Wednesday, February 25, 2015

Statutory Construction and Interpretation

There are sometimes reactions to court rulings. They may impress, disappoint, astound, enrage, encourage, intrigue and more. It may sometimes be a case of the old idiom "it depends on whose ox is being gored." In other words, whether someone loves or hates, respects or derides a court decision may come down to whether the outcome benefits them or is consistent with their personal philosophy.

If one can get past that emotion or immediate reaction, there is an education to be had in many court decisions. There may be a struggle to find the lesson, but it is usually there.

This time of year, across this nation, legislatures are preparing for session, beginning session, or in the midst of session. Winter seems to be the season when we hear about what is happening, or being proposed in various states. Certainly, there are states with full time legislatures, whose schedules therefore do not fit this paradigm. But Floridians are used to the winter/spring session, and it is not an uncommon model.

Legislative action is the foundation of workers' compensation. What it is and how it works in various jurisdictions is dependent on what each legislature and executive have decided its statute will say. Anyone that has been involved in legislation can tell you that sometimes it is a long process, filled with analysis, discussion, and compromise. There may be promise, enthusiasm, and often disappointment. Words may be selected and intended, but may be the result of compromise. During the process there may be changes in wording as a bill works its way through amendments on the way to passage.

Once a statute is in place, the courts are charged with interpreting it. Some statutes may be challenged based on their clarity, or lack of clarity. Some might be challenged on its conflict with some other statute. Others still might be challenged its conflict with either a state or the federal constitution.

If a statute lacks clarity, the court will strive to interpret and explain what the statute means. If there is a conflict or disagreement between two statutes, the court will strive to harmonize or explain how the various provisions might be interpreted together to preclude conflict. And if the the challenge is on constitutionality the court will first work to decide if the statute is clear; if the court concludes it is, then it will determine whether that clear interpretation violates some overriding provision of a constitution.

In Murray v. Mariner Health (Fla. 2008), the Florida Supreme Court reminded courts are "obligated to construe statutes in a manner that avoids a holding that a statute may be unconstitutional." So “[w]herever possible, statutes should be construed in such a manner so as to avoid an unconstitutional result.” The analysis, therefore, is more likely to begin with whether the statute can be interpreted in a constitutional way. The Court did that in Murray, finding resolution of the challenge in the word "reasonable," and avoiding the constitutional question that is now before the Court in Castellanos.

The Court provides a road map through the statutory interpretation process: "legislative intent is the polestar that guides a court’s inquiry in statutory construction." So, "when a statute is unclear or ambiguous as to its meaning, the Court must resort to traditional rules of statutory construction in an effort to determine legislative intent." 

The first step in the process is deciding whether the statute is clear and unambiguous. If it is, then the next question may be whether that clear and unambiguous statute is or is not constitutional. Of course, if the case under consideration is not a constitutional challenge, then the determination that it is clear and unambiguous may end the analysis. Or, may lead next into an analysis of harmonizing multiple statutes.

But what if the court decides that the statute is unclear or ambiguous? Then the court will employ various rules of statutory construction. This is the process of determining what the language of the statutes says, and then what the legislature intended.

The news has recently brought us two examples of statutory interpretation. They merit consideration. In Oklahoma, the legislature recently amended its workers' compensation statute. The new statute defines "accident" as "an event involving factors external to the employee that . . . was unintended, unanticipated, unforeseen, unplanned and unexpected.” This may seem clear enough.

The Oklahoman reports on a recent ruling by an Oklahoma trial judge. In Duck v. Morgan Tire, an employee was injured at work, but sought to sue his employer rather than receiving workers' compensation benefits. Somewhat similar to the Padgett case in Florida. There is significant general angst in Oklahoma about workers' compensation right now

The trial judge in Duck denied a motion to dismiss the tort claim based on the "exclusive remedy" of workers' compensation. Generally, workers' compensation statutes prevent an injured worker from suing her or his employer in a tort claim and instead provide that workers' compensation is the employee's "exclusive remedy." The judge concluded that the injury in Duck was reasonably foreseeable, and so not an "accident" within the meaning of the statute. As it was not covered by the workers' compensation statute under this analysis, then the Judge concluded the employee was permitted to sue in tort.

Some have been critical of the legislature regarding the statutory reforms in Oklahoma. Others have been critical of the decision in the Duck case. An Oklahoma law professor says "we like to complain about goofy legislators, but far worse are judges who do their jobs poorly." He describes the decision in Duck as having "veered off into the legal weeds."

Often, lately, discussion of Oklahoma workers' compensation leads to discussion of Tennessee workers' compensation. Both states had major statutory reforms recently. The discussion today also leads next to Tennessee, but not for the reason one might expect. In Tennessee, a deputy sheriff was accused of workers' compensation fraud, according to the Jackson Sun. But, the charges were dropped.

Allegedly, the deputy reported an injury on-the-job, but an investigation led to belief that the injury did not occur on duty. The deputy was charged under Tennessee law with filing a false insurance claim. Sounds like many other stories found around the Internet so far?

The charges were dropped. The prosecutor noted that the Sheriff's office is not insured for workers' compensation. The Sheriff has elected "self-insurance" instead. The prosecutor concluded that the scope of the "insurance claim" statute may be insufficiently "broad" to cover the allegations regarding a self-insured employer. In other words, it may not be "insurance fraud" if there is no insurance. 

