Tuesday, October 16, 2018

In Camera Inspection is Necessary

An educational decision was recently rendered by the Texas Fourteenth Court of Appeals, styled In Re Atlantic Sounding Co., Inc.. It is a proceeding for a writ of Mandamus (seeking an order to compel a lower tribunal to take action). There are three "extraordinary writs" that are of general interest. They are discussed more in If it's Moot, What does it Matter

It is noteworthy that Atlantic Sounding was decided August 28, 2018. The petition for writ of mandamus was filed just over 60 days before, on June 26, 2018. That is an expeditious review. When parties seek appellate review, the proceedings in the trial tribunal often stall awaiting a decision. Thus, it is beneficial when appellate courts move rapidly in such decisions. 

The facts of Atlantic Sounding are reasonably simple, though the casual reader might find some terminology challenging (the court refers to the parties seeking review as "relators," rather than "petitioners"). Essentially two companies involved in a lawsuit were asked to produce documents. They resisted, claiming a privilege protected those from disclosure. This is a common situation in litigation. 

Having objected to producing certain specific items, the two companies produced a "privilege log," which is simply a cataloging or listing of those documents that were not provided in response to the request. Having received that listing of what was not produced, the party that requested production filed a motion to ask the trial tribunal to compel the companies to produce those documents. That motion likely asserted that the claim of privilege was not appropriate as regards those items. Thus is framed a dispute for the trial judge to sort. 

In Florida workers' compensation, the vast majority of that kind of sorting occurs based upon a motion and some response filed by the other party. Motions are the appropriate method for seeking relief, Rule 60Q6.115. That rule also allows, but does not require, any other party to file a written response to such a motion. Thus, in motion and response, the parties should have capably framed the dispute for decision. It is surprising to some how often no response is filed however. Thus, one party seeks relief and the other responds with silence. Often the silent party finds itself later disappointed with the results of its silence. 

But in this Texas litigation, the trial judge convened a hearing. After that opportunity to verbally address the issues, the judge granted the plaintiff's motion to compel. The opinion makes no mention of a motion for rehearing, which is somewhat curious. With trial court decisions in Florida, it is usually appropriate to seek rehearing before filing an appeal, Rule 60Q6.122. That is an opportunity to advise a trial tribunal of the allegation of its error and thus allow that judge to correct it. Such process greatly reduces the  volume of cases that require appellate review. 

The Texas appellate court was thus asked to compel the Texas tribunal court to perform an "in-camera," essentially "in private," review of the documents that the Plaintiff had asked for and which the two companies claimed were "privileged." The in-camera inspection is an opportunity for the judge to view the actual documents, not the description of them that would be appropriately found in a privilege log. The trial judge is then in a position to make decisions as to whether each such item is or is not privileged, should or should not be produced to the requesting party. 

The Atlantic Sounding companies were troubled that this trial judge had not conducted such an examination of the actual documents. In this instance, the trial judge had relied upon what each party had said about the documents, in motion, response, privilege log, or argument. But, the actual documents had not been viewed. 

The Court provided a review of the burden that must be satisfied to prove entitlement to mandamus relief. As it is one of the "extraordinary" writs, it requires extraordinary proof, essentially that the "trial court clearly abused its discretion," and that there is "no adequate remedy by appeal." That is logical in discovery and privilege instances like this. If the companies could only seek review by appeal, then they would have to have produced the requested documents as ordered. And, once such documents are seen, the privilege overruled, a later appeal might be unable to cure the resulting prejudice (once seen, the documents cannot be "unseen"). Once disclosure has occurred, it might affect the litigation in various intractable and unpredictable ways. 

It is appropriate therefore for a party to object to production and assert a privilege. That claim of privilege should be specific and clear however, identifying the privilege that is asserted. The requesting party is entitled in most instances to a privilege log that describes the withheld documents with some specificity and identifies how the privilege applies to them. 

But, the Court in Atlantic Sounding explained that when
"the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege.” 
Thus, in those instances, the only evidence may well be the very documents that have been requested and withheld. Thus, the appellate court held that the judge's decision should be based in such claims upon what is gleaned from those very documents. In this instance, the companies repeatedly offered to provide the documents for such a review. As such, the Court concluded that the trial judge should have conducted that private, "in-camera," inspection. 

The Court therefore instructed the trial court to vacate the order compelling discovery and to review the documents in-camera before deciding to grant or deny the motion to compel. While the delay for appellate review in this instance was reasonably brief, it was also avoidable. The trial judge could have as easily reviewed those documents in June, negating the necessity of this appellate review and the delay it entailed. It is difficult to understand the purpose of denying the producing party's request for that examination. 

Sunday, October 14, 2018

Human Nature in the News

There is plenty in the news to depress and exhaust us. That came back to mind this week when video surfaced showing a store clerk collapsing from a heart attack. Two teenage patrons ignored his distress, as reported by ABC News. This occurred in Washington. Finding the store clerk incapacitated, the teens did not reach out to 911, attempt CPR, or help. They chose "instead to step around him to rob the store." 

The store manager was heartbroken by the event. The store clerk received aid when others apparently summoned help. However, he thereafter remained "on life support at an Auburn hospital." The police are seeking the teenagers, and have asked for "the community’s help in identifying the three males seen in the store at the time of the incident." According to Fox13, the teens have now been identified, but "it's unclear what charges, if any, the teenagers will face."

Reading that reminded me of a CNN story in June. This one a little closer to home. This one involved five teenagers in Florida "taunted a drowning man as they recorded his death." The teens were identified, but prosecutors decided not to press charges. Reportedly, the teens "laughed as Jamel Dunn, 31, struggled to stay afloat."  They told him that "he was 'going to die," and he did. 

