Thursday, August 31, 2017

The Gracious Invitations

Everyone would appreciate a gracious judge, right? 

Years ago, I was contacted about a case in one of our Districts; it had taken many months to get to trial. The party calling me was upset, and review of the case docket supported that the delay had been significant. However, I found two documents on the docket in which each party's attorney had "waived" the time requirements in Section 440.25 Fla. Stat. In Florida, it is a statutory requirement that a petition for benefits be heard within 210 days, this trial had been delayed for years. 

The Florida First District Court has not been deferential to statutory deadlines in workers' compensation. It has held that the 210 days "is not 'inflexible nor inviolable.'” See, Rubio v. Gymboree Corp., 178 So.2d 81 (Fla. 1st DCA 2015). There have been many similar decisions over the years, with the Court concluding that various time deadlines in Florida workers' compensation are "directory, not mandatory," Brown v. Pumpian, 504 So.2d 481 (Fla. 1st DCA 1987). 

The Court has not been deferential to statutory constraints. Various court interpretations over the years have been perceived by some as frustrating the intent of the legislature, and by others as implementing it. These analyses make for great conversations and debates about statutory language and phraseology. Some argue that if the legislature meant those deadlines, then it would codify consequences for failure, that some penalty would signal its intent of mandatory rather than directory time lines. 

My discovery of the "waivers" in that case led me back to the complaining attorney with a question or two. First, why that attorney (and the opposing counsel) had filed a "waiver," and second why the attorney was now upset at the delay having effectively, previously, waived any objection to it. The attorney told me that "everyone" filed such waivers in their cases in that District, because they harbored a perception that not doing so would potentially be to their client's detriment. 

That confused me, and my questions continued. The attorney explained that in that district, whenever there was a motion hearing, status conference, or other interaction with the Judge's office (even a phone call to staff), part of that interaction would invariably return to a gracious inquiry from judge or staff something like "I notice that you have not filed your waiver of time limitations in this case." There was never an instruction or demand, just a gracious ("perhaps you forgot") inquiry as to the absence of that filing. And, there was some perception that today's needs (the motion, the request of staff) was more likely to bear fruit if a waiver were submitted or at least promised. 

Particularly when one is seeking assistance or relief (a favorable ruling on a motion, a new date for a hearing, etc.), one may feel it is important to ingratiate themselves to either judge or staff. The attorney's were being politely and graciously reminded, persistently, that this judge expected a "waiver" filed by every party in every case. While the reminders were seemingly polite and gracious, it is not appropriate to cajole someone into waiving their rights. 

This complaining attorney told me that s/he never felt "threatened" or necessarily believed that the case or motion outcome would be changed by declining to make that filing, but s/he consistently concluded "better safe than sorry" and filed the waiver in each case. After being repeatedly prompted by judge and staff on this "waiver" subject, she said filing them became an accepted habit in that district. S/he explained acceptance of the statutory intent of speedy adjudication was effectively frustrated in that District, and the perception was that this was both systematic and intended. 

As I investigated, discussing this phenomena with other area practitioners, I had another attorney tell me that filing a waiver of time limitations in her/his office, regarding cases in that district, had become an integrated portion of whatever other document the office first filed (notice of appearance, etc.). They filed "waiver" of statutory time limits in every case, because they were conditioned to by the prompting of the judge and staff. And, because they wanted the "gracious" reminders to cease. This particular attorney said that s/he felt the reminders were veiled threats.

I ran into the graciousness subject again a few years later. In this instance, an attorney was troubled that a judge had discontinued setting trials in a particular remote county (most of the Florida OJCC District Offices serve multiple counties, but there is only one District Office in each district). The attorney had become accustomed over many years to the judge periodically travelling to this remote county for trials. This attorney liked that remote trial process. 

The judge had then transitioned to setting all trials to occur in the District Office, regardless of the county of accident. The hearing notices included something to the effect of "if the parties object to the hearing site, and wish trial in the county of accident, this office should be notified immediately." The attorney that contacted me perceived this gracious invitation for objection to be "passive/aggressive" and threatening. S/he described a perception that such an objection might lead to the disfavor of the judge or even an unfavorable outcome. 

This attorney was upset about having to travel to the District Office, and wanted the judge to resume travelling. The attorney was not objecting, however, based upon perception or fear. I asked if anything this judge had ever done or said supported this fear, and the attorney somewhat sheepishly conceded the judge had not. So, I asked directly, why not object and request what you want (local hearing). The attorney said s/he would rather be "safe than sorry," and wanted to avoid any (even potential) conflict with the judge. 

The opposite complaint arose in another situation. Another attorney was frustrated that a hearing was proceeding in a remote county, where the accident occurred. The attorney explained that the attorneys, witnesses and parties in that case were all located in the city where the particular District Office was located. However, the Judge insisted the trial occur in the county where the accident occurred. Despite the parties' stipulated motion to have the trial at the District Office, the Judge insisted on everyone travelling. The attorney perceived this as ungracious. The Judge insisted it was consistent with the statute.

I have tried cases before a variety of judges in both workers' compensation and other civil proceedings. I have worked against a wide variety of attorneys, some more exceptional than others, each in their own way. The point is that people are individuals, and each may have her or his own perceptions of others and their actions. What one perceives as graciousness, others may perceive as a threat, implied or direct. One might ascribe ill-will to the issue of waivers, judicial travel, hearings in the county of accident, or more. 

That perception will be based upon what the listener hears, not so much upon what the speaker says. The judge may be intending sincere graciousness, and yet the attorney may hear threat or threatening. I have heard it in relation to out-of-district judges. One purportedly offered parties in a case an alternative to the VTC system, "everyone could come here instead" (the remote judge's office). I am sure that sounded gracious to the speaker (Judge), but it was not interpreted that way by the listeners.

It is critical for judges to understand this distinction, but it is as important for any authority. Supervisors, managers, partners, CEOs and more need to be conscious that what is heard may not be what was intended when words were spoken. What one intends as graciousness may not be interpreted or perceived as intended. When speaking, consider the effect on the listener. And, remember that if people wish to waive their rights, they well know how to do so, on their own, without being invited or promoted to do so. Such "gracious invitations" and reminders are simply too prone to misinterpretation and should be avoided.  

