Monday, February 29, 2016

Judge Applicants Announced in PMC and WPB

The Statewide Nominating Commission for Judges of Compensation Claims (SNCJCC) will meet on Monday, March 21, 2016 at 9:00 a.m. at the Hyatt Regency Orlando International Airport, 9300 Jeff Fuqua Blvd, Orlando, Florida, USA 32827, to interview prospective applicants/candidates for nomination as Judge of Compensation Claims (JCC) for Panama City and West Palm Beach.  The applicants who will be considered by the Commission (for appointment as soon as practical) are:

Panama City Beach (PMC) District, to replace Judge Laura Roesch 

John Perry Moneyham
Michael Peterson
Tara Said
Jonathan Walker

West Palm Beach (WPB) District, to replace Judge Shelley Punancy

Lawrence Anzalone
Jeffrey Jacobs
Gregory Johnsen
Marydenyse Ommert
Michael Peterson
Debra Hendry Pierce
Ken Schwartz
Carol Stephenson
Janet Caridad Tacoronte

Saturday, February 27, 2016

Statute Declared Unconstitutional

In 2013 battle lines were drawn. Finding the Union no longer to their liking, a small but powerful band withdrew from the world of workers’ compensation and sought to form a new system and alliance. Like the shots at Fort Sumter in 1861, the enactment of the Oklahoma Opt-Out was a shot heard round the workers’ compensation world. For three years battles have raged, and many in workers’ compensation have watched, mesmerized, waiting for the next bit of news from the frontlines. 

On Friday (02.26.16) the workers’ compensation world began a series of phone calls and emails. Rumors came from the front, that the Oklahoma Workers’ Compensation Commission had ruled that the Oklahoma Opt-Out is unconstitutional. There were various somewhat vague “confirmations,” from those who knew someone, that knew someone that was there, but no one had the order, and the “what if” conversations continued through the afternoon. 

WorkersCompensation.com and WorkCompCentral.com each broadcast the confirmatory news late in the day. I received a copy of the order about 4:30. It is an interesting decision. I am certain that the analysis and discussion of this will consume many people’s first workweek of March.

The “Oklahoma Opt Out” entered our workers’ compensation vernacular in 2013. It was a curiosity and generated a great deal of conversation. I recall industry insiders reaction of disbelief and curiosity. It caused some to question the reality of workers’ compensation’s future. Many great minds scratched their heads, asked questions, and prognosticated on where this could or would or should lead. The buzz was deafening at times. 

Texas has been a voluntary workers’ compensation system for years. In Texas an employer can elect to subscribe to workers’ compensation or not. The employer’s benefit of subscribing is “exclusive remedy,” a protection or immunity from tort liability. The Texas employer may elect instead not to participate and forego exclusive remedy, thus taking its chances in the tort system. 

The Oklahoma Opt-Out is not the same as Texas’. Under the Oklahoma statute, an employer may opt-out of workers’ compensation and yet retain the protection of exclusive remedy. As one industry expert said to me, the Oklahoma opt-out allows the employer to “have its cake and eat it too.” A worker’s compensation regulator told me in 2014 that the “Oklahoma opt-out is too good to be true for employers; you know what they say about things that are too good to be true?”

Oklahoma enacted this opt-out as part of a workers’ compensation reform effort. There were many changes in this reform, including the end of the Court of Compensation Claims. A new administrative hearing process for workers’ compensation claims was created, and benefits were changed with the Administrative Workers’ Compensation Act, or “AWCA.” See, Coates v. Fallin, 316 P.3d 924 (Okla. 2013). And for the last three years the old litigation process, now called the “Court of Existing Claims,” has diminished as the new administrative law process has grown. That process also has not been without friction, but is for another day. 

Much was changed by reform. And as a result there are a number of constitutional challenges being prosecuted regarding various aspects of it. Constitutional challenge has, in the perception of some, become a cottage industry in Oklahoma. 

Since Oklahoma enacted this new AWCA process and the opt-out, the opt-out has been discussed in a myriad of venues. Workers’ compensation educational programs across the country have presented the experts and perspectives. The champions and critics have been heard from sea to shining sea. At the 32nd WCRI Annual Issues & Research Conference in March, there are presentations focused on this scheduled yet again. One industry analyst Friday suggested to me that the March WCRI Conference just became a “must see,” in light of Friday’s decision in Oklahoma. WCRI seems the incidental beneficiary of timing in this event.

The Association for Responsible Alternatives to Workers’ Compensation (ARAWC) has championed the opt-out in Oklahoma and has since pursued an Oklahoma style opt-out in other states. The subject has been debated in Tennessee extensively for two years. It was mentioned in South Carolina briefly also. Each of these states has seen the filing of legislation, but neither has come close to passing an Oklahoma style opt-out. There has been ample discussion of the perceived reasons that the legislation has not moved in either state. There have also been rumors and innuendo of the probability or potentiality of such legislation in other states. 

Friday’s case is Vasquez v. Dillard’s Inc., heard by the Oklahoma Workers’ Compensation Commission. It was argued on February 25, 2016 and the decision was rendered February 26, 2016. There is parallel litigation apparently being pursued in the courts. 