The phones that could have dialed 911 that day were used instead to record his demise, which the teens uploaded to YouTube. Florida officials noted that "there is no Florida law that requires a person to provide emergency assistance under the facts of this case." The State Attorney spokesperson nevertheless said that "everyone was sickened by the callous disregard for human life." 

But, it is not always bad news in the morning headlines. Fox News reported recently about  a Georgia teen that sprang into action when two co-workers were stabbed, Officials praised him for his "quick thinking after two of his Target co-workers were allegedly stabbed." This young man "noticed that two of his coworkers had been stabbed" and "rushed to their assistance.” He improvised with what he had, fashioning a tourniquet from his shirt for one and applying gauze and pressure on the other. He attended the two until medical help arrived. 

The Palm Beach Post reported a less dramatic, but as inspiring story at a fast food outlet. Two "blind patrons" were assisted by an employee. The gesture made an impression on others, one of whom "shared the story to social media." There was no injury or urgency, just "little things (that) are a big impact on people’s lives." The employee helped these customers, checked on them, valued them. 

In another example from Colorado, "surveillance video from a doorbell camera" captured three kids discovering a wallet in the home's driveway. Though there was $700 in the wallet, and "no one was around," these three "did the right thing anyway and returned the wallet."  The Internet is seemingly not lacking in instances that can inspire and reassure us. 

At times those stories may eventually disappoint us. In 2017 a homeless veteran came across a motorist who had run out of gas. He walked to a station and spent his last $20.00 to buy her fuel, and got her on her way. The Internet was inspired by the story and about $400,000 was donated through a crowd-funding campaign. A great "feel-good" story. 

But last summer the news broke that this veteran had not received all of the money raised. Questions were being asked about where the funds went. Now there is a lawsuit, and talk of criminal charges against the lady that he rescued, the lady that championed his cause on the crowd-finding site, according to CBS News. The motorist and her spouse are accused of spending significant sums "on lavish vacations, a new BMW and more." Authorities have seized records and the BMW. Stories like this have led to "a website called GoFraudMe." It "tracks online donation scams." Officials there note that donors are often called upon to deliver "a quick fix to complex problems." 

It seems that there is no end to the challenges of daily life. We are all presented with situations involving those with whom we share this journey. We see character and contribution, but we also see behavior that ranges from below par to downright despicable. We may wonder how we would react in a situation of danger, would we fight or flee? But, it is truly a sad day when we would step over a heart attack victim to rob his store. It is truly a sad day when the charity of others might be stolen by those whose predicament gave rise to people helping in the first instance. 

It is encouraging to see that some young people not only understand citizenship, but practice it. We hear a great deal of derision for young people today, and it is encouraging to know that for all the negative stories like the heart attack thieves, there is a kid returning a wallet, providing first aid, or just helping someone with daily tasks at the local Wendy's. Perhaps in their selflessness we can all see ourselves as we should hope to be? Maybe we each have a chance each day to do something kind and helpful, if we only remain vigilant and seize the opportunity when we see it?






Wednesday, October 10, 2018

Some 2018 Comp Laude Honorees

I planned to proudly to stand on the stage at Comp Laude 2018. I was to have the honor of presenting the Magna Comp Laude award to a most deserving individual. A great many outstanding workers' compensation community members were nominated for the Comp Laude this year. Those I nominated are listed in 2018 Comp Laude Finalists Named. I planned to, but did not. I got distracted this year by Hurricane Michael. I spent Wednesday glued to the Weather Channel, the NOAA website, and Twitter, striving to keep up. 

As an aside, it is such an honor to be associated with the Comp Laude. It is inspirational and rewarding. It helps me remember David DePaolo, who always inspired me with his enthusiasm. Comp Laude inspires and motivates me. I am proud of it, and of those amazing professionals that make it a reality each year.

I am also proud of all of those who were nominated. In a shameless plug, I suggest that everyone reading this post knows someone worthy of nomination. And the nominations for 2019 will open soon enough. Get ready now to recognize your leaders, your exemplars, your inspirations. 

You cannot win if you are not nominated. But, more important, by making a nomination you are making a huge statement about your nominee and about your personal commitment to the goal of recognizing those that motivate and influence you. You cannot control who wins, but you alone decide who is nominated. 

I am so proud of everyone nominated, the finalists, and those ultimately selected. I cannot call those selected "winners" as that implicates that not everyone is a winner (OK, not every kid gets a trophy). In my opinion, everyone that was nominated is a winner. But, from a phenomenal crowd of finalists, I am so very proud of my nominees that were selected. What follows is the explanation of each that I submitted in the nomination process.

Summa Comp Laude - Workers' Compensation Institute (WCI)
The nomination of Workers’ Compensation Institute’s (WCI) philanthropy is founded on action. WCI produces and presents the nation’s largest workers’ compensation education event each year in Orlando, Florida. Some 8,000+ people converge on the world’s largest Marriott hotel and there are four days of an incredibly diverse and densely-packed educational agenda. For decades, WCI has devoted a portion of its proceeds to fund scholarships for children of injured workers.


But, in 2012 WCI initiated a broader philanthropy, and some background will assist. Orlando is a frequent destination for children who are honored by the Make a Wish Foundation and similar efforts. Sick children are brought to Orlando to escape the day-to-day of serious illness. In 1986, Henri Landwirth started a grand facility to provide those children and their families with accommodations during their Orlando visit. He named it Give Kids the World Village (GKTW).

