Monday, December 23, 2013

Is it Really De Minimus?

There is a workers’ compensation bill proceeding through Florida's legislative committee process already. It is SB444 and there is a similar bill in the House, HB271. There are a variety of provisions in these two bills, many dealing with “stop work” orders and penalties. But of interest to the broad workers’ compensation marketplace, there is a mathematical revision or clarification that is academically interesting.

In the Fall 2013 News and 440, there is a small article I penned (is that still a viable verb in the 21st Century?) after the First District Court rendered Escambia County School District v. Vickery-Orso, 109 So.3d 1242 (Fla. 1st DCA 2013) last April. It includes more of the math and the analysis of the question of whether pennies and rounding are significant. News and 440, Fall 2013.

This was the compensation rate case involving calculations, percentages, rounding, and more. I have often heard attorneys say that "if I could do math, I would have gone to medical school." Several minutes on the worldwide web failed to locate the source of that quote. I did not originate it, and I cannot find who did, but I have often agreed with it.

I have been amazed over the years at how often I have become involved in mathematics. I look back on the times I asked "when will I ever use this" in high school and college math classes. Though I never got a great answer to that, it turns out I have used a great deal of math in my career. In a nice piece titled Dangerous Curves Ahead, attorney and mediator Michael Orfinger expresses some thoughts on using math in mediation. I recommend the article as it makes one think.

Returning to SB444/HB271, the logic seems to be a simplification of the mathematics required in workers’ compensation. Currently, section 440.15(1)(permanent total), 440.15(2)(temporary total), 440.15(4)(temporary partial ) and 440.16 (compensation for death) use “66 2/3” as the factor to be applied to the Average Weekly Wage (AWW) in determining benefits due. After Vickery-Orso, I have discussed the Court's calculation with a variety of attorneys and other market participants. Not all agree with the Court’s math. Whether one agrees or not, however, the Court's math is reasonably clear. It is a road map for workers' compensation professionals.

SB444/HB271 would add the phrase “or 66.67” to each iteration of “66 2/3,” so that they would read (for example) “66 2/3 or 66.67 percent of the average weekly wage shall be paid to the employee . . ..” 440.15(1). Similarly, in one portion of the compensation for death section, “33 1/3” would be changed to “33 1/3 or 33.33 percent for each child.”

Eliminating fractions from the calculation might make the math somewhat easier (does anyone have a 1/3 or 2/3 key on their calculator?). The Court in Vickery-Orso has explained the calculation under the current statute though and it seems reasonably clear from this decision. Will the disjunctive “or” in SB444/HB271 be helpful, or will there be confusion over the application? In other words, as the bill is phrased, would either calculation be acceptable in any particular case? Would it matter that one carrier elects to use fractions and another carrier elects to use percentages.

The difference between the two calculations would be pennies. But pennies may be significant. In Vickery-Orso, the Court explained "these differences of two or three cents become significant when repeated over multiple payments, and are even more significant when they form the basis of awards of penalties, interest, costs, and attorney’s fees."

Under the proposed revision of SB444/HB271, who decides which of the two calculations is appropriate? Is the intent to give carriers the choice, and if they are correct under either calculation, that is appropriate? If so, they are likely to use that which yields the lower figure. Is the choice the Claimant's? If so they are likely to use the calculation leading to the higher figure. If simplification is the goal, would it make more sense to change to the percentage calculation instead of the fraction? Would that solve more problems than simply adding an alternative with "or" and its potential for further litigation and uncertainty? Is there a value in uniformity and clarity as well as value in simplicity?

Wednesday, December 18, 2013

Oklahoma Supreme Court Decides Coates

On December 2, 2013 I wrote about constitutional challenges. That included discussion of Coates v. Fallin in Oklahoma. This is a constitutional challenge regarding a sweeping change to the Oklahoma workers' compensation law passed last spring. On December 16, 2013 the Court rendered its opinion, concluding that the statute is not unconstitutional on its face. Ninety days passed between the filing on September 17, 2013 and the ruling. 

A quick update on the Florida cases mentioned in the December 2, 2013 post. Castellanos v. Next Door Company was filed in the Florida Supreme Court October 31, 2013 (case number SC13-2082). There has been no action in that case docket since notices of intent to appear were filed by five organizations on November 5 and 6, 2013. Organizations that have sought to file "friend of the court" briefs, called "Amicus Curiae," include the Florida Justice Association, the Workers' Injury Law and Advocacy Group, the Florida Workers' Advocates, The International Union of Police Associations, and the Workers' Compensation Section of The Florida Bar. That appeal has been pending for about 48 days. It remains unclear whether the Court will consider the case on its merits.

Westphal v. City of St. Petersburg was appealed twice (case number SC13-1930 and SC13-1976). On December 9, 2013 the Court accepted jurisdiction of the two cases and ordered the two cases consolidated. The docket reflects that oral argument will be scheduled in the case, and that initial briefs are due at the court before January 3, 2014. 

This is the interesting case on statutory limitations on benefits. There is an en banc (the whole court) decision in a recent case, Matrix v. Hadley, 11.29.11, providing one statutory interpretation, an 02.28.13 panel (three judges of the court) decision finding constitutional infirmity on the basis of "natural law" and a new 09.28.13 en banc decision retreating from the prior en banc decision and not mentioning constitutionality or "natural law." 

Supreme Court cases on Florida worker' compensation are reasonably infrequent. Most appellate review in this state ends with the First District Court. This is another cases that is attracting significant attention. Organizations that have sought to file Amicus Curiae briefs in this matter include the Florida Justice Association, the Workers' Injury Law and Advocacy Group, the Police Benevolent Association, the Florida Professional Firefighters, the Florida Workers' Advocates, and the International Association of Fire Fighters. 

Ninety days later, the Oklahoma Court has rendered its decision in Coates. After the September 17, 2013 filing, the Court assumed jurisdiction of the case on November 25, 2013, heard arguments and made their decision. However, the decision is arguably narrow, with the Court addressing primarily the contention that the bill was inappropriate in addressing more than one subject. Still, ninety days from filing to rendition, impressive.

The Court concluded that the legislature which adopted all of the recent Oklahoma changes did not act "outside its constitutional authority by enacting a bill containing multiple subjects." The Court concluded that all of the sections of the bill, and therefore the "new law are inter-related and refer to a single subject, workers' compensation or the manner in which employees may ensure protection against work-related injuries."  

Justice John Reif, concurring in this narrow determination, also dissented in part. He noted in his opinion that "judicial restraint calls for the denial of relief at this point in time for most of the challenges to the administrative system raised." (emphasis in original). The majority of challenges will be heard in trials, and proceed through the appellate process. Thus, the somewhat unique Oklahoma process for constitutional challenge has provided some guidance on the "facial" challenge, but there will remain opportunities for "as applied" challenges. Justice Reif concurred in the conclusion that the law did not violate the single subject restriction, but in his dissent opined that two provisions of the new Oklahoma law are "unconstitutional on their face."