Tuesday, August 29, 2017

Picking Doctors

I ran into a lawyer recently at a Florida Worker's Compensation office. Our conversation turned to medical care within the Florida system. He described frustration, an issue of trust, and a system (Florida workers' compensation) where the employer carrier selects virtually all of the physicians.

His contention was that all doctors selected by employer carriers are committed to: (1) finding nothing wrong with the patient, (2) releasing the patient to return to work immediately, and (3) avoiding the performance of expensive medical care at the responsibility of the employer carrier. I was admittedly a bit surprised by the "all doctors" generalization. 

He argues that these doctors are not reluctant to identify some malady that requires treatment. He says that they recommend surgery and similar care, but they consistently conclude that the need for that surgery or other remedial care is the result of some pre-existing injury, or congenital abnormality. He summarizes that the patients need care, the doctors are eager to perform the care, but that they feel it is bad for their "medical business" to relate the need to the work injury. 

He named names freely, and indicated certain practice groups and facilities within his community at which he believes these outcomes are certainty, or near certainty. He spoke confidently from personal anecdotal experience, of these outcomes regarding the workers that he represents. It is impossible to independently discern either the prevalence of such physician conclusions or the sincerity. I do, however, think that the lawyer making these points was sincere in his perception.

As I reflected thereafter on his thoughts, I remembered years ago when Florida claimants had much more discretion in physician selection. There were complaints in those days of certain physicians being persistently inclined to finding a work-related malady or injury in every patient that was examined. One might see a similarity in those perceptions to the inverse perceptions of this attorney. 

In the 1980s and 1990s, Some in this industry perceived a population of Florida physicians consistently concluding that anything and everything wrong with the patient was the result of some work accident. Based thereon, observers perceived a trend toward expansive interpretations of fact and proliferation of expert conclusions of compensability, need for treatment, and disability/impairment related to a work injury.  Admittedly, time can round the edges on perceptions and recollections, but I do not recall those perceptions being generalized about "all doctors."

Is it possible that physicians could be partisan for either the injured worker or the defense? From what has been described to me, it seems probable that at least there is a perception of such partiality now in one direction, and perhaps there was a similar prior perception in another direction. I have not been provided evidence that supports predispositions or perspectives, but that does not change these perspectives and perceptions that have been expressed. 

If a patient does not have trust in a physician, that could affect the patient's decision-making. That may be as true for the employer/carrier's decision-making when it similarly lacks confidence in a medical provider. And, though we perceive medicine as science, there remains a great deal that we simply do not know about the human body, or the human condition for that matter. A great debate in modern workers' compensation revolves around the foundations of medical opinion, treatment guidelines, impairment ratings, Daubert, Frye, and more. 

There are a great many people who have a deep and philosophical interest in the law and this practice of workers' compensation. I have consistently been impressed with the willingness of so many to view issues in an objective, and reasonably dispassionate manner. I have had some incredibly rewarding academic conversations about capitalism, the law, and the various social or socialistic constructs like workers' compensation and social security that have become intertwined. 

Despite their ability to discuss issues academically and dispassionately, I also recognize that there are a fair few who have strong feelings, who have reached strong conclusions, and who are well-capable of being steadfast and unrelenting advocates for their chosen perspective. I respect that also, no matter which side they are on. One of the great proofs of professionalism is someone that can be conversational, courteous, and even critical, without making the discussion personal or insulting. 

The professional studies and interprets, agrees and disagrees, and supports her/his position. But, the professional does so while respecting, listening to, and being courteous to those with whom she/he may disagree. There is room in American society for such conversations and disagreements. 

As an aside, I recall watching one attorney try cases over the years. I could always tell when he was frustrated or angry, not because his tone or volume changed, but because he became increasingly formal and courteous with the witness that was frustrating him. His reaction was not anger, it was measured and increased courtesy. That was always impressive. If everyone reacted to frustration with more courtesy, what a world we would live in.

What is the ultimate goal of workers' compensation? That question will drive some debates (not a great opening line at most cocktail parties). Some contend that it is medical recovery. Others contend that it is compensation for disability. Still others argue that it is immunity for employers. And the point perhaps is that what is "the most critical" may depend upon the perspective from which the system is viewed. 

Are medical decisions being driven by the lure of future business in the current Florida model of "employer choice" as the lawyer recently described to me? If it is, would it be fair to suspect that the same motivation might have driven similar, if opposite, behavior when employee choice was more prevalent? Is there a methodology in which physician decisions, recommendations, and opinions would not be perceived with this skepticism and distrust? 

We may be well-served to ponder the potential that conclusions or opinions in this regard, and others, might be driven by individual personal perspectives. Is it possible to put those perspectives aside and have professional and courteous conversations and debates about these individual perspectives? Is it possible to find a process in which doubts are minimized and confidence is maximized for both employers and employees?

Perhaps it is true that there is no perfect model or method at our collective disposal, and therefore workers' compensation may arguably reach conclusions and outcomes based on legislative compromise, no matter how imperfect that may be. Perhaps, as some have suggested, legislative processes are doomed to cycles on various peripheries as there is action and reaction to the weaknesses inherent in any particular perspective or model, the so called "swinging pendulum" that does not rest in centrist equilibrium but instead remains in persistent motion. 

Academically, it is fascinating. Workers' compensation has consumed a great many of my hours, in contemplation, study and conversations like the one that led to this post. It is intriguing, complex, and sometimes frustrating. But, at the end of every analysis are two human beings. One is a human being that is experiencing dysfunction, and there is a corresponding human being(s) that employs that person. These two, the employee and employer, are the purpose of this system in which we labor. 

In the end, there is a great deal to think about in these debates. Perspectives will be different. Conclusions will be reached. Perhaps imperfection is the best we can achieve. As we discuss these questions and perspectives, hopefully everyone involved can listen courteously. 

Sunday, August 27, 2017

Stipulating Jurisdiction

I had an intriguing conversation recently about stipulations and litigation. The situation described to me involved attorneys that had both agreed with certain facts and conclusions. Based upon their agreement, a judge had made a ruling, and then the attorneys each filed an appeal of the decision, each faulting the judge for the result and each asserting that, despite their agreement or stipulation, the judge should not have ever considered the case. The appellate court agreed.  

