that has only grown ever since." Similarly, it notes that "the gulf between bike and car sales was more pronounced in Greece than anywhere else in Europe." Discussions of other nations included on this list make references to the physical demands of work in those nations. Overall, the the outcome of TheRichest analysis is not inconsistent with the NPR connection between American obesity and "sedentary office jobs." 

Despite that link, exercise is not the be all and end all of body weight. The FoxNews article concludes by reminding that "unhealthy eating has a lot to do with obesity." Therefore, the recommendation is for "a change in diet" as well as exercise. Without that change in diet, the increase in activity may not produce lower body mass. The government recommendation (as revised) for activity remains, but perhaps our individual disinclination for altering our calorie intake frustrates our best efforts in exercise? 

As with many things, it is probable that there is not "an answer." The solution to each of our personal challenges may be different because each of us is different. Seriously, is anyone suggesting that The Rock is not in good shape? Therefore, the BMI analysis with which we are seemingly enthralled may not be the best tool for measuring our status or personal progress. And, though the "have and have nots" analysis may be worthy to some extent, there seems significant foundation nonetheless for some introspection not only about how much we eat, but what we eat. 

By now, too many of us will have broken their new year's resolution. Business Insider says that 80% of us fail by February. And, not surprisingly, there is support that "getting in shape" is the most popular new year's resolution. Thus, a great many began 2019 with the commitment to improve fitness, and a great many of those have already not lived up to their own expectations or aspirations. But, perhaps the healthy course is not to wait for next December to make a new resolution? Instead, why not resurrect the 2019 resolution now? As a side note, I have kept my resolutions so far, and will report on that in December (earlier if I fail). 

This can be rational and reasonable. A recent Tweet from the @RxProfessor (an Atlanta resident and well known workers' compensation commentator) reinforced the seemingly simple message of the new Federal Guidelines.


His simple message: if arriving at Atlanta Hartsfield, is to walk from terminal to terminal instead of taking the shuttle train. This is akin to the hope expressed above that people would take the stairs. Instead of grand plans for gratifying self-improvement (grandiose goals or unrealistic eating commitments) why not accept some more realistic expectations: 

(1) increase activity, however and whenever you can; 

(2) eat less each meal, and focus on what is in the produce department (fruit, vegetables, nuts, etc.); 

(3) accept that we will all fail (miss a day of exercise, eat a decadent desert, overdo, under do), but that we can all get back on track the next day rather than waiting for resolution time for the next year; and 

(4) Remind yourself that The Rock is on the wrong side of the BMI chart with you and don't be so focused on the BMI, the weight, the number of minutes in the workout. 

Focus instead on doing better. Not radically perhaps, but merely doing better. Incrementally, we have decreased our national activity level. Incrementally, we have seen increasing obesity. We will not immediately reverse that trend, nationally or personally. We will reverse this trend, if at all, incrementally. Strive to do more, to eat less, and to eat better. Know that the benefits may be incremental, and take a long view of expecting results and improvement. Just do better, that is resolution you can keep. Do it persistently, even if not necessarily consistently, and it will benefit you.



Sunday, February 10, 2019

Is there a Benefit?

The January 2019 issue of the National Association of Workers' Compensation Judiciary's Lex and Verum includes an intriguing article regarding attorney fees: How Many Slices are in a Twelve Inch Pie? The author is one of the Virginia Worker's Compensation Commission members, and former chair, Wesley Marshall. The theme of the article is the increasingly ubiquitous Medicare Set-Aside, and the question of obtention of benefits. 

The article provides an overview of the advent of Medicare's involvement in the world of workers' compensation, the delineation of Medicare as a "secondary payer" (as in anyone else involved should be the “primary payer”),  and the "duty to protect Medicare's interests when resolving" cases. Though this is a workers’ compensation (WC) focus, the same “Medicare interests” appear in a variety of other examples involving some entity with “primary” responsibility for medical care.