First, is the "Opt Out System," which he noted is also addressed in Justice Combs' dissent. Second, he noted that the appeals process in the new law violates due process. In the opt out, the employer and an appeals committee chosen by the employer are empowered to make a variety of decisions. Justice Reif writes that such a process "cannot satisfy the impartiality requirement of due process." He contends that this process should be "severed in its entirety." Justice Reif also took issue with the law's provisions regarding death benefits "to a same sex spouse," contending this is contrary to the equal protection clause of both the Oklahoma and United States Constitutions.

Justice Douglas Combs likewise concurred regarding the single-subject challenge. He noted that because the law has not taken effect, "it is unclear exactly how these issues will manifest themselves in future cases or controversies." This signals the same "as applied" concerns expressed by Justice Reif. Justice Combs wrote that the appellate procedure provisions in the law provide different treatment for different claimants, that is those whose employers have workers' compensation plans and those who instead opt out. He describes the appellate process for those in an opt out is "somewhat nebulous" and "differs markedly from that available to claimants who are employees of an entity who has not chosen to opt out."

So, for now the Oklahoma changes will become effective early in 2014. The cases and controversies to come will work their way through the administration process and perhaps the Oklahoma courts. Decisions will be made in this slower process with which Florida is more familiar. And, the nation may watch, curious as to the outcome of this experiment of an opt out that retains exclusive remedy. 

Meanwhile, in Florida we will see if the Supreme Court agrees in Westphal with the First DCA (Matrix), the First DCA (Westphal02.28.13), the First DCA (Westphal, 09.28.13) or comes up with its own interpretation of section 440.15. 

Monday, December 16, 2013

Finding and Using the Domino Issue

Success can be hard to define in workers' compensation. There are often a myriad of issues presented in a dispute. Compared to a civil personal injury case, workers' compensation claims are often more complex, and offer challenges that are simply not presented in other conflicts.

At the foundation of this difference is the serial nature of workers' compensation. The benefits in workers' compensation are provided through the course of an injury or injuries, the care provided to cure or ameliorate symptoms thereof, and the replacement of income during remedial care and beyond its conclusion. This factual context provides an array of permutations, that is potential combinations of these various benefits. Advances in the spectrum of medical care alternatives has only increased these available potential variations.

It is increasingly important for the workers' compensation attorney to understand employment law. Perhaps not in its deepest complexities, but some level of comprehension is critical. There is a perspective that all components of the employment relationship are appropriate for inclusion in settlement negotiations. That may or may not be true in a particular case, but the competent attorney likely needs some level of employment experience to even decide whether such issues are appropriate elements of a particular negotiation.

Workers' compensation has its share of challenges and pitfalls. Absent a settlement of the entire case, a claim may exist for a number of years as various elements of care are administered. It is perhaps this very serial nature that is most frustrating to the employees and employers involved. Americans are indoctrinated to think that even the most complex problems can be solved in 60 minutes (less commercials), just as House does on television. This is not real life, and on some level we all know that. However, the lack of rapid resolution can cause frustration.

What are the "domino" issues? I coined this phrase years ago in trying to explain the point of issue negotiation. As an example, there may be a multitude of issues pending at a given moment in a case, perhaps compensability of the injury, an MRI as recommended by the initial physician, referral to an orthopedic surgeon, surgical repair of the injury, temporary total disability during the work absence, and physical therapy for surgical recovery. Those who work in this industry immediately grasp that in this example the benefits listed here may not be in the appropriate chronological order. For someone that is used to thinking linearly, this is a challenge. 

Reordering the issues may be helpful to the parties. Reordering in terms of what will lead to resolution of the claim. Which of these benefits will help to move the case forward? I suggest that in this example, the real issue may be the MRI. That medical test may be the roadblock that is holding up intelligent and reasoned consideration of the other issues. The MRI is what the treating doctor wants as reassurance on diagnosis, as support for the referral to an orthopedic, as justification for her/his initial conclusion that surgery is necessary. If the MRI supports these, then perhaps surgery is approved or awarded, and only then is the post-surgery therapy logical. 

In this example, with a list of issues that need to be discussed, prioritizing the issues illustrates the domino theory. Resolution of one issue, that diagnostic testing, will bring clarity or at least more information. This issue may, like a row of standing dominoes, cause the remainder of the issues to be clarified. The remaining dominoes may fall of their own accord if that first domino can be toppled. 

In our system, we have processes to help with the primary issue. The OJCC mediation process is issue focused. That does not mean that you cannot settle an entire case with an OJCC mediator. That means that if you are at mediation, our focus can be the issues that are plead. The OJCC mediators can help you to focus on the issue or issues that can be resolved. Those might well be your domino issues. By using the mediation time to focus on that issue or issues, you may be effective in starting the chain reaction that will help you to resolve all of the plead issues. 

Another excellent opportunity for beginning this process is the expedited final hearing. Although there are a multitude of issues plead in the example above, there is nothing that says all of those issues have to be heard at the same time, in one hearing. Perhaps a request for expedited final hearing on that MRI could lead to the adjudication or resolution of that issue. If that is the domino issue in your case, its resolution could bring clarity to a variety of other disputes and perhaps even lead to resolution.

What issue(s) are impeding progress in your case? How can you bring attention to bear on the domino at the head of the line in hopes of helping the remainder to fall? Just because mediation is scheduled on the whole case in two months, why not go ahead and ask for a voluntary mediation on the MRI sooner? Why not ask for an expedited hearing on the MRI instead of mediating that one issue? Why not use these procedural processes to resolve the domino issues?

Thursday, December 12, 2013

Zohydro in the News Again

Twenty-nine Attorney Generals signed a letter dated December 10, 2013 addressed to the Commissioner of the Food and Drug Administration. They urge the FDA to reconsider the approval of Zohydro. I have expressed my thoughts on this in two recent blogs More Powerful Opiods Approved (11.13.13) and Zohydro and Closed Formularies (12.09.13).

More than half of the country's chief legal officials are concerned about the approval of this new and very powerful painkiller. They note:

"This drug will be the first hydrocodone-only opiod narcotic"

This drug "is reportedly five to ten times more potent than traditional hydrocodone products." 

This drug "has no abuse-deterrent properties."

The Attorney Generals remind the FDA of the toll that "potent painkilling drugs" have had. They note that there was 

"an environment whereby our nation witnessed a vicious cycle ofoverzealous pharmaceutical sales, doctors over-prescribing the narcotics, and patients tampering with these drugs, ultimately resulting in a nationwide prescription drug epidemic claiming thousands of lives."

On behalf of law enforcement, public health workers and substance abuse treatment providers, the Attorney Generals ask the FDA to reconsider the Zohydro approval or to set a "rigorous timeline for Zohydro" to be reformulated with "abuse deterrent" elements included.

