Tuesday, February 27, 2018

Drafting and Error

I get the chance to review a few pleadings and filings. I am persistently struck by the language that is used in some documents, prepared by otherwise apparently competent and careful attorneys. But there are errors that slip through. Some are easy to spot and others are perhaps more esoteric. The following was copied from a pleading filed in 2017 in a Florida workers' compensation case. 

The timing is worth mentioning, 2017. The Florida Department of Labor and Employment Security (DLES) has not existed in almost 20 years. There was a time when the Office of Judges of Compensation Claims (OJCC) and the Division of Workers' Compensation (DWC) were each part of the DLES; the DWC performing the regulatory functions of Florida's system and the OJCC the adjudicatory functions. 

That changed in 2001 when DLES was abolished. DLES no longer exists. Since 2001, the regulatory part of Florida workers' compensation, the Division of Workers' Compensation, has been part of the Florida Department of Financial Services. And, for the same 16 plus years the OJCC has been part of the Division of Administrative Hearings. 

So, one wonders, why would an attorney prepare a pleading in 2017 that stipulates to the jurisdiction of "The Florida Department of Labor and Employment Security?"

A second error in this document is perhaps easier to spot, but perhaps we overlook it. There is a term recently coined for our ability to read words in which the letters are jumbled. It is referred to as typoglycemia, and has been the subject of many articles and posts. These suggest that your brain is able to skip over errors and rearrange letters. This allows you to read even when the letters are a jumble. 

Some have suggested that this innate brain activity is the reason that proof-reading can be such a challenge. The letters are transposed, the spelling is incorrect, but our brains just make sense of the word anyway and we skip over the mistake. Of course, spell check usually catches such errors, if it is used. 

But while that explains a misplaced letter, that does not explain "Juristuction." Before you waste time and go look that up, no it is not a word. It is the amalgamation that is typed into this recently filed pleading, but it is not a word. But, possibly, even though this misspelling is more than a jumble of the correct letters, perhaps our proof-reading brains might skip over it due to our typoglycemia?

In the space of a few short lines, two glaring errors. One is arguably simpler than the other. Spell check should alert us to JURISTUCTION. That all-caps is intentional. The thinking machines that we have contrived, including word processing programs like Microsoft Word, often ignore misspellings if the words are in ALL CAPS. This may be a default of the program, and one that the user can change. 

The user has to decide whether s/he wants to see the spell check stop on various all caps that are not misspellings but "acronyms and initialisms," which consumes proofing time. If one changes the word processor default regarding ALL CAPS, time will be spent on these. But, the alternative is to have Word continue to ignore ALL CAPS and to there by occasionally file something with an embarrassing misspelling like "juristuction." The user can choose. But the user that tells the machine not to help, is making a choice.

The DLES error cannot be blamed on spell check. This is more likely the result of our growing reliance on forms, and the ubiquitous "cut," "copy," and "paste" that make life so much simpler today (at our peril). We save documents, and when the time is right we lift that language and place it into a new document. We use this or that paragraph time and again, in document after document. And in doing so, we may refer to the Department of Labor and Employment Security 16 years after it ceased to exist.

Last year, I reviewed a motion filed in another case, which cited "Florida Rule of Workers' Compensation Procedure 4.045." This Blog has previously focused on procedural rules. The New Rules 2015 and Separation of Powers - An Interesting Analysis are two examples. But, since 2004, the "Florida Rule of Workers' Compensation Procedure" that were created by the Florida Supreme Court have not been in effect. The administrative rules, in Chapter 60Q, Florida Administrative Code, have been in effect for 13+ years. And yet, this attorney filed a 2017 motion referencing, relying upon, the former rules of yesteryear. 

What do the errors mean? It is possible that the errors demonstrate that someone simply does not care about their work. They may merely mean that someone is moving too fast in completing their daily tasks. They may indicate that although one cares a great deal about their work, she/he simply has more work than can be managed. Or, finally, it is possible that honest, simple, errors sometimes slip through despite our best efforts to review, proof read, and correct. 