Explaining the conflict, the Oklahoma Commission said “Dillard's chose to take advantage of the benefits of the Opt-Out Act (EIBA)to become a ‘Qualified Employer’ by ‘opting-out’ of the provisions of” Oklahoma workers’ compensation. Dillard’s prepared its own workers’ compensation substitute, a plan “governed under the provisions” of “the Employee Retirement income Security Act (ERISA).”

Ms. Vasquez worked at Dillard’s, and claimed an injury at work in 2014. She unsuccessfully sought medical benefits through the approved opt-out plan. The Commission noted that Vazquez’ is “the first appeal from a denial of benefits under an employee's Benefit Plan,” an “opt-out.” Because of that novelty, the Commission discussed jurisdiction, or authority, issues extensively in Friday’s order. It noted that Dillard’s contended that its substitute benefit plan is “governed by the Federal Employee Retirement Income Security Act (ERISA),” and the Commission agreed. However, this election did “not automatically leave Dillard's ‘completely free to circumvent’ Oklahoma law.” 

There are those who disagree. They contend that the preemption doctrine holds that when the federal government acts, contrary state law must yield. This argument is predicated upon the Supremacy Clause of the U.S. Constitution. Preemption has been discussed before in workers’ compensation, in terms of immigration status distinctions and other regulatory issues. Many will be curious whether Friday’s state decision stands against a preemption argument. 

The Commission concluded that ERISA affords “concurrent” jurisdiction, for appeals regarding claims, to “state courts of competent jurisdiction, and district courts of the United States.” The Commission concluded that Oklahoma, enacting its reforms, clarified “that the Commission constituted a state court of competent jurisdiction.” It therefor concluded that the Commission had jurisdiction or authority to hear Ms. Vasquez’ constitutional challenge. 

The Commission concluded that it generally lacks authority regarding questions of constitutionality. In this regard Florida is the same. The lack of authority over constitutional issues here could result in an interesting procedural issue if certain potential outcomes of the current Florida constitutional challenges come to pass. However, the Oklahoma Commission concluded that the legislative language that labelled it a “court of competent jurisdiction” likewise rendered it “empowered” to hear the challenge to constitutionality in the context of “a statute that affects a Claimant's right to benefits as an injured worker.”

Ms. Vasquez asserted that the exclusive remedy set forth in Section 209 of the opt-out violated her rights to equal protection and “access to courts.” She also claimed “that the Plan as constructed violates her right to due process,” because it deprived her of “an independent tribunal and the right to cross-examine witnesses and present testimony.” The Commission did not address the “due process challenges,” disposing of the challenge on other grounds. 

The Commission noted that the “Opt-Out Act requires that injured workers under” such plans must have “benefits equal to or better than those under the Administrative Workers' Compensation Act” (AWCA), and so facially equal protection is assured. But, it concluded that actually, “this is decidedly not so” in the case before it. It explained that the opt-out allows the establishment of “a dual system under which injured workers are not treated equally.” The Commission waxed eloquent saying that “the appearance of equal treatment under the dual system is like a water mirage on the highway that disappears upon closer inspection;” an interesting analogy.

The Commission next addressed Section 203 of the Act, which sets forth requirements regarding what benefits are required to be provided by any “benefit plan” adopted by an employer that opts-out. This section also says that only some specific “provisions of the Administrative Workers’ Compensation Act” apply to those whose employers have opted-out and adopted instead a Qualified Benefit Plan (QBP). So, the Commission concluded, there is a parity of benefits “to some extent” but employers under a QBP “can remove the right to benefits, because under Section 203 the employer-the very party who will have to pay the compensation-is authorized to define ‘injury.’" So, if an injury is compensable, the benefit stream may be identical under either path, but the distinction in what is or is not compensable may be unequal at the outset. 

The Commission cited specific examples of disparity such as asbestos exposure, which is irrelevant to the injuries alleged by Vasquez, and then addressed the “Dillard’s Plan's definition of ‘injury,’ which differs from that in the Administrative Workers' Compensation Act.” The distinction regarding “aggravation” was seen as relevant; according to the Commission, the “Dillard's Plan's definition of aggravation of a pre-existing injury is more restrictive than that under the Administrative Workers' Compensation Act.” Because of the difference in definitions, the Commission concluded that the Dillard’s Plan makes “it more difficult for a claimant to be entitled to benefits.”

Having thus described the manner in which the opt-out creates a “dual and differing system of compensation,” the Commission turned to the Oklahoma Constitution, and its “prohibition against special laws,” which states "that where a general law may be made applicable, no special law may be enacted." Using a three-part test previously delineated by the Oklahoma Supreme Court, the Commission undertook review of the opt-out and whether it violates the “special laws” prohibition. 

The Commission concluded that the “general purpose” of both the AWCA and the EIBA (opt-out) is similar. The EIBA is not a “general law,” according to the decision, because it addresses only a portion of injured workers, those whose employers have opted-out. Thus, the Commission labelled the EIBA a “special law,” (part one of the test). Finding next that a “general law,” the AWCA, is otherwise applicable to “all injured workers,” the Commission concluded that the second element of the test was likewise satisfied. Concluding that a “general law” is applicable, the Commission noted that should be the end of the analysis. 