There it is, in a nutshell. Painkillers are killing Americans. An American today is more likely to die from drugs than automobile accident. 

The FDA has approved a significantly more powerful (5-10 times) version of hydrocodone with no anti-abuse properties. Is the FDA there to make American's safer? Will there be some sort of explanation as to why the FDA approved this drug over the objections of its own experts? Will the FDA provide some explanation or response to the Attorney Generals of 29 jurisdictions?

Signatories: Alaska * Arizona * Arkansas * Connecticut * Delaware * Florida * Georgia * Guam * Hawaii * Illinois * Indiana * Iowa * Kentucky * Maine * Maryland * Massachusetts * Michigan * Mississippi * Nevada * New Hampshire * North Carolina * Oregon * Pennsylvania * Rhode Island * South Dakota * Tennessee * Utah * Vermont * Washington

Wednesday, December 11, 2013

Beware of Scams

Robert Wright is (sorry, "was") an attorney in Iowa. The Iowa Supreme Court published a suspension order on December 6, 2013 (Case no. 13-0780). Mr. Wright will not be practicing law for at least twelve months. That is to commence upon the termination of a temporary license suspension that was imposed in August 2012. In short, it appears that this attorney will not practice for a significant period of time. 

His violation is based upon one of the classic internet hoaxes that we all are exposed to periodically. The email comes in, and explains that a huge amount of money is due. There are some minor details that require attention to free the money. In this case the hoax was presented to Wright by a client named Madison. Madison had documents showing that his payment of about $180,000 in taxes would allow him to have an $18 million inheritance released from Nigeria. Wright agreed to help Madison obtain the funds, with Wright to receive a contingency fee on the $18 million when received.

The Iowa Court found that Wright truly believed in the facts with which he was presented. He sincerely believe Madison, and thought that there was an imminent windfall coming. That in itself is troubling in today's world. By now, Internet hoaxes should be know to all of us. In the greater context, it is worthy of consideration that things that seem too good to be true are often not true. A certain level of skepticism is healthy in life, and particularly in professional practice. 

Wright began seeking funds from his other clients, for the purpose of loaning the money to Madison. He received $12,000 from one client, Rynearson, and placed them in his trust account. Rynerson was promised $50,000 from the inheritance in return. He later received another $12,500 from Rynerson. So far so good. Wright then wrote himself a $12,500 trust account check for "attorneys fees" and gave that check to Rynearson for security on the funds Rynearson had provided. 

Wright contacted one of his workers' compensation clients, Ms. Putz, and she was convinced to loan Madison her settlement proceeds of $25,000. In exchange, she was to receive $100,000 from Madison when the inheritance was ultimately received from Nigeria. In a letter of August 12, 2011, Wright described to the workers' compensation client that the inheritance was anticipated before August 24, 2011. Twelve days? If someone tells you that you can invest $25,000 and within the month receive $100,000, this goes in the "too good to be true" category. 

Disciplinary proceedings began as a result of these two clients losing their funds. Yes, amazingly it turns out that there was no Nigerian inheritance. Both clients lost the money that they loaned to Madison. On the eve of hearing, Wright came clean with the Iowa investigative body and admitted that he had solicited three other loans for Madison, in the amounts of $7,000 and $160,000 and $20,000. 

So that the funding is clear, Wright collected loans of $24,500 (Rynearson), $25,000 (Putz), $7,000 (White), $160,000 (Stodden) and $20,000 (Nunneman). A total of $236,000 loaned to Madison. Remember he needed $180,000 in taxes to get his inheritance released? There is no explanation of why he would need the additional $56,000. 

Long story short (too late!), there was no inheritance collected. Despite Wright's communications with people he believed were official. He believed he communicated with the President of Nigeria at one point. He followed instructions, despite one correspondence being in curiously questionable English. The loaned money was handed over to person or persons unknown. 

Where did this attorney go wrong? Reiteration here that if it is too good to be true, perhaps more investigation is warranted. More so, though, the commission concluded that "a cursory internet search" (see below) would have resulted in evidence that the inheritance was "probably based on a scam." He also failed to verify the identities of various individuals, including the President of Nigeria. The failure to perform such investigation and verification was found to be a violation of the Iowa rule that requires attorneys to competently represent their clients. 

The Iowa Court concluded that Wright's contingency fee arrangement with Madison was not disclosed to Wright's other clients. The Court describes how that "pecuniary interest" was "adverse to the interests of Rynearson and Putz." That pecuniary interest was not disclosed and was not discussed. The Court declined to address charges that Wright's actions involved a conflict of interest. They ultimately concluded that suspension was the appropriate sanction.

The Iowa investigatory commission concluded in their report that Wright did not act fraudulently, but that that his conduct "might aptly be described as delusional." 

Before pursuing mythical gold, do an internet search or two. Avoid conflicting roles in dealings with clients. Know that the world is full of hoaxes. If you did not know it until now, know that there are people out there who will try to steal from you. If it is too good to be true, it is probably not true. Check it out first. 

Here are some cases that the internet search might reveal: In re Maxwell, 334 B.R. 736, 738–41 (Bankr. M.D. Fla. 2005); Parker v. Williams, 977 So. 2d 476, 477–78 (Ala. 2007); Lappostato v. Terk, 71 A.3d 552, 559–60 (Conn. App. Ct. 2013); In re Reinstatement of Jones, 203 P.3d 909, 912–13 (Okla. 2009); Lucas v. 
BankAtlantic, 944 So. 2d 1031, 1032 (Fla. Dist. Ct. App. 2006).

Monday, December 9, 2013

Zohydro, and Closed Formularies

In Florida, workers get injured, employer/carriers' pick the doctors, and those physicians recommend and provide the medical care. This is not the paradigm in all jurisdictions across the country. There are "patient choice" jurisdictions in which the injured worker has more control of physician choice. So, control is a distinction between jurisdictions. 

Recently, another control issue has seen a resurgence in Comp. Texas is a "closed formulary" state. The treating physician in Texas is limited regarding the medication she/he can prescribe in many workers' compensation cases. This is nothing new necessarily, closed formulary was an integral element of managed care, a solution championed and then enacted in a variety of jurisdictions in the 1990s, including right here in Florida. 

The concept is simple enough. A list of presumptive "acceptable" medications is adopted, and treating physicians have reasonably free reign to prescribe those. If the physician wants to prescribe something that is not on the formulary list there will be paperwork to complete and justifications to describe. This is not uncommon, it is a tool used by both Medicare and Medicaide. Some estimate that as many as one-third of insured Americans are involved in some form of closed formulary control or restrictions regarding their group health coverage. 

Closed formulary undoubtedly results in some frustrations for the patient and the physician. This is true whenever regulation interferes with unfettered interaction between doctor and patient. There are a multitude of such regulations in the delivery of American health care, preauthorizations, restrictions to plan providers, etc. 