The point is not that we all make mistakes (I know I do). The better point instead is that we need to remain vigilant for these errors and mistakes. We need to correct our forms and pay attention to changes in law and rules. And, maybe we all need to slow down, to remember that software is no more infallible than we are, and to simply continue to focus on doing our best? 

Sunday, February 25, 2018

Dead Men Tell no Tales

I recently wrote about California's reaction to issues involved with attorneys and clients in California on my Mind. California has legislated that attorneys must meet their clients. In a conversation with Californians last fall, they related their suspicion that some law firms there are using agents or investigators to respond to phone calls, visit, and sign-up potential clients. They believed that such contracts then lead to the filing of claims or complaints, which proceed in the California courts or administrative workers' compensation process. Some derisively refer to these agents as "cappers." 

In California, the injured worker cannot be a client until she or he "has met with or personally spoken with an attorney licensed by the State Bar of California who is regularly employed by the firm by which the employee will be represented, and has been advised of his or her rights . . . ." While the Californians I spoke to interpret that a requiring an in-person meeting, others suggest that "or personally spoken with" perhaps could be satisfied with a phone call? 

Within days of posting California on my Mind, I heard an advertisement locally for a law firm. This ad informed that clients are entitled to meet with their attorney, and alleged that potentially cases could be prepared or even settled without significant attorney involvement or interaction with the client. This ad suggested that people who had entered into settlements might consider contacting the advertising firm to discuss legal action to recover attorney fees previously paid by someone who was party to such a settlement. There was also an underlying tone of the ad that made me think it was suggesting such a party might have a claim for legal malpractice. 

That is an interesting proposition. Imagine attorneys seeking to recover collected attorney fees from other law firms. Imagine attorneys suing other attorneys for malpractice based upon how a case ended in settlement. Certainly, legal malpractice complaints are raised in a variety of contexts each year. The American Bar Association (ABA) in 2010 published results of two surveys regarding "most common" complaints that ended in malpractice claims. It includes both American and Canadian data. The results are interesting. For whatever reason, the ABA did not include "poor communication" in its analysis, but that accounted for eight percent of Canadian complaints. Perhaps if the attorney never meets with the client, that could be "poor communication?" 

The advertisement's reminder of attorneys, also reminded me of In Re 73 Engle-Related Cases, decided February 8, 2018 by Florida's First District Court in case number 1D16-2651. Engle was a case litigated in the Florida Supreme Court "almost ten years ago." That case had been a "class action" in which multiple plaintiffs were seeking recovery for damages related to use of tobacco. But, the Court "decertified" that case, which required those various plaintiffs to "file individual lawsuits within one year." 

Prior to that deadline, two law firms in Jacksonville, Florida "filed many Engle-derivative lawsuits," including the 73 cases involved in the In Re 73 Engle decision. These particular 73 lawsuits were identified, however, because they were "on behalf of persons who were already deceased." It is possible for the estate of someone to file a lawsuit, or for a survivor to file a lawsuit, but it is not possible for a deceased person to file a lawsuit (like the old saw "dead men tell no tales," similarly dead men cannot maintain lawsuits). And, the court noted, these "complaints falsely alleged that the plaintiffs were living." Before they filed, had the lawyers "met with or personally spoken with" the plaintiffs? 

The court explained that "most of these plaintiffs had been dead more than a decade." Having learned of that in 2015, the attorneys attempted in 2016 to "amend the pleadings to substitute the survivors and estates" as plaintiffs, "if any." In other words, the attorneys wanted to correct the fact that their clients were deceased, and instead substitute those people's estates or family members as the "named" plaintiffs in those cases. The trial court denied the requests and instead dismissed the cases with prejudice. The plaintiffs appealed. 