This conversation revolved around the surprise and consternation at people being allowed to go back on their word, to change positions. This was challenging to some in the group, but lawyers know that there are issues as to which parties cannot stipulate. One example is jurisdiction or "authority." Lawyers know that tribunals either have jurisdiction of they do not. If they do not have authority, no amount of lawyer agreement or stipulation can give the tribunal authority. The catch-phrase is "you cannot create jurisdiction by stipulation." 

It reminded me of a comedy routine years ago in which the comedian described his wife tasking him with preparing breakfast for his children one Saturday morning. Tired, and harried, he had assembled the children in the kitchen and instigated a conversation about the morning's fare. As he proposed alternatives, one of the children noticed a large chocolate cake perched upon the refrigerator. 

That child, despite other alternatives offered, persisted in the suggestion that chocolate cake would be the best breakfast alternative. Predictably, perhaps, the other children joined the refrain. Everyone wanted chocolate cake. Everyone thought chocolate cake was appropriate. One even laid out a logical argument using the nutritious ingredients in chocolate cake, such as flour, eggs, and more. 

Dad was persuaded, retrieved the chocolate cake, cut each child a large portion, and breakfast was served. According to the comedian, this was met with universal praise and acceptance. There was even some degree of celebration, with one child even composing a chant, joined by the others: "dad is great, gave us the chocolate cake." The comedian reflected on the smiling, praise-chanting children and their pleasure at this outcome. 

Next, however, mom arrived to investigate the source of frivolity and joy. And, finding them eating cake for breakfast, she was not happy. When she asked what they were doing eating the cake for breakfast, the comedian described that the children "turned on" him, They pointed at their father and unanimously asserted that he had forced them to eat cake for breakfast despite their request for more traditional and nutritional breakfast food. 

The comedic effect of this routine is founded upon the change in positions. It is similar to the stipulation litigation that this recent conversation reminded. These individuals had sought the outcome (cake), agreed unanimously to the outcome, and sang the praises of the outcome while the cake was being consumed. But, they later lamented the outcome, denied the outcome, and placed blame for it squarely elsewhere, on the judge. 

Dad learned an important lesson from the cake breakfast. Just because everyone agrees at the time does not mean that they will not change their minds. 

In that regard, it is important for lawyers and judges to remember a couple of important points regarding jurisdiction or "authority." First, "a jurisdictional rule cannot be altered by the court or by agreement of the parties." That means that "the parties cannot stipulate to jurisdiction over the subject matter where none exists." Metellus v. State, 900 So.2d 491 (Fla. 2005). The authority to hear a case either exists or it does not. Lawyers can make arguments as to their beliefs or their client's positions as to jurisdiction, but ultimately the judge must decide if jurisdiction exists, based on the law, to hear the dispute. 

This arises in workers' compensation proceedings. Is there jurisdiction over the parties? Is the dispute about workers' compensation benefits or something else? Can a workers' compensation judge decide that non-workers' compensation "sick leave" was appropriately paid or should be refunded? Can a workers' compensation judge decide whether an offered return-to-work accommodation is or is not appropriate? 

There may be clear cut decisions, and there may be more subtle distinctions. They may challenge the parties and the judge. But in the end, it is the judge who must make the decision. And that cannot be based on whether chocolate cake is popular at that particular moment, but must be based instead on the law. 

Thursday, August 24, 2017

Notice is Notice

Workers' Compensation was recently interpreted by the North Dakota Supreme Court in Zerr v. North Dakota Workforce Safety and Ins., case No. 20160314. This blog has focused before on the concepts of "notice" and the "opportunity to be heard," each hallmarks of the constitutional protections of due process. 

In Zerr, the North Dakota Supreme Court was asked by an injured worker to intervene in his case, and to reverse a lower court decision that dismissed his lawsuit. The trial court had concluded that it lacked authority, or "jurisdiction," to hear the worker's claims. Jurisdiction may be conferred by statute, or may be part of a court's "inherent authority" as discussed recently in Conferring Jurisdiction. In this instance, the trial court concluded that it lacked jurisdiction under a statute, because the injured worker "
did not exhaust his statutory administrative remedies." 

The facts of the case are serious. Mr. Zerr was "
severely burned in an explosion and fire at an oil well." His workers' compensation claim was accepted and benefits were provided. Later, the employer/carrier sent him a notice to inform him that they would soon discontinue his workers' compensation; they alleged that Zerr "was noncompliant with vocational services." 

The workers' compensation community seems to love abbreviations for nearly everything. This Notice Of Intent to Discontinue is commonly referred to in North Dakota as a "NOID." Some readers will remember when "the Noid" was an advertising character for a pizza chain, and "avoid the Noid" as a recurrent slogan. That sentiment might be pertinent with the North Dakota NOID as well, something that should be avoided by injured workers when possible. 

That NOID was informational for the worker. It said his benefits would be discontinued, but "also provided specific steps for him to become compliant with vocational services."  A worker receiving a NOID would be informed that the intent could be challenged by writing "to his claims adjuster within thirty days." The failure to challenge the NOID, would result in the discontinuation becoming final. In short, the NOID is a warning of serious consequences, but provides substantive information on avoiding them. 

Mr. Zerr received the NOID, but "he alleged he did not immediately open the letter or otherwise respond until more than thirty days after." He later hired an attorney, who sent a letter explaining the workers' status. He described a diagnosis of "post traumatic stress disorder ("PTSD") and depression," and explained that the worker therefore avoided "opening his mail and communicating with others as it causes flashbacks of the explosion." More than likely, even without PTSD, most people would probably like to avoid being reminded of a traumatic event in their lives.

Based upon this explanation, Mr. Zerr asked that his case be reopened and that his benefits be reinstated. Alternatively, the attorney asked that the worker be granted a do-over, that is, would the carrier issue a new NOID and therefore restart the 30 day clock for Mr. Zerr to file an appeal?  These efforts or requests were in the workers' compensation adjudication process. The carrier declined to do either. It contended that upon the passage of 30 days, the discontinuation was final.