There might be some who would argue this conclusion in Tennessee is not consistent with the outcome of Brock in Florida. They might argue that Brock was convicted of "workers' compensation fraud" since the statute he violated is in Chapter 440. This, they might argue, is inherently illogical since Brock never suffered any injury nor sought workers' compensation benefits. They would perhaps argue "no workers' compensation benefits, no workers' compensation fraud."

These examples provide a reminder that statutory words are important. Specific words of the two statutes, leading to specific interpretations. 

Legislative intent may be a critical element of later interpretations. How any given statute might conflict with or be harmonized with other statutes may be critical. The rules of statutory construction will guide the courts through their efforts to interpret and reconcile workers' compensation statutes. 

The lesson is that those who draft the laws must be as clear as possible, and carefully select their words and phrases. Whether in a drafted bill or in the language as it is compromised and amended during the bill's journey to passage. Ambiguity and conflict lead to uncertainty, and uncertainty leads to litigation. Litigation may lead to decisions that may impress, disappoint, astound, enrage, encourage, intrigue and more. And how you may feel at the end may "depend on whose ox is being gored."  

Tuesday, February 24, 2015

Hector and Brock have run their course, U.S. Supreme Court Declines Review

In January, I published Hector is Gone in Florida, Is the U.S. Supreme Court Next? Essentially, the Florida Fourth District Court of Appeal concluded that Fla. Stat. §440.105(4)(b)9 makes it a crime to present false or misleading information in the process of obtaining a job. 

Specifically, the provision states it shall be unlawful for any person " . . . [t]o knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits." 

Hector and Brock were each accused of doing so, providing information deemed to be inacurate. Though neither had workers' compensation injuries, they were charged under Chapter 440. 

The Florida Supreme Court declined to review the decision of the Fourth District. There was then an effort to have the decision reviewed through the federal courts. However, the U.S. Supreme Court denied certiorari February 23, 2015. The appeals in both Brock and Hector have now run their course. 

It remains illegal in Florida to present false or misleading information in the process of obtaining a job. This is true regardless of whether a claim is later made for workers' compensation benefits or not. 

The U.S. Supreme Court is asked to hear about 7,000 cases each year. Generally, they agree to hear 100-150 of them according to their website.

Check Your Daily Filings - It is the Diligent Thing To Do

Crosby Stills and Nash sang Southern Cross, in which they intoned "we never failed to fail, it was the easiest thing to do." I would suggest that we remember the tune and change the words to "we never failed to check, it was the diligent thing to do." It makes sense to check the electronic filings in your cases. It makes sense to do it regularly, on a scheduled. The diligent attorney will take advantage of the fact that this safety net exists, and use it.

Nothing is perfect. That includes machines, software, and people. On the subject of computers, Doug Vargas is credited with saying "It's easy to cry 'bug' when the truth is that you've got a complex system and sometimes it takes a while to get all the components to co-exist peacefully." 

This describes e-filing, e-service, and all that we have become accustomed to with e-JCC. It is a miraculous tool of the Twenty-First Century. It is making our lives simpler, litigation more efficient and less expensive. But it is a complex process with multiple components and softwares. At its best the parts and pieces are all working together and it is nothing short of miraculous. But, sometimes it does not perform as designed. What performs perfectly 24/7/365? I know I don't.

The daily delivery of "snail mail" was no less miraculous when it came about. There was a time that the mail travelled across country, when it travelled at all, by riders on horseback. The U.S. Postal Service prides itself on its ability to deliver packages and papers. Though not an official motto, the following has long been associated with their dedication: "neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds."

A recent article from Oregon details how a postal worker's decisions led to some mail being misdirected. Essentially, this gentleman decided not to deliver the mail. He explained that he "just got lazy" and "failed to make his rounds on multiple occasions. He is now a former postal worker, and will spend a year on probation for his misfeasance. Last fall, another postal carrier failed to deliver some 40,000 pieces of mail.

In 2011, a letter was delivered in California. It had been mailed in Alabama 66 years before. According to the story, the Postal Service offered no explanation for the delay. In another instance, a letter "perhaps . . . stuck in sorting equipment," was delivered 81 years after it was sent. The U.S. Postal Service is not alone, the United Kingdom has had similar stories

The age of the Internet, email, and now e-filing and e-service is here. We are less likely to rely on the Postal Service in the Twenty-First Century. The Internet provides instantaneous delivery. It comes wherever we are, following us on our smart phones. We have been inculcated to the instant delivery and the privilege of making instant responses. What is a bit scary is that this amazing technology seems perfectly normal to a whole generation that does not remember before its existence. Most of us will live until a time when describing the pony express or even the Twentieth Century U.S. Postal Service will be met with incredulity.

Is the Internet perfect? Absolutely not. Can email fail? Absolutely. Can we explain explain why? Usually we can. Usually we get error messages when something is not delivered. That is what alerts us that we have used a bad address, or just typed it wrong. Is it perfect? Absolutely not. 

The OJCC recently made some programming changes. Essentially, one of the customers that uses the services of the DOAH wanted to communicate using encrypted emails. The usefulness of such protection is obvious. That process was installed in January, and some of our users' emails did not like it. Unfortunately, that is part of a learning process. Worse, when some users' emails did not like the change, the OJCC did not get the error messages to which we have all become accustomed. 

