Tuesday, April 30, 2019

The Right to Privacy in Comp

The Florida First District Court recently published Varricchio v. St. Lucie County Clerk of Courts, 1D-17-3229. This appeal involved a claim for temporary indemnity benefits, which necessarily required a determination of the date of maximum medical improvement. In Florida workers' compensation, that date is the demarcation line between "temporary" and "permanent" indemnity benefits as well as dividing "remedial" (to provide lasting improvement) and "palliative" (to provide periodic but temporary alleviation of symptoms) medical care. 

There are three main legal issues in the decision worthy of discussion, but also references to two of the "standards of review" in appellate proceedings that always bear reinforcement. These three are (1) the assignment of MMI, (2) the duty of an employer to investigate medical status, including the application of equitable estoppel, and (3) a Floridian's constitutional right to privacy, and the particular application of it that may be different in workers' compensation because of the nature of that legal system.

The first issue is maximum medical improvement (MMI). In this case a  neurosurgeon provided care and later placed the worker "at neurosurgical MMI." But, the worker had since come under the care of "a pain management physician." Thus from one perspective (neurosurgery), the worker had improved as much as was reasonably expected, but remained under remedial care with the pain management doctor. Thus, she was not at "overall MMI." It is overall MMI that demarcates the two categories of benefits, permanent indemnity and palliative care from temporary indemnity and remedial care. Because of the involvement of multiple medical specialties, overall MMI is frequently a legal issue in workers' compensation cases. 

The pain management physician performed a procedure in June 2015, and expected the worker to return two weeks later. The worker testified, however, that she was not told to return. She eventually returned "almost a year" later, describing "100% pain relief " after that procedure, but with symptoms appearing again "two weeks prior to her return." In this regard there were potential issues of patient compliance, and her status during the year between visits. In such situations, a judge may be called upon to make various factual decisions.

The pain management physician completed two forms that said MMI had been reached, but did not specify on what date that occurred. Then, in November 2016, he completed a form and opined that the worker suffered a permanent impairment rating. Based upon that rating, the employer/carrier ("E/C") began paying impairment (permanent) indemnity benefits. It also filed a form with the state indicating MMI (overall) was November 30, 2016. 

But, the workers sought temporary benefits for a period between September 26, 2013 and that MMI date. In the litigation that ensued, the pain management physician testified that "Claimant was likely at MMI . . . on June 10, 2015" (after the procedure that was performed). The doctor explained in retrospect that the delay in notifying the E/C resulted from the worker not returning for follow-up two weeks after that June 2015 procedure.

Thus, at one point in time, there was imperfect information regarding the actual date of MMI. The injured worker contended that the employer should have sought clarification to illuminate that imperfection (when the forms arrived that mentioned MMI, but which did not state a date). In this instance, it was apparently only through the course of litigation that the doctor effectively communicated the MMI date; that was how the worker learned of her status, retroactively. 

The trial judge accepted the pain management physician's opinions and denied the claim for temporary indemnity benefits (because the worker had reached MMI) after June 10, 2015. When MMI occurs is certainly a "medical decision," but the medical professionals express their respective opinions, which may differ. The judge then determines which of those opinions is fact, that is she/he resolves any conflict in the testimony. As the Court explained, there were no other medical opinions in evidence in this case, thus the pain management doctor's conclusions were uncontroverted. 

The Court then reiterated the appellate "standards of review." These are essentially rules by which appellate courts decide whether to affirm or reverse a trial judge. For issues of fact (whether something did or did not happen), "the standard of review is competent, substantial evidence (“CSE”)." This means the reviewing Court asks whether there is evidence to support some factual conclusion (such as the worker has reached MMI). This is not a re-weighing of the evidence.  

The Court is not making credibility decisions or deciding what conclusions it would have reached in the trial judge's shoes. As it noted: "this Court does not substitute its judgment for that of the JCC on matters supported by CSE." The Court in a CSE review is asking merely whether there is evidence to support what the trial judge decided. Because the pain management physician opined as to an MMI date, the judge's legal conclusion of that date being the MMI date was supported by CSE.

The Court also explained that if the alleged error is not factual, but regards instead an interpretation of the law, then "the standard is de novo." This means "anew"; In such a review, the Court is not influenced by the trial judge's conclusions about the law. The Court interprets the law itself, and applies it to those facts determined by the trial judge. Thus in factual issues a court somewhat defers to a trial judge, but not in issues of legal interpretation. 

The second important legal analysis for the appellate court tied this CSE analysis into the MMI issue. The Court noted that the doctor was imprecise in expressing opinions. However, the trial judge selected the opined date and the doctor's "rationale for assigning" it. Notably, that doctor's opinions were "the only medical evidence . . . related to the . . . pain management MMI." This evidence was uncontradicted by other expert testimony. That does not mean the trial judge was obliged to accept this testimony, but his decision to accept it was supported by CSE. 

The Court reminded that it is not necessary that a physician must evaluate or see a patient on the date she or he opines is the date of MMI. However, "there must be an evidentiary foundation to support such an assignment." In other words, essentially, the physician  must explain the selection of any particular date to the satisfaction of the trial judge. 

Part of this second significant issue was the worker's contention that the employer/carrier was obligated to seek clarification on the opinions of the pain management physician. After all, workers' compensation is intended to be self-executing. Had it sought such clarification, then the establishment of the MMI date might have been more contemporaneous to the actual date. It seems that it would nonetheless have likely been retrospective, but the delay in the rendering of that opinion would perhaps have been shorter. This argument was termed by the Court as one of "equitable estoppel," essentially that the E/C should not be allowed to deny benefits having not investigated and established the MMI facts sooner. 

The Court dispatched this argument reiterating the requirements for equitable estoppel. The Court explained:
"to demonstrate estoppel, the Claimant must establish that: (1) the E/C misrepresented a material fact; (2) the Claimant relied on the misrepresentation; and (3) the Claimant changed her position to her detriment because of the misrepresentation."
The apparent failing in the application of these requirements to this case being the absence of misrepresentation of "a material fact." The E/C may not have pursued information from the pain management physician (or the information may not have been supplied despite pursuit), but the Court did not identify an instance of information being misrepresented. 

Finally, the Court addressed the "Constitutional Right to Privacy." In this instance, the attorney for the E/C had a meeting with the pain management doctor in the course of the litigation. The doctor thereafter noted the MMI date decision on a questionnaire (some might argue this was in pursuit of that self-executing illumination of the imperfect documentation). The worker contended that this meeting violated the workers' right to privacy. While acknowledging prior decisions that concluded an employer has the right in workers' compensation to discuss medical issues with the doctor, the worker contended that statute changes in 2003 and a recent Florida Supreme Court decision altered this right. 