It is a like no other hotel, offering the anticipated lodging, but with intriguing twists. Children staying at GKTW (http://gktw.org/about/) enjoy an 84 acre facility complete with meals, entertainment, resort tickets, transportation, and more. “More,” like an ice cream parlor that is open for breakfast (yes, ice cream for breakfast), a train, swimming pools, you name it. It has delivered on its promise in excess of 160,000 times since its founding.

In 2012, WCI adopted GKTW as its official philanthropy. And there is an element of fundraising and financial contribution involved. Each year, since 2014, the Saturday night before the WCI conference, a Gala and silent auction is held. In four short years, WCI has raised and donated over $200,000 to GKTW. And additional fundraising has been added since. But, at that Gala, workers’ compensation professionals from across the country are gathering, dining, bidding, and contributing to a phenomenal cause. Impressive, yes; but, that is not the best part.

In partnership with conference attendees, sponsors, and partners, WCI buses volunteers to GKTW Village each Saturday morning before the conference, the morning before the Gala. And those volunteers provide the labor to make GKTW Village work. They scoop ice cream, drive the train, and interact with the kids and their families. But, they also weed, trim, paint, rake, sweep, repair, and anything else that is asked. They contribute sweat, emotion, and heart where it is needed most, in the lives of children struggling with medical challenges.

The work party groups have grown over the last four years. In 2017, over 700 volunteers participated in the GKTW philanthropy work day. They promoted human welfare, demonstrated goodwill to people, and performed an act of humanitarian love. Seven hundred workers’ compensation professionals from all walks of life, professions, businesses, and perspectives came together to give back, to build, and to serve.

There are a great many benefits that come from financial donation to such an enterprise as GKTW. Operating such an enterprise is undoubtedly expensive. And, the benefits of $200,000 can hardly be overstated.

However, the focus here should be on the 700 plus volunteers and their day of work. Barriers were overcome, conversations were started, and friendships were formed. People from across the amalgamation that we refer to as “workers’ compensation” met and learned from each other in service to others. People came together for the benefit of children and contributed their time, sweat, and effort. They formed teams, wore matching t-shirts, and they were a bit competitive. But, they contributed.

When we discuss philanthropy in workers’ compensation, I can think of no function more laudable. The GKTW workday is philanthropy of the mind, the heart, and the body. It is contribution of effort, teamwork, and cooperation. It builds bridges, spans chasms, and promotes understanding (or at least interaction). It is a great effort and a great investment on behalf of selfless volunteers under Florida’s August sun.

Magna Comp Laude - Tom Glasson, AIG Insurance
Tom Glasson is a fixture at numerous conferences and conventions around the country. He is active in the International Association of Accident Boards and Commissions (IAIABC), the Southern Association of Workers’ Compensation Administrators (SAWCA), and more. When the industry elected to have a National Conversation regarding workers' compensation in 2016, Mr. Glasson was a natural invitee. His depth of knowledge is unparalleled. He has a vast appreciation for state subtleties and distinctions in substance and procedure.


Mr. Glasson is a soft-spoken advocate for change in the systems. He explains the benefits of communication, state-to-state interaction, and maintaining focus on the heart of this industry – employers and employees. Professionally, he is focused on the assessment and management of risk. At heart, professionally, he is an insurance person. But, he is engaged and engaging on the issues that are at the heart of the challenges that we face and confront.

Mr. Glasson is an advocate for simplification, streamlining, and reducing system friction. I have heard him repeatedly discuss the benefits that would inure to injured workers and employers if state processes were focused more upon them, and less on bureaucracy. He is a critic of government waste and inefficiency, but always quick with a compliment. My favorite phrase from him is his seemingly constant “you know what I like about (fill in your state) is . . . ."

Mr. Glasson engages by always finding something positive to say. That may be followed with a criticism, suggestion, or thought. But he leads with compliments and is always gracious and engaging. Mr. Glasson is adept at starting conversations and thoughtfully examining the issues on the table. His experience is deep and his perspective is broad.

Mr. Glasson’s biography speaks for itself. He is an engaged in planning and producing educational programming for SAWCA. He is a lecturer at programs like the Workers’ Compensation Institute. He is proof positive that differences in perspective do not have to be divisive or damaging. He makes an art form of disagreeing without being disagreeable. He steers the conversation, challenges thoughtfully and artfully, and brings perspective respectfully.

Mr. Glasson epitomizes the spirit of engaged, listening and conversing about workers’ compensation that is needed in this country. Despite his travel and engagement schedule, he has time to work with young people, mentor the next generation in claims, and strive to better an entire system. He epitomizes the spirit of Comp Laude.

Industry Leader - Steve Rissman
Steve Rissman has practiced workers’ compensation for his entire professional career. That career now approaches 50 years. His successes have included legal practice and education. I have never litigated against him, but having observed a great many lawyers over the years, and knowing his tenacity and drive as I do, I believe he would be the worthy adversary that so many have described.


Steve has “been there” and “done that” in Florida workers’ compensation. He has served in the process of workers’ compensation rules, served as chair of the Workers’ Compensation Section of The Florida Bar, served on the statewide nominating commission for Judges, been involved with innumerable committees and conferences and groups.