That led Mr. Zerr to sue the carrier in civil court. He alleged that his failure to respond to the NOID was "due to his mental condition" and that his behavior was thus "directly related to his work injuries." Mr. Zerr alleged that his workers' compensation benefits were "a property right protected by due process," and that his constitutional right to due process was violated by not allowing him "additional time" to appeal the NOID. 

The trial court dismissed the complaint. It concluded "as a matter of law" that appropriate notice (the NOID) had been provided and that Mr. Zerr's election not to open his mail or to respond was his own decision. By not timely challenging the NOID, Mr. Zerr had "not exhausted administrative remedies," and therefore could not proceed with a civil lawsuit. On appeal, Mr. Zerr contended that the trial court was wrong, that he did not have to respond to the NOID, and that his civil suit was meritorious both substantively and procedurally. 

The Supreme Court explained the obligation to pursue the administrative remedies (appeal the NOID), and the state's decisions in favor of that requirement. It explained the authority of the administrative agency to hear and determine such an appeal. And, the Court noted that state statute provides that "[t]here is no appeal from an organization decision not to reopen a claim after an order on the claim has become final."

The Court agreed that in North Dakota workers' compensation benefits are a "property right protected by the due process clauses of the federal and state constitutions." And, therefore process is due when those benefits are changed. But, the Court said the NOID was notice that satisfied this requirement. 

That is when Mr. Zerr's argument gets interesting. He contended that he did not receive "actual notice" until he elected to open the envelope and read the NOID. He contended that because of his medical condition, he had good reason not to read the NOID, and that his avoidance should excuse the deadline. But, in North Dakota, the phrase "actual notice" is defined by statute. The Court discussed the meaning, and concluded that delivery of the NOID was "actual notice," despite Mr. Zerr's decision to ignore it. 

The outcome is likely seen by some as unfair or unfortunate. The law, however, provides for deadlines, processes and procedures. When those are ignored, there can be significant and lasting effects. In this case, the injured workers' benefits ended. 

It is important to remember that there are both "benefits" and "burdens" for all involved in workers' compensation. The employer receives the "benefit" of exclusive remedy in exchange for the "burden" of providing workers' compensation benefits. The employee receives the "benefit" of rapid and predictable disability payments in exchange for the "burden" of giving up that right to sue the employer. These are but examples, and the system is replete with similarly corresponding (one side's burden is the other side's benefit) obligations. 

But, there are also procedures to be followed. When employer/carriers do not fulfill obligations or requirements, that can result in negative consequences. It is no different for the injured worker, whose behavior (not opening and reading mail) can likewise have consequences. The Zerr case is a reminder of the potential for effects from action or inaction, and is perhaps an important cautionary tale for anyone involved in a workers' compensation case. 

Reading the case reminded me of time I spent practicing medical malpractice ("MedMal"). In Florida MedMal, there is a statutory requirement for pre-suit notice. The statute specifically requires notice of an intent to sue, served by certified mail. The Florida Supreme Court was asked to interpret that statute in Patry v. Capps, 633 So.2d 9 (Fla. 1994). There, the plaintiff delivered the pre-suit notice by hand, and the doctor admitted receiving it. But, the doctor claimed it was not legally effective because the statute was not complied with. 

The Florida Supreme Court held that the hand-delivered notice was legally sufficient. It held that "strict compliance with the mode of service provided in the statute is in no way essential." In effect, it concluded that notice is notice, a result not dissimilar to the outcome in Zerr. Notice is notice. 

Wednesday, August 23, 2017

Responses to For Dignity and Respect

I have received some interesting responses to the blog post For Dignity and Respect. With permission of the writers, I am posting their thoughts here.

Response ONE:

I read your article and wanted to reply with my own personal experience and thoughts.

I was a new lawyer when I was scheduled for an early 9:00 am hearing in Miami. My wife and I were up all night dealing with a fussy two year old but I dutifully left the house at around 6:00 am to ensure I would be on time for the hearing. I arrived early for the hearing and began to put on my tie and jacket before heading upstairs to the ninth floor only to realize that I had forgotten my tie. I didn’t have time to buy one before the hearing so I proceeded upstairs sans tie figuring that as the hearing was only going to be about 5 minutes it would not be the end of the world. I was apparently wrong as the sitting JCC (who thankfully is no longer on the bench) delayed the hearing to spend 10 minutes dressing me down for my failure to appear wearing a tie. Certainly this JCC was a stickler for formality, including the requirement that attorneys stand at the podium when addressing the “court,” however I felt that this was entirely unnecessary. I will say however that I have since kept a tie stashed in my car for just such occasions.

I think we should all realize that we practice in Florida where summer temperatures and humidity making “formal” dress not only uncomfortable but also sweaty. What is the purpose of wearing a jacket in 100 degree temperatures other than impress upon others how uncomfortably we can dress? Similarly, why do we insist on placing a noose around our necks? Showing respect and dressing appropriately does not require any specific set of rules and should take into account the environment in which we live and practice.

At least one study has shown that a tight necktie causes increased intraocular pressure and could contribute to glaucoma. http://bjo.bmj.com/content/87/8/946.full

I would also point you to the Oregon State Bar Bulletin article “Reconsidering the Necktie” by Brian Williams.

And finally a more general op-ed in the Iowa State Daily

Here’s to hoping that one day we can all agree that the tie is an outdated fashion accessory and not some magical talisman which conveys and demands respect.  If the only reason that a party feels I respect them is because of some silk around my neck then I have failed in my ability to convey basic human decency and compassion with how I speak and act.

Keep up the good work on the blog.

Tuesday, August 22, 2017

For Dignity and Respect

I got an email last week from a judge. As with many I receive, it was broadcast to other recipients. And, thanks to the beloved "reply all" button, it became a conversation. The subject was essentially professionalism, a topic that is eagerly championed, little understood, and too often provided only lip-service. 

This conversation was about the manner in which some attorneys dress to appear for proceedings at the Office of Judges of Compensation Claims. The discussion was inspired by an attorney appearing for a hearing without a tie or socks. Wardrobe is not a new topic, but it has been suggested to me that there is value both in discussing new topics and in periodically returning to reiterate and reinforce topics that are important. 