The Court acknowledged every Floridan has a right to "the person's private life," a "fundamental right." When there is an "expectation of privacy, considering all the circumstances" a Floridian can expect privacy. However, the Court found no such expectation when the statute, section 440.13(4)(c), provides specifically for such contact and the discussion of medical issues that are claimed in a workers' compensation case. Notably, such contact might be the most expeditious manner of addressing questions left ambiguous by a doctor's completion of form as occurred in this case. 

The second argument, that The Florida Supreme Court decision in Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017)(a medical malpractice action), overruled the prior workers' compensation decisions regarding privacy, was  likewise unpersuasive to the Court. It explained that "the Weaver court distinguished" (that is did not overrule) a prior workers' compensation decision regarding such doctor contact. It expounded that workers' compensation is a "a self-executing system" that needs such contact and discussion of medical opinions, and that the conditions discussed in this instance were not unrelated to the work accident, but the very focus of it. 

As an aside, the Court's logic may demonstrate broader explanation of how a statute might be unconstitutional in the context of one process, such as civil tort litigation, and yet not be so viewed in the workers' compensation process. Some may see parallels here to the Florida Supreme Court decision in Delisle v. Crane, 258 So. 3d 1219 (Fla. 2018); Discussed in Dissing Daubert.

The Court explained that while the 2003 statutory amendments might be interpreted to have expanded the possible scope of such medical conversations, generally, no such expanded scope discussion occurred in this case. The Court explained that if that law were used to discuss unrelated medical issues, then perhaps such a privacy argument might be more persuasive. But here, this injured worker did "not demonstrate injury that is anything more than conjecture," that is that the statute could be misused, not that it was in fact misused as to her treatment, medical history, or privacy. The Court reminded that to prevail on her claim that this statute is unconstitutional, the worker would have to prove “an injury which is both real and immediate, not conjectural or hypothetical.”

Thus, the Court's recent decision is instructive both in interpretation and in reinforcing the standards of review. Understanding those standards is critical for attorneys and parties alike. The interpretation provides clarification on the interplay between access to medical information, responsibility for obtaining it, and the important protections of patient privacy that may be a counterbalance for those issues in some factual settings. Overall, the case is instructive and a recommended read for those involved in Florida workers' compensation. 



Sunday, April 28, 2019

Learn and Adapt, or Fade

The coming age of robotics has been featured in this blog repeatedly. It is a subject that scares many, but about which a significant minority knows little. I am struck, when the subject arises, how many people are willfully unaware of the potentials and prognostications for artificial intelligence, robotics, and other technology-driven changes that are on our horizon. Thus, I continue to bring the subject to the table in hopes more will be "woke."


FoxNewsBusiness recently reported The robots are here: New, unheard-of job titles signal growing occupations in digital age. This describes ongoing automation in the "supply chain" which essentially refers to the processes and procedures through which goods are delivered in our economy. Consumers, for their own use or for integration into some other product, order goods. Until the end product ultimately reaches the end consumer, intermediate consumers are also suppliers, cogs in a machine or links in a chain. 

The profitability of the end-supplier (who sells to the individual consumer is obviously dependent upon the costs involved in the obtention of components and elements incorporated into that end product. But, to some extent the profitability of each supplier of any component or element is also influenced by the supply chain costs associated with its own obtention of components or elements. 

Therefore, there is significant interest in building efficiencies and effectiveness into the supply chain process. The FoxNews article tells us that the pursuit of such cost savings is responsible for recent deployment of "the latest generation of robotics and automation." It reports that "72 percent of enterprises use robotic automation and usage is on the rise at a record pace." This is an example of market forces evolving to lower costs so as to compete in the marketplace. 

That change is occurring is neither news nor newsworthy. Change is an inevitability. Those who refuse or fail to grasp that are in serious trouble as the world evolves around them. They will find themselves standing on the steamboat landing of yesterday waving at their peers departing on the self-driving vehicle of today. The dreams of yesterday come to fruit persistently, thought there are many that fail, many also succeed. While our specific predictions may or may not come true, progress and change are inevitable. 

There is significant disagreement about whether the advent of technology will result in a decrease in employment. There are a variety of opinions regarding how economies should respond to any job loss, see No Driver Wins a Race to the Bottom. The deployment of technology-based disruptors such as Uber, AirBnB, Amazon, Netflix, and Travelocity certainly delivered value to consumers. They each also resulted in impact on established "brick and stick" economic segments. 

Netflix delivered a technological software blow to the previously ubiquitous video store like Blockbuster. However, robotics has delivered a second blow with very intelligent and interactive vending machines (robots) dealing a hardware blow. The RedBox is a robotic challenger that avoids the overhead expenses (floor space and employees) that challenged the sticks and bricks model of Blockbuster. Netflix was seen inevitably leading to the death of the DVD. But, while Blockbuster stores could not compete with that software, it turns out (for now) that robots can. 

Amazon is having a notable similar effect on retail stores. Whether it is eventually equally profound remains to be seen (according to a March 6, 2019 post, there is now only one Blockbuster store in business; as yet, Amazon's ascendance has left many retailers struggling but still markedly viable). Though travel websites abound, there remain some travel agents. Despite ride-shares, taxis remain a way of life. Change is happening, but the degree of overall impact in various market segments remains diverse. 

The FoxNews story denotes the current environment as another "chapter of the Industrial Revolution." It sees robotics and other technology not as a new revolution, but a continuation of the one that brought us the "steam engine innovation." It claims that there will be massive job loss: "75 million lost job roles" as a result of AI and robotics. However, the good news is that it also projects "an addition of 133 million job roles, netting 58 million." 

The upshot of this perspective and prognostication is not that work will disappear, but that work will at least change. It relies for this projection, in part, on the evolution of Amazon, and the growth of jobs there. While that may signal or evidence evolution of job tasks, there is also the potential that much of the job growth discussed is about market share growth and the corresponding declines in stick and brick retailers. 

However, the FoxNews story cites an MIT study indicating that "job titles" are already changing and evolving. This is indicia that new occupations or vocations are dawning. It notes that the growth in job opportunities is more profound in these new titles. And, technology is spawning previously "unheard-of job titles." That is, there are new demands for human effort, and the methods or labels we have traditionally used to describe work are not descriptive. Thus, new labels are contrived and applied. 

The report predicts that there will continue to be declines in "task or manual process-based" jobs. Some, it predicts, are "likely to disappear in the next few years," much like the Blockbuster. While it seems unlikely that hotels or taxis will be driven from existence, there is little doubt that Uber, Lyft, and AirBnB are affecting their respective bottom lines. And the same erosion is likely in the realm of other jobs and work titles. 

Fox contends that as employment declines in some titles, new titles such as “mechatronics” will provide new opportunities. This title "combines mechanics and systems design." And, unfortunately, there is a limited population ready to step into these roles. There is a "skills gap," that some characterize instead as "a chasm." That is not entirely because of the change in economies and technologies. But change is exacerbating it, as is the speed of the marketplace change. As illustrated by the reference to our industrial revolution, change has been persistent for centuries. 