There are also some benefits to the closed formulary. Those that pay for medical care, the employer/carriers in workers' compensation and the health insurers in the broader health insurance context, gain a familiarity with the formulary medications and compounds. The universe of prescribed medications is smaller under these plans and therefore these payers are likely to become familiar with them. 

Texas is undoubtedly leading the closed formulary movement in workers' compensation. Their process is defined by a series of regulations in the Texas Administrative Code. According to their website"These rules cover commonly used definitions, initial pharmaceutical coverage, prescribing of generics and over-the-counter drugs in addition to brand name drugs, a pharmacy fee guideline, open and closed formularies . . .." There is an effort to control cost that is apparent in the focus on generic and over the counter medications. 

Beyond the cost control element, there is a care control element also apparent in the process. A month or so ago, the workers' compensation world was abuzz with discussion of the Food and Drug Administration's (FDA) approval of a new opium-based medication, Zohydro. This is five to ten times more powerful than previous iterations of hydrocodone. The FDA approval has been the subject of much discussion and some criticism. Many workers' compensation markets are patiently waiting to see what effect this powerful new dosage will have on workers' compensation. 

Texas is not waiting. Texas acted last week regarding Zohydro, adding Zohydro to its "N" list of medications. The medication is "not recommended for  work-related injuries." Thus any prescription for Zohydro in Texas will require preauthorization. This preemptive move will likely limit the impact of this new and very powerful medication in Texas. 

Other states, without such regulatory controls in place, may soon see demand for this powerful new medication. Use, misuse or abuse in states across the country in coming months or years may demonstrate trends or illustrate the benefits of a closed formulary. Texas has acted regarding this medication within weeks of FDA approval. Other states, without such regulations may envy Texas' regulatory agility in years to come. 

Wednesday, December 4, 2013

The PDMP is Showing Progress

The Florida Office of Judges of Compensation Claims issues an annual report each year pursuant to Fla. Stat. 440.45. Reporting is something addressed by a variety of agencies. I sometimes wonder if anyone has the time to read all of these reports. I ran across an interesting report published last Sunday by the Department of Health, the Prescription Drug Monitoring Program (PDMP) Annual Report.

Prescription Drug Monitoring has been adopted in various jurisdictions in recent years. Experts around the country have proposed and championed these programs as a tool to constrain the provision of medication to patients, and to discourage its redistribution. 

There are those patients who treat with a single physician for all of their maladies and conditions, and that physician knows both the nature and quantity of all of the medications that patient consumes. The physician in that setting has information necessary to avoiding dangerous mediation interactions, and can effectively control the amount of medication taken by the patient. It may be difficult for the physician to know that she/he is the only one providing care. In this setting the physician is dependent on the patient for information as to what other physicians or providers she/he may be seeing.

There are other patients who treat with multiple physicians, for whatever reason(s). These patients may be provided with prescriptions or even the medication itself by various physicians. In this setting, the physician is dependent on the patient for accurate information as to what medication and doses she/he is consuming from the other physicians. 

A significant driver in the quest for PDMP is the pain medication market. There are a variety of products in the marketplace for relief of pain, many of them based on opium, called "opiates" or "opiods." A population of Americans are dependent upon or addicted to medications such as these. 

The PDMP is designed to provide physicians with information about the types and quantities of medication a patient is receiving, to augment the information provided by the patient. When a patient receives medication, that information is placed in the PDMP database, so that other physicians and pharmacies can see what that patient has already received. According to the State Surgeon General, the PDMP goal is to "protect, promote, and improve the health of all people in Florida."

Several States have implemented PDMP programs. Florida implemented ours in 2009. There are about 19 million people in Florida. That is a significant amount in any context. However, there are also a fair volume of older Floridians as we remain a retirement destination despite recent economic challenges. It may be that these older Floridians are more likely to require prescription medications. Thus delivery of medical care in Florida is perhaps as intense as in any state.

Since the Florida PDMP was implemented, over "87 million controlled substance prescriptions" have been loaded into the PDMP. Last year, more than 3.7 million queries of this database were made by doctors and pharmacists in the course of filling new or refill prescriptions. This is significant in sheer volume. What is more significant however is that this represents a "61 percent increase over the (queries the) prior year." 

Another measure of success, the Report says that health care provider registrations increased 28 percent in 2012-13. These may very well illustrate significant success. It is important that health care providers utilize this database, and to do so they must be registered. However, the law of numbers tells us that with increasing participation, percentage increases each year will become less significant. For example, assume there are 100 doctors in Florida. If 18 physicians register the first year, and five physicians register the second year, that is an increase of 28 percent. If five more register the next year, that is only 21 percent. 

More importantly, is that eventually the five additional physicians each year in this mathematical illustration will result in all the physicians being registered with the PDMP. For this reason, the queries, that is usage, is likely a better measure of success in the long-run than the volume of providers that are added annually. The physicians added each year as a percentage of those licensed in the state would be a more informative short-term measure of success in terms of how aware physicians are of the PDMP and their interest in using it. 

The best measure of success, however, is in the end result. The goal here is to reduce prescription drug abuse, misuse and what they call "diversion," which is the medicine being transferred from the patient to someone else by loss, theft, or sale. The end result that is desired is better control of these drugs. The Report notes that deaths caused by the opiate Oxycodone "plunged" 41 percent in Florida last year, "and overall drug deaths fell 9.9 percent." This is in a single year. That is significant. 

Also significant is that the number of people "receiving prescriptions from five or more pharmacies" decreased 51 percent. Death from prescriptions is decreasing. Gaming the process, through use of multiple pharmacies, and by implication perhaps multiple physicians, is decreasing markedly. I am not convinced that Florida can declare victory in the battle against senseless prescription drug deaths. However, I am impressed  that this Report signals real progress in what is a real problem for Floridians.

Perhaps the Legislature will move to a mandatory process to amplify these successes. What harm would there be in requiring provider registration with the PDMP? Is there any reason for every physician not to be registered? Further, is there any reason for not requiring every physician to query the database before prescribing a controlled substance?

Monday, December 2, 2013

Constitutional Challenges New and Old, From Florida to Oklahoma

There is a value to consistency and predictability in the law. Attorneys rely upon the decisions of courts to form opinions about their cases. Attorneys with a clear understanding of their state's statutes, and the interpretations which appellate courts will apply to them, are in an admirable position to provide their clients with predictions and advice regarding their specific case and its issues. 