So, a very few emails we sent did not get through, and we got no notice of that from the digital world. We soon got word from some diligent users (how they figured it out is below). Our IT team "rolled back" the encryption change and the system settled back to normal. We learned from the process. 

In the days of the pony express and with the current U.S. Postal Service, there is no efficient way for the intended recipient to know something has been sent, except when it is received. Sure, the sender could make a phone call and say "I sent you a letter," in which case the recipient would be alert to keep a lookout. But absent such a practice, the recipient is dependent on delivery to know of sending. We all remember instances in which some important document was not received from the U.S. Mail. 

In the era of e-service, that is not the case. In the era of e-service, the appropriate recipient can learn of electronic filing even if the e-service never arrives for whatever reason. In fact, the appropriate recipient can learn of electronic filing even if the e-service is never sent by the electronic filer. 

When I was in practice, I had to complete forms to renew my malpractice insurance annually. One of the questions each year was whether I maintained a back-up calendaring/deadline system. They wanted me to have two systems in place to avoid missing deadlines. By certifying that I kept two calendars, I received a discount on my insurance. They had decided that a dual-calendar process was efficient and effective and they wanted to encourage me to use one. To this day, I keep information in two calendars. 

In the age of e-JCC, any e-filer can know when anything is filed in any case in which she or he has filed a notice of appearance. As an e-JCC e-filer, these are your "cases," which are displayed on your case list in e-JCC.

To see a listing of your cases, select "Case List" from the menu. To see a listing of all of the documents uploaded to your cases, select "Case Filings" from the menu. This will allow you to view all of the documents uploaded to your cases. That includes the documents filed by other attorneys and parties. That includes notices, orders or other documents uploaded by the assigned judge. 

After selecting "Case Filings" from the menu, you will see a search box to select the filing dates you wish to review. You make the choice. You can look at a single day or a series of days. This will provide you a list of everything that was uploaded to your cases . This includes all that were sent to you as counsel of record, and the will include all of the documents that should have been sent to you as counsel of record, even if they were not sent or delivered. The diligent attorney that noticed the non-delivery in January discovered it because s/he made a habit of checking the filings in her/his cases daily.

In the era of the Postal Service anything could happen once you dropped that envelope in the ubiquitous corner post box. It might get stuck in a sorter. It might be hoarded by the person paid to deliver it. It might inexplicably reappear for delivery some 81 years later. And, more terrifying, there was no way for you to know what you missed until it was too late. 

I remember when the pay phone it seemed there was a post box every few blocks and a pay phone in every parking lot. Good luck finding a pay phone or post box today. The physical mail delivery era has ended. Electronic document delivery is here and it is the future. Embrace it. 

But remember that e-mail can fail just as the physical mail paradigm could. There may be instances in which you do not receive the email announcing the filing of a document. Do not find yourself in the position of arguing your non-receipt to avoid some detriment to you or your client. Check your case filings each day. This is the process used by each of the Judges of Compensation Claims every day. Someone in each OJCC Division is viewing each Judge's Case Filings each day. 

Sure, you are going to get e-service. Sure, marking your appointments and deadlines on one calendar should cause you to avoid missing any. But, it makes sense to keep two calendars and to have a back up. And, it makes sense for someone in your office to check those daily filings. You could do it daily, weekly, or something in between. Set-up a schedule. Have them checked regularly. There was no mechanism for such certainty in the U.S. Postal era. Take full advantage of the fact that you live in the new age. 

Monday, February 23, 2015

Three-D Employment

Jobs are disappearing in the economy. There are a variety of reasons for this. Some see it as an extinction. That is, they see jobs overall disappearing. Others see it as more of a migration. That is the work remains, but the occupations themselves come and go.

One of the defining characteristics of the last 200 years has been automation and mechanization. So much that was done by hand in the 19th Century was done by machines in the 20th Century. In the last two decades of the 20th Century, the age of the microchip, the machines became smarter and became more sophisticated.

These sophisticated machines are altering our workplace. A recent Forbes article described 20 Careers Headed for the Dustbin. Several of them seem to fit the sophisticated machine hypothesis of causation:

Technology has been leveraged in some of these industries. Farmers are more productive due to mechanization and science. Mail service has been changed by email. Scanning and digital storage have decreased the need for file clerks. The examples abound. 

Business Insider hypothesizes that jobs in some sectors are becoming obsolete because they "rely on older technologies." The technology is changing. Technology is a multiplier that allows fewer humans to accomplish more. Business Insider says notes "technological advances allow current farmers to accomplish the same tasks with fewer workers." 

That article predicts declines in employment for meter-readers. For years, the gas and electric companies have sent people walking our neighborhoods. They check the meters on the side of our home to see what our energy use was, then the company bills us for it. Technology is changing that. The meters are now reporting in on their own; no need for someone to visit your home. Technology yet again. 

Have we reached the nadir of employment issues? Whether you believe that jobs are disappearing, or merely migrating, is the shift related to technology over? 

A few years ago, the news reached me of a device called a three-d printer. Similar to the printer upon which you could produce a hard copy of this post, but different. The three-d printer applies layers, just like your computer printer applies layers of ink. But, the three-d printer applies more layers. It applies so many layers that it actually builds something out of what it is applying. Think of laying down enough "ink" to create a shape you could touch and feel.