What has changed in that regard, according to Fox, is that we increasingly need people with primary skills and breadth of ancillary skills. It notes that "skills like programming and technology must marry human skills such as critical thinking, emotional intelligence and creativity." The implication is that the employee of tomorrow will have to be multifaceted. The opportunities for uni-focused employees will be the most challenged by technology. 

The real upshot of the story however is different. While it is suggesting that various skills are likely to be important, as well as human diversification, possession of such skills may not be your best hope of success. 

The most important attribute for success tomorrow? According to this analysis, it is "the ability to keep learning and adapting." The worker of today, and even more so of tomorrow, will be the worker that is able to "switch occupational categories and learn new skills." There will be less room for those who become stuck in their own furrow and fail to observe the rest of the field around themselves. 

In short, the technology revolution is insidious and relentless. In The Terminator Kyle Reese tells Sarah Connor: 
"That Terminator is out there. It can't be reasoned with, it can't be bargained with...it doesn't feel pity of remorse or fear...and it absolutely will not stop. Ever." 
While that is stuff of Hollywood science fiction, perhaps replace "that Terminator" with "change" and the message crystallizes: 
"Change 'is out there. It can't be reasoned with, it can't be bargained with...it doesn't feel pity of remorse or fear...and it absolutely will not stop. Ever.'"
Change is coming for you. You could elect not to adapt, and instead freeze in your tracks and accept your fate out of fear, obstinance, or ignorance. Or, you can be woke, check your assumptions and doubts at the door, and open your mind to what the future may bring to you, your profession, your industry, and your community. You can focus yourself on how you will "keep learning and adapting." 

The beauty of all of this is that much of the success or failure will be within our own control We will play a large role in our destiny. Companies will evolve and change, or they will diminish and fade away. Similarly, each of us will likewise be part of tomorrow or elect to remain in today. Where we will end up will depend in large part on whether we elect to grow or stick our heads in the sand.







Thursday, April 25, 2019

Motion Practice Again

There is some evidence that attorneys may not be following the rules very thoroughly or faithfully. It is also bought to my attention that periodically attorneys can become so embroiled in their efforts at zealous representation that they lose focus on the need for patience and professionalism. These thoughts crystallized recently when reviewing some motion orders. 

In the first instance, motions had been filed and a hearing sought. The request for a hearing was not clear, but it was stated. The lawyers had not complied with various rules. The judge elected to provide reminders of both professionalism and fundamental trial practice proficiency: when in doubt, essentially, follow the rules. 

The lawyers did not communicate. One motion was filed without any recitation of an attempt to discuss the matter with opposing counsel. Other motions contained statements vaguely alluding to communication, but not complying with the rules. There is a reason that counsel are compelled to speak with each other before motions are filed. Speaking with each other builds relationship; conversation is a path toward understanding and thereby perhaps compromise. The judge should be brought into a situation only when needed, as the last resort not the first. 

A couple of years ago, I penned It is about Communication. The point of that post is that "conferring," as the rules require, is about an interactive exchange. In the instance being described here, counsel forwarded a draft copy of various motions to the opposing counsel. The effort was to inform, to notify, not to confer. The rules specifically require conferring:
 "Except for motions to dismiss for lack of prosecution, prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. Any motion filed without this certification shall be summarily denied.” Rule 60Q-6.115(2). (Emphasis added).
To what does this rule apply? It applies to "any motion." Sure, but which motions? Are there no exceptions? Certainly there is an exception. No conferring is necessary for a Motion to Dismiss for Lack of Prosecution; that is stated in the rule. When one thing is stated in the law, that implies the exclusion of all other things. Thus, listing one motion that does not require conferring implies that any other motion requires it. This legal maxim is referred to in Latin: inclusio unis est exclusio alteriusSee Thayer v. State, 335 So. 2d 815 (Fla. 1976). When must the parties or lawyers confer? Always, except the one stated exception. 

Is a notification sufficient? In other words, is it good enough to tell your opponent that you will file a motion? It is not. The rule does not require that you "notify" or "warn" opposing parties or counsel before filing. It says that you are to "confer," and do so "personally." Personally means that you will do this yourself. It does not mean that you had your secretary, assistant, paralegal, or associate have a conversation. It means you have a conversation. This language is clear and unambiguous.

“Confer” means “to compare views or take counsel, Consult.” Sending a note, text, or email that says "I am filing this" is instead a notification. "Notify” means "to give notice of or report the occurrence of.” Notifying and conferring are not synonyms. They do not mean the same thing. The rule requires a conversation, an exchange of ideas, an interaction. The rule is not satisfied by a notification, such as "I am filing this." Possibly, some judges are not enforcing this "confer" requirement and that may lead to development and persistence of bad practice.

In this litigation system, motions should be filed after the parties or attorneys have spoken; after they have tried to work through their differences, after they are thus certain that they are in a disagreement and not a misunderstanding. And, most motions will be disposed of without a hearing. The rules say so:
60Q-6.115(4): " If the motion has not been amicably resolved, the movant shall file the motion. When time allows, the other parties may, within 15 days of service of the written motion, file a response in opposition. Written motions may be ruled on by the judge before the expiration of the response period and provide for filing an objection to the order within 10 days of the order, or the judge shall rule after the response is filed or after the response period has expired, based on the motion, together with any supporting or opposing memoranda. The judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response.” (Emphasis added).
The norm is for motions to be decided without hearing. Thus, it is incumbent upon the filing party or attorney to explain why a hearing is necessary; explain the reason for this being an exception "in the motion." The party opposing that motion can, of course, express such a need even if the filing party does not. The circumstances or good cause may be plead and explained in the "response." It is not sufficient to say a hearing is desired, preferred or requested. The requirement is to show "exceptional circumstances" and "good cause" for a hearing. It would be antithetical to expect that a judge might somehow sense such circumstance or cause without being told. In this regard also, some judges not holding parties to this standard may be encouraging poor pleading. 

The response, as a side note, is the opposing party or attorney's opportunity to explain to the judge what the disagreement or conflict is. The response should address the substantive issue, not merely parrot irrelevant or restated facts. The response should be persuasive, take definitive positions, and explain how and why the motion should not be granted. The motion and response are effectively, likely, the only chance a party has to tell its perspective, cite authority, and seek a ruling in its favor. It is critical that each is self-contained, complete, and detailed. It is helpful when the filing party cites authority (rules, statutes, court decisions). Helpful, but for some reason too rare. 

These definitive positions would (seemingly) be the same reasons that the opposing counsel would (should) have raised when that all-important personal "conversation" occurred before the filing. If those arguments and authorities are voiced, if that conversation occurs, then perhaps the filing party will simply decline to file the motion. Alternatively, the parties in conversation might also reach some accord or compromise through that conversation and sharing of perspectives. 