In Florida, this can take time. Sometimes such specifics can take many years. In 1993, the Florida Legislature made significant changes to the Florida Workers' Compensation law. Among these was a marked reduction in the quantum of temporary total disability benefits available, from 260 weeks to to 104 weeks. A panel of the Florida First District Court of Appeal ("First DCA") concluded on February 28, 2013 that this statutory change was Unconstitutional. Westphal v. St. Petersburg(1D12-3563)

On September 23, 2013, the Court granted en banc review. This means that the entire First DCA reconsidered the case and issued a new opinion. In this second iteration, a majority of the Court concluded that the 104 week limitation on temporary total disability (TTD) did apply to the claimant, Mr. Westphal. The en banc decision did not find Constitutional infirmity in the statute, as the panel had months earlier. The Claimant has sought review of The Florida Supreme Court (case SC13-1930), as has the Employer/Carrier (SC13-1376). In 2014 the Court may (the Court could address the First DCA decision or could potentially affirm without comment) provide further clarity regarding TTD. That decision could address the Constitutional question raised by the Westphal panel last February. Twenty-one years after the 1993 legislation, the Supreme Court could address the Constitutionality of this issue. 

On June 5, 2013, the First DCA decided Jacobsen v. Southeast Personnel Leasing (Case 1D12-1193). The Court concluded that 440.34 F.S. as applied in this case is Unconstitutional. The facts were specific, involving the ability of an injured worker to retain an attorney when his/her employer/carrier seeks an award of costs in a Florida workers' compensation claim. This could arguably be directed at the 2003 or 2009 constraints on Claimant's attorney fees, and thus addresses a ten or four year old law.

On October 23, 2013, the First DCA decided Castellanos v. Next Door Company (case 1D12-3639). This is the latest in a line of cases addressing the Constitutionality of Florida's attorney fee statute, 440.34 F.S. The legal challenges in this instance began with a statutory amendment in 2003. Thereafter the First DCA concluded this statute was Constitutional through a series of challenges, which the Florida Supreme Court eventually took up in Murray v. Mariner Health, in 2008. There the Court avoided the Constitutional challenge in their decision. Following the Court's decision in Murray, the Florida Legislature amended this statute again in 2009. Thereafter the Constitutional challenges began anew. Castellanos certifies the Constitutional questions to the Florida Supreme Court. It is therefore possible that in 2014 the Court will address this question (Supreme Court Case SC13-2082)

Consider these 2013 decisions. One addresses a 20 year old statutory amendment on temporary benefits, another a ten year old amendment on fees, and yet another both ten and four year old amendments to the same fee statute. In the meantime, a great many attorneys have provided their clients with the best analysis and advice they could, based upon the trial and appellate level decisions that they had. Again, precedent is a valuable tool for an attorney. Predictability has a certain value. 

Similarly, the Oklahoma Supreme Court will address workers' compensation in 2014. It will review Senate Bill 1062, which was passed last May, and which will otherwise be effective in February 2014. That statute makes numerous fundamental changes in both the substance and procedure for Oklahoma workers' compensation. The adjudicatory process is removed from the state's courts, and an administrative process is substituted. There are benefit changes, and an opt-out that could lead to fundamental changes in workers' compensation across the continent if found Constitutional in Oklahoma. This law could be fairly characterized as a "sweeping change."

The distinction with the Supreme Court processes we may see in the two states in 2014 is the timing and process in Oklahoma. The Oklahoma Constitution allows their Supreme Court to address a Constitutional challenge preemptively, without the delays inherent in the trial and normal appellate processes to which we are accustomed in Florida. The Oklahoma Court will be reviewing 2013 amendments, and could render a decision before those reforms even take full effect in February. The Florida Court, if they undertake review of the cases above, will review amendments from 1993, 2003, and 2009. The Oklahoma review will occur instead of trial and intermediate appellate interpretation, while the Florida review comes after years, and yes decades, of trial and intermediate appellate interpretation and review. 

Is predictability of sufficient value that an expedited Constitutional challenge such as Oklahoma's is desirable here? Would Floridians be well-served by such a provision that would empower review of statutory provisions by the state's highest Court more rapidly, even before trial court application? Many eyes will remain focused on the two high courts in 2014. There are intellectually interesting questions in each instance, and the outcomes will provide that predictability upon which all attorneys rely. 

Wednesday, November 27, 2013

Thankful this week for our OJCC Team, they do a great job.

The 2013 Annual Report is on the web (www.fljcc.org). There is a multitude of data published each year by the OJCC. Recent blog posts have highlighted the petition filing volumes and attorney fee information. Another interesting fact is the timeliness of litigation. 

Timeliness has been a long haul. There was a time in Florida workers' compensation litigation when cases simply did not move through the system. Attorneys joked with each other about it, waited for orders, and many times were forced into settlement by frustration caused by ridiculous delays. There were documented instances in which entry of a final order required years after the trial. There were instances where the reward of patience for those years was the opportunity to try the case again. 

There is value in judges making decisions with reasonable promptness. There is also value in final orders reflecting the findings of the judge, and featuring explanation of the analysis that went into that order. With an understanding of the judge's logic in any particular case, the parties can proceed either seeking review of the Court or implementing the terms of the order. 

The definition of the parties rights and responsibilities that comes from an order should solve the party's dispute and provide the foundation for moving forward. The effect is broader though. The order in this particular case may help others predict the outcome of their case in the future. The publication of OJCC orders provides a transparency that benefits all who try to predict dispute outcomes and provide advice to their customers or clients. 

In 2005-06, cases proceeded to trial in 465 days average. That is one and one-third years. The OJCC definition of "trial" includes final hearings on petitions for benefits, evidentiary hearings on issues like attorneys fees, cost awards, advances, and more. Any matter which requires presentation of evidence, and results in a trial order, which is substantive. The Substantive order must include findings of fact and conclusions of law, in order for the hearing to be labelled substantive, and for it to be included in the "trial" statistics. In 2012-13, the statewide average days from pleading to trial was 162 days. The OJCC has made dramatic improvement in the time from pleading to trial. 

In 2005-06, it took an average of 76 days for the assigned judge to issue a final order following trial. The statutory requirement is that these orders will be issued within 30 days. It is important to remember that these statistics include evidentiary orders discussed above. There are those that argue some such orders are simpler than a final merits order on a PFB issue(s). They argue that it is therefore somehow misleading to include these orders in this calculation. Their point being these orders should be quicker, and that they therefore skew this "time to order" statistic downward. 

These critics ignore that the OJCC included all of these orders in the statistics for the last seven years. Including them was intentional, following much debate and discussion of the definition the OJCC would use for "trial." Including all of these orders in the "trial" definition has been consistent and provides a sound comparative basis. From 76 days to order in 2005-06, the OJCC has reduced the "time to order" to 15 days in 2012-13. This is half the time required by statute, and a vast improvement from 76 days.

in 2005-06, the average mediation occurred 212 days after the petition was filed. Many mediations occurred a year after petition filing. In 2005-06, the process had been recently innovated to "autoset" mediations after PFB filing. That caused PFB scheduling without any request from the parties. The legislature had also provided an outlet to facilitate timely mediation, requiring judges to send cases to private mediation if they could not be timely mediated by the state mediators. Timeliness improved. In 2012-13, the average days from PFB filing to the first mediation thereon was 84 days. Not only is this a vast improvement from the 212 days, it is well within the statutory 130 day parameter. 