However, the Commission proceeded to analyze the third portion of the test: “whether the Opt-Out Act is a permissible special law.” Avoiding inquiry into whether the separate classification is logical or smart or desirable, the Commission addressed “whether the classification is reasonable and pertinent to some particularity in the subject of the legislation,” and whether there is “some distinctive characteristic upon which different treatment is reasonably found." Doing so, the Commission concluded that the EIBA “is not a valid special law.” The Commission noted there is: 
"no rational basis upon which to establish a separate system for providing workers' compensation benefits under which a subclass of injured workers is subjected to a Benefit Plan in which their employer, by defining "injury" as authorized under the Act, can determine when it will be liable and when it will not be liable, by excluding from the definition of injury the damages or harm to their workers for which it will not be responsible."
The Commission concluded therefore that the EIBA is an unconstitutional and “non-permissible, special law,” in that it creates an “impermissible, unequal, special treatment of a select group of the class of injured workers.”

Curiously, the Oklahoma Constitution “does not have an equivalent to the federal Equal Protection clause,” but its courts have created a “functional equivalent.” Dillard’s defended the “rational basis” of the EIBA in this regard, noting the “higher workers' compensation premium rates in Oklahoma; higher permanent partial disability payments in Oklahoma, and other economic data that workers' compensation reformers have annually trotted out for the past decade or more.” (Emphasis added). The Commission conceded that such arguments might well support effort to reform the AWCA, but concluded this does not likewise support the creation of an alternate system.

In this regard, it is pertinent to note that some have championed the EIBA concept claiming that it is a solution to perceived problems with workers’ compensation. In response, several critics of the EIBA have contended that instead the EIBA is abandoning workers’ compensation rather than facing the challenges of fixing or reforming it. This illustrates a fundamental difference of opinion regarding the reform issue. 

The Commission was dismissive of arguments that the EIBA enhances efficiency. Noting that EIBA determinations and conclusions can thereafter be appealed to the Commission for essentially a new trial, the Commission concluded that “as opposed to being more efficient, as Dillard's claims, under the current statutory scheme, the entire employer-in-house adjudicatory process may be mere prologue,” that is less efficient. 

Alluding to the constitutional analysis of delegation, the Commission concluded that the legislature, enacting the EIBA, “defined a qualified Plan in such a manner that the employer acts as the Legislator, by defining the ‘injuries’ for which benefits will be available.” The Commission compared this to allowing a particular group of “tortfeasor to define what constitutes a tort.” Finding no rational basis for this delegation of authority, the Commission concluded it was improper. 

Finally, the Commission turned to Section 6, of the Oklahoma Constitution, which says “the courts of the State are required to be open to every person for remedy of wrongs.” It concluded that the EIBA “create(s) a monetary barrier to access to the courts” and establishes “a system which creates absolute barriers to seek compensation, when the bodily harm at issue does not fall within the employer's chosen definition of injury.” 

The United States Constitution protects due process in the Fifth Amendment. However, the protection of the U.S. Constitution against state, as opposed to federal action, is in the Fourteenth Amendment, which coincidentally also protects the right of equal protection under the law. This congruence may render equal protection and due process inextricably intertwined in the event of state action.

Some may find the Commission's due process comments and conclusions unnecessary, noting the Commission’s statement at the outset that it would not address due process, instead disposing of the case on other grounds. Nonetheless, the Commission discussed issues that implicate due process analysis in its closing thoughts. It concluded that this definition of compensability creates the potential for disparity. As such, the employer’s exclusive remedy benefit is balanced against an uncertain benefit for injured workers, one which is subject to the employer’s definition and grace, delegated to it by the legislature. 

The one positive conclusion of the order for Dillard’s is in the final conclusion. There, the Commission states that Dillard’s shall be treated as if it had procured workers’ compensation coverage, as would be required had it not opted-out, and that its “liability is limited to that of an employer who had complied with the provisions of the Administrative Workers' Compensation Act.” Thus, despite its attempt through the EIBA to escape the AWCA, it ultimately remains essentially protected by the provisions of the AWCA.

With little doubt, this case will proceed next to the Oklahoma Supreme Court for further review. Few predict that this is the battle of Sailor’s Creek or Appomattox in the war of opt-out, or that the parties will anytime soon meet at Appomattox Courthouse to end hostilities. But, Friday’s decision may ultimately be viewed in retrospect as one of the significant battles of the war of opt-out, regardless of which side eventually prevails.

Update 02.29.16

Interesting reading here from Dean Duff in Wyoming, and Bob Wilson of Sarasota, and Thomas Robinson, The WorkComp Writer, and the original decision on WorkersCompensation.com. Last fall, Judge David Torrey published a paper on opt-out generally.

Thursday, February 25, 2016

Perceptions About Adjudication, ADR and Adjudicators

The National Center for State Courts (NCSC) recently published Survey Finds Longstanding Public Concerns About Court Fairness and Inefficiency

The results demonstrate some lack of public trust, at least perceived, in the operation of American adjudication systems. The survey was conducted last year by telephone, and is part of an annual effort of the NCSC in conjunction with a "strategic consulting team." The interpretation is that public concerns about inefficiency and unfairness in the courts are longstanding and real. 

The report references "persistent concerns" and a conclusion that "the courts are seen as a last resort rather than a preferred means of resolving disputes.” Despite that conclusion, the report notes that among the three branches of government, trust runs highest in the judicial. With the "approval ratings" we hear on the news regarding the President and Congress perhaps that trust conclusion is less than comforting. The NCSC reports that nonetheless there is a perception that politics has invaded the judicial branch and that it influences the manner in which cases and controversies are decided.