In the second recent instance, counsel appeared for a hearing on a variety of motions. The most pressing related to discovery. The attorneys there appear to have become frustrated or even angry with each other. They had ceased to speak to each other and instead devolved to apparently speaking at each other, through assistants or devices (whether email, texting, or staff). They had effectively ceased conversation, the exchange of ideas. They had retreated into confrontation, no longer willing or able to discuss or listen.

Too often, disputes about discovery (and other pretrial matters) can become about cooperation. When one perceives an opponent as no longer being cooperative, then one may personally likewise shy from cooperation. When that cycle begins, it may continue in a downward cycle of slight (perceived or real) followed by slight. Feelings become hurt, nerves become raw, and relationships suffer. The professional in us becomes subsumed in the baser human emotions that we all have. Feelings are hurt and emotions become primary. The result on the professional relationship and interaction required for litigation is troubling. 

In this instance, the assigned judge elected to hold a hearing. The various motions filed at (yes, "at") each party were discussed. Feelings and conclusions were vented. A cathartic relief was hopefully provided. A professionalism reminder from the judge was hopefully effective. The judge entered an order disposing of the various motions and reminding the attorneys of their professionalism. Professionalism not in the abstract, but in the here and now. A reminder of how professional those particular attorneys are, are known to be, and a perhaps providing a path back to where they had been before their emotions momentarily got the better of them. (Note that we will all have momentary lapses. That is not failure, it is just a chance to regroup and restart).

The vast majority of workers' compensation claims in Florida are handled administratively. A small portion ever become litigated. There are fewer still that eventually get to a trial. Thus, it is in the motion practice that judges engage most often with ongoing litigation. To assure that involvement is efficient and effective, it is incumbent upon attorneys and parties to follow the rules, to remain professional, and to maintain focus on the real goal, the issues, claims, and defenses that are on the table for decision or resolution. It is critical for attorneys to find some way to work with, communicate with, their opponents. This is not as easy as it can sound, but it is critical to success. And, it is required by the rules whether they are enforced or not. 








Tuesday, April 23, 2019

Watching us, Help or Hindrance?

Last year, the British Broadcast Company (BBC) news published Focusmate: Watched over while I worked from home. It is a fascinating topic because the workers' compensation world today is focused on the potentials for leveraging technology. Part of that effort may be telemedicine, and another focus periodically is that technology enables telecommuting. That is, more people working from home.

Working from home may have profound implications on workers' compensation, as well as other management issues. Some of the workers' compensation issues were featured recently in the Florida First District Court of Appeal decision in Valcourt-Williams v. Sedgwick Claims Management. See Personal Comfort, Testing Compensability. That is centered on the occurrence of accidents and the tests of "arising out of" and the "course and scope of" employment. The focus of the BBC article is directed to the challenges of management, or perhaps self-management.

I have heard various opinions on telecommuting and management. Some feel that employees who are not observable will not be productive. Others contend that with the relief from commuting, traffic, and office distractions, such an employee can be more productive. I have heard responses to that contention to the effect that our homes may be as full of distractions as those offices. Suffice it to say there is a measure of disagreement in the management community regarding telecommuting. 

Thus, the BBC introduces us to author Stephen Becket. He writes this article from the perspective of his attempts to focus his attention on work in the comfort of his own home. But, he has engaged the assistance of a software platform called Focusmate. He and a like-minded home-based worker have engaged each other to "spy" on each other via webcam. They are quietly working on their own tasks while also watching each other work. 

They are not verbally engaged, merely watching. Whether this is a distinction in terms of the potential for distraction is left to you. The promise of Focusmate is "to stop you procrastinating by having another human hold you to account." The goal is for this stranger's presence to motivate you just as your co-worker's observation might in an office setting. 

After experiencing the effect, the BBC author interviewed the founder of this software platform. The founder asserts that someone's presence on the webcam is not "big brother," but he admits that some think "the idea is a bit weird." He asserts that the program is strength for people that are sincere in their desire to be productive and who "want to be held accountable for that." 

Of course, that is not necessarily a need that people have consistently. There are perhaps a great many people who can be, and are, productive and functional without peer or supervisor pressure. They are able to hold themselves accountable for their progress, production, and effectiveness. But, perhaps in the realm of human nature they are the exception rather than the rule? Or, if they are the rule instead, perhaps some methodology is needed to provide some measure of oversight in a remote setting? 

The concept is relatively simple. The participants on Focusmate disclose to one another what they will be doing (if you do not know what I am supposed to be doing, how can you correct or prompt me when I am twiddling my thumbs). The program is dependent upon pairing each worker with someone who will both be engaged in their own independent work and able to periodically monitor the other's. That multi-tasking alone might be a distraction to some. 

The author contends that there is potential for inappropriate use of the platform. The author notes that the website leads with a caution to "work quietly" during the session. It also cautions that "Focusmate is a professional community, not a social or dating site." From my limited time on social media, and the presentations I have made on the topic, there are a reasonable number of people who complain of professional sites being misused in an inappropriate social manner. In that vein, the very purpose of this platform to encourage focus might instead lead to merely another distraction. 

Focusmate contends that we lack self-control and work ethic. It asserts that despite our best efforts and focus, we are inundated with distractions and therefore cannot be effective on our own. Thus, the engagement of some stranger to watch us on a webcam is seen as a solution, a motivator, a crutch. 

The platform contends that productivity is scientifically demonstrated to be enhances if we make a commitment regarding what we are doing, include social pressure, and follow it all with accountability for results. And, each of us may exhibit more or less of a dependency upon any of the three elements mentioned apparently, but all three are demonstrated to be effective aids to our functioning. Focusmate claims that it delivers this remotely in a cooperative community format. 

Furthermore, some of us are reliant upon the validation afterward, someone complimenting or thanking for our effort. The recognition and accountability might be achieved effectively without real-time engagement. What professional does not get some form of validation or accountability, in or out of an office setting? Everyone I know appreciates a word of recognition or praise for a job done and done well. 

Admittedly, some find the "whole idea a bit odd." But, the BBC reports that "remote working and telecommuting are on the rise in many countries." There are various benefits touted, from avoiding commutes to decreased employer expense. Therefore, it is probable that with the increased prevalence and the development of technology to facilitate it there will be various efforts to afford workers and employers some measure of coordination, confirmations, and affirmations. 

In today's technology-rich environment, it is practical that large companies might well set up their own similar platforms to connect, randomly or otherwise, their various work-at-home professionals. These might see more benefit in the coordination with a like-coworker than in engagement of a stranger. In the telemedicine paradigm, a clinician might interact with a patient, but someone else could be monitoring the audiovisual to create visit notes. Or in other professions, the audiovisual link might facilitate both training and reinforcement of best practices for home-based work. 

It may be interesting times ahead, whether Focusmate is necessarily part of it remains to be seen however. But it appears that telecommuting and technology enabled function and communication will continue to develop.