For the last five fiscal years, the OJCC mediators overall have averaged less than the 130 day parameter. This is impressive and a tribute to their effort. 

Three timeliness measures imposed by the Florida Legislature. All three satisfied by the OJCC in 2012-13. The purpose of this system, the OJCC, is to receive, manage, mediate, and adjudicate disputes. The Legislature has defined the timeliness parameters for these processes, and the OJCC is living up to those requirements. Certainly, there are cases in which we do not meet the parameters, but that is a function of facts and circumstances of particular cases. The OJCC focuses on the statistics overall, the statewide averages. According to those, the Judges and Mediators are doing a great job. 

Tomorrow is Thanksgiving 2013. As I reflect on things for which I am thankful, I am reminded of the many tremendous Judges, Mediators, Clerks and Secretaries that work so hard for the OJCC. The timeliness of the OJCC, the transparency of the OJCC, the success of the OJCC are due to their focus, dedication and professionalism. Thank you Team OJCC! I do not say it often enough, but you are a tremendous group of people and Florida is fortunate to have your service. 

Monday, November 25, 2013

Good Fences Make Good Neighbors

I remember that quote from law school. I would rephrase it in settlement context to Good Negotiations and Documentations Make Good Resolutions

Recent cases around the country have illustrated the pitfalls that settlement or dismissal may present. In Love v. Ryan, an Ohio court denied an injured workers' plea to reopen her case on the basis of unilateral mistake. She sought to set aside a voluntary dismissal that was part of her settlement.   

The Claimant was injured in 2008, and sought care for various injuries. Some were deemed compensable, others were not. In 2011 a dismissal/settlement was entered, signed by the Claimant's attorney. As we sometimes see in Florida, the injured worker then appeared again pro se. The details of her separation from her former attorney are not clear. Her subsequent pro se claim was for "mercy," and she asserted ignorance of the import or effect of the dismissal. She essentially claimed that unilateral mistake should be sufficient to avoid the dismissal. 

The import of the decision is the court's conclusion that the Claimants claim that "she had not seen the judgment before it was entered and/or that her attorney acted beyond his authority in approving the settlement does not constitute a mistake, surprise, or any other ground for relief." The court suggested that if the attorney acted beyond the scope of authority, then the appropriate relief would be somewhere other than against the employer/carrier. Without spelling it out, the import of the Court's decision could be interpreted as "sue your lawyer."

In  a recent Illinois case, Boda v. Caraway, an injured worker sued her attorney claiming that she was urged to settle her workers' compensation case on a compromise basis. Ms. Boda claims that either she or her attorney or both did not realize that the settlement of the workers' compensation claims would "eliminate" Boda's entitlement to social security benefits. How settlement of her case would do so is not explained.

It is not clear why these situations are making news. However, they are reminders of the benefits of careful drafting of agreements between parties and effective communication. They are reminders of the obligations to keep clients apprised of the progress of their case. They are reminders of the need to explain what is meant by offers or demands.

Whether a later claim for "mercy" is successful or not, it still requires resources to defend. For most, the purpose of a settlement is to accomplish a cessation of hostilities, and for all parties to move on with their lives. If well drafted and carefully explained, the effect of a settlement may well be the end of the case. No attorney wants to be sued by a former client, and no defendant wants to defend a later lawsuit to set-aside what they believed was a final closure. 

I sometimes hear anecdotal stories of mediation or settlement frustration. The Claimant or Employer/Carrier appears with "unreasonable" expectations. Some party does not disclose this or that, which is critical to the discussion or settlement. Sometimes this may include other claims (wrongful discharge, discrimination, unemployment, etc.) that are not disclosed, even to the Claimant's attorney. Sometimes this is the Employer/Carrier allegedly not disclosing that resignation or something similar will be a term of the settlement. 

The common theme that may be seen in these situations is that some failure has occurred in communication. In settlement, in negotiation of claims, in legal practice clarity is critical. If an offer is intended to release "all claims," why not say so? Why not list some common examples as above with an "included but not limited to . . .?" If something is intended to be excluded, why not say that? Why not say that "this demand is for settlement of the work accident on mm/dd/yyyy and not for any other claims against the defendant, employer, carrier"? Why not say "this offer is for resolution of all claims that _____________ has against the employer/carrier"? Why not get these issues on the table and deal with them in the process? No such statement is "right" or wrong" necessarily. Is it right to insist on any such term or limitation? That is a far broader question. My point is tell the other side what you will insist upon and do so openly and early in the process. 

Clarity. Tell the other side what you want. Timeliness. The best time to get these issues on the table is early. Why work all day on what you think is a deal and then watch it implode because there was misunderstanding as to what was being negotiated? Documentation. Make that confirmation letter detailed. Make that mediation agreement complete.

Negotiating resolutions is not easy. Attorneys are involved for precisely this reason. If it was easy, anyone could do it. Resolutions require patience, time, and skill. Documentation takes time. Formality takes time. But both are protections for everyone involved in the resolution. 

The Office of Judges of Compensation Claims offers voluntary mediation services. When there is no pending petition, you can make an appointment to discuss the case through a voluntary mediation with your choice of 28 OJCC state mediators around the state. Visit our website www.fljcc.org or contact me david.langham@doah.state.fl.us for details on using the voluntary mediation process. 

Wednesday, November 20, 2013

Annual Report Installments - Child Support

Over the last eleven years, the Office of Judges of Compensation Claims has been responsible for recovering over one hundred eighteen million dollars in child support arrearages. Each year, the collected total has exceeded eight million dollars. In 2012-13, the total was $9,626,855.

It is relevant that when the OJCC was tasked with this process, there was no increase in OJCC funding or personnel. No additional staff was added to this agency to perform the process of checking child support documents associated with settlements of workers' compensation claims. 

In 2012-13, the OJCC undertook the responsibility for receiving requests for child support arrearages, according to the Department of Revenue (DOR). An agreement was made with the DOR, internal OJCC processes were designed for our district staff to receive your e-filed information requests. We began looking up the arrearage information in the DOR database and providing that information to you, to be integrated into your settlement documents. 

In 2013-14 (last September), the OJCC undertook the responsibility of also looking up the child support information according to the County and Circuit Clerks. This required changes in process for OJCC staff, and some adjustments for attorneys. It has been a positive shift in the way child support information is obtained. 

Admittedly, there have been some instances in which the process changes have been frustrating. I appreciate hearing from attorneys who feel the process caused complications in particular cases. It is this kind of feedback that allows us to adjust and refine. We will be working in December this year to make some fine-tuning adjustments to our reporting process. 