The NCSC says that three years of research has led it to conclude that the public harbors "persistent concerns about customer service, inefficiency, and bias" which "are undermining the public’s confidence in the courts and leading them to look for alternative means of resolving disputes." That is a fairly critical indictment. 

According to the survey, less than half of respondents believed that "judges in courts make decisions based on an objective review of the facts and law." An almost identical percentage instead believes that judges "make decisions based more on their own beliefs and political pressure. That statistic alone may be the most troubling of the study. 

The study is a somewhat enthusiastic endorsement of alternative dispute resolution (ADR) such as mediation; 55% of respondents agreed mediation and other ADR "are faster, cheaper and more responsive to the needs of the people." Enthusiasm for ADR is not a negative necessarily. ADR generally is a benefit to people, because it can be creative, personal and flexible. People with differences can be more creative in crafting an agreement than a judge or even jury may perhaps be in resolving the same dispute. 

The preference for mediation may be in part based on these ADR strengths, which could be the "more responsive to the needs of the people." But some might view it as unfortunate that part of the affinity for ADR comes from it being "faster" and "cheaper." Running an adjudication system, there is conflicting feedback. As many complain that adjudication is too fast as complain that it is too slow. I am not convinced that speed is a critical issue in Florida workers' compensation, where the vast majority of trials are conducted within 180 days of filing. 

At least in workers' compensation, the "cheaper" attributed to ADR may be a product of calculated decisions to minimize costs by foregoing functions like cross-examination. Few proceed to trial without deposing the experts involved (often doctors), and subjecting those conclusions of causation, compensability, and disability to cross-examination. But anecdotally, we see a reasonable number proceeding to mediation without that deposition. 

For the mediation, without the need of persuading a final decision-maker, medical records or reports are often seen as sufficient. These may be less final or definitive. I have many times in mediation heard "I know that record/report says __________, but wait until I get that doctor under cross-examination. There is no way that opinion will stand up." The deposition and cross-examination is seen as a cost that can be foregone until ADR fails, and then undertaken as a "must" if the case proceeds to trial. 

The mediation/trial comparison is somewhat like cards. At trial, all the cards in someone's hand have to be put on the table. The cards will be compared to the cards held by other players. The facts and figures become revealed and all are eventually known. At mediation, some cards may be shown, and others perhaps only alluded to. There is some level of conjecture about how things will come out in the end and so there is room for doubt, discussion and negotiation. It is these mutual feelings, interpretations, and frankly doubts that drive people to little compromises. And, if the parties make enough little individual compromises, viola resolution! 

Back to the NCSC study; the respondents opined that two-thirds believe that the poor receive unequal justice, while significant (percentages in parenthesis) number believe unequal justice is afforded by courts for African Americans (51%), divorced fathers (46%) and Hispanics (44%). These perceptions have to be considered in light of the expressions by people recently involved with court systems. Among these recently involved, 70% were "satisfied with the fairness of the process in . . .dealings with the court system." So, there are broad perceptions of inequality, but a great majority of those with recent involvement find the process fair. 

This incongruity may be because those who did not have "recent involvement" may be forming opinions that are based on pop-culture, television, short anecdotal news reports, or second-hand stories of friends, or friends of friends, or worse. This second-hand perception concept was illustrated in the 1986 classic Ferris Beuler's Day Off. As a teacher is attempting to ascertain why Ferris is absent, classmate Simone explains "my best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid who's going out with the girl who saw Ferris pass out at 31 Flavors last night. I guess it's pretty serious." Perceptions may be based upon hearsay upon hearsay upon hearsay. 

We all know the power of rumors. A poignant lyric from REO Speedwagon in their 1981 hit Take it on the Run also illustrates this. There the person "heard it from a friend who heard it from a friend who heard it from another you been messing around." But, they point out that "talk is cheap when the story is good" and the "tales grow taller on down the line." Perhaps the general public is picking up their perceptions of the legal system from a small sample of outcomes that are less than stellar? Perhaps those become "horror stories" that spread. Everyone loves a good horror story. Perhaps the success stories of the system lack the energy to spread "from a friend" to a friend. Perhaps those success stories just remain with the first-hand parties, those in the 70%? 

Overall though, the NCSC suggests that state court systems need to recognize the perceptions, regardless of cause, and consider changes in process and procedure. A resounding 60% of respondents believe that courts should "do a better job of adopting new technologies to break down barriers between the public and the courts."

The six page summary is here.

A presentation with full results is here.

Tuesday, February 23, 2016

Firefighters seek to change Cancer in Workers' Compensation in 2016

Firefighters have been very successful over the last forty years convincing legislators that the health risks they face are different from the health risks of others. In workers' compensation statutes, and sometimes in free-standing ancillary statutes, firefighters and other first-responders have recently enjoyed presumptions regarding heart disease and related maladies, often referred to as "heart-lung bills."

These are of interest to the system for a variety of reasons. Some argue that the relevance of such presumptions will decline as the prevalence of human emergency workers declines. Some think that the robotic future of tomorrow will greatly decrease the need for people to enter burning or otherwise unstable buildings. That "what about tomorrow?" is a different debate, however. 