In 2016, I wrote about judicial robes in Aspire to Apply the Law Fairly. That post revolved around the Florida Supreme Court's decision to regulate robe wearing, and the various justifications it cited. There are Judges of Compensation Claims that advocate robe-wearing, and others that decry it. For the administrative judges in the OJCC it has always been an option and never a requirement. Similarly, the Supreme Court rule does not mandate robes for constitutional judges, but restricts color and regalia of any robes that are worn. 

Aspire also briefly addressed the issue of attorney attire at proceedings. It noted 
we have seen attorneys appear in shorts and flip-flops sometimes (mediation). 
an attorney appear(ing) at a hearing in shorts and golf shoes. 
an attorney enter(ing) our office and ask(ing) the guard "which one of these people is my client?" 
For a great many, appearing for a hearing or trial without a tie or socks would be unthinkable. The thought would not occur. But, it is not necessarily new. I knew an attorney in the 1990s that regularly avoided socks, and only very rarely wore a tie. He was known for his style, with a fair few comparing him to Miami Vice character "Sonny" Crockett. This attorney was talked about and perhaps even ridiculed for the lack of formality, but not confronted. 

There was precedent for more casual attire. In the 1990s we had judges who rarely wore a tie or jacket. One of whom persistently sported boat shoes without socks. When this judge did wear a jacket and tie, it was the "same" blue blazer and regimental tie every time. Some workers' compensation judge's attire was the subject of conversations. There were those who expressed lack of respect for judge's appearance.

Conversely, I was honored to know an attorney named John Myrick whose wardrobe flair and panache was legend in the Florida Panhandle. He sported southern classics like seersucker and white bucks. I presided over several trials in which he appeared, a true southern gentleman. He was respectful of witnesses and parties, courteous to all, and an effective advocate as a result. He reminded me of the television character Ben Matlock (starring Andy Griffith). Mr. Myrick's pride in his appearance and preparation were obvious; his professional appearance and demeanor beyond reproach.

Is the manner of our dress critical to our professionalism? There are those who argue that it is. 

In 1989 Brendan Frazier starred in Blast from the Past. It was no blockbuster. I have spent many waking hours appreciating movies, but this one escaped my notice until decades later. It involves a young man raised in a fallout shelter (not a "bomb shelter," as Brendan's character Adam reminds), and emerging into Los Angeles at 35 years old. It is another take on Hollywood's recurring fish out of water trope. Adam emerges to confront our modern world with a not-so-modern personal perspective. The movie pokes some fun at Adam's 1960's values, as other characters, including love-interest Eve (Alicia Silverstone), express curiosity at Adam's thoughts, expressions, and behavior. 

In one scene, Eve discusses Adam with her housemate Troy, and is denying having fallen for Adam. She describes how she "does not fall in love" with men possessing certain attributes, one of which is "perfect manners." Troy's reply is a great quote: 
"I asked him about that. He said, good manners are just a way of showing other people we have respect for them. See, I didn't know that, I thought it was just a way of acting all superior."
That is a valid point. Maybe professionalism is all about showing people we have respect for them. What are our actions communicating to the others involved. When a lawyer appears in a Miami Vice outfit, there are those who will perceive it as being more appropriate for a night of disco-dancing than for a legal proceeding. Though some may perceive it as fashion or flair, others may simply perceive it as sloppy, lazy, or worse. 

Does that mean that attorneys must wear formal wear and judges robes and wigs? Definitely not. But appropriate attire should be the goal of everyone appearing for a proceeding. Lacking a fashion sense myself, I am ill equipped to make fashion statements. I do know the difference between clean and dirty, appropriate and inappropriate however. As I pondered this issue, I did some Googling. 

I quickly found an excellent article on professionalism published in 1987, which featured significant discussion of appropriate dress. Lynda K. Hopewell, Appropriate Attire and Conduct for an Attorney in the Court Room, JOURNAL OF THE LEGAL PROFESSION 12, 187-199 (1987). This article focuses significantly on a Florida case, Sandstorm v. State, 309 So.2d 17 (Fla. 4th DCA 1975), in which a judge and attorney disagreed upon the need for, and later definition of, a necktie. The judge's perspective prevailed. 

There is also an excellent Pocket Manual of Courtroom Etiquette published by Hon. William H. Burgess, III, of the Circuit Court in Clearwater, Florida. Both make excellent points about appropriate attire in legal proceedings. The Burgess work makes a number of other excellent points regarding trial practice and professionalism generally, and it well worth the time to read it. Judge Burgess even cites a specific example regarding a sockless Indiana attorney

I have not found that Florida has mandated a dress code. However, the Massachusetts Courts have published a detailed website addressing behavior in legal proceedings. As to attire, it recommends: 
"Dress appropriately. If you dress inappropriately, you may be asked to leave the courtroom. Appropriate attire, whether as a participant in a case, a witness, or an observer, shows respect for the judge who will be deciding the case. As a general rule, you should think of the courtroom as a formal environment. Dress as you would when going for an important job interview or to church."
It provides more specific advice also
Men: wear shoes with socks; long pants (on pants with belt loops, wear a belt); collared shirt (tucked in) preferably with a tie, with or without a jacket. 
Women: wear shoes; a dress, skirt (preferably no more than two inches above the knee) or long pants; a blouse, sweater or casual dress shirt. 
And, it provides a list of what not to wear: 
shorts, hats, halter or tube top, see-through top, flip flops, clothing that exposes your midriff or underwear, ripped or torn jeans, baggy pants that fall below your hips, clothing with an emblem or wording that promotes illegal or inappropriate activity, clothing that depicts or promotes violence, sex acts, illegal drug use or profanity.
There is merit in all of these suggestions. 

Some tribunals mandate a local dress code. Florida's Second Circuit has a dress code for jurors. The Federal Court in Ft. Myers has similarly published a broad parameter: 

When appearing in the courthouse, you must dress appropriately to preserve the dignity of the court. Business attire, such as suits and dresses, is not required; however, more informal attire, such as beach wear or shorts should not be worn. 

Notice that these, and many similar statements on the Internet, are directed at those who either participate in or just attend legal proceedings. They seem both to be appropriate, and well-intentioned (for the "dignity of the court" or as demonstration of "respect for the judge"). 