Steve is one of the four founders of the Workers’ Compensation Institute, and for the last 30+ years has been the curriculum chairperson of the largest gathering of workers’ compensation professionals in America. The WCI attracts 8,000+ each August in Orlando. Steve is the architect behind the curriculum for hundreds of breakout sessions. He coordinates topics and themes, interacts with speakers and program leaders, and manages the many demands and needs of all of those agendas. To refer to the task as herculean is an understatement. This year’s WCI program includes more than 450 speakers. Throughout the WCI, he is constantly on the move, checking room set-ups, gathering attendee feedback, and facilitating problem solutions. Certainly, he is a leader of a great team, but despite the many others involved, Steve is always on the field, engaged, active, and focused on the program’s success. 

Steve has been recognized as a “super lawyer,” and many other superlatives. But, he is a man that is about the community of workers’ compensation. Steve was a driving force behind the establishment of the Florida Workers’ Compensation Institute Hall of Fame. He was its first President and remains so to this day. This group recognizes each inductee’s “lifetime achievement” in workers’ compensation. There is no fanfare, no reward, for forming such a group. Steve formed the group for others, not himself. Through it, those who have likewise “been there” and “done that” in Florida workers’ compensation recognize each other. It is an imperfect group of imperfect people. There are a great many significant egos in that room. And yet, Steve successfully leads the Hall to fairly honor and recognize those who have contributed so much time, effort, and dedication to Florida workers’ compensation. 

Steve has been honored by induction to the College of Workers’ Compensation Lawyers. He has delivered untold lectures on workers’ compensation law, professionalism, ethics, and more. He has built and managed one of the largest and longest-standing workers’ compensation law firms in the state. And despite that success and stature, he is concerned primarily about recognizing others, encouraging others, inspiring others. 

He knows the value of talented professionals, and he strives to engage them in the WCI programming. He is focused on their growth, their development, and their success. As is obvious to far too few of us, the future we all face depends on those talented professionals that are on the path that could one day lead to the Hall of Fame. We need those up-and-comers, as they will be tomorrow’s “been there” and “done that.” And along the way, they will each have likely gained something of value from the educational programs that are Steve’s hallmark. 

Steve is an advocate, a critic, an educator, a mentor, a leader, and more. He is most worthy of Comp Laude recognition for his achievements and for his focus on training, persistently, the “next generation” for over 30 years. 

Applicant Attorney - Geoffrey Bichler
Mr. Bichler is an exemplary attorney representing injured workers in Florida. He has developed a practice focused on “first responders,” a description that was not always well defined in Florida workers’ compensation. He has been an advocate for both expanding and clarifying the various statutory presumptions created in favor of first responders, including firefighters, police, correctional officers, and more.


Mr. Bichler has been involved in the legislative process in Florida through his leadership in the Florida Workers’ Advocates and the Workers’ Compensation Section of The Florida Bar. That involvement has also seen him involved in regulatory discussions about both the fundamentals of workers’ compensation and the processes for adjudicating disputes involving those benefits.

Mr. Bichler is a member of the Board of Directors of Kids Chance of Florida (KCFL). He has been involved since just after the founding of that affiliate in late 2015. He has been an active participant in the KCFL scholarship selection committee. Those efforts have been instrumental in establishing criteria for acceptance, defining award categories, and the actual selection of worthy scholarship recipients.

Mr. Bichler is known for his advocacy and involvement. He is a persistent, but professional, advocate on behalf of his clients. His leadership in the field of workers’ compensation has been inspiring to others in this field and he inspires emulation of professional, passionate, and patient practice of law. He is adept at disagreeing without being disagreeable, at focusing criticism on action, inaction, or outcome rather than on people or even institutions/entities.

Mr. Bichler is integrally involved in the Workers’ Compensation Institute (WCI), which produces and presents the largest workers’ compensation educational conference in the country. Mr. Bichler is a member of the WCI Committee, and is in charge of planning curriculum for both the attorney program and the first responder/heart and lung bill programs. That includes recruiting and arranging national and state speakers, balancing topics among competing interests, and producing a program of value to an assortment of interests and concerns.

Mr. Bichler has been a steady and professional advocate for many changes in heart/lung and now PTSD presumption in Florida. He has much responsibility for the legislative changes in that specialty over the last 20 years. He is a consummate professional and a respected leader in the field of workers’ compensation. He leads by example and treats those around him with dignity and respect despite ideological or other differences of opinion.



Tuesday, October 9, 2018

Comp Laude - Michael Made Me Do It!

This morning, October 9, 2018, I was scheduled to fly to San Diego for the Comp Laude 2018. Unfortunately, Michael has come to call in Florida, and for several reasons that means cancelling my trip. 

Comp Laude is a unique "gala" experience, focused upon recognition of those focused upon making workers' compensation better. Workers' compensation is a community in which we work daily, and one which is oft derided. This community has its share of heroes and villains. There are too many who take advantage of the employees and employers. I lament those whose motivations are not pure, and join the Laude in celebrating those who do so much to make this community better. 

I remain very proud of those who were nominated for recognition at the Comp Laude. The finalists were named in July, noted in 2018 Comp Laude Finalists Named. I am grateful that we, as a community, have the opportunity to make such nominations. I am proud that David DePaolo envisioned and created a platform for us to recognize our peers. I recognize through this process that there are a great many heroes striving for a better community. I won't be there Wednesday night to applaud them. But, I am nonetheless proud of the winners, the finalists, and the nominees. 

I was also proud this year to be chosen to participate on The People's Choice, a "Ted talk" style program where some of the most compelling and interesting community members will share their 6 minute inspirations. David DePaolo envisioned and created this, but never witnessed it. The first People's Choice was in 2016, months after David passing. I was so honored this year to be chosen to present in this unique and special format. So, this morning, I share what I "would have said," more or less, had Michael not derailed the trip. I say "more or less," because what follows is essentially unedited stream of consciousness, written out here for the first time from the outline I planned to use tomorrow. I intended to speak from the heart and not from a script.