According to NCCI, the idea of a heart-lung presumption arose in the 1970s. It notes that "many states" now have such presumptions. In an excellent analysis, Hon. David Torry of Pennsylvania outlines the existence of another presumption, the cancer presumption. This is a newer idea, which started in the 1980s in California, and it is gaining acceptance. According to Judge Torrey, 33 states now have such presumptions. 

At least five states are debating the compensability of firefighter cancer in some manner this spring. Several are focused on the cancer presumption specifically.

WSAZ TV reported this year that West Virginia is considering codifying such a presumption in 2016. It contends that firefighters are exposed to hazards that "can cause long-term problems like cancer." The station cites firefighters' complaint that "over the years the job has become more dangerous .. your furniture, plastics, different products being manufactured that increases the risk of different types of cancer causing agents," according to some interviewed.

The station reports that efforts in West Virginia have been ongoing for ten years regarding such a presumption. And, in the "last five years of their fight, the Centers for Disease Control has been doing research that shows lunch (sic: lung?) cancer and leukemia mortality risks were modestly increasing with firefighter exposures." There is no quantification provided as to what a "modest" increase would be. 

West Virginia is not alone. In February, WorkCompCentral reported that Georgia is working on House Bill 216. This would add Cancer, Hepatitis, and AIDS to a list of occupational diseases that are compensable, if the firefighter "passed a physical examination and completed at least three years of service." This appears to be less a presumption bill than a bill providing special dispensation for firefighters regarding proving that an "ordinary disease of life" is compensable for a special class of workers, firefighters. 

Florida is also considering a presumption during the 2016 legislative session. Committee Substitute (CS) for Senate Bill (SB) 456 would establish a presumption for certain firefighters (full-time) who suffer "multiple myloma, non-Hodgkins lymphoma, prostate cancer or testicular cancer." There are limitations, such as a five-year period of employment, and an absence of other employment in fields or occupations shown to be associated with higher risk of these conditions.

Florida House Bill (HB) 345 is noted by the legislature to be "similar" to SB 456. The language in that bill also appears limited to full-time firefighters, but seems broader regarding the disease. It provides "a condition or impairment" that is "caused by cancer" and results in "impairment or death" is presumed compensable. 

USA Today claims Florida Lags behind. This story claims that 34 states now have such laws. Noting that Florida law "presume firefighters' heart and lung diseases are caused by their profession," it says there is "none that assumes their job requirements can cause cancer." The paper reports on anecdotal instances of firefighters who have been diagnosed with cancer, and details their stories. 

The paper concludes that "studies on the connection between firefighting back up what Southwest Florida firefighters say is becoming more and more obvious: that fighting fires could easily mean fighting cancer at some point." No citations to such studies are provided, nor is there any discussion of whether science is unanimous in conclusions about firefighters and cancer. 

Florida's 2016 SB456 and HB345 are a topic of discussion this legislative session. The Florida League of Cities has issued an analysis of the effects it perceives if these bills are passed. It is fair to say that in Florida there is a lively debate as to whether such a presumption is appropriate, and if so what limitations or constraints would be appropriately included. Whether any version of a cancer presumption will pass in Florida this year remains to be seen. The legislative session ends March 11, 2016. So seventeen days remain including today. 

As with virtually all legislative actions, there is discussion of what costs would be associated with passage. There can be no debate of the existence of cost. Medical care is expensive in America; there is much debate regarding why, but it is expensive. When the human body suffers injury or illness, there are expenses in time and money. This is a virtual certainty. The debate is therefore not about whether there will be cost, but who will pay that cost. It may be taxpayers through workers' compensation or group health insurance; it may be the individual with the medical condition. 

Connecticut is also considering a presumption, according to the Meriden Record Journal. It contends that occupational diseases are not compensable in Connecticut generally, saying "due to the lack of a legal presumption in the state, volunteer or career firefighters temporarily or permanently disabled due to cancer aren’t entitled to workers’ compensation benefits." Whether the current effort in Connecticut is more like Georgia's compensability bill or Florida's presumption bills is not clear. 

According to KTVB, Idaho is also considering a presumption for "certain types of cancer." Firefighters there say "research has shown the cancers affect firefighters more because of their occupation." An interesting way to phrase the issue. It seems that cancer likely affects all humans similarly, but perhaps they mean that firefighters are more likely be diagnosed with cancers because of their occupation? The Idaho firefighters are described as being more optimistic of passage of a presumption this year. The article notes that some may be "concerned about the possible burden it would put on taxpayers."

The debate in most jurisdictions is not about whether particular diseases should be compensable, but about who has the burden of proof regarding the compensability. In most instances, American law puts the burden on the party seeking something. For example, in a criminal instance, the State has to prove guilt. An accused is "presumed innocent," an oft-mentioned maxim familiar from decades of American television. Presumed merely means that this condition or state remains true until proven otherwise. The accused is presumed innocent until proven guilty.

The firefighter presumption is similar. As the law exists generally, injuries and illnesses are essentially presumed to be unrelated to work, and the employee seeking benefits will have to prove the injury or illness is related to work. A presumption like those being discussed in Florida, Idaho and West Virginia merely changes this to presume a particular illness or injury is related to work, unless the employer proves that it is not. 