Commissioner Marshall discusses two conflicting California decisions. One concluded the part of the WC settlement proceeds apportioned to the Medicare Set Aside (MSA) should not be included in the attorney fee calculation. The California Board reasoned "the claimant did not necessarily place herself in a more advantageous position by settling her medical award." In other words, as America put it in Tin Man in 1974: "Oz never did give nothing to the Tin Man That he didn't, didn't already have." That is, perhaps it is valid to question: "what did the injured worker gain?"

He contrasts that conclusion to a later decision from the same California Appeals Board. It concluded the MSA funds were a benefit and should be included in the "obtained benefits" to calculate the attorney fee. The Board there cited treatment obtained with the funds in the MSA would be more readily usable at the patient/worker's discretion. The constraints of the state workers' compensation system were eliminated by the settlement of the case, and funding of the MSA. Also, the Board noted that should the worker pass away, medical benefits under the state workers' compensation law would cease. However, in such an event, the remainder in an MSA account "would be payable to the injured workers' estate," at least in some circumstances. Other state decisions are discussed by the Commissioner, but these two serve as examples. 

Commissioner Marshall concludes that "there is no federal guidance on whether an attorney's fee for settlement" may or should include the MSA funds in the calculation. He notes that it might be equitable to include these amounts in order to avoid "giving Medicare a 'free ride' either directly or indirectly." He also contends that declining to include these amounts in the calculation could prove a disincentive to the representation of workers whose cases would likely involve an MSA. In this regard, he sees an unintended consequence of such exclusion. 

He concedes that some might conclude that inclusion of that figure in the calculation, a figure that can only be used to pay specific medical costs, might result in "most or even all" of the non-MSA settlement funds (the indemnity portion of the settlement) being depleted through attorney’s fees. Commissioner Marshall suggests that some formula might be contrived as a compromise regarding fees for the MSA portion of a settlement, but cautions that such a formula would have to "balance carefully the need for attorneys in the system and for them to be compensated fairly against the ultimate conclusion that a settlement is in an injured worker’s best interest." 

This discussion was interesting for several reasons. First, from the "Tin Man" argument perspective, perhaps every settlement in workers' compensation is similarly only what the injured worker "has coming." That is, is an allocated amount for future medical care really that different from an allocated amount for any other benefit category? Often, indemnity benefits in workers' compensation are formulaic. Absent a settlement, those benefits are generally paid periodically. They are calculated based upon various statutory criteria such as: loss of function or ability, impairment rating, or lost wages. Many formulae for such income benefits have been engaged across the country over the last hundred years. But what they all have in common is that they are largely mathematical.

Mathematical that is in the sense that those who pay benefits (employers and their insurance carriers) can reasonably calculate the probable volume of benefits that will be due any particular injured worker. Whether with assumptions regarding impairment or economic loss, or with actual figures and facts, the payers may reach educated conclusions about the probabilities of the exposure cost. Generally, armed with the knowledge of that probable expense, the employer or carrier offers settlement by payment of something less to the injured worker. From the payer's perspective, perhaps that savings is the motivation for settlement in the first instance?

Certainly, there is also perceived benefit in claims closure generally; it means one less file to monitor, to reserve, to manage. Certainly, the closure of a claim reduces the payer’s transaction costs. For each open file, there is some expenditure for an adjuster or other claims professional to both periodically review and process various ongoing payments therein. Thus, reduction in the number of open claims, through settlement, represents a reduction in payer overhead. But, generally speaking, there is nonetheless likely a desire of the payer to pay less than it otherwise predicts or anticipates based upon the statute and the mathematically calculated payments over time.

Thus, one might validly argue that in a variety of settlements the negotiation is not to obtain what a statutory scheme provides, or greater than what it provides, but instead to obtain less than the injured worker is otherwise likely entitled. Notably, there is corresponding benefit to the worker in settlement. Similarly to the second California logic above, settlement proceeds remain the injured workers' property following death, when death would otherwise likely truncate the payers obligation to pay periodic workers' compensation benefits. 

Second, the "closure" so valued by the payer may also represent a value to the injured worker (or even Medicare as discussed below). The worker obtains closure, certainty, and peace of mind as well as the payer. Anyone who has been involved in workers’ compensation settlements understands that some claimants do not consider only their economic self-interest in deciding whether or not to settle. Litigants care about fairness, not just money. Thus, the "Tin Man" analysis is perhaps less persuasive. 