Sunday, April 21, 2019

Fundamental Rights

One of the best parts of my occupation is that I get many opportunities to engage in conversation with brilliant lawyers and other members of the workers compensation community. There musings and prognostications are frankly fascinating. I find myself sometimes agreeing with them, or asking questions, or both. It is great mental exercise.

I recently had such a conversation in which my views on fundamental rights were challenged. An individual explained to me, in much kinder words, that I would be lucky to effectively discern my head from a hole in the ground. The dismissive tone, combined with a look of sheer pity in the speakers eyes, combined for a persuasive affect.

This individual explained to me that there are rights which are both constitutionally protected and “absolute." For this premise, he relied in part upon the use of "unalienable" in the Declaration of Independence:
"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."
Unalienable (inalienable) means "not transferable to another or not capable of being taken away or denied." Government, the individual lecturing me explained, can never impair a fundamental right. Some might already see the potential for flaws in that absolute statement. If the lecturer is correct, then any legislation or regulation which in anyway impairs a right, is clearly and absolutely unconstitutional. The statement also perhaps ignores that American government does not take away rights, we the people give away rights as we empower government. In our society, the power rests with the people.

In fact, no right is absolute. No right is beyond the potential for encroachment by government, through some power which we have imparted. This is because any right possessed by an individual may in fact infringe upon the rights of some other individual. And when rights collide, government is compelled to balance the equation. If government did not, then those individuals would likely engage in untoward individual behavior to solve the conflict themselves, perhaps even through violence. 

In lecturing on the Constitution, I have likened this rights conflict to a tug-o-war. For some, the simplicity of that illustration is comforting. That analogy allows us to picture two people struggling against each other in pursuit of their own preferred outcome. 

For example one person might assert a right to irrigate her/his land from a stream running through the property. But, every drop of water that person uses is water that the landowners downstream cannot. Similarly, a person might feel that their property rights allow them to have a band perform in their backyard, while others in the neighborhood might find that objectionable (and the later in the evening it gets, the more the neighbors might object). One may have the right to speak their mind, but perhaps not in the place or at the time such speech would disturb or endanger them or someone else. 

Certainly, property rights are protected by the U.S. Constitution. As certainly, those rights and a variety of others have been deemed by the courts to be "fundamental." However, there are conflicts that preclude each individual from having the full, unfettered, and complete measure of rights to which they may believe themselves entitled. Rights of one are diminished in similarly protecting the rights of others. In the end, there are no absolutes.

It is worth noting that conflict of rights is rarely between two individuals, competing across some perfectly linear conflict. I have therefore suggested that such conflict may perhaps be better visualized as a spiders web. Where each of the spokes of the web might essentially be viewed as a point upon which competing interests might pull. This analogy illustrates various interests pulling in various directions. 

In this visualization, we might note that it is possible for a conflict participant to indirect receive aid from some cohort that is not necessarily on their specific "side" of an argument, but whose interests somewhat parallel (the strand of the web they pull is more assistive than deleterious to the person's argument). This cohort may not stand for exactly the participant's argument, nor be willing to pull on that particular strand. However, in pulling upon their own strand, they nonetheless provide that first participant aid. As important, the participants opponent may likewise receive the aid of some similarly tangentially related cohort(s). And, there may be some whose efforts are instead closer to ninety degrees from the person's goals and whose efforts therefore skew the debate in a tangential direction. 

As importantly, there are times when the rights of individuals conflict with the powers that we the people have given the government. That endowment is not the government taking our rights, but us voluntarily having yielded them by empowering government. Perhaps a useful example of this with fundamental rights is the freedom of expression. There are those who believe that Americans have an absolute right to freedom of expression. However, the United States Supreme Court has repeatedly upheld limitations upon speech. Examples include hate speech, fighting words, certain advertisements, and words creating a clear and present danger. 

And, in furtherance of government "police powers," the government is clearly empowered to regulate the time, place, and manner of speech. One might well stand on the courthouse steps and wax eloquently without interference, but get arrested for insisting on standing in the middle of Interstate 95 to do so. The government might well look out for someone's safety even when she/he seems uninterested in their own safety. The state, that is "government" has an interest in the protection of health, safety, and welfare. 

In this context, just as in the competition of individual rights, we will see the tugging and nudging of various interests and perspectives. The state may see driving without a seat belt as too dangerous and forbid it, but nonetheless allow someone to ride a motorcycle without seat belt or even a helmet. The power of the state engages in the limitation of rights, or not. (Before you email me to tell me how you feel about motorcycles or seat belts, know this is merely for illustration). 

Comedian Steve Martin had an interesting take on free speech in the 1970s. He queried audiences as to whether it was ethical to scream "movie" in a crowded firehouse. Of course, that is a ridiculous construct. The corollary has been historically used to illustrate limitations on speech: is it appropriate to scream "fire" in a crowded movie house? Even a casual observer would accept that screaming "fire" in such a location could result in panic, stampede, and injury. Thus, the right to free expression is not without appropriate limitation. While it is a fundamental right, it is neither absolute nor inviolable. 

Thus, I maintain my original thought. There are rights that are important, fundamental, and even unalienable. However, no right is absolute. By the same token, we might as validly conclude that state power in our Constitutional Republic is likewise not absolute. It is subject to the sometimes contradicting authority of the rights of the people. In a nutshell, the various rights and powers have to be balanced by the law. 

The analysis of rights is more complex than perhaps some are willing to concede. When the government regulates, its actions are subject to review, That review is for the Court, which appropriated it in Marbury v. Madison many years ago (1803). When the rights of individuals conflict, the courts must determine how the laws effect balance among those rights. There will be disagreement and perhaps even perceptions of inequity.

What does this all have to do with workers' compensation? Regardless of the state you are in, workers' compensation is a statutory construct. It was created by a legislative body elected by the people. It is a statutory change to what were existing rights to property and due process and more. It is a set of limitations and empowerment or entitlement. It is a compromise of various interests, the result of various perspectives pulling on their own respective strand of the web. And, the effect of the imposition of such legislative power is both imperfect and a compromise. 

In workers' compensation, as in a vast array of other situations, there are no absolute and unalienable rights. There is compromise, effected through the representative democracy process of this republic. It is neither perfect nor even potentially so. The community charge is to find balance  within it.

Thursday, April 18, 2019

When Judges Become Opponents

A Pennsylvania attorney recently authored When Judges Become Opponents: Balancing Your Duties to Client and Court on The Legal Intelligencer. He says his perspective is "as a younger attorney," and according to his firm profile, he is about three years out of law school. He raises some interesting points that are perhaps worthy of further discussion. 

The Attorney is both critical of the comments made by a workers' compensation judge and seemingly reticent about providing details that would identify the judge. His firm profile suggests his focus is Pennsylvania, but the firm has "offices throughout Pennsylvania, New Jersey, New York and California." From the information provided, potentially, this attorney's story could relate to any number of workers' compensation judges.