Comp Laude 2018 - People's Choice Award

Aren’t we all just so perfect, to ourselves, from our perspective? If only everyone could be like "me." We live our lives too often judging others. Sometimes because we must, they work for us, they are proposed for our team, their department or company is critical to ours. But, we must judge carefully, judge performance and not person. Remember our judgment is driven by our perceptions, and unfortunately our inherent bias. 

Inherent bias is tough. We all have it, and many deny it. Everyone I know that will even admit to having bias, thinks they have it under control. We are all seemingly confident. But, we cannot be complacent. As we form opinions about others, we must remember biases, feelings, and experiences. Sometimes we must judge, but are we too quick? Are we fair?

In our lives, emotions can be poison. Who gets the plum assignments, the best opportunities, the recognitions and awards? Humans naturally experience emotions, some less healthy than others: envy, anger, hate, and more. Though we perceive someone's grass greener, our perspective may mislead us about their reality. 

So, we are surrounded by fruitless and exhausting emotions: jealousy, anger, envy, vengeance, and more. How much of our soul, our energy, our lives will we invest in these fruitless feelings? And who do they benefit? Do we derive joy or accomplishment from our envy? Does anger move our lives forward and enrich our relationships? Simply stated "no."

I would suggest that these negative emotions are not healthy for us. They bring pain and stress. They poison our hearts and pollute our minds. They do not build community." We need to communicate openly, to drop our facades, shed the veils we wear. We must recognize our negative emotions, and be slower to judge others. None of us will be perfect in that. But we must strive. 

We are all too often convinced of our perspective, our adequacy, our success. We hear, but we do not listen. We see but we do not observe. We too often assume, apply our bias, and judge quickly. 

We each decide what self to show the world. We have each spent  a lifetime building defenses, forming our scars, and protecting ourselves. From pain comes self defense. We show and we hide, we decide. It is self preservation, and it’s understandable. Our choices  protect us, but may also damage us. Having been wounded, we avoid the chance of that again. We internalize, and we shield, and we hide. But at what cost? 

Is she a snob, or just shy? Maybe he could contribute ideas, but he has been shot down too many times. Maybe she is a bully, or maybe just insecure. Maybe he is ungrateful or insensitive, or perhaps just forgetful? 

These masks we each wear, our process for figuring out other people, all that is built over time. There is geologic term I find helpful: “accretion.” It is the opposite of erosion. And over time, that process causes the accumulation of emotional detritus, just as the process of depositing dirt created the land formation at the end of the Mississippi; the Louisiana "boot" is a prime example of accretion. We all have history, experiences, successes, and failures. It has all accumulated over time to make us who we are. And it affects us: how we feel and act. It affects how others perceive us, and how we perceive them. 

We might break through someone’s veils and masks, but rarely with a brute force attack. You parry and they shield. We are more likely to make inroads by recognizing that time and accretion led to our current states, and therefore erosion is our best hope of tearing it down, in ourselves and in others. 

Imagine if we all took small daily steps towards appreciating the positive aspects of the people in our community. What if we made more effort to ignore and get over their shortcomings? That is not to say that we have to remain connected to people. Some we may have to just avoid - they may be toxic for us individually. But for those that are not necessarily flotsam and jetsam, not necessarily toxic, can we find a way to slowly erode the veils? Can we slowly know them, rather than judge them?

If we try, we might find that our perceptions are not nearly as infallible as we would like to think.

My six minutes would have been something like that. I would have enjoyed presenting it. I would have been honored to share the stage with some phenomenal members of the workers' compensation community. But, in the end sometimes life hands you developments you don't want. Among those are hurricanes, fires, earthquakes and so much more. As they assemble in San Diego, all of them, I am thankful for them. I am pleased that excellence and commitment will be honored and recognized this week. I am personally committed to striving to look for the good and the value in this community and in people. I hope you will join me. 

Sunday, October 7, 2018

Regulatory Necessity? Got Milk?

A "lawyer's stock in trade is words." That is an adaptation of an Abraham Lincoln quote that "a lawyers' time and advice are his stock in trade." I like the "words" quote better, but I struggle to find from whence it came. I suspect that I saw that printed somewhere in the past, but have been unable to attribute it. It is also possible that I have contrived that quote by mis-remembering the Lincoln quote. The mind plays tricks as we age.

And lawyers do like to parse words. Perhaps the most famous example is the explanation of William Jefferson Clinton that "It depends on what the meaning of the word 'is' is." Mitch Glazier said that "There either is or is not," waxing eloquently, but apparently ignoring the President's subtle or hyper-subtle distinction on the vast (apparently) array of potential meanings for "is." 

The power of words and the burden of regulation recently returned to mind when I read of a couple in trouble for selling preserved produce. Fox News reported that two retired Texans began preserving vegetables using a process called "pickling." Eating Well says "you can pickle pretty much any veggie, not just cucumbers: tomatillos, carrots, okra, beets, peppers, turnips, avocado." In fairness, they had me right up to that "avocado" comment. 

But, the Texas Department of State Health Services told these retirees that they had to stop. Now there is litigation as the couple sues the state over its' "definition of a pickle." See, Texas "defines a pickle as 'a cucumber preserved in vinegar, brine, or similar solution, and excluding all other pickled vegetables.” So, anyone can "sell homemade pickles" in Texas, but "to sell anything else pickled, a seller must become a licensed food manufacturer." Perhaps here it depends more on what the meaning of the word "pickle" is. 