That non-inclusion argument, that the injured worker is getting in the MSA only that to which she/he is undoubtedly and otherwise entitled is an arguably accurate description of what is occurring. But, in contrast, the other settlement value (the indemnity and other incidentals) is often, and perhaps always, less than that to which the worker is entitled. Historically, workers' compensation systems have never been concerned with attorneys earning a fee based upon their negotiation of the obtention of such a settlement, for less than the worker is otherwise entitled. 

Why would that same system express concern that a fee was similarly calculated on what experts and soothsayers conclude is the exact value of what would otherwise be provided? If anything, that alone might convince some that the MSA portion is more of a benefit than the non-MSA portion?

The second flaw in the logic of treating the MSA settlement portion differently is simpler. Though the California Board touched on its perceptions of why a settlement is beneficial to an injured worker, with all due respect, who should decide if a settlement is what an injured worker really wants? This is where Commissioner Marshall's analysis of the Virginia Board's role is critical. He notes that in Virginia the Commission is charged with making a determination that "a settlement is in the claimant’s best interest." In a multitude of jurisdictions that is the case. And, if the particular injured worker is in one of those jurisdictions, then that determination will necessarily be a holistic one by some regulator or regulatory process.

What has driven legislatures to include that “best interest” statutory analysis? There is some perception that review is fundamental to the preservation of the “grand bargain” of workers’ compensation and the Constitutional guarantees of due process in such an administrative system. Some perceive settlement of workers’ compensation as deleterious to what they characterize as a public commitment to “redistributive justice,” and thus a process in which protection or review is necessary and appropriate. Still others believe that injured workers and payers have decidedly unequal bargaining power, and they perceive the “best interest” analysis as a check and balance on the inequity perceived.

I note these perceptions and add that in Florida most settlements no longer require such a judicial or regulatory “best interest” finding or conclusion. Before 2001, all settlements required such a finding in Florida. But, then the legislature removed that requirement for judicial oversight if an injured worker is represented by counsel. In a Florida case in which the worker is represented, the attorney is thus making the “best interest” determination. Whether this analysis is judicial, regulatory, or by an attorney, it has to include a fair and reasoned consideration of all the circumstances of a case. 

For example, perhaps the employer is uninsured and teetering on bankruptcy, then maybe a smaller settlement than otherwise anticipated is nonetheless in the workers' best interest. Or, the worker suffers from some unrelated and yet serious or life-threatening medical condition, perhaps a smaller settlement than otherwise anticipated. Or, if the worker continues to require significant care and treatment beyond what such an injury might reasonably be expected to need, perhaps the settlement is larger than otherwise anticipated. Or, the complexity, medical or legal, of some aspect of a worker's condition or allegations results in additional administrative time and attention, perhaps the settlement is therefore larger than otherwise anticipated. Thus, the injury, medical or vocational, is not necessarily settled in isolation. The value is not necessarily mathematical.  The case is settled, and in arriving at what consideration will be sufficient, the totality of circumstances must be considered. 

That remains true whether a governmental agency or an attorney is analyzing the "best interest." Regardless, the analysis may be challenging. The analysis itself may not be mathematical or formulaic. At the end of the day, regardless of whether an attorney is making the "best interest" analysis for the worker or whether the attorney is building the case for the settlement in order to demonstrate "best interest" to some adjudicator or regulator, that "best interest" process must be fulfilled. Whether stated in a statute or not, the worker's attorney must be focused upon the client's best interest. 

Thus, either the injured worker is successful in settling or she/he is not. Similarly, the attorney delivers value in that process or she/he does not. Either her/his fee is thus reasonable or it is not. And that is a holistic decision that compels the consideration of what has been obtained, in exchange for what has been foregone. The effort of the attorney and the benefit to the client are important considerations. To suggest that such a "best interest" analysis should ignore or exclude certain facts, such as the value of medical benefit determined, potentially raises more questions than it answers. 

I would suggest that the Tin Man argument perhaps applies most logically to Medicare itself. Commissioner Marshall notes that Medicare should not enjoy a “free ride.” However, I perceive Medicare has nothing to lose, or frankly to gain in the settlement process. 