The attorney characterizes some litigation experiences as a "difficult tightrope walk." He describes a perception of conflict between his role as a "zealous advocate" and remaining deferential "to the judiciary." And, he describes an experience in which he contends the judge became "openly partisan" and thus departed from the role of impartial adjudicator.

The role of judges is not a new topic. In To Do Equal Right, this blog discussed the potential for perceptions of partisanship in adjudicatory roles. That post focuses some attention on the perceptions and comments of Chief Justice Roberts of the Supreme Court of the United States (SCOTUS). He has emphasized the role of being an umpire, of enforcing the rules. Justice Roberts has urged humility, reminding that it is not the umpire that brings people to the game.

That analogy to a "game" is perhaps a bit troubling as litigation is about important, and because it is about important conflicting, rights and obligations being sorted out. But, from Justice Roberts' analogy, perhaps there are multiple roles on the litigation "field." There are players that participate in the game, advisers (mentors) who coach the players, and umpires that enforce the rules and make interpretations. Those interpretations may be procedural and incremental (about a single pitch or play) or substantive and global (who wins). It is admittedly an imperfect analogy, trial to "game," but perhaps it is instructive nonetheless.


No one expects to see a coach take the field and make a play. Similarly, perhaps a more experienced attorney may sit through a trial to provide advice, encouragement, and support to an attorney. But that mentor likewise does not pinch hit or run. Certainly, no one expects the umpire to interrupt the batter, take the bat, and pinch hit (while simultaneously making decisions as to which pitches are balls or strikes). Similarly, a judge is expected not to become the advocate and simultaneously decide whether questions are appropriate or not (most judges would be inclined to conclude her or his own questions are acceptable and appropriate). 

This blog has also attempted to acknowledge the challenge of being a young lawyer, new (even relatively) to the difficult and intertwined roles of advocate, counselor, and negotiator. In Airspeed and Altitude, there are recognitions that litigation is a difficult environment. There are stressors that impact practitioners; some can be influenced and others are merely part of the environment. The latter can be adapted to, accepted, but perhaps not influenced or changed. It is not easy being a litigator.

But, this young lawyer recounts an exchange with a judge that led to the attorney's perception of hostility and potential bias on the judge's part. The attorney recounts attending the client's "first hearing" and eliciting testimony from the injured worker. This was essentially apparently related to the work, the injury, an approximately two-year rehabilitation, and possibly perceptions regarding return to work. It was stressed that the testimony had not been contradicted (or seemingly even cross-examined) at this stage of the proceedings.

Counsel perceived that during the presentation of the workers' testimony, the "workers’ compensation judge took over most of the direct examination." The young lawyer expressed surprise that the judge did so, but was seemingly more surprised that the judge's questions were not presented "as a plaintiffs lawyer would, but rather, as a defense attorney." The young attorney perceived "leading questions," from the judge and they were interpreted as "an attempt to disprove the veracity of the injured worker’s case." Thus, though during "direct," the questions perhaps sound more like "cross?"

Perhaps this young attorney perceived that the judge had departed from referee or umpire and proceeded through the role of coach, directly to taking an active role as a player.

The attorney expresses frustration over perceptions. There is acknowledgement that litigation presents difficult decisions for the attorney, some that afford merely "a split second" for reflection and consideration. There is a recognition that the judge will eventually make the decisions that are fundamental to the point of the litigation: what rights, claims, or defenses prevail. There is expression or suggestion of a conflict for counsel in deciding between advocacy for the client and alienation of the judge. There is lamentation that law school fails to provide a litmus for handling such a situation.

The lawyer recites comments that were made by the judge "on the record" including mention of whether some "nuisance value" might obviate the need for further litigation. The attorney asserts that thereafter there were comments made "off the record"; comments "directed at" the injured worker that perhaps implied a comparison of this workers' situation and injury to other workers and situations. This, the attorney alleges, ended with advice that the worker "should be looking to return to work."

This off-the-record discussion allegedly continued until the attorney interrupted and asked that it cease. The attorney alleges that at that time the judge "apologized" and explained "she may have been wearing her 'mediation' hat." That alleged statement implies that it is at least possible there was recognition of there being various potential roles in this process, and that one might switch roles, intentionally or not. The attorney concludes with a "prospect of seeking recusal" (a side note, parties to a case would seek a "disqualification," while a judge would unilaterally remove her or himself with a "recusal).

The article is worthy of note for several reasons, addressed here in no particular order. First, as an adjudicator I see no reason for discussions of any kind off the record. Everyone has been in a "may I speak to your privately" situation in their lives; everyone has heard the "anything you have to say to me you can say in front of _______." That is apropos in the judicial realm. Anything a judge has to say can be said on the record (write every email like your grandmother will read it). In this example the attorney alleges what was said off the record. But the recollections of those present is the only proof.

Over the years I have spent supervising judges and managing a litigation system, I have heard many allegations regarding what was said (or not said) during particular proceedings. The allegations that are most easily addressed involve proceedings on the record. When there is a record, what was said and in what tone is much easier to discern. Such allegations are less dependent upon the perceptions and recollections of witnesses to the alleged statement. If there is discussion, it should be on the record. This protects the parties and the proceedings.

The second point worthy of discussion is that the judge's role is not as advocate or negotiator. It is not the judge's role to decide what questions should be asked of which witnesses. It is the judge's role to listen to the evidence that the parties present. On this point there is not universal agreement. But, any litigator will likely admit that there are sometimes specific reasons that a particular question or theory of the case is or is not pursued.


In my experience, lawyers strive to be prepared. They often live by the legal maxim of "don't ask a question you do not know the answer to." Because a lawyer knows the answer (and does not like it) or does not know the answer, she or he may elect not to ask the question. That is a tactical decision, the lawyer's decision. While some question might nonetheless occur to the judge, it is presumptuous to assume the role of advocate and ask that question. That is not to say a judge should never ask a question; it is to say that a judge should be reticent about such urges and consider carefully whether doing so will be (or perceived to be) an abandonment of the impartial role.

The third point was unspoken by the author, but is worthy of mention. The players should be as reluctant prospectively as this attorney is critical retrospectively. Upon the conclusion that judges should be umpires and not players or even coaches, lawyers should refrain from seeking to draw judges into those other roles (don't "draw the foul"). Lawyers should not seek the judge's advice on issues in a case.

Over the years, I have heard anecdote after anecdote of lawyers seeking guidance. They are confronted with issues and complications. They face uncertainty and perhaps fear. They will call, have staff call, schedule "conferences" or hearings to explain their complication or question to the judge or staff. They may cajole or hint at a need for advice or succor. They may outright ask "what do I do now?" And, the appropriate judicial answer to those inquiries is as clear in that prospective setting as it is above, the judge should not abandon the adjudicator role. What is the next step? What do I do now? The answer is for the lawyer to find, with the help of fellow players or coaches (mentors), not for the adjudicator to suggest or recommend. 