The concept of a presumption does not change the compensability of accidents or injuries. A presumption of compensability merely changes "who" must prove "what" in the process of a claim. 

So, it appears from this coverage that Connecticut does not provide for occupational diseases to be compensable. Thus, the legislation there to compensate occupational disease generally, along with the presumption discussed, is perhaps more similar to the current effort in Georgia, a broader effort than the presumption debate underway in Florida, Idaho, and West Virginia this year. 

All of these debates are interesting. Some question why firefighters, and not others who work in fields with similar risks, are the focus of such legislative efforts. I heard a speaker once describe a hypothetical fire scenario in which there was risk from electricity. She described that as the premises smoldered, after the fire was controlled, an electrician was tasked with various responsibilities in making the scene safe. She conjectured that the electrician and a firefighter next to her would each suffer similar exposures at that scene. She hypothesized that each of them might later suffer lung or heart damage or cancer at some point, and questioned why the law would treat that firefighter and electrician differently? 

Various legislatures have codified these distinctions across the country. Through their processes of hearings and testimony, studies and evidence, they have reached conclusions in a variety of legislative settings. For 2016, we watch and wait to see how Connecticut, Florida, Georgia, Idaho and West Virginia proceed.

Sunday, February 21, 2016

Are our Expectations Realistic?

I recently read an interesting blog post by David Zacharias. He is a physician, and his reference in the title to "Patch Adams" caught my eye. Almost 20 years ago Robin Williams played Patch Adams in a touching comedy. I don't know about you, but I miss Robin Williams. 

Dr. Zacharias describes a lecture during his medical school experience, in which Patch Adams presented "with long blue-and-white hair and handlebar mustache" dressed in "over-sized fish-print pants, a loose-fitting clown shirt, and a single earring fashioned out of a bent fork."

Dr. Adams was there to inform and educate. He provided background on medical professionals' efforts to bring care to the masses, with the accompaniment of humor and compassion. Dr. Zacharias describes that Patch left behind "starry-eyed, first-year medical students ready to change the world."

This is the backdrop against which Dr. Zacharias contrasts his perspective a few years later. He found himself "spending 'the best years of my life' striving to be productive in a giant money-making machine called U.S. health care." He lamented the existence and effect of "an impersonal system overcharge(ing) for services that ultimately make little difference, particularly for an aging population." His perspective may be familiar for some of the rest of us. Are we making a difference?

Dr. Zacharias describes an assignment in which he participated providing "anesthetic care for the surgical resection of a highly invasive tumor in a fragile, deaf, and demented woman who was 100 years old." He spent all day on this case. He found himself reflecting on "how a fraction of the tens of thousands of dollars that would be spent on her hospitalization could easily go towards giving her years of the best home health care money could buy." 

He says that care is provided to patients, motivated by incentives and practice foundations that are difficult to understand or explain. Doctors provide care to others that they would not accept for their personal treatment. Doctors go along with "commercialized medicine with little consideration for the collateral damage created." He claims that "the U.S. is a world-leading example of what low-value health care looks like."

Fortunately, Dr. Zacharias has something we all need from time to time. He has a mentor. He describes how he wrote a letter to Patch Adams, and shared his perceptions and doubts. His mentor responded and reinforced the potential for doing good in the world; he encouraged Dr. Zacharias to believe that change and real progress is possible. 

As Dr. Zacharias reviewed some books Patch provided, he concluded to disagree with the perception that "burnout is inherent in medical practice." He takes exception to the conclusion that “'progress' has become synonymous with 'advances in technology.'” He notes that "greed is one of society’s worst malignancies, and it appears to have metastasized to every corner of the earth." 

Instead, he advocates that a fundamental key is for doctors to be compassionate. He sees their role as providing comfort both in life to the extent possible and in death when that time is come. This he says is the key to fighting the "rise in physician burnout, depression, and suicidality." He laments that young doctors are disillusioned. I do not doubt his conclusion or his sincerity. I would point out, however, that this is not limited to doctors.

Dr. Zacharias laments that "young doctors are increasingly disappointed by their profession," but I would suggest that young people are increasingly disappointed in many chosen fields and professions. This is not a medicine crisis, or at least it is not only a medicine crisis. Dr. Zacharias found strength through his mentor's advice to change his career path and find a vocation in which he found fulfilment. 

That is the key, regardless of education, profession or vocation. We all work to earn a living. But more importantly, we work to bring value to time. Are we helping people, the community, the system? Or, are we cogs in a wheel that we do not appreciate, understand or believe in? Each of us must answer that. It is hard to find fulfillment in the life of a cog.

The key to our personal well-being is not in the perspective of others, but in our own appreciation of what we do and what we contribute. Feeling that we are making a difference is rewarding. I'm not saying I wouldn't like a new Ferrari, I'm just saying there are other things that can be more rewarding. If we focus our efforts on what is right and what serves, we should be able to find reward in that. 

Henry David Thoreau is said to have lamented "it is not enough to be busy. So are the ants. The question is what are we busy about?" Are we creating value, building, improving something, someone, somehow?

Dr. Zacharias "encourage(s) every one of us to discover for ourselves what that magic is" that provides us fulfillment and reward. I join that sentiment and appreciate Dr. Zacharias' perspective and thoughts. He and his blog post made me think. I hope I have done the same for you. 