That is not an exact explanation, nor is it scientific. Imagine a printer head that does not deliver ink, but instead delivers plastic. The plastic is applied in a pattern, controlled by the computer. The layers of plastic build upon one another until a shape is created. You could print a model car, a working gun, a guitar, or more. You can print an automobile. Last summer I read about a three-d printer used to create a prosthetic arm for a thirteen year-old. How about printing an artificial heart valve? A computer program directs the movement of a "printer-head" and the printer "builds" something useful. Here is a slideshow of some other items. 

Amazing! It seems likely that this technology will change manufacturing as we know it. The technology seems like science fiction, but here in the Twenty-first Century, we are witnessing it. And, it may not stop there. 

Yahoo reports that very (as in VERY) large three-d printers could be used to build houses. That is not a misprint, a house. There are some pictures in the article. They claim "it's not as crazy as it sounds." We just need a "much bigger printer." The authors describe a machine that would be set-up on your neighborhood lot, which would "print" using concrete or plastic, layer upon layer, until a house is created. Instead of a crew of framers or bricklayers, picture a single person sitting at a laptop monitoring the print process, just as you would watch the pages of a brief come out of your Hewlett-Packard or Epson.

Sound like science fiction? The article concedes that widespread use is years away, but get this, it has already happened on a few occasions. Buildings are being "printed." At one project in China "10 houses were printed in less than 24 hours at a cost of about $5,000 each." The Chinese have printed a five story building. They say the cost of such buildings are reduced 50% to 80%, with similar reductions in construction waste and production time. 

Someone will have to write the programs. Someone will have to design the house, just like you write that brief. But just as the printer then creates your brief without someone putting letters in a printing press, the printer will produce the building. Sure, someone will have to monitor it, and load the material, just like you add toner or ink to your Epson. Unlike the printer in your office, someone will have to repeatedly set-up these house printers, take them back down and transport them from job site to job site. But this could mean a marked reduction in the number of people that are required to build a house or other structure (one man printed a castle).

The world is changing around us. What seems like science fiction one day becomes a reality the next. With this progress, what will happen to jobs? Computers killed the typing pool as surely as the internal-combustion engine killed the buggy whip business. Will three-d printers similarly affect the building industry, or perhaps all of manufacturing?  What will the workforce look like in twenty or fifty years? Are we as an industry ready to make workers' compensation a relevant part of that end?

Maybe they will figure out a way to three-d print a judge?

Thursday, February 19, 2015

Workers' Compensation Legislation 2015

Workers' compensation is in the news across the country, but not so much in Florida. There are some workplace related bills that have been introduced, but it looks like a quiet session for Florida workers' compensation. There is House Bill 297 which would create liability for workplace bullying. This is similar to the proposal discussed in 2013. But elsewhere around the country, workers' compensation is receiving some attention. 

Recently, the workers' compensation news platforms became a bit excited by a couple of Gubernatorial announcements, one in North Carolina and one in Wisconsin. 

North Carolina Governor Pat McCrory delivered his 2015 State of the State address on February 4. He noted the presence of "fraud and abuse" in workers' compensation, and committed to battle the problem. Towards the end of his address, he noted that "workers compensation claims have cost North Carolina taxpayers $896 million during the past six years. That’s about $150 million annually, which would have paid for a 2 percent pay raise for state employees…every year." 

Governor McCrory stated that an "examination of workers compensation estimates that 40 percent of workers costs are related to abuse or outright fraud." He therefore announced a plan to have the state's Office of Human Resources oversee the workers' compensation claims of state employees. His goal to get employees back to work sooner.

This hit the newswires and spread quickly. WorkCompCentral ran the story. There was an interesting blog From Bob's Cluttered Desk explaining that the estimate of 40% came from a vendor that works with the state on its compensation claims. Some have been publicly critical of the claim.

A few days later, the story broke that Wisconsin Governor Scott Walker would propose to abolish the Wisconsin Division of Workers' Compensation and move various elements of it to other state agencies. It sounded a bit similar to Florida's 2001 change to the Department of Labor, which resulted in the Office of Judges of Compensation Claims becoming part of the Division of Administrative Hearings (DOAH). 

According to WorkCompCentral, there is not unanimous support for the Wisconsin proposal. Some opposition resulted from a perception that the proposal came without benefit of consulting Wisconsin's workers' compensation advisory council. 

The rearrangement in Wisconsin would remove the requirement for judges to review settlements. The adjudicatory functions would remain the responsibility of administrative law judges (ALJ), but the ALJs would become part of the state's administrative hearing agency, The Division of Hearings and Appeals (DHA), similar to Florida's DOAH. Some contend such a move would increase ALJ oversight. Apparently there is some concern with how long some ALJ decisions require. 

There are those who question altering a system which they believe to be a model for other states. One even described Wisconsin as the "best-running workers' comp system in the country." Unlike the move of the OJCC to DOAH in Florida, the Wisconsin plan appears to envision existing DHA judges undertaking responsibilities to hear at least some workers' compensation claims. 

There are other legislative proposals out there.