Instituting the process, looking at these arrearages, was the right thing to do. Adopting a process that makes it less work-intensive and expensive for attorneys to obtain this data also is the right thing to do. With this new process, all 67 counties are searched when arrearage information is requested. This alone is a vast improvement over the prior process which involved only certain counties. 

The volume of child support recovered in the last eleven years ($118,037,561) is incredible. As incredible, the OJCC collects an average arrearage total of about 60% of the overall OJCC budget. That's right, without additional resources or staff, this Office collects millions of dollars in child support annually, generally more than half of the total operating budget annually. 

A great process. A great illustration of the service this Office provides to Florida.

Monday, November 18, 2013


I got an inquiry recently from a large law firm. They are trying to do things consistently. They have some forms that are apparently used by all of the attorneys in their firm. They recently received some requests from Judges about the content of the law firm's orders. They wrote to me to ask whether they should change their orders specifically for the requesting judges or make those changes for their general form orders, that is change what they send to judges throughout the state. On this point, they ask my advice. This took me a bit by surprise, and I had to ponder the issue for a few days. 

I had to ponder because the foundation of the question is difficult. My premise is that lawyers draft motions and stipulations, and judges draft orders. The question of how a lawyer or law firm should draft orders is antithetical to me. It is not the lawyer's role to draft orders in my opinion. 

This particular question came as to whether approves/disapproves” should be used instead of “granted/not granted/granted in part” on fee orders. There was also discussion of whether an order should say "attorney fees" or "attorney fee" as only one attorney fee is being adjudicated. 

Years ago, I sent a joint petition ("JP") for settlement to a district some miles from my practice in Jacksonville. I recall the volume of paper required to effectuate a settlement in those days. The JP was about 30 pages long, and we had to send in multiple copies. Eight copies sticks in my brain, but it may have been more or less. I remember that I spent more than $6.00 sending the package across the state.  

Within a few days, I received the package back. Not approved, no signed order. Instead I received the whole package back, at a cost to the state of more than $6.00 in postage. The district returned it to me because my proposed order was printed on white paper, and that particular judge required the order for this type of settlement to be on a particular color of paper. They explained this to me in a typewritten letter that accompanied the returned paperwork. I complied, prepared the new proposed order and spent another $6.00 plus mailing it all back to that district office. I perceived a waste of the client's money and the state's.

The point of the story, though, is that the only way I could get the order on my JP was to comply with the district office request. I am confident that the person that typed the letter explaining to me the paper color requirement could have, as rapidly, prepared an order (or copied my white paper order onto colored paper). I am also confident that the cost of printing or copying that order would not have equaled the $6.00 in postage of sending the package back. I did not agree with the district's process back then. Likewise, it seems it would be easy to prepare an order if a proposed order is not what the assigned judge expected or wished.  

Understanding that my first thought is that Judges and not lawyers should draft orders, my second thought is that if a Judge asks that an attorney draft an order, the result should be the order for which that Judge has asked. If there is particular phraseology that is requested by the Judge, I think the appropriate reaction is to draft that order with that language. It is not possible to force consistency in this regard, because a given judge may want "fees" and another may prefer "fee." Likewise, the next judge may prefer the opposite.

I appreciate that the lack of consistency regarding this topic may be a frustration for attorneys. I can see the advantage that consistency brings to the table, with an attorney being able to practice across the state using the same procedures, forms, etc. I also see the judicial independence argument. As I have noted on this platform and others, judicial independence is your absolute right to have the judge disagree with you. 

In the end, Judge's will do as they will. If they ask for an order to be prepared for them, that is within their purview and independence. That a different judge might prepare her/his own order, or request a different phraseology in an order she/he asks you to prepare, is part of the practice. It is hoped that this explanation may be some help in understanding why it is as it is. 

Wednesday, November 13, 2013

More Powerful Opiods Approved

Prescription drug interactions, abuse and misuse have received a great deal of press in recent years. Since the death rate from these exceeded the death rate from automobiles, people suddenly began to notice. States have focused in recent years on pill mills, prescription practices, databases and more. There is a clear recognition on a state level that medicine intended to be a benefit to patients is killing them and the people around them (as detailed in a recent post, family members sometimes illegally use the drugs found in their homes). These drugs find there way onto the streets also.

The AMA has published stern warnings about the affect of opiods, and the dangers they present. See the AMA Guides Newsletter, April/May 2011 and January/February 2013. There is concern in the medical community about whether opiods are appropriate for many types of pain complaints.

So, the good news is that the Federal Government approved a new form of hydrocodone last week. This form is marketed as Zohydro. Ignoring the facts that other opiods have been tied to deaths around the country, those responsible for American's safety, the Food and Drug Administration (FDA) has approved Zohydro an opiod that is five to ten time more powerful than the existing opiods, like hydrocodone, oxycotin, dilaudid, and fentanyl. You did not read that wrong, five to ten times stronger.

Like most bureaucracies, the FDA has processes and committees. Relevant here is the Drug Advisory Committee, which overwhelmingly recommended against approval of this new opiod that is five to ten times stronger than existing products. The good news is that all of the deaths related to opiods have led to requirements that drug manufacturers include elements in most opiods that deter addiction and resist people tampering with the drugs. These features are presumably to help protect human beings who take these chemical compounds for pain. Presumably these features are a good idea, and that is why they are required. The bad news is that these requirements for addiction and tampering precautions will NOT be required for the new opiod, Zohydro, which, by the way, is reportedly FIVE to TEN TIMES more powerful than exiting opiods. 

The FDA is counting on labeling that describes risks associated with Zohydro. They explain the warnings required on this medicine will be stronger, and will clearly describe the risks and concerns. If labels like this solve the concerns with misuse and addiction, why not put clear, stronger labels on all opiods? Why have anti-addictive and anti-tampering formulations for those drugs, when we could simply make their labels stronger and clearer? For the dangerous opiods, they require these formulation changes, but for the really strong (did I mention Zohydro is reportedly FIVE to TEN times more powerful?) hydrocodone, our government is convinced that stronger and clearer labeling will suffice. 

Certainly this must make sense to someone in Washington. I respectfully suggest that someone else needs to review this decision, and review the person that finds it logical. Americans are dying. My car can achieve 140 miles per hour (according to the speedometer). The government has taken some interesting precautions, including requirement for my safety such as seat belts. The FDA logic would apparently be to approve the sale of automobiles that are capable of 700 miles per hour (5 times the 140), and without any requirement for seatbelts. They would instead put a clear and strong warning on the steering wheel of each car. Is this logical?

Einstein is credited with this definition of insanity: "doing the same thing over and over again and expecting different results." Allowing marketing of super-opiods without the safeguards required for existing opiods might meet this definition. 