Some will find the suggestions unseemly. Why, for example, should men be told to wear socks, but not women? For that matter, why should women be permitted to wear a skirt, but not men? This is not facetious. I knew two young men in a high school debate club that became well known for competing in kilts. 

The gender issue is not new. It is reiterated in a recent protest of school dress code and the "off-the-shoulder" top, which made national news. After several girls were counseled or disciplined this year for such tops, several boys attended school similarly dressed, to "protest sexism against female students." They make several arguments, but one regards the difference between what is permissible there for men versus women. There are questions raised about the propriety of such distinctions. 

It is worth noting that respect is not always an objective process. None of us are "respected" or "disrespected," but instead we individually "feel" one or the other. In other words, respect or disrespect is not necessarily something that needs to be intended. In fact, one's actions or words may mean no disrespect, and yet be perceived as such. In that regard, there is perhaps a conflict between one's intended "expression" by wearing some outfit, and the "perception" by others of disrespect. One might intend a fashion statement by the absence of socks, and yet communicate instead a lack of respect. 

A wise judge once told me that the number one rule of trial practice is to attract attention for the right reasons. The explanation was that an attorney or witness wants the finder of fact (judge or jury) focused upon what is being said, what was felt, what is important. The worst thing, according to this judge, is to distract the finder of fact from what is important. While making a critical point, the speaker wants the judge or jury listening intently, not thinking instead "I wonder why he's not wearing socks," or "I wonder what that stain on her lapel is." 

There is currently no rule as to appropriate dress in Florida workers' compensation proceedings. Should there be? Should there need to be? Should there be a specific OJCC proceeding dress code, with specifics and a statement of purpose as published in Massachusetts? Or, should this system accept that people have different perceptions of fashion, and ignore the resulting feelings of disrespect and lacking professionalism? There is a third alternative, perhaps a rule that simply states that "professional attire is expected and required at all events in the OJCC offices." Such a rule might leave enforcement to the Judge's or mediator's discretion? 

Is it appropriate, as in the high school noted above, to simply send someone home who is not appropriately dressed? In a perfect world participants would perhaps dress appropriately out of respect for the judge, the mediator, their client, or the process. But, perhaps we have reached a point in time where such lofty aspiration cannot be reasonably expected or anticipated voluntarily any longer. Perhaps we have come to the time when decorum, respect and professionalism must be mandated and enforced?

This is a topic upon which I would like to hear from judges, mediators, attorneys, risk managers, adjusters, injured workers and more. What, if any, policy should this Agency have regarding appropriate dress? 

UPDATE - 082317 - Shortly after publishing this post, I received a response from an attorney. As it is possible others will respond, those are published here.

Sunday, August 20, 2017

Criticism of Enforcing Law

The nation's public radio, NPR, and ProPublica recently published a story critical of the application of Section 440.105 Fla. Stat. The almost 6,000 word story, They Got Hurt at Work. Then They Got Deported, does not cite this statute specifically, but makes references to it. The article is somewhat critical of Florida's Division of Investigative and Forensic Services for enforcing the state's law.

The focus of the story is "how insurance companies use a Florida law to get undocumented immigrants arrested and deported when they get injured on the job." And it alleges that one particular employee leasing organization, workers' compensation insurance carrier, and servicing agent essentially manipulate premium charges with expectation or anticipation of avoiding future claims, with knowledge that the workers hired are illegally in this country (referred to by the story as "unauthorized"). 

The story outlines the story of one man arrested for lying and providing the employer with a false Social Security number. Propublica/NPR characterizes Nixon Arias as "similar to many unauthorized immigrants." He had been in the U.S. for about 9 years, when he was injured in Alabama. For whatever reason, he was apparently provided Florida workers' compensation benefits, and struggled to recover. Eventually surgery was recommended. Then, according to Propublica/NPR, "the insurance company suddenly discovered that Arias had been using a deceased man’s Social Security number and rejected not only the surgery, but all of his past and future care." Arias later was "pulled over and arrested," and "charged with using a false Social Security number to get a job and to file for workers’ comp."

The relevant Florida Statutes might have included any of the following, though not cited specifically in the story:
Section 440.105(4)(b)1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.
Section 440.105(4)(b)2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
Section 440.105(4)(b)3. To prepare or cause to be prepared any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
Section 440.105(4)(b)9. To 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.
Mr. Arias was jailed for about 18 months and then deported. The story cites a similar Massachusetts story of a man falling from a ladder at work who "was detained by ICE" thereafter. Propublica/NPR notes that Florida's statute is unique, but that similar provisions have been advocated elsewhere by "insurers, hardline conservatives and some large employers" that have sought "for the past 15 years to deny injury benefits to unauthorized immigrants."

It is a crime in Florida to present false information either in "obtaining employment or filing or supporting a claim for workers' compensation benefits." The Propublica/NPR narrative does not seem to be about whether providing false information should be against the law, but about the impact of this law on those who are in the U.S. illegally, or are "unauthorized." 

Propublica/NPR makes a valid point that people injured on the job should have the safety net of workers' compensation. The system is designed for the mutual benefit of employers and employees. It is here to provide medical care and wage replacement to those employees and to provide civil remedy protections to employers. It is intended to provide both employees and employers with a more predictable and rapid system than tort law affords.

Every facet of workers' compensation is set forth in the various state statutes that create and define these systems, which are different in each of the states, despite some similarities and even some identical provisions. This is a point that variously draws admiration and criticism. There is no "American workers' compensation system," but at least 55 individual systems, each defined in its own law (including one in each state, the District of Columbia, Puerto Rico, Guam, the Federal workers' compensation system, Longshore and Harborworkers, and more)

The story concludes that "employment of unauthorized workers is a reality of the American economy." It states that "8 million immigrants work with false or no papers nationwide." Propublica/NPR says that these are "more likely to get hurt or killed on the job than other workers," but provides little explanation as to why. Possibly because of risks associated with certain regions, occupations, or tasks? 

But, since 2003, Propublica/NPR says that "insurers have avoided paying for injured immigrant workers’ lost wages and medical care by repeatedly turning them in to the state." This seems to be focused on Florida and to imply of frequent application of the law. 