Thanks for a Great Program!

The OJCC co-sponsored a free CLE/CEU program in Tallahassee last Friday. It was a huge success. The multi-purpose room at the First District was at capacity. We were welcomed by our gracious host, Chief Judge Roberts of the First District Court of Appeal, and by WCI Program Chair Steve Rissman. 

WCI Chair Jim McConnaughhay and DOAH Chief Judge Robert Cohen were there also, as was the DCA Clerk Jon Wheeler and DCA Marshal Daniel McCarthy. 

There was some disappointment that the Florida Supreme Court did not render a decision in any of the workers' compensation challenges on Thursday the 18th, That would have made the program a bit difficult though, and so perhaps we owe the Court a thanks for avoiding the day before our seminar. But, we are now all ready for decisions any time now. 

We had a claims adjusting panel with amazing credentials. They brought a wealth of experience and perspective. We had a judge's panel that brought practice and procedure to the fore. The workers' compensation unit of the First District provided advise on successful appellate preparation and participation. The highlight of the day was obviously the panel on Castellanos and the Constitution. The uncertainty of our future is influencing how cases are handled today. 

We owe a special gratitude and thanks to our Program Committee: Judges John Lazzara, Ralph Humphries, Robert Dietz and Wilbur Anderson. 

Thanks to our hosts the First District Court of Appeal, and Judge Roberts for delivering welcoming remarks about the program and the practice of workers' compensation. Thanks to WCI, and Program Chair Steve Rissman and General Chair Jim McConnaughhay for their participation. 

Thanks to our speakers, Steve Coonrod, Mary Cruickshank, Crystal Chancey, Corlis Hill, Kathleen Hudson, Mary Ingley, William Rogner, Todd Sanders, Sara Steele, Tod Stupski, Michael Winer; and Judges Wilbur Anderson, Robert Dietz, Renee Hill, Thomas Portuallo (ret.), Ray Holley, Ralph Humphries, Richard Irvin (ret.), Ellen Lorenzen, and Nolan Winn. 

And finally, thanks to Resource Managers Incorporated (RMI). Its team, Kathy Shelton, Stephanie Dotson, Cathy Bowman, Shirley Kendall, and Woody Douglas, made this program possible, from the registration, to the refreshments, to the CLE/CEU credit applications, to the sound/microphones in the room, the RMI team did it all for us as they always do!

We got some great suggestions for the 2017  seminar. Our program committee will be back at work on the next program soon. If you have suggestions, email me david.langham@doah.state.fl.us.

Saturday, February 20, 2016

Highlights from the 1972 Commision on Workers' Compensation

In 1970, Congress created the Occupational Safety and Health Act. This created the Occupational Safety and Health Administration, commonly known as OSHA. Much has changed in America in the last 46 years. Part of the Act created a special commission to study various perceptions and complaints regarding American state workers' compensation programs.

In 1972, the Commission issued its report, following a year of meetings across the country, and hundreds of individuals testifying. There were 15 appointed Commissioners, and then five more from the federal government. Some perceived the Commission as thus tilted towards the academic (3) and the federal government (5). Four state regulators were involved, as well as three medical professionals. Two insurance carriers and two employers. Organized labor was represented by the AFL-CIO.

Following the Commission's incredible efforts, travels, and schedule, the 1972 Commission Report was issued. The following material (in italics to denote that it is all direct quotation and not my writing) was included in the Report. Note that the term "workmen" is repeated often; that was the term-of-the-age 44 years ago. It is certainly not appropriate, though it was accepted then. However, I have elected not to make any editorial effort, but instead have quoted directly from the Report.

We recommend that workmen's compensation be compulsory rather than elective. (See R2.1)

We recommend that employers not be exempted from workmen's compensation because of the number of their employees. (See R2.2)

As of July 1, 1973, coverage should be extended to agricultural employees whose employer's annual payroll exceeds $1,000. By July 1, 1975, coverage should be extended to fam1workers on the same basis as all other employees. (See R2.4)

We recommend that by July 1, 1975, household workers and all casual workers be covered under workmen's compensation at least to the extent they are covered by Social Security. (See R2.5)

We recommend that workmen's compensation coverage be mandatory for all government employees. (See R2.6)

We recommend that the employee be given the choice of filing a claim for workmen's compensation in any State where he was hired, or where his employment was principally localized, or where he was injured. (See R2.1l)

We recommend that the "accident" requirement be dropped as a test for compensability. (See R2.l2)

We recommend that all States provide full coverage of work-related diseases. (See R2.13)

We recommend that the waiting period be no more than 3 days and that the retroactive period be no more than 14 days. (See R3.5)

We recommend progressive increases in the maximum weekly wage benefit, according to a time schedule stipulated in Chapter 3, so that by 1981 the maximum in each State would be at least 200 percent of the State's average weekly wage. (See R3.8 and R3.9)

We recommend that cash benefits for temporary total disability be at least two-thirds of the worker's gross weekly wage. The two-thirds formulation should be used only on a transitional basis until the State adopts a provision making payments at least 80 percent of the worker's spendable weekly earnings. (See R3.6 and R3.7)

We recommend that our permanent total benefit proposals be applicable only in those cases which meet the test of permanent total disability used in most States. (See R3.11)