Commissioner Marshall disagrees. He contends that through settlement, Medicare’s reimbursement regarding certain treatment or care becomes a known and fixed amount. He argues certainty in itself is a benefit, whether it is certainty of a full measure of expense recovery, something more, or less. In considering whether there is or is not benefit in that certainty, the touchstone may be that Medicare will not “profit,” that is “gain” income, from any over-estimate of probable future expense, but may face unreimbursed expense if it under-estimates that future probability. In approving a set-aside, does Medicare gain or lose?

Perhaps there is a benefit at least as regards the Medicare “transaction costs,” similar to the corresponding benefit to the payer (or worker, as discussed above)? In this regard at least, perhaps there is substantiation for Commissioner Marshall’s contention that the benefits to Medicare are a “free ride” if those future medical payment estimates are not included in the calculation of the attorney fee?

But, in no regard is Medicare paying an attorney fee, whether the MSA value is included in the fee calculation or not. The fee being paid to the attorney is either being paid by the employer (or its carrier) or the injured worker. Thus, if you accept Commissioner Marshall’s argument that it receives value, Medicare is benefiting at the expense of the payer. Or, if you accept that Medicare neither gains nor loses in the process of settlement, the fact remains that it pays no portion of the fee regardless.

There are various potential scenarios worth mentioning. In a denied case, one in which the employer resists paying any benefits, a settlement might be the only process through which Medicare enjoys any benefit. Certainly, such a case might be tried to conclusion. In that outcome, a victory for the employer (payer) means no recovery or forbearance for Medicare.  But, a victory for the worker is likely also a significant victory for Medicare, leading to recovery of expended funds. But, Medicare would similarly have no liability for attorney fees in that litigation process, and could be as accurately characterized there as enjoying a “free ride.”

But, in a case in which an employer is providing benefits, Medicare will usually receive its reimbursement from the employer (or its carrier), the “primary payer.” If such a non-disputed case is settled, then Medicare will receive some avoidance of future payment, during the time the worker provides for her/his care from the MSA proceeds, significantly similar to Medicare receiving reimbursement. Arguably, the settlement changes only whether the “payer” as regards that care is the employer (or its carrier) directly or the injured worker (indirectly, with money from the settlement portioned into an MSA). Arguably, in the non-denied case, the payment is not changed, only the identity of the payer.

Perhaps Medicare has no interest as between these two. In the settlement of an accepted and compensable case, with the MSA, Medicare gets nothing that it did not already have. And thus, it seemingly has no interest in a case settling. It arguably has no interest whatever in whether attorney fees are paid or not paid regarding any or all of such a settlement, or whether they are sufficient or insufficient. Medicare may simply have no interest, and is thus absolutely the inappropriate entity to discuss or regulate attorney fees as regards those MSA funding amounts.


At the end of the analysis, it seems that interesting arguments have been made both for inclusion and exclusion. That there are seemingly conflicting decisions in that regard may reflect differences in adjudicator perspective or in various lawyering skills demonstrated in the prosecution of the arguments or perspectives. What is clear, is that there remains discussion and debate regarding the complexity of the MSA questions. Time will perhaps bring clarity to that discussion.


Note: Commissioner Marshall was provided a draft of this post and commented on it significantly. His contribution thus to the discussion, perspective and debate cannot be overstated. His participation is gratefully acknowledged and appreciated.  

Thursday, February 7, 2019

No One can do it for Me

In recent years, I have seen the Alliance of Women in Workers' Compensation programs at various conferences. Their programs include the motivational, but also substantive topics of interest to managers and company principals. The Alliance was only formed in 2016, a product of a recent merger of two professional women's groups. 

The Alliance mission "is to effect positive change in the workers’ compensation industry through networking, support, mentoring and collaboration." That is broad and inclusive. In pursuit of that, the Alliance seeks to "engage, enrich, explore, encounter, examine, and empower." There is further explanation of each of these on the website

In 2018, the Alliance produced a half-day educational program within the Workers' Compensation Institute program in Orlando. This was a substantive program focused on "understanding and ownership of business financials." The Alliance noted that "possessing financial acumen is an area of need for both women and men for career advancement." It therefore brought an "award-winning personal finance journalist and author" to the largest workers' compensation conference in the nation to discuss these key topics. I am told that the Alliance will return to WCI360 in 2019 with another compelling program. 