The regulation is said to have evolved from various instances of food poisoning, leading to the state precluding home-canners from selling any food except "home baked goods and pickles of the cucumber variety." So, the couple has abandoned pickling vegetables and has taken up the hobby of litigation instead. 

There was a similar recent story in Florida, that revolved around milk. The Tampa Bay Times reported that Florida regulators insisted that a local dairy label its' "skim milk as imitation." The liquid in question came from mammals, and was obviously milk as most would understand it, but Florida "defines skim milk as having Vitamin A." And, this dairy elected to market the natural mammalian output without adding Vitamin A. Thus, the product, straight from the mammals, did not fit the state's definition of "skim milk." 

Depends on what the definition of "milk" is? Well, the dairy did not acquiesce in the state's definition of "skim milk" and filed a lawsuit. According to the Times, the courts sided with the dairy, and Florida is now on the hook for "nearly $437,000 to cover the fees of attorneys who sued." The court concluded that labeling this mammalian output "milk" is not deceptive: “The State was unable to show that forbidding the creamery from using the term ‘skim milk’ was reasonable,” according to the Eleventh Circuit Court of Appeals (the federal appeals court responsible for the region that includes Florida). 

More recently, the USA Today reported that federal officials have raised a similar concern regarding other milk. Not milk that comes from mammals, but from nuts (those who want to may digress at this point and discuss how it is both possible and sometimes probable that some mammals may also be "nuts," but I will not venture there). 

USA Today reports that last summer, FDA Commissioner Scott Gotlieb discussed that there are "hundreds of federal “standards of identity” spelling out how foods with various names need to be manufactured." He suggested that those who manufacture drinks from beans and nuts, and label the product as "milk" might soon "need to consider alternative language." It seems that the federal government "plans to start enforcing a federal standard that defines “milk” as coming from the “milking of one or more healthy cows.” Some will see that as broader than the now litigated Florida definition, but perhaps it is as specific. Apparently, the produce of goats is not "milk?"

The agency reportedly anticipates being sued. The Commissioner has acknowledged that "dictionary definitions are broader and say milk comes from a lactating animal or a nut." That may bring solace to the Almond Milk crowd or even the Coconut Milk crowd. But, does the dictionary provide any solace to the soy bean fans? According to Encyclopedia Britannica (a series of publications printed with ink on paper that was then bound into what we old folks called "books"), a soy bean is a seed. Seemingly, such a seed would perhaps not be seen as either a mammal or a nut? 

Another point perhaps worth noting is the broad use of "animal" in the dictionary definition. While that seemingly expands the population of potential contributors, it is generally accepted that the only animals to lactate are mammals. But, I digress. 

Since 1967, the Fair Packaging and Labeling Act has required that products:
be labeled to disclose net contents, identity of commodity, and name and place of business of the product's manufacturer, packer, or distributor.
Thus, in this next iteration of litigation, it appears to be a focus upon the "identity" requirement. And, where will the lines be drawn? As noted above the product of seeds may be excluded from a label "milk" as seeds may not meet the plain dictionary definition of "animal or nut." The analysis extends to almonds, cashews, macadamias, and even pumpkin (which again, are felt to more likely be seeds). Nut milk is created by soaking, blending or crushing, and straining. Then there is coconut "milk" which is produced by pressing or even steeping the pulp of a coconut.  Does it matter if cooking is involved? Though there is debate as to whether a coconut is a fruit, nut or seed, there are those who assert that it is all three.  

Just for our personal interest, imagine how hard it might become to answer the "got milk?" question that became so popular a few years back.

Courtesy National Milk Processor Board

In the end, the government certainly has every reason to protect consumers from being mislead. It makes sense that products should not be mislabeled or misleading. But, does it make sense for government to regulate definitions that are inconsistent with dictionary definitions? Is government micro-management needed in the determination of whether soy beans are a nut, a seed, or a fruit? Is there room for common sense in government legislation and regulation? Is there a rational basis to support that home preservation of cucumbers is somehow safer than of carrots? 

As workers' compensation regulators, perhaps we are all well-reminded that regulation serves a purpose and over-regulation may only create confusion and litigation. The National Conversation identified that a major criticism of workers' compensation is the patchwork of regulations that results from having state-based systems, and thus at least the potential for inconsistency in requirements, definitions, and documentation. Regulators might do well to consider both the benefits of consistency and the detriments of litigation. 





Thursday, October 4, 2018

Relevance and your Perspective

There's an evolving standard of relevance. Relevance is always a challenge for those who litigate. The challenge lies not in the definition we have, but in its breadth, and perhaps ambiguity. To some extent, relevance may be in the eye of the beholder, much like beauty. And at the end of the day what's relevant to one may not be relevant to all. 

In Florida, the admission of evidence he is governed by two statutory standards, which are similar to the federal rules of evidence. The first analysis is whether the evidence is in fact relevant, meaning that it "tends to prove or disapprove of material fact." The second analysis, allows the exclusion of evidence that is relevant, on the grounds that it may be cumulative, or more prejudicial than probative."

Years ago, I defended an employer against whom and injured worker had brought a claim. The injured worker had in fact brought two claims, against the same employer. However, the insurance carrier responsible was different for the two accident dates. Therefore, there were two defense counsel, and the employers interests were well represented.

The accident involving my client had occurred later. By the time that accident entered litigation, there had already been a final hearing regarding issues surrounding the first date of accident. After a visit to the client, and examination of the scene, I had drafted an evaluation letter describing the perceptions of the case, and a plan for proceeding.