There is some good news from the FDA. In another action, they have recommended that all hydrocodone formulations be added to the Schedule II designation. This would put restrictions such prescriptions. For example, written scripts are required for Schedule II, they cannot be phoned in to the pharmacy. Also no refills beyond 90 days are allowed for Schedule II, and there are more stringent record-keeping requirements. 

Is the FDA being consistent in their treatment of these medications? Is there any concern within the FDA that Americans are dying from prescription painkillers? Apparently, there is some concern or there would be no move to reclassify all hydrocodone to Schedule II. If there is enough concern to warrant that action, why not enough concern for the new super opiod to require formulation additions for addiction prediction and tamper prevention? 

Monday, November 11, 2013

Veteran's Day 2013

Today is Veteran's Day. Schools, government offices, and some banks are closed. Most businesses will open as normal though. This is a holiday that is understated compared to some of the others. I have heard people question what is the difference between Veterans' day and Memorial Day. They do seem to have similarities at first blush, but there is a world of difference. 

Memorial Day is celebrated each May. It was first celebrated in the 1860s, marking the death and remembrance of those who died in the Civil War. It continued as an observance through the decades that followed, encompassing as it went the various conflicts that followed and the Americans that died therein. That is the main theme of Memorial Day, it is a recognition of those that died in the service of this country. Unfortunately, the number grows each year. American men and women remain on the ground in a multitude of locations around the globe, in harm's way. 

Veteran's day is a broader concept. It recognizes the sacrifices of the great multitude who likewise served this nation, but fortunately did not die in the process. In 1918, President Woodrow Wilson declared November 11 as commemoration of Armistice Day, the end of the First World War. Armistice Day was celebrated thereafter. Congress codified the observance in 1926. By that time, 26 States recognized November 11 as a holiday.

Following the second World War, and the Korean War, Congress recognized the service of American men and women by amending the name of the November 11 holiday, substituting "Veteran's" for "Armistice." The bill making that change was signed by President Dwight Eisenhower. November 11 has since been a recognition of all American veterans of all wars, and frankly a recognition of those veterans who served in the military, ready to engage in such conflicts, even in times of relative peace. 

Never satisfied, Congress altered Veteran's day once again in 1968, seeking to make various Federal holidays coincide with a Monday, so that three-day weekends would result. Veteran's Day was included in that effort. The States did not follow suit, however. Recognizing that there was historical significance to the November 11 date, and that the dichotomy in state and Federal observances was creating confusion, Congress and President Ford returned the Federal observance to November 11 in 1978.

We are approaching 100 years of recognizing the significance of November 11. According to the New York Times, the last veteran of the First World War died in 2012, two weeks short of her 111 birthday. World War Two veterans are dying rapidly in America. The National WWII Museum says the rate is about two veterans per minute, about 600 per day. They estimate that by 2036 none will remain. 

But they remain today, as do those of all the conflicts since: Korea, Vietnam, Persian Gulf War, Operation Enduring Freedom Afghanistan, and Iraq War. These large conflicts are easy to remember. There have been smaller conflicts in the midst, some of which have received recognition and others about which most of us never heard. Americans have guarded embassies, been attacked in foreign ports, been victims of car bombs, and more. They cannot all be listed here.

Veteran's day recognizes the living, whose service here and abroad has been to the benefit of us all. November 11 is the date on which we collectively recognize those who have served our nation as protectors. If you see a veteran today, or for that matter any day, take a moment to say thank you for all that was sacrificed so that the rest of us could safely be who and where we are, doing what we do, in the relative safety that their service purchased for us. 

Wednesday, November 6, 2013

Bullying is in the News, is it in the Workplace?

The legislative process has begun in Florida, with members of the House and Senate filing bills that they hope will draw consideration next spring. Last year, a pair of bills were sponsored, each titled the "Safe Work Environment Act." The Senate and House versions were not identical, but each would have created a protection for some portion of Florida employees; protection from bullying in the workplace. 

I became curious about these 2013 bills (HB149 and SB308) this week as I read about Jonathan Martin, a member of the Miami Dolphins football team. Mr. Martin has accused another Dolphins player, Richie Incognito of abuse and bullying. The Dolphins have suspended Incognito while an investigation is ongoing into his alleged behavior, and the alleged victim has left the Dolphins, perhaps to escape the alleged behavior. The Dolphins organization says Martin is absent due to illness.

There is much in the news now about whether Martin will sue for the alleged harassment. The prognosticators in the press are discussing whether either Incognito or the Miami Dolphins might be held responsible for the intentional infliction of emotional distress. They note in many press outlets that this might be a difficult case against the Dolphins, particularly if the team has a policy against actions such as those alleged against Incognito. 

The "Safe Work Environment Act" in Florida HB149 is the broader of the two bills. The Senate version only protects workers at state agencies, counties, municipalities, and other governments within the state. The House version would apply to all employers. Both bills are backed by "The Healthy Workplace Campaign." According to their website, 25 states have introduced the bill since 2003, with no state actually passing it. 

The Campaign asserts that workplace bullying includes verbal abuse, "threatening, humiliating or intimidating" behavior and interference with work activities. They claim that "It is a problem that has invaded the life of 37% adult Americans," leading to a host of medical complaints and problems including "hypertension, auto-immune disorders, depression, anxiety [and] PTSD." HB149 finds that the problem is more widespread, stating the figure is "between 37 percent and 59 percent."

HB149 concedes that unless such bullying is shown to be connected to "race, color, sex, national origin or age," the employee is "unlikely to be protected by law against such mistreatment." Finding that current laws are thus inadequate to protect against this bullying, the bill creates liability for the employer. This is called "vicarious" liability, which refers to liability for the actions of someone else. In context, this bill would make the Miami Dolphins liable to someone like Mr. Martin, for the actions of someone like Mr. Incognito, if those alleged actions were proven to have occurred. 

In creating the vicarious liability of the employer, the bill does not relieve the perpetrator (in these allegations Mr. Incognito), the perpetrator is also liable. When not dealing with professionals earning hundreds of thousands of dollars a year, however, the employer liability is the real effect of this proposed law. 

Bullying has likely been around for the entire history of human existence. When we hear about bullying, we often envision the over-sized kid on the playground that threatens or beats-up the smaller kid. As a kid, I thought this was just something that guys did. Increasingly, however, the news brings us stories that belie that perception. Stories of bullying by girls, of bullying in cyberspace, of a far greater variety that we perhaps expected or understood. 

When I was a kid, the football players were often the ones doing the bullying. Often, they were the "big kids" on the playground. The Martin allegations tell us that it may be (they are allegations at this stage) that the big kids not only bully the smaller ones, but actually bully each other. 

This story will receive much attention in coming weeks and months as the National Football League investigates. As the legislative session begins in the spring, it will be curious to see if any states take legislative action on bullying, in the workplace, schools, or elsewhere. As we wait to see, I wonder whether bullying occurs in other workplaces, like your workplace?