We recommend that permanent total benefits be paid for the duration of the worker's disability without limitations as to dollar amount or time. (See R3.17)

We recommend that the Social Security benefits for permanent and total disability be reduced in the presence of workmen's compensation benefits. (See R3.18)

We recommend that death benefits be at least 66 2/3 percent of the worker's gross weekly wage. The two-thirds formulation should be used only on a transitional basis until the State adopts a provision making payments at least 80 percent of the spendable earnings of the worker. (See R3.20 and R3.21)

We recommend that the minimum weekly benefit for death cases be at least 50 percent of the average weekly wage in the State. (See R3.26)

In death cases, we recommend that the State's maximum weekly benefit be increased until, by 1981, the maximum represents 200 percent of the State's average weekly wage. (See R3.23 and R3.24)

We recommend that benefits in death cases be paid to a widow or widower for life or until remarriage, and in the event of remarriage we recommend that two years' benefits be paid in a lump sum to the widow or widower. We also recommend that benefits for a dependent child be continued until the child reaches 18, or beyond such age if actually dependent, or at least until age 25 if enrolled as a full-time student in any accredited educational institution. (See R3.25)

We recommend that workmen's compensation benefits be reduced by the amount of any payments received from Social Security by the deceased worker's family. (See R3.27)

We recommend that the worker be permitted the initial selection of his physician, either from among all licensed physicians in the State or from a panel of physicians selected or approved by the State's workmen's compensation agency. (See R4.1)

We recommend there be no statutory limits on the length of time or dollar amount for medical care or physical rehabilitation services for any work-related impairment. (See R4.2)

We recommend that each workmen's compensation agency establish a medical rehabilitation division, with authority to effectively supervise medical care and rehabilitation services. (See R4.5)

We recommend that the medical-rehabilitation division within each State's workmen's compensation agency be given the specific responsibility of assuring that every worker who could benefit from vocational rehabilitation services be offered those services. (See R4.7)

We recommend that States establish a second injury fund with a broad coverage of pre-existing impairments. We recommend that the second injury fund be financed by charges against all carriers, State funds, and self-insuring employers in proportion to the benefits paid by each, or by general revenue, or by both sources. We urge State workmen's compensation agencies to interpret eligibility for second-injury funds liberally in order to encourage employment of the physically handicapped and to publicize the programs to employers and employees. (See R4.10, R4.11, and R4.12)

We recommend that, subject to sound actuarial standards, the experience rating principle be extended to as many employers as practicable. (See R5.3)

We recommend that insurance carriers be required to provide loss prevention services and that the workmen's compensation agency carefully audit these services. State-operated workmen's compensation funds should provide similar accident prevention services under independent audit procedures where practicable. Self-insurers should likewise be subject to audit with respect to the adequacy of their safety programs. (See R5.2)

We recommend that attorneys' fees for all parties be reported for each case, and that the fees be regulated under the rulemaking authority of the workmen's compensation administrator. (See R6.15)

We recommend that each State utilize a workmen's compensation agency to fulfill the administrative obligations of a modern workmen's compensation program. (See R6.1)

We recommend that, insofar as practical, all employees of the agency be full-time with no outside employment, with salaries commensurate with this full-time status. (See R6.5)

We recommend that the time limit for initiating a claim be three years after the date the claimant knows, or by exercise of reasonable diligence should have known, of the existence of the impairment and its possible relationship to his employment, or within three years after the employee first experiences a loss of wages which the employee knows or, by exercise of reasonable diligence, should have known was because of the work-related impairment. If benefits have previously been provided, the claim period should begin on the date benefits were last furnished. (See R6.13)

We recommend that States be free to continue their present insurance arrangements or, if the States wish, to permit private insurance, self- insurance, and State funds where any of these types of insurance now are absent. (See R6.20)

We recommend that procedures be established in each State to provide benefits to employees whose benefits are endangered because of an insolvent carrier or employer, or because an employer fails to comply with the law mandating the purchase of workmen's compensation insurance. (See R6.21)

The Report notes some conclusions:

Several reasons for the indifferent response to previous reform proposals are evident. The lack of interest in or understanding of workmen's compensation by State legislators and the general public is attributable in part to the complexity of the program. Various interest groups, including employers, unions, attorneys, and insurance carriers, have often allowed their specialized concerns to stand in the way of general reform. And State legislators and officials, even when they have been genuinely interested in reform, have too often been dissuaded by the irrational fear that the resulting increase in costs would induce employers to transfer business to States with less generous benefits and lower costs.

Although our recommendations will increase the costs of workmen's compensation for most States and many employers, we agree that employers and the States have the resources to meet such costs. The States have the distinct advantage of having personnel and procedures in place: a Federal takeover would substantially disrupt established administrative arrangements.

Moreover, we have seen no evidence that Federal administrative procedures are superior to those of the States. We reject the suggestion that Federal administration be substituted for State programs at this time.

All Commissioners believe the virtues of a decentralized, State-administered workmen's compensation program can be enhanced by creative Federal assistance.

We believe that the threat of or, if necessary, the enactment of Federal mandates will remove from each State the main barrier to effective workmen's compensation reform: the fear that compensation costs may drive employers to move away to markets where protection for disabled workers is inadequate but less expensive.