How prevalent is this? Well,"NPR analyzed 14 years of state insurance fraud data and thousands of pages of court records." The result was about "800 cases statewide in which employees were arrested under the law." Of those, there were "at least 130 injured workers." And of the 800, "125 workers were arrested after a workplace injury prompted the state to check the personnel records of other employees." These number might support that the majority of arrests were not of injured workers.

So, 800 total cases, at least 130 injured workers, and at least 125 employed at a facility that was audited or investigated because of some co-worker's reported injury. 

A database report from the Florida Department of Financial Services generated figures for the period January 1, 2007 through December 31, 2017 (year to date). That is a period of about 11 recent years (acknowledging it to include several remaining months of 2017, possibly leading to an under-representation of actual figures for 2017), a shorter period than the 14 years studied by NPR. This report supports that 618,289 cases were reported to the Florida Division of Workers' Compensation during that time.

That results in an average (annualized) of about 60,000 per year. This does not include all Florida injuries (but "only those lost time workers' compensation records for which a DWC-1, First Report of Injury or Illness, and/or a DWC-13, Claim Cost Report, was reported to/recorded"). If the 800 cases found by NPR were evenly distributed over the 14 years studied, that amounts to about 57 cases per year. Stated differently, the cases found by NPR might be said to represent one tenth of one percent (.00095 - 57/60,000) of the lost time cases in Florida annually, and a smaller percentage of the total volume of injuries (which would also include medical only and first-aid cases).

The 130 injured workers NPR found over the studied 14 years (or the other 125 arrested after accident-induced investigations), would be about 9 per year, or about 2/100ths of one percent (.00015 = 130/60,000) of the lost time injuries. The volume of affected individuals is thus notably small. That said, each of the individuals mentioned are human beings, workers, and deserving of the benefits afforded by the social contract that is workers' compensation. Why? Because they were hired by the employers, worked for the employers, and were injured in that endeavor. That is the socialistic contract that is workers' compensation. The cost of such injury is appropriately born by the employer and its customers, not by the injured worker. 

The percentage that were deported as a result is even smaller. The Propublica/NPR headline is They Got Hurt, Then They Got Deported. Some might interpret that to mean work injury equals deportation. Propublica/NPR reports however only that "At least 1 in 4 of those arrested were subsequently detained by ICE or deported." That would be a total of perhaps 200 (a quarter of the 800 total cases found by Propublica/NPR) at least "detained." Because of the "or deported," some might infer that even less than 25% of the one tenth of one percent were deported. The statistics reported also substantiate that of the 800, only about 130 were injured. Some might argue that the suggested correlation between getting hurt and being deported may not be as absolute as the headline might insinuate.

Despite the Florida law being unique, Propublica/NPR rdescribes injured workers from Massachusetts, Pennsylvania, and Kansas who perceived mistreatment and/or deportation from involvement in workers' compensation accidents. 

ProPublica/NPR reports that a large portion (75%) of those who were arrested in Florida were reported by one private investigation firm in Central Florida. Half of those arrested in the last four years worked for the same employer, which is owned by the same person that owns both that employer's workers compensation insurance company and claims management company. The implication perhaps being that this particular combination of employer/carrier is more aggressive regarding these laws than perhaps others are?

Critics of the "no lying" law and of the outcomes it has produced complain that false social security numbers could be identified in the hiring process. They contend that hiring is the time to deal with the documentation issue, and seem to insinuate that the employers involved acquiesce in hiring and working those without solid documentation, and enjoy a benefit from their labor. Then, after there is a loss, the same employer escapes liability for the injury on a basis that could have been discovered earlier, could have precluded employment, and thus prevented the injury. Would it be better to more proactively investigate/research, and exclude those without appropriate documentation from the workforce?

There are likely various reasons for making misrepresentations when seeking a job. One quoted state official stated “there’s quite a lot of other circumstances why people use fake names and IDs and Social Security numbers aside from immigration." Examples offered included "people who might have other legal problems," and "people who are wanting to stay off the books for specific reasons," such as "divorces or liens put against them.” However, Propublica/NPR claims that it found only five instances of such "other reasons" in the 800 cases it identified. It quotes a state report that says “'nearly 100 percent' of the suspects investigated under the statute were undocumented workers."

And, is there injury to others? Propublica/NPR reports that "In one case, state investigators found that more than 100 workers were all using a Social Security number belonging to a 10-year-old girl." How will that girl be affected if she one day becomes employed in Florida, and suffers a work injury? Or, could the people using her Social Security number cause other damage to her by this use, or theft, of her identity? If someone uses your identity, is that "identity theft" or merely "unauthorized" use?

One of the workers quoted by Propublica/NPR concluded that she was unjustly treated. She complained of the "injustice (of) what happened to me,” which was “all because I fell, I slipped.” Some might contrarily argue that some portion of what happened to her was attributable instead to having either entered or remained in this country illegally, or to making false statements in the employment process. One attorney, quoted by Propublica/NPR said "even immigrants who are 'truly injured' should be denied benefits if they’re using illegal documents for their claim and 'they shouldn’t be here in the first place.'”

Propublica/NPR suggests that the Florida laws on false statements are efforts at controlling immigration, citing sources that perceive constitutional issues therefrom. There is discussion of Arizona v. United States, in which the United States Supreme Court struck various provisions of Arizona law by which local law officers were to enforce federal law. Propublica/NPR concedes that "unlike Arizona’s law, the (Florida) statute doesn’t mention immigrants specifically." However, it quotes an attorney that contends the results of the law, its impact, disparately affects illegal immigrants, which he says is "problematic" from a constitutionality standpoint. 

This is an enlightening piece from NPR/Propublica. There will perhaps be elements of the story that are troublesome to various perspectives. However, it is probable that the story will generate intelligent discussion and debate; some may perhaps question their perspectives as a result. Newsweek reports that deportations have dipped slightly in early 2017, arrests of illegal immigrants have increased. Whether deportation will be different in what Propublica/NPR refers to as "the age of Trump" or not, deportation appears a likely subject of debate and discussion in years to come. 