The young lawyer makes a final point that is worthy of mentioning in closure. That is, "even when disagreeing with a judge who you believe is acting inappropriately, it is important to remain respectful but forceful when necessary." From experience, there is no one I respect more than a zealous and persistent advocate. The best lawyers I have known are capable of such zest and advocacy without offense to opposing parties, attorneys, or the bench. The have mastered the art of disagreeing without being disagreeable. Their professionalism and skill in such settings enhances them.

Counsel should be ever respectful of everyone in the proceeding, and of the proceeding itself, the law itself. Be critical, be effective, but remain respectful throughout. That is a valuable service to the client, but it is also a fulfillment of the obligation undertaken as a member of the legal profession. Judge's should likewise remain in the role of adjudicator throughout. They should make rulings on the issues presented (call the pitch that is thrown), and refrain from providing either pitcher or batter with advice (solicited or not). Finally, Judges should remain vigilant and aware that the "appearance of impropriety" may be as troublesome as actual impropriety under the Code of Judicial Conduct.






Tuesday, April 16, 2019

Cost Shifting and Personal Decisions

In a memorable Dilbert cartoon (April 30, 1995), Dilbert is introduced to a new vice president of his company. She asks about his day and he explains he was just emailing a coworker who is near a window to see if it is raining. He explains that "if it is raining, I will fashion a raincoat from a large garbage bag." The new VP asks "are you planning to go out at lunch," and Dilbert replies "only if it rains." This seems circular logic at best. 

In 2016, I posted Cost Shifting Evolves into Case Shifting. There two studies by the Workers' Compensation Research Institute (WCRI) are discussed. The focus is on how workers compensation fee schedules may incentivize physicians. There is suggestion that doctors might formulate decisions based upon which payer is perceived as more generous, rather than upon an objective assessment of medical indicators and evidence. 

In 2015, I posted Cost Shifting the ACA, and Workers' Compensation, That discussed a WCRI report that approached the concepts of group health insurance care limitations. The capitation of care in those settings was similarly seen as a potential driving force influencing the decisions or opinions of healthcare providers. 

Both of those analyses are focused on the decisions of the physician. They noted that most of us are likely to make decisions that are in our personal economic self-interest. That truth is hard for us to accept, as we all like to feel we are more altruistic. However, we do tend to make decisions we perceive will benefit us. When we make our personal economic choices, our goal is usually to benefit ourselves by minimizing price while maximizing value. 

In February 2019, WorkCompCentral reported WCRI: High Group Health Deductibles Linked to Comp Case-Shifting. At the outset, the headline seemed to reiterate the prior studies, but upon examination, this is s different motivation than discussed in the two previous studies. Those were focused on the decision making of doctors in the diagnosis setting. This latest study is focused on the employee making a decision regarding reporting an injury in the first instance. 

Researchers concluded that patients are incentivized to "shifting from group health" as their share of the cost (deductible) renders them "increasingly responsible." WCRI reportedly warns that this "could have a substantial cost impact." A mere "1% shift to workers' comp" as regards "soft tissue injuries" might add as much as "$35 million to workers’ comp costs in a state such as Pennsylvania, or more than $80 million in a state such as California." 

In this study, the researchers did not have any knowledge regarding work-relatedness. Thus, there is no empirical foundation from which to conclude any particular patient's injury was or was not actually work related. The study examined over one hundred thousand patients. It found that: 
"injured workers who had $550 remaining on their deductible at the time of an injury were about 1.4 percentage points more likely to file a workers’ compensation claim, compared to workers with no deductible at the time of injury." 
Thus, the study indicates some prevalence for reporting when the alternative group health path represents an immediate personal financial cost.

The tendency was more pervasive "for injured workers with soft tissue conditions, such as pain in the back, knee or shoulder." By comparison, more apparent causation injuries such as those caused by discreet trauma exhibited less potential for this shifting impact, which was "not statistically significant." That conclusion is notably consistent with the other two WCRI studies mentioned above. 

Interestingly, the WCRI report notes that the perceived shift to workers' compensation, or at least the "increase in workers' compensation claims" was more prevalent "in states where employees could choose their initial provider." The researchers conjecture that making that choice between group health and workers' compensation is more likely to lead to shifting if the decision does not impact the patient's choice of physician.

Choice of physician is a subject often raised in discussion of workers' compensation. Anytime conversation turns to "reform" in Florida, the topic of physician choice is a likely topic. There are those who criticize employer-choice, alleging that it makes physicians "loyal" to employers and less likely to diagnose a condition as work-related. It is rare that such critics will acknowledge that a patient-choice paradigm might create a similar, but opposite, incentive or loyalty as regards patients. If there is physician bias, through the incentives identified by WCRI or otherwise, perhaps the workers' compensation community can rectify that perceived bias irrespective of who makes the physician choice? 

The study notes that group health deductibles are increasing. It notes that the "average deductible for health plans with a deductible grew, from $616 in 2007 to $1,505 in 2017." There are some who contend that is a consequence of national health care policy, while others insist these increases would have occurred without the implementation of Obamacare. Furthermore, the volume of "group health plans had annual deductibles of more than $1,000 increased, from 12% in 2007 to 51% in 2017." There is significant focus on the cost of American medical care. Whatever the cause, the increased impact on consumers appears clear.

The foundational truth is that deciding whether an injury is or is not work-related should be about facts. Like Dilbert deciding on whether to go out at lunch should be about whether (1) he wants to go out, (2) is without other recourse to obtain food, etc. Deciding whether to go out based on that allowing him to employ his raincoat or to get wet is ludicrous and thus hilarious. Perhaps, his intent is to go out only if he can thereby test his handy rain coat adaptation? But whether something is or is not work related should depend upon the science of medicine.

While it may be naive to conclude that human emotion can be wholly removed from such decisions, it is nonetheless a goal that is worthy of consideration and discussion. Perhaps it would appropriately be part of a larger discussion of reforming the healthcare delivery system?




Sunday, April 14, 2019

Micro Versus Macro Analysis



From economists, we have learned about interactive trade systems. They refer to "microeconomics" and "macroeconomics" distinguished thus by keydifferences.com:
"micro economics is the study of an economic behavior of a particular individual, firm, or household, i.e. it studies a particular unit. On the other hand, macro economics is the study of the economy as a whole i.e., not a single unit but the combination of all, firms, households, nation, etc."
Similarly, students of the legal system generally, and workers' compensation specifically, might as validly consider this system of economic compensation in both "micro" and "macro" senses.

A recent post provided a review of the early twentieth century aversions to American worker's compensation. In The Quid Pro Quo, there is discussion of the concerns of constitutional protection of property rights that were a precursor to the Supreme Court of the United States' (SCOTUS) determination that one set of burdens and benefits could supplant some other set. That discussion of Ives v. South Buffalo Railway Co., 201 N.Y. 271, 94 N.E. 431 (NY Ct. App. 1911) and New York Central Railroad v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917) is foundational to what follows. In one sense, as the original SCOTUS authority on workers' compensation, one might expect that any discussion of constitutionality in workers' compensation would reference White.