A vice President of the employer contacted me, to discuss my evaluation and the case in more depth. He wanted to discuss his perspectives on the evidence in the case and his testimony regarding the event. The vice president then explained his preference that I undertake the lead in representing the employer as regards both accidents. I suggested a conversation with co-counsel, and after that conversation, we agreed that I would take the lead. 

Was it my striking good looks? Was it my incredible intellect? I wish one of these were the answer. It was because, in discussing the employer representative's proposed testimony, co-counsel and I had disagreed regarding relevance. Following the letter of the law, my co-counsel's interpretation was likely more valid. His desire was to present a short concise case, without any extraneous testimony. He had essentially told this company official that much of what interested him was not relevant. 

Our mutual client, however, had a great deal that he wanted to say. So focused was he on testimony, that he had presented us with a typewritten list of thoughts and observations when we met. My gut reaction was that this testimony was very important to him, though perhaps only marginally relevant to the issues in the case.

Years later, as my former co-council and I discussed that case in retrospect, we both recognized that neither of us was either right or wrong in terms of our plan for presenting testimony. We agreed that the real issue was what made the employer comfortable, and satisfied. 

As I prepared this post, and relive those memories, another situation also occurred to me. In one of my first solo depositions, I was called upon to inquire as to the accident in an intriguing case. It began with the construction of a bridge in Jacksonville, and that had been a major project involving multiple contractors and various vendors. 

The bridge-building crew had habitually traveled from the shore to a series of barges on a "flat boat." On the accident date, this injured worker had been stepping from the barge to the flat boat when the waters' motion displaced the boat, the worker nonetheless stepped, and instead of landing on the boat had stepped into the St. Johns River. In a great many such instances, the worst damage might well have been a wet employee.

Unfortunately, this injured worker had struck the side of the flat boat on his way down, and thus suffered physical injuries in the fall.

The following exchange occurred during that deposition
Q: So you stepped off the boat? (Notice I was asking leading questions?)
A: yes
Q: And your chest struck the boat on the way down?
A: yes
Q: And you fell into the river ?
A: yes
Q: Now, after you fell into the river,
A: (interrupting) "Man, you are not listening to me."
The injured worker then re-counted that he had stepped off of the barge, missed the boat, struck his chest, and fell in the river. I thanked him and ask the next question,
Q: "so after you were in the river?"
A: (Interrupting) man you're not listening to me."
I made several similar attempts to bring this story to the point at which the worker was in the river (my plan being to elicit, step by step, what happened next, how he was helped, how he was removed from the water, etc.). But each time, this worker refused to allow me to move on to the point that he was "in the river." His attorney finally suggested that I ask him about the boat in which he rode. Curious, I acquiesced.

That question elicited a long and detailed story evidencing this workers' feelings about the boat, its crew, the complications of working around water, and more. This several minutes of testimony had nothing whatsoever to do with the accident, this worker's medical care, recovery, or residual disability. Frankly, it had nothing to do with the case and was irrelevant. However, much like the vice president described above, the worker had thoughts and feelings that he wanted to describe. 

At the end of the day, it is important for individuals who have disputes to be afforded an opportunity to talk about what is important to them. That is not to say that the rules of evidence should be ignored, it is a suggestion that perhaps there are times when the rules of evidence regarding relevance might best be loosely interpreted, when doing so causes no harm other than the expenditure of a few extra minutes. That is, even if it does not satisfy the "tends to prove or disapprove of material fact" test, it might still be worth listening to so long as it also does not violate the "more prejudicial than probative" prohibition.

This is a particularly pertinent reminder regarding mediation. In Florida workers' compensation, many petitions are filed seeking benefits, fewer proceed to mediation, fewer still to any hearing, and far, far fewer to an actual trial. Remembering that the parties may have thoughts they want to share at trial is a focus of this post. But, everyone should remember that many more cases are mediated than tried. Mediation may be the only Office of Judges of Compensation Claims event at which the air can be cleared, feelings and thoughts can be shared, and frustrations vented. Everyone involved should remember this and be mindful that such unburdening may well be productive or even cathartic. 

For trial, lawyers must remember relevance. It is important not to allow the critical facts to become lost in a sea of distraction. But, it is as important to remember that this deposition, mediation, or trial may be the only opportunity a particular person gets to tell their story, vent their feelings, unload their soul. We should all be conscious that people may benefit from telling their story. We must remain patient with those around us, and always remember that a little courtesy and empathy go a long way.

Tuesday, October 2, 2018

Lacking Jurisdiction in Kentucky

I recently published regarding the authority of a Florida Judge of Compensation Claims to order appellate attorney fees in Statutory, Inherent, or Delegated Authority (July 2018). I received some interesting comments to that post, some in passing, delivered in quite whispers, and others more detailed. 

Authority was in the news about a month later, with the rendition of Howes v. Apollo Oil, ___ SW3d _____, NO. 2017-CA-001116-WC Kentucky Court of Appeals, 2018). It is worth reminding that in Kentucky workers' compensation trials are decided by Administrative Law Judges (ALJ). Those decisions are subject to appellate review by the Workers Compensation Board (Board), whose decisions may then be reviewed in turn by the Court of Appeals. The administrative appellate review Board model is somewhat unique in workers' compensation. 

The decision in this instance focused on the costs related to obtaining benefits through the litigation process. An injured worker named Roscoe Lohr hired an attorney, Mr. Howes, to represent him in a workers' compensation case. Mr. Lohr was seeking benefits from the employer, Apollo Oil. When Mr. Howes was hired, he and Mr. Lohr "executed a legal services agreement." In that contract, Mr. "Howes agreed to represent Lohr," and Mr. "Lohr was to pay Howes twenty percent of any award or settlement he received." 