Thursday, August 17, 2017

A Recent "Real" Fraud Discussion

Workers' compensation is a topic that evokes strong emotions sometimes. Back in June, Joe Paduda penned a short piece on fraud that generated a fair amount of discussion, titled The Real Fraud in Workers' Comp. He contends that there is fraud in workers' compensation, but that it is not what many perhaps think about most readily. He asserts that this "real" fraud is too infrequently the focus of the media, and he encouraged "real journalists to concentrate a lot more on the real problem – employer fraud."

Despite that urging, he notes that the "real fraud" includes
(1) employers going without insurance coverage so workers and taxpayers foot the bill,(2) providers scamming the system to make millions, and(3) a relative few applicant attorneys and their schemes to defraud employers and taxpayers. 
These are all worthy of attention and examination. Following the Paduda post, WorkCompCentral responded editorially with Clickbait News is Still News. It seemingly took some issue with Mr. Paduda's "real journalists" characterization. It provided some recent examples of injured worker fraud stories in the news, and explained that "Readers love dumb crook stories."

At this stage in the discussion, there is perhaps too much focus on the "real." Back in 1982, there was a book challenging some perceptions of masculinity, titled Real Men Don't Eat Quiche. The emphasis on the "real," as in a man might eat baked egg casserole, but not a "real man." This was a "tongue-in-cheek examination of masculinity and the macho America of the 1980s, coming on heals of the Village People's Macho Man and other pop culture male references. It perhaps illustrated the literary use of "real" as some sort of contrary demeaning accolade (by complimenting one, perhaps all others are diminished).

WorkCompCentral also asserted "a larger purpose in telling these kind of stories," fraudulent employee stories that is. It says that such stories "provide real-life examples of how to successfully defend against a fraudulent claim," and this is information of value to those who manage employees and claims. It urges thorough investigation of claims and purports two benefits therefrom, (1) "to prevent future mishaps," and (2) "to make sure the claimant didn’t make it up."

To be fair to each, there is not "real conflict" between the Paduda point and the WorkCompCentral response. There is a seeming consensus that fraud is bad. On that point, you rarely hear any outright disagreement. But, it is not uncommon to hear excuses and minimization. I have often heard conversational disagreements regarding both the extent and nature of fraud, but they rarely make the point that something is not fraud.

Instead, when some action is described, a response is often to the effect of, "well sure, but that is not as bad as ___________." Sometimes, those conversations devolve into absurdity, like some comparing of scars as popularized by 1975's Jaws, or 1992's Lethal Weapon 3. Oh, you think that's fraud, let me tell you about this fraud. Oh, that's nothing, the real problem is this. Oh, sure that sounds horrible because of the dollar amount in one instance, but it is so rare. Oh, that fraud impacts so few. It would perhaps be humorous except that these discussions only distract from what should be the "real point," that fraud is illegal and it is unacceptable in any context or extent. 

Misclasification is a problem. It is not a new subject, and has been perpetrated for years. For the basics, read Misclassification, What is it? It presents challenges, which government regulators and legislators may struggle to address. It is perpetrated by often imaginative and creative individuals who are well aware of how to skirt the law and avoid detection and prosecution. 

There are service providers that are working the system. We know about a hospital scheme in California, We are well aware of medical care provider behavior that has propagated "pill mills" and even led to disability and death. And these topics are discussed at seminar after seminar, by panel after panel. Back in 1992 a billionaire named Ross Perot ran for U.S. President. One of his arguments regarded the national debt, and he said
The debt is like a crazy aunt we keep down in the basement. All the neighbors know she's there, but nobody wants to talk about her.
His point was his perception of a problem (debt) that was ignored, not discussed enough. One might argue that fraud is a similar issue today, a problem that everyone loves to talk about but about which no one wants to take any "real" steps. 

But, it makes sense to do something about it. The common theme in all of the fraud examples is harm. The harm is real, and damaging. 

The worker who is misclassified works under a cloud of risk. Some are injured, only to find that they have no coverage. Certainly, Obamacare has mandated that all Americans have health insurance and the government is empowered to assure that. However, CNBC reports that 13% of adult Americans nonetheless remain uninsured, about 33 million people. How are there uninsured when health insurances is "mandatory?" Perhaps someone will write and tell me what the "real" meaning of mandatory is? 

Someone who is injured, but who lacks workers' compensation and group health insurance is likely to be unable to afford medical care. Choices will be made, and ultimately someone will pay for that injury, in money or otherwise.

The worker that takes money from the system illegitimately creates cost and harms others. Resources are diverted from those in legitimate need. The system is burdened, costs are incurred, and resources are directed, as WorkCompCentral suggests, to the making "sure the claimant didn’t make it up" in all cases thereafter. Investigation costs money, and "real" investigation really costs money.

The doctor, hospital, or chiropractor that bills too much, or engages in kick backs, or over-prescribes dangerous drugs, are likely bad actors. The news alerts us to both their existence and reminds us of their impact. And yet, it seems the risks must be worth the money, or their behavior would stop. Maybe it is the money. Fee allowances that allow medical procedures in workers' compensation to cost double what is paid in other settings diverts resources, and could encourage bad behavior. 

The "real fraud" in workers' compensation is not any particular category, nor are those who write about any particular description "real" journalists or not based on their subject. Despite the best efforts of some to explain away or minimize or apologize various types or descriptions of fraud are mis-direction at best. The "real fraud" in workers' compensation is all of the fraud. It is high time to remember that criminal activity is criminal activity. Words should not be twisted to explain or excuse behavior that is criminal (George Carlin could have a hay-day with this topic of words). 

In our modern vernacular, we mix metaphors and sometimes confuse. But Huey Lewis and News reminded us way back in 1984, that "sometimes bad is bad." I would suggest that all fraud is bad, and all fraud is "real." There is no reason to hide any of it, ignore any of it, massage words about any of it, or excuse any of it. The only solution is to prosecute all of it, and to impose penalties that are sufficient to stop it. 

Perhaps jail time, long probation, exclusion from markets, repayments of what was taken or perhaps two or three times what was taken. Fraud is an intentional action. When one is convicted of it, the outcome should prevent both that person and others from travelling that path again.