The point is apparent, but too often missed or forgotten. We are each responsible for our personal professional growth. Through our education and experience, we bring value to those who consume our services. This is true whether we are a state employee, private industry employee, or a business owner. Whether we provide services as a consultant, doctor, lawyer, marketer, accountant, or otherwise, we must each deliver value; that is the foundation of our business relationships with others. And, to deliver value, we must persistently and consistently improve and expand our personal experiences and education. 

As I contemplate the mission of the Alliance, I am reminded of a couple of quotes. For whatever reason, quotes and lyrics seem to resonate with me and they stick in my brain. Often, I remember them in bits and parts, but my old ally the Internet quickly helps me recall them. One of my favorites is Carol Burnett, an incredible American actor and comedian. She once noted: "only I can change my life, no one can do it for me." Similarly, but more focused on others, Mahatma Ghandi said "You must be the change you wish to see in the world." 

From Carol Burnett, we get that our future and our lives are in our own hands. We decide that we can and will do things that afford us growth. In that regard the Alliance events are positive. They afford the opportunity for substantive personal growth. The chance to hear a dynamic, national speaker provide advice on our understanding of financial management is a prime example. The Alliance provides these opportunities in a manner that relates to workers' compensation, but which is frankly broader. The growth and education in this setting, such as financial acumen, might as easily be used by professionals in almost any industry. 

From Mahatma Ghandi, we get that we and our community can change our surroundings. It is through our individual, personal, and perhaps perceived inconsequential behavior that we can change and benefit our industry, our work environment, and our professional world in its broadest sense. Through our personal behavior, we benefit the whole through service and through encouraging others to likewise serve. Thus, through our effort to improve ourselves, as Carol Burnett suggests, we change the world around us as Ghandi advocated. 

There is a limit to how many seminars one can attend. Every day I am not at my desk, the inbox continues to fill. Our professional lives are busy, complicated, and too often congested. But, the majority of our professional lives is spent in the delivery of our particular service or value. We owe it to our employers to consistently deliver the services for which we were hired. However, we owe it to ourselves individually, we owe it to our community or industry, to stop periodically and either hone our existing tools or acquire new tools. Through these brief pauses, we improve ourselves and our ability to deliver for others. 

In that regard, the Alliance of Women is a positive force. Certainly, it is not the only such force, but it is my focus today. Through its efforts, the efforts of organizations like the Workers' Compensation Institute, and your participation, you can build your repertoire of knowledge, skills, and value. Through such experiences, you can grow. For as William S. Burroughs noted, “when you stop growing you start dying.” We should all take these sentiments to heart, continue to grow and expand our horizons. It is worthwhile for each of us, and it benefits our entire industry, our world. That may come from travelling to seminars or programs, reading books and articles, or even attending webinars. (Shameless plug here, The Hot Seat is addressing benefit sufficiency in workers' compensation in March). 

What are you doing to hone and develop your skills? Are you striving to surround yourself with people that will lift you up?Engage with organizations and events that deliver value to you. Expand your knowledge, experience, and engagement. This is how you grow, and growing is really the whole point. It benefits you personally, your current employer or clients, increases your value in your next professional undertaking, and helps improve our industry and world. 

Remember, no one can do it for you. It is something you have to decide to do yourself. If you have the opportunity to attend a Women's Alliance program, or to otherwise engage with this incredible group of leaders, I recommend it. If you read something that provides you benefit, send it to others in your professional circle. If certain programming inspires or benefits you, seek more like it. As we engage, we grow. That benefits us all.