In addition, the agreement said that Mr. Howes would "advance" costs of litigation (items such as "postage, transportation, deposition costs, witness fees"). The agreement was that those costs were to be reimbursed by Mr. Lohr "in the event of and only to the extent of a settlement or award in" Mr. Lohr's favor. The case was later settled, and Mr. Howes filed a motion for his fees and those litigation costs. 

The "ALJ entered an order approving the $3,500 attorney fee but denying the request for litigation costs." The judge concluded that she/he lacked authority, or "jurisdiction," to "award costs." The ALJ noted that there was "no statutory provisions permitting an ALJ to award costs." Mr. Howes' appeal to the Board did not change the ALJ decision, and thus he sought review of the Court of Appeals. 

In addition to the foundation cited by the ALJ, the lack of statutory authority to award costs, the Board concluded that "requiring litigation cost to be reimbursed" from the funds "paid pursuant to a valid child support lien" would not be appropriate under a Kentucky statute that exempts workers' compensation benefits from "the claims of creditors." See KRS1 342.180. That statute is not identical to, but arguably has similarities with Section 440.22, Florida Statutes. 

The Court interpreted and explained KRS 342.180, noting that "any compensation awarded," except "child support, is exempt from the claims of creditors." The Court also interpreted KRS 342.320 which delineates the calculation and approval of attorney fees in workers' compensation claims. The Court noted that this statute "contains no provision permitting the ALJ to award reimbursement of litigation costs." Notably, the "only section of the workers’ compensation statutes which addresses costs" is a provision regarding imposition of "costs as a sanction." 

The Court of Appeals concluded that the sanctions statute would be "unnecessary if the ALJ had authority to award costs in an ordinary claim." Thus, to infer into the statute a broad authority to award costs, the Court explained, would be to render the sanction statute effectively "meaningless or ineffectual.” The Court also reminded that "[w]orkers’ compensation is a creature of statute, and the remedies and procedures described therein are exclusive.” (Citations omitted). 

The Court noted that Mr. Howes’s basis for payment of costs "stems from a provision in his legal services agreement," a contract. That agreement "is not an issue that has any effect on the obligations that exist between Apollo Oil and Lohr." The claim for costs is therefore "merely a post-judgment contractual dispute between an attorney and his client." Thus, it is seemingly subject to enforcement like any other contract, in a court of competent jurisdiction. 

The Court also addressed Mr. Howes' contention that equity dictates the ALJ should both interpret and enforce his legal services agreement. This argument is essentially that attorneys will be disincentivized to "represent a client in . . . workers’ compensation" if the attorney is not "guaranteed to be reimbursed litigation costs advanced." 

The Court concluded that in most cases, "costs can be reimbursed from the proceeds of an award or settlement." In this instance, the attorney was not postured to make those deductions because the settlement funds were paid to a child support agency pursuant to statutory requirements. Therefore the settlement funds never came into the attorney's possession for him to deduct his due prior to disbursement. Thus, the situation presented was an exception to that in many workers' compensation cases. 

The Court noted that a different result in this instance, which involved child support arrearage, "would act to the detriment of the children to whom the child support is intended to benefit." Thus, even assuming that equity might override the statutory provisions, the Court concluded that equity had not been shown in this instance to dictate the attorney recovering to the detriment of the children, who are protected by the statute. This is a notable statement, equity is essentially about "fairness," and as a result may be difficult to predict and perhaps more difficult to replicate in various factual situations. 

The subject of costs has been the subject of litigation in Florida. Demedrano v. Labor Finders of Treasure Coast, 8 So.3d 498 (Fla. 1st DCA 2009) addressed the jurisdiction of a Judge of Compensation Claims regarding the reimbursement of costs from settlement proceeds. Another decision of potential interest regarding costs is Eshlibi v. Consolidated Box Mfg., 962 So.2d 377, Fla 1st DCA 2007). Some court watchers may note that the panels for both of these decisions included judges Benton and Kahn.

Demedrano reminds that Judges of Compensation Claims (JCC) "lack inherent judicial power," and are limited to the authority provided by statute. It also refers favorably the broad language of Section 440.33(1), Florida Statutes. That provision empowers the JCC to "do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of his or her office.” Though that broad conveyance of authority was relied upon in Demedrano, it has been discounted in other appellate decisions. see e.g. Karell v. Miami Airport Hilton, 668 So.2d 227 (Fla. 1st DCA 1996); Millinger v. Broward County Mental Health, 672 So.2d 24 (Fla. 1st DCA 1996).

A fair reading of Demedrano, Karell, Millinger and other analyses of Section 440.33(1) likely lead to the conclusion that whether a Florida judge has authority over costs or not is simply "maybe." And, if that answer is not acceptable, then perhaps a more definite "it depends" is of more comfort? Unfortunately, the law often comes down to an answer of "it depends," because the outcome is dependent upon various facts and circumstances, and those differ from case to case. 

In the end, "it depends" is perhaps the essential lesson of Howes v. Apollo Oil in Kentucky also. Jurisdiction there did not exist, but that only mattered because the attorney did not possess the proceeds from which to pay himself before the client received funds. The circumstances of the settlement proceeds going directly to the child support this worker owed created facts and circumstances that caused the case to be heard. The statutory construct that protects workers, and yet favors child support, led to the outcome in that set of facts. 

Howes is thus an educational foray and reminder of the statutory nature of what we do, the limited authority of workers' compensation judges, and the fact that our systems are all products of state law.