Tennessee may enact an opt out for workers' compensation. Some have characterized the Tennessee proposal as a cross between the age-old Texas opt out and last year's Oklahoma opt out option. This subject is getting a fair amount of discussion. It will be the subject of one of the breakouts at the upcoming WCRI Conference, March 5-6 in sunny downtown Boston. I am hoping the snow has melted by then.

New Mexico is considering changes to the way intoxication is treated by their statute. Washington state may be considering changes by which it would abandon the monopolistic model and allow insurance carriers to sell workers' compensation coverage. 

Arizona is debating a change to their insurance laws that would make it harder to pursue damages for bad faith claims handling. Arizona is also considering a pre-emptive strike on medical marjuana in workers' compensation claims. This may be a reaction to recent rulings in neighboring New Mexico. They are also considering whether workers' compensation should include post traumatic stress disorder (PTSD).

Illinois has nine bills pending in its legislature. According to WorkCompCentral, there have been various unsuccessful efforts at reform there in the last few years. With Governor Rauner's campaign promise to reform Illnois workers' compensation, will this be the year for significant reform there? There is an interesting piece on the Illinois News Network comparing Illinois and Indiana. There is a stark comparison there. 

Kansas is considering a change in their law. Essentially, their Secretary of State is advocating a return to the Kansas law as it existed before its 2013 reforms. He says that the latest revisions empower injured employees to sue their employers. He seems to be pointing to Padgett, the trial decision in Miami last summer in support of his campaign. He recently told the Kansas legislature "a train wreck is about to happen and this committee has the power to stop it.” He fortells that the Kansas Supreme Court would reach the same decision as two trial judges have in Florida and Oklahoma. Meanwhile, we wait to see what appellate courts in either Florida or Oklahoma may do.

Connecticut is considering coverage for emotional distress and mental issues for workers who experience "extreme workplace violence. Montana is looking at whether to create a cancer presumption for firefighters.

Maryland has announced a truce with physician dispensing. There are apparently several ways to look at the pervasiveness of physician dispensing. There is Workers' Compensation Research Institute (WCRI) data and conclusions. The Maryland Board of Workers' Compensation has other data. The distinction between the two data sets may be which claims are included in each. WCRI is said to have studied lost time claims, while the internal data is said to have examined all accident claims. Joe Paduda has a perspective. There are other perspectives. WorkCompCentral is reporting that Maryland's legislature has agreed not to address physician dispensing for two years.

Across the country, it looks like there may be significant legislative discussion of workers' compensation. Time will tell if it translates into statutory amendments. It is always impractical to guess whether any particular bill will pass. And that is true when you are focusing on a single state. With the variety of initiatives and proposals out there, it will be interesting to see what occurs this season.   

Wednesday, February 18, 2015

Do I need a Vacation?

I remember an episode of Gilligan's Island in which Gilligan was asked to undertake an unsavory task (narrows it down, huh?). I remember his head shaking, arms folded "you can't make me, you can't make me . . ."   Then, as per usual, they made him. Not saying the show was unpredictable, but it was funny back in the day. 

There is much in the news about our evolving workforce and workplace. As the workplace evolves, there will be changes and challenges. We are seeing it in things like telecommuting, evolving evidentiary standards, and statutory shifts affecting the very core of workers' compensation. In our profession it behooves us to watch these trends and to question what effect they could have on this marketplace.

Much of what we deal with is statutorily defined and mandated. Recently, there was a Money article that noted Japan's plan to legislatively force people to take their vacation time. Japan is poised to "make it the legal responsibility of employers to ensure that workers use their holiday time."  Their studies have concluded that the "health, social and productivity costs of Japan's extreme work ethic were too high." The Japanese people are characterized by this article as "workaholics." 

It notes that the "average Japanese worker used only 7 of the 18 vacation days allotted each year, or 39% of their annual paid leave." How many of your leave days did you use last year? The article says that workers in the United States were "second only to Japan" in failing to take allotted leave. It cites an Oxford Economics study that concluded the U.S. workers "typically left 3 vacation days on the table." For some groups the average was as high as 8 days. 

That is for those who take paid vacation. Surprisingly, the study noted that 17% of Japanese do not take any vacation each year. Before you are too shocked by that statistic, know that 13% of United States workers do likewise. For comparison, the percentage taking no vacation time in Australia was exactly 0%.

How much are we working? According to a Gallup Poll last August, eighteen percent of full-time workers work more than 60 hours per week. Another twenty-one percent work 50-59 hours. Another eleven percent work 40-49. That is an even fifty percent of full-time American workers work more than 40 hours weekly. Forty-two percent work precisely 40 hours. Only eight percent are privileged to work less than 40 hours. It is interesting that it is a 50/50 split at or below 40 compared to above 40. 

Forbes reports that the average work hours in South Korea are 2,357. South Korea ranked number one. The Dutch reported the lowest average work hours annually, at 1,391. To put that into perspective, that is 47 per week (at 50 work weeks annually and two weeks vacation) in South Korea and 28 hours per week in the Netherlands. The United States came in ninth on the list with 1,797, or about 36 per week.

For whatever reason, we do not spend all of our time at the office being productive. Inc. Magazine reports that sixty-one percent of us admit to spending thirty to 60 minutes a day that is not actually work. Our greatest distractions? Number one was Google. Then came social media, meetings, and email.  If we had les distraction, would we be more productive and thus more inclined to take the vacation time?