Tuesday, February 5, 2019

Judicial Discipline and Being Aware

On January 29, 2019 the Florida Supreme Court issued a decision in In re Judge Maria Ortiz, Case No.: SC18-674. This case involved gifts or gratuities to a Florida county court judge. There were also issues regarding reporting of gifts on disclosure forms. In Florida, the Judicial Qualifications Commission (JQC) investigates complaints regarding constitutional judges. The Commission, its membership, and authority are set forth in the Florida Constitution, Article V., Section 12

In May, 2018, the Commission issued Findings and Recommendations. The Commission concluded "Judge Ortiz’s lack of awareness as to her personal finances allowed a situation to arise wherein she was the recipient of several substantial gifts which she then failed to identify and disclose as required by the Canons." The "Canons" are sections of the Florida Code of Judicial Conduct. These Canons provide both mandates and guidance to judges regarding their duties and obligations. 

The Commission website describes that Judge Ortiz failed "to properly disclose several occasions in which she and her husband received free hotel accommodations from the RIU Hotel Group." Those "complimentary accommodations were allegedly provided to Judge Ortiz’s husband, Mariano Fernandez, as part of an unlawful compensation scheme involving his position as Building Director for the City of North Miami Beach." Judge Ortiz was not charged with criminal conduct. However, she did not disclose these "free hotel stays" on the "financial disclosures" that all judges must file annually. 

The Commission and Judge Ortiz entered a stipulation, which was considered by the Supreme Court in June 2018. This stipulation memorialized a hotel stay "free-of-charge in an Ocean Front double room," "a complimentary food basket and bottle of wine, " a "free-of-charge, (stay) in a standard Jacuzzi suite," "a special excursion, a trip to the VIP area of the famous Coco-Bongo Show and Disco (provided free of charge)," "an Ocean Jacuzzi Suite" in "Playa del Carmen," discounted "room and board," and another "VIP trip to the Coco-Bongo Show and Disco." 

The stipulation was that the Judge would amend her financial disclosure forms, and would from then on "prepare by herself, or with the assistance of a CPA, all future required disclosure forms." The Court entered a June 8, 2018 order in which it rejected the stipulation, "disapprove(d) the proposed sanction," and ordered "a full hearing before the Judicial Qualifications Commission in order to fully develop the facts regarding any misconduct that occurred." 

In October 2018, the Commission and Judge Ortiz entered a second stipulation. In it, they agreed that in 2015 and 2016 the Judge's husband was provided trips "free of charge by the Hotel." They agreed that the Judge's husband "managed the family finances," and that this also included filling "out Judge Ortiz's financial disclosures, which he then provided to Judge Ortiz for her review and signature." The Judge conceded then that she "failed to take reasonable steps to stay apprised of her financial circumstances, including failing to make specific inquiry into how the trips were paid for." 

The Court noted that, perhaps as part of an investigation into her husband's activities, the "the State Attorney's Office informed her that there might be irregularities" regarding these trips. Despite this, the Judge did not "to make reasonable inquiry into her financial circumstances, specifically the funding of the 2015-2016 trips." She also did not file any amended disclosure forms when she was advised of the potential for "irregularities," though she did file amended forms later, "during the JQC investigation." 

The second stipulation agreed that "Judge Ortiz should receive a 30-day suspension without pay, pay a $5,000 fine, receive a public reprimand, and pay the reimbursable costs of the JQC's inquiry, in the amount of $377.45." By order dated December 7, 2018, the Court rejected the second stipulation. It ordered that the JQC conduct further proceedings. It said it "would accept a stipulation with the sanctions of a ninety-day suspension without pay, a $5,000 fine, a public reprimand, and payment of the Judicial Qualifications Commission’s reimbursable costs." 

On December 11, 2018 a revised stipulation was filed. This was the document which the Court addressed in the January 29, 2019 order. The Court concluded (1) "Judge Ortiz failed to take reasonable steps to stay apprised of her financial circumstances, including failing to inquire as to who paid for three trips she took with her spouse," and (2) "failed to verify the accuracy of her 2016 and 2017 financial disclosures, despite signing a certification attesting to the veracity of the information contained in those disclosures." The Court noted that Judge Ortiz "has apologized for her misconduct and deeply regrets that her negligence may have damaged the public’s perception of the judiciary or impugned the integrity of her colleagues." 