Within the context of determining workers' compensation is constitutional, The SCOTUS has concluded that there must be a "moderate compensation," afforded by the system that replaces the right to instead seek damages in civil court proceedings. 
"If the employee is no longer able to recover as much as before in case of being injured through the employer's negligence, he is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty and expense of establishing negligence or proving the amount of the damages." 243 U.S. at 201.
This language employed by the Court is singular, "the employee." Certainly, this is an "any man" reference, not specific to "the employee" involved in White. There, the employee had passed away as a result of a work injury. The individual who sought compensation in White was Sarah White, the wife of the injured worker, Jacob White. Even absent that obvious distinction, the context of the Court's discussion is clearly in the broad context of workers' compensation and those it affects in a general sense. 

The issue addressed therefore clearly regards employees and employers generally. It is not a discussion specific to the worker injured as a subject of that litigation and challenge, Jacob White, or his particular employer, but a general determination of the constitutionality of supplanting a common law tort system of recovery and defenses with a substitute system of alternative statutory benefits and defenses. 

There is no discussion in White of specifics of benefit adequacy. The Court specifically noted that 
"In this case, no criticism is made on the ground that the compensation prescribed by the statute in question is unreasonable in amount, either in general or in the particular case. Any question of that kind may be met when it arises." 243 U.S. at 205-206. 
That is, a recognition that adequacy might be challenged and could be problematic or fatal to the balanced equities of mutual renunciation of rights. And, the Court clarified that benefit adequacy does not stand alone. The Court recognized that what is a benefit to one party may likewise be characterized as a burden or detriment to the other. Thus, in addressing benefit adequacy, the Court concluded that substitution of one system (workers' compensation) for another (tort) is constitutional, but cautioned: 
"This, of course, is not to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable." 243 U.S. at 205. 
It is perhaps imperative that both "insignificant" and "onerous" are remembered. That is, a system might be unconstitutional with the context of White for either reason. 

In June 2016, the Florida Supreme Court rendered an interesting determination of constitutionality in Westphal v. City of St. Petersburg, 194 So. 3d 311 (2016). That decision has been the subject of prior discussions on this blog. In Westphal, the Court decided that a 104 week cap on temporary indemnity entitlement was unconstitutional. It was not a new issue. 

The Florida First District Court of Appeal had thrice attempted to address the impact of this statutory cap upon particular injured workers. That is, to address the "micro" affect of the statutory structure. At least in the view of the Supreme Court of Florida (SCOF), the District Court efforts were unsuccessful. The District Court effort in its own review of Westphal is discussed in Westphal is Decided

That includes the origins of analysis from City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998) decided only four years after the 104 week cap was instituted in a 1993 special legislative session that significantly reformed Florida workers' compensation. From Oswald, the law evolved thirteen years later in an en banc decision of the District Court in Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011). 

The SCOF analysis acknowledges the jurisprudence maxim that 
"statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome.” 194 So. 3d at 320. 
The SCOF determined that the District Court efforts in Hadley and Westphal were attempts "to save the statute's constitutionality." But, the Court concluded that the proper interpretation of the statute was in fact in 1998 in Oswald, later adopted in Hadley

In Westphal, the SCOF does not cite nor discuss the SCOTUS decision in New York Central Railroad v. White. The Westphal decision instead references the right of access to courts guaranteed by "Article I, section 21, of the Florida Constitution." This guarantee was interpreted by the SCOF in 1973 in a different White case, Kluger v. White, 281 So.2d 1 (Fla.1973). In Kluger, the SCOF concluded that workers' compensation, as a substitute for common law tort remedies, is a: 
“'reasonable alternative' to tort litigation—and therefore does not violate the access to courts provision—so long as it provides adequate and sufficient safeguards for the injured employee." 
And, when the Florida legislature in 1990 reduced entitlement to "temporary total disability benefits from 350 weeks to 260 weeks," the SCOF concluded workers' compensation remained "a reasonable alternative to tort litigation.” 194 So. 3d at 323. 

In Westphal, the SCOF quoted in that regard from Martinez v. Scanlan, 582 So.2d 1167, 1176 (Fla.1991). The analysis in Martinez reinforced a holistic analysis of the Florida workers' compensation system. The SCOF explained in Westphal that: 
"the Kluger analysis, the law at the time of Martinez, which provided for 260 weeks for temporary total disability, continued to provide adequate and sufficient safeguards for injured employees." 
Thus, a holistic, or systemic, analysis of the overall nature of the system. The question addressed in Martinez and quoted by the Court in Westphal is focused on the quid pro quo in a macro, or system, sense. 

The SCOF concluded that the real question is whether workers' compensation is a "reasonable alternative to tort litigation." (Citation omitted). This so-called “reasonable alternative,” the Court held, "is then the linchpin and measuring stick," in the analysis of whether the system is adequate to provide meaningful access to courts consistent with the guarantees of the Florida Constitution. 194 So. 3d at 323 (emphasis added). 

Curiously, the same Court had two months earlier concluded that "a reasonable attorney's fee has always been the linchpin to the constitutionality of the workers' compensation law." Castellanos v. Next Door Co., 192 So.3d 431, 435 (Fla. 2016)(emphasis added). There has been little discussion as to how multiple discreet factors might each be "the" (singular) "linchpin" as characterized by these two nearly contemporaneous opinions of the same Court. 

The analysis in Westphal is not a macro analysis of workers' compensation, but instead a micro analysis of the individual circumstances of one injured worker. Upon that micro analysis, the SCOF struck the 104 week cap that many contend is nonetheless a sufficient measure of temporary indemnity in some proportion of all claims. Because that quantum was insufficient for one worker, Mr. Westphal, the Court struck the limitation and reverted temporary indemnity to more than double, five years (260 weeks) in place of two years (104 weeks). 

Because of one micro effect, the Court acted with a macro methodology affecting thousands of workers and employers. Would the same approach be appropriate if a single employer challenged the constitutionality of workers' compensation? What if there were a claim of tremendous financial cost to the employer in an instance of unquestionably appropriate and non-negligent employer behavior? There, the system might be deemed to be so "onerous" as to be inappropriate in the analysis of the Due Process Clause, Ives. If that claim were raised, would the Supreme Court of Florida reduce all injured workers' benefit entitlement, that is ameliorate all employer's liability, in a macro reaction to a micro analysis? 

There is perhaps an interesting discussion that could be had regarding whether constitutionality will be determined by the courts on a case-by-case basis; should the system be conformed and realigned by the courts in reaction to micro observations? Or, should the constitutionality of this system be determined on a holistic analysis that considers, overall, the totality of benefit and burden exchanged by each party to this bargain, employees and employers? 

Wherever one finds individual conclusions, it is a fascinating discussion when workers' compensation and the Constitution are the subject.