The Huffington Post recently reported that 40% of United States workers leave vacation time on the table at the end of the year. This analysis says that Americans suffer from "work martyr complex." Respondents to the survey discussed in this article cited four main reasons for not taking their allotted vacation.

The first is "dread of returning from vacation to piles of work." Forty percent cited this. Who has not returned from vacation to find an inbox stacked full of thorny problems? We get the feeling that some or all of them could have been avoided or at least minimized if we had been there when they occurred. Instead, we return to confront the rolling snowball that they have become in the ensuing days of our absence. This is the perceived problem that inaction in our absence will lead to greater issues.

The second is the belief that "no one will be able to step in" for us in our absence. We fear that the job will not be done right while we are gone. This is not the inaction fear, but the opposite. Here we fear that someone will step into the fray in our absence and make it worse not better. We have all had failures in our professional lives. We have each fallen in some respect or another. That is a truth we have to recognize. We each have done it and we grew from the experience. We have to afford others the same opportunities to have experiences and to grow in the process. They cannot if we are always there. 

The third reason cited is perhaps hardest to overcome, that is "not being able to afford it." Vacation is expensive. The bills at home do not stop while we are away. But even a vacation at home can bring some peace perhaps. Working in the yard, walking in the park or along the beach. There are some very peaceful and restful things that can be done close to home for little expense. 

The final reason given as an excuse for not taking vacation is the "fear of being seen as replaceable." We can all just get over ourselves on this one. We are all replaceable. I have written that phrase many times. Some in any organization would obviously be harder to replace than others, but no one is irreplaceable. That is simply a fact. The world once upon a time survived without each of us just fine, and it will continue to do so when we are gone. We have to learn to let go and admit that one.  

So the numbers support that Americans work hard, but that there are distractions in our work-day. The information suggests that we are reluctant to take vacation. But if we don't, would the U.S. will follow Japan's lead and make us? Of course, like Calvin in Monday's post, perhaps at best they could make us stay away from work, but could they make us respect the spirit of vacation and actually enjoy it?

Don't call today, I don't think I am coming in.

Monday, February 16, 2015

The Spirit of Conferring

I get a fair number of inquiries about "personally confer." There seems to be lingering doubt or confusion on this topic. The rules, since last November, have provided a definition for "personally confer."  The definition is in 6.102(12) and the requirement for it is in 6.115(2). 

60Q6.102 (12) “Personally conferred” means communications in person, by telephone, e-mail, text messaging, or some other communication mechanism that permits an immediate, contemporaneous response.

60Q6.115(2) Except for motions to dismiss for lack of prosecution, prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. (Emphasis added).

Essentially, Rule 6.115(2) requires communication prior to filing a motion, and 6.102 strives to clarify what conferring requires. 

Long ago, there was a cartoon called Calvin and Hobbs. It chronicled the adventures of a six year-old boy with a stunning imagination, which included interaction with what appeared to the rest of us as a stuffed toy tiger. In a pertinent example, Calvin is told to get into the bathtub, an instruction with which he strictly complies. Sitting in the dry tub, filthy, and fully-clothed, he narrates "I obey the letter of the law if not the spirit." The strip closes with Calvin's disappointment that his mother has figured it out and instructed him to put some water in the tub.

6.102(12) requires some form of contemporaneous communication. This can include texting, email, and facsimile. Each is capable of instantaneous receipt and immediate response. Some of the inquiries I get focus on these mechanics. In other words, an attorney has focused on "the letter of the law" like Calvin, but has ignored the spirit of the rule. Sending a text or fax, in itself, may not be any more effective than sitting fully-clothed in a bathtub. Despite compliance with the required mechanics, a judge may not find such text or fax sufficient.

One need only consider the purpose of the rule, to understand the use of these modalities. The goal of these two rules is communication. The communication should be interactive, that is the letter of the law. The content of the communication, the spirit, is as important if not more. Communication is a two-way street. Conferring is even more specific in this context. The purpose is a back-and-forth, interactive, communication.

The purpose, or spirit, is not lines in the sand, ultimatums, and threats. The point is not to forewarn the other parties that a motion will be filed. Regardless of the selected means of transmission from 6.102, the communication is not interactive if it is one-sided. The goal is to discuss the situation or disageement then existing between parties.

The goal is that this interactive communication will lead to greater understanding by all concerned. Through this greater understanding, through this interactive communication, it is hoped the parties can come to a clearer understanding of their actual dispute. Often such conferring leads attorneys to conclude that there is in fact no disagreement or misunderstanding after all. 

In the event there is an actual disagreement, the personal conferring should lead to a better understanding, a crystallization, of the essence of that disagreement. With full understanding of the disagreement, attorneys and parties may even reach agreement despite their disagreement. 

If the disagreement is ultimately brought to the judge for resolution, time is not wasted on issues about which all parties agree. Time is not wasted on issues that are irrelevant or tangential. The parties conferring has led, instead, to a crystal clear understanding of the essence of disagreement. The parties and the adjudicator can bring full focus to that issue or issues which really need determination.

Personally conferring in the motion procedure can lead to resolution, better understanding of disagreements, and efficiency for parties and the judge.