The Court accepted and approved the revised stipulation. On January 29, 2019, it noted the Judge's admission that her conduct was not consistent with Canon 6 of the Code, which states: "Fiscal Matters of a Judge Shall be Conducted in a Manner That Does Not Give the Appearance of Influence or Impropriety." It ordered her "suspended without pay from her duties as a county court judge for ninety days," ordered her to "pay a $5,000 fine, as well as the costs of these proceedings, in the amount of $377.45" and ordered her "to appear before the Court for the administration of a public reprimand." There was no dissenting opinion or disagreement, although Justice Muniz "did not participate." 

The lessons are fairly apparent, but good reminders for any judge. Accepting gifts is probably not appropriate. Those gifts need not be directed specifically to the judge in order to be problematic, familial gifts can likewise be problematic. In this instance, the stipulations support that the gifts and gratuities were directed at the Judge's spouse. The Judge had a duty to be informed about the existence and extent of the gifts or gratuities, and an obligation to diligently and thoroughly report gifts. The Judge had an obligation to at least review and likely amend those gift forms when she learned of the potential for error. Finally, all Judges should remember that Canon 6 is focused broadly, beyond actual impropriety, upon the "Appearance of Influence or Impropriety." 

Certainly, this is a Florida case. However, the Florida Code of Judicial Conduct is similar to the Model Code prepared and advocated by the American Bar Association. In that regard Judge Ortiz' experience may be of assistance to any judge. 

It bears noting that Canon (5)(D) expressly prohibits the receipt of gifts by Judges, and says Judges "shall urge" family members in their "household not to accept, a gift, bequest, favor or loan from anyone," with some express exceptions. The exceptions include resource material for official use, attendance at "bar-related functions" or "activity devoted to the improvement of the law." There is specific exception for gifts "incident to" a family member's "business or profession." Other exceptions are for "ordinary social hospitality," "special occasion" gifts from relatives or friends, and other gifts from someone close to the judge, close enough that if they appeared before the judge it would be necessary for the judge to recuse (remove her/himself) from the case in any event. 

Canon (5)(D)(h) affords the broadest exception, allowing gifts. However, it is applicable only "if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge." In other words, the gift-giver should not be involved in proceedings, nor likely to become involved. And, if the "aggregate value in a calendar year of such gifts . . . from a single source, exceeds $100.00" then the gift must be reported by the Judge. Some refer to this as the "de minimus" exception," as it allows receipt of small gifts from people or organizations not involved in cases before the Judge. 

In response to various inquiries regarding gifts, the Florida Judicial Ethics Advisory Committee published Opinion 2018-07. This addresses various specifics of gratuities and gifts afforded Judges. It is a recommended starting point for considering specific gift issues. All of the opinions of that Committee, as well as Florida Supreme Court decisions regarding judicial ethics, can be searched on the Committee's section of the Sixth Circuit website

In the end, the greatest lesson of In Re Judge Ortiz is likely that the responsibilities of Code compliance are the Judge's. The Judge must be aware of her/his own activity and that of family members. The Judge must be responsible in the reporting of financial circumstance, gifts, and gratuities. Someone might help with those forms, but ultimately the judge is responsible. That responsibility includes knowing who is giving the Judge what, but also includes knowing who is giving a member of the Judge's family what. It is perhaps a significant effort, and perhaps could lead to some familial discord, but that pales compared to the potential penalty. 

Judge Ortiz will lose 90 days of pay. County Court Judges earn approximately $151,000 annually. Thus, this penalty is almost $38,000. With the addition of a $5,000 fine, the financial impact to the Judge here is significant. However, the Judge also is publicly named in the Court's decision, and these circumstances will be studied, cited, and discussed. Furthermore, she must appear at the Supreme Court for a public reprimand by the Court. Certainly, monitoring and reporting gifts may be challenging. However, the alternatives are compelling. 

There is, however, an easy path to avoid such potentials. I believe that path is to simply decline any and all gifts. Regardless of whether a donor appears before a Judge or is likely to; regardless of the value of a gift being large or small; the easy answer is to simply, politely, and consistently decline gifts and gratuities. After all, what possible appropriate reason is there for someone to provide a Judge a gift?