The same conferring can be extremely powerful prior to mediation of your case. This is another instance in which you know you will be receiving a limited allotment of time to discuss issues. Whenever time is limited, and it almost always is, use your time efficiently. That is, confer prior to mediation to better understand what the parties agree upon, and to crystallize areas of disagreement. It is the areas of disagreement upon which you want the mediator to focus. Do not distract the process of mediation or hearing from the relevant and imperative with long-winded discussion and distraction of the irrelevant and tangential.

At the end of the motion issue discussion, understand this. Complying with the letter of the law (Judge, I sent them a fax and told them I was filing a motion) does not satisfy the requirement that you must confer. Miriam Webster says that this means discuss. Discuss does not mean to send ultimatums. Discuss does not mean to belittle or demean. Discuss does not mean to threaten or even promise. Discuss means to have an interactive exchange of ideas and thoughts. 

No matter which of the 6.102 tools you elect to use, have a conversations. Have a discussion. Exchange ideas and thoughts. Seek agreement and better understanding of disagreement. Do not be fully-clothed stubbornly sitting in a bathtub in full compliance with the letter of the law, waiting for the judge to remind you of the spirit.  Engage in the process, discuss, exchange, learn. 

The spirit of the rule is important. Professionalism is contagious. 

Wednesday, February 11, 2015

Comparing Florida to New York

What does it cost to run a workers' compensation system?

New York and Florida make for interesting comparisons. Last December, according to the United States Census Bureau, The Florida population surpassed New York, becomming the third most populous state. Florida now has 19.9 million residents to New York's 19.7 million. The states are quite similar, from the standpoint of population. 

Population distribution is another similarity. In terms of physical size, according to the Census Bureau, Florida is 53,624 square miles. New York is 47,126 square miles.  Reasonably similar. New York is about 88% the size of Florida. Florida is a bit more spread-out; the 12.6 hour, 832 mile, drive time from Pensacola to Key West illustrates this. By comparison, the drive from Manhattan to Jacksonville, Florida is only 13.5 hours, 932 miles. It can be a great distance between two points in Florida.

According to New York's proposed 2016 Budget, it cost $187.24 million to run that state's workers' compensation program in 2015. New York's Governor currently proposes an increase of $60 million, that is about 32%. The 2016 budget would be $247 million. That is for one year. New York has all of the regulatory and adjudicatory functions in one agency.

In Florida, we have a less integrated workers' compensation system. Here we have the Division of Workers' Compensation (DWC) for the regulatory processes and the Office of Judges of Compensation Claims (OJCC) for the adjudicatory processes.  Thus, any comparison has to aggregate the Division and the OJCC.

The Florida DWC budget in 2014-15 was $28.47 million. The OJCC budget was $17.44 million. The total is right at $46 million. New York spent over four times more to run their workers' compensation system last year, $187.24 million to $46 million. 

Florida's Governor recommends a reduction in both workers' compensation budgets for 2015-16. The recommended reduction for the DWC is a half million dollars, a one and one-half percent reduction, to $27.97 million.  The recommended reduction for the OJCC is $71,683, a less than one percent reduction, to $17.37 million. The Proposed Florida budget would total $45.33 million in 2015-16. 

If both budget plans were adopted, New York's would be $247 million and Florida's would be $45 million. New York's increase would propel them to 5.5 times the Florida expenditure. Their proposed 2015-16 increase alone would cover the entire Florida workers' compensation budget. 

Florida has a reputation for innovation and leveraging technology. We have been in the vangaurd of electronic filing for litigation, electronic data interchange (EDI) for carrier filing and compliance, the use of digital recording for proceedings, and video-teleconference. 

New York plans to use their 2016 proposed $60 million increase to: (1) Create an electronic medical bill submission platform. This would allow collection of vast amounts of data. (2) Enhance tracking of electronic payments. To assist with measuring and enforceing regulatory compliance. (3) Establish an RVRBS (Resource-Based Relative Value Scale) fee schedule. These are admirable goals. 

Florida already has an RVRBS fee schedule. Florida does not have electronic medical billing. According to the International Association of Industrial Accident Boards and Commissions (IAIABC), few states have electronic medical billing for workers' compensation. The referenced article says that Texas was a pioneer, and that California and Minnesota have also moved to implement this innovation. Louisiana reported at the 2012 Southern Association of Workers' Compensation Administrators (SAWCA) Convention that it has also implemented a program. 

Will New York be the next state to implement this innovation? Could or should Florida be the next? When you consider what Florida workers' compensation has accomplished on a comparatively modest budget, I hope you are proud. I am. 

Population 2014-15 Budget 2015-16 Proposed
New York           19,700,000  $      187,240,000  $        247,240,000
Florida           19,900,000  $        45,909,507  $          45,337,824

Budget per Resident
2014-15 Budget 2015-16 Proposed
New York  $                  9.50  $                 12.55
Florida  $                  2.31  $                   2.28

Monday, February 9, 2015

What do You Know About Medical Providers?

Who should provide medical care for us? How do we make decisions selecting a medical provider, from the Yellow Pages, referrals, recommendations? Who licenses providers, and what are the constraints of their practices?

Part of our Federalist system is that regulation of  medical practice limitations and parameters are primarily handled by states. The Federal government is one of limited powers, defined for it by the Constitution. There are enumerated powers which define the scope of the federal government's influence and power. That has expanded in recent decades.

This is dissimilar to the regulation of pharmacology itself. When the Federal Government regulates, then the states may not be able to regulate in that particular area. This is called "preemption." It is intertwined with the federal government's use of the Interstate Commerce Clause (ICC) to regulate activities, some of which may not appear "interstate" to the casual observer. The ICC has been involved in desegregation, securities regulation, highway construction and so much more. 

As an example of preemption, we saw the approval of the opiod Zohydro last year by the United States Food and Drug Administration, the "FDA." This was not a popular decision in some quarters, see Zohydro or Pot, a Study in Federalism and Zohydro and Closed Forumlaries.

Massachusetts tried to ban Zohydro. The courts concluded that the state could not regulate Zohydro, because the FDA had regulated distribution. The FDA concluded distribution was appropriate, and therefore the state was preempted from contradicting the FDA decision. There will thus arguably be significant consistency across the county when the federal government regulates. This may not be true with issues like marijuana, but that is for another day.

The Federal government has not elected to regulate who may or may not practice medicine, or law for that matter. Therefore, each of the states regulate who may or may not practice medicine, and what practice of medicine means. So, while the federal government has significant influence on the how of practice, the who of medical practice is the states'.  

As with any subject of state law, that means that there will be variations from state to state. There will be differing views on  a variety of issues. Physician dispensing is legal in some states, not in others. Another example is the extent to which a physician might delegate to a nurse or physician's assistant, which may vary from state to state. Regulation is up to the state to define and monitor. There may therefore be distinctions between states in terms of who may practice, and what practitioners may do.  

Who are these people who provide medical care for us? 

The Atlanta Journal Constitution (AJC) did some investigative work recently, as reported by workcompcentral.com (WCC). WCC reports that there were almost "two dozen occasions" in which the "Georgia Composite Medical Board allowed doctors cited for criminal offenses or other misconduct to practice in the state." That is Georgia essentially concluding that specific background and history were perhaps not that relevant, or at least not persusive, in the analysis of who should be providing medical care there.

Reasonable minds might differ as to whether some particular violation is serious enough to deny licensure. It is equally likely that everyone would draw the line somewhere, particularly with their own physician. We would likely each be guided by differing standards in selecting a physician. We would each have our own priorities.

Apparently one of the physicians uncovered by the AJC had previously been a physician in Texas, where he had "pleaded no contest to solicitation of capital murder after being accused of trying to hire a hitman to kill a patient" over a "disagreement over a workers' compensation claim." Apparently, the doctor offerred a police officer $20,000 to kill this patient. Texas revoked the doctor's medical license, as did California. Georgia, however, issued him a license. 

This is federalism. States regulate the licensing of physicians. States decide who may practice, and the decision of one state to deny or revoke a license may or may not influence or persuade some other state's decision regarding that same physician. 

That one might have been good enough for me. Can you see confronting your physician with "you tried to have me killed?" I can see, in classic Hollywood shtick, the doctor (picture Groucho Marx lounging in a chair, staring at the ceiling, as he asks) replying "and how do you feel about that?" This doctor/patient relationship issue might be a little difficult to work yourself through. 

Of course, it might not be that large of a deal. In this instance, according to WCC, The attorney for Dr. Sanchez said that "the charge was a misunderstanding and that Sanchez never intended to arrange a murder." No explanation was published as to why he pled no contest. It seems if it was all a misunderstanding, one might defend the charge? 

Perhaps that "misunderstanding" closure to the conversation makes it better? The patient asks "you tried to have me killed?" and the doctor replies "it was a misunderstanding. I think I will go practice in Georgia for a while." The patient quietly leaves to go search for a new doctor. Mark Twain said "truth is stranger than fiction, but it is because fiction is obliged to stick to possibilities; Truth isn't." This story and the "misunderstanding" explanation are curious at best; could Hollywood write this?

There is perhaps little we can do on an individual level to control who practices medicine. However, we may be able to make better consumer decisions about which licensed professionals we use. We live in a digital age, with access to massive amounts of information. Do you know what resources are out there? The Florida Department of Health has a provider database. You can look up information on any practitioner. They also have a license verification tool. The Florida Department of Financial Services has a database of malpractice claims

There are also private companies with databases regarding medical practitioners. One allows verification of Board Certification. Search engines like Yahoo, Google, AOL, or Safari can provide access to a variety of information about physicians, just from a search of the name. There are a multitude of cites on the internet like Healthgrades.com, Vitals.com and WebMD.com that also provide profile information. Some allow rating of physicians. Even the Yelp.com platform, which many use for finding and rating restaurants and other businesses, has entries for various physicians. 

Of course, those private platforms may be open access. That is, anyone with a computer may be able to rate a doctor, and it may be difficult to decide whether a recommendation or condemnation is deserved or contrived. I have read horrible restaurant reviews on Yelp that absolutely did not conform to my personal perceptions of that restaurant. Different people will have different perceptions and conclusions. Even the best restaurant (or doctor) may have a bad day.

Should we be better consumers? Should we play a role in examining the history of those who provide us medical care? Should we be curious whether our choice of physician has ever tried to hire a hitman to have a patient like us killed? It seems we should assume some responsibility for such research and analysis. We must perhaps take what we see on the Internet with a grain of salt, but we should see it nonetheless, to make informed decisions.