The appellate court explained "the lawsuits filed here were nullities because a dead person cannot file and maintain a lawsuit." To proceed, "a cause of action must be conducted by or opposed by a ‘person’ recognized under the laws of this state.” Only live people or existing entities such as a corporation or an estate can sue or be sued. As the named plaintiffs were deceased, "plaintiffs' counsel had no authority to file" these cases in the first instance. The court noted that perhaps the outcome would be different had the plaintiffs been alive when the cases were filed and had later passed. In that instance, the "personal representative," the estate, could then be substituted after the person passed. But that opportunity is a "reasonable opportunity," meaning it would need to be done in a timely manner. 

The court noted that "before filing suit, plaintiffs' counsel had ethical obligations to confirm the allegations it made and to receive authorization from clients to file the cases." Failing that obligation, counsel instead "alleged patently false things." And, therefore, the court affirmed the dismissal of the suits. The cases were not about workers' compensation. But, the lessons are as poignant there. There have been instances in which a workers' compensation petition was filed naming a deceased worker as "claimant." There have been instances in which a worker passed while litigating a workers' compensation claim and counsel did not amend to substitute a "personal representative" or someone entitled to statutory death benefits. 

There are several lessons in In Re Engle. Counsel should speak with their clients before filing claims, remain in contact with clients throughout litigation, and immediately file to substitute survivors or estate or both in the unfortunate situation where a client dies during litigation. Not doing so might be grounds for one of the various malpractice bases in the ABA poll. Failure could lead to dismissal as it did in In Re Engle, and thus no chance of recovery for those otherwise entitled (estate or survivors). The duty to communicate with the client, before and during the litigation cannot be stressed enough. And that means attorney communication, not agents or functionaries. Attorneys should communicate frequently and clearly with their clients.

Thursday, February 22, 2018

The Chair of Truth

I once met a judge who had a special chair. This "chair of truth" was imbued with special powers. The judge confided in me how helpful this chair was, and encouraged me as Deputy Chief Judge to procure a similar chair for every Florida Judge of Compensation Claims. I declined that shopping trip, and at the first opportunity I saw to it that this particular "chair of truth" was disposed of appropriately 

There are a variety of challenges presented by the role of Judge of Compensation Claims. Perhaps none is more frequent than the interpretation of scientific or medical evidence. Working with a variety of judges and administrators across the country, I have encountered several administrative law judges who felt they lacked competence to make decisions regarding entitlement to medical benefits. One once confided in me "I'm no medical doctor, doctors should make those decisions." 

Those judges fail to understand that the doctors render their opinions and recommendations. Their burden is to explain those conclusions, and their logic paths, to others (judges) who lack their scientific expertise. One does not need to be a doctor to make credibility decisions, to discern which expert recommendation or opinion comports with logic, is best explained, and is persuasive. These determinations are absolutely the role of the "finder of fact," the judge or jury. This is true in the tort process, and is consistently true in workers' compensation. 

Doctor's opinions are often unanimous or uncontradicted in a particular case. Science provides a process and testing provides foundations or support. But, often the question of whether a particular medical procedure is or is not appropriate comes down to the conflicting opinions of physicians. In those instances, the various experts explain their conclusions, their medical evidence, findings, and test results. And, the judge or jury finds one conclusion better supported, explained, and acceptable. 

That is the fallacy of "I'm no doctor." Opinions are expressed, foundations are explained and subjected to cross-examination, and someone has to decide which opinion, which doctor, is more credible. To some extent, these determinations often rely in part upon similar credibility determinations about any other, non-expert, witness. And, those credibility decisions may be dependent in part upon the credibility of the injured worker. The worker's complaints and symptoms are often part of the foundation upon which physician opinions are constructed. 

The Judge, in resolving conflicting testimony is not making a medical determination. The Judge neither has nor needs medical training. Certainly, some background in medical terminology may facilitate decision-making, but in the absence of it, a medical dictionary will more than suffice. The Judge is not making medical decisions, but merely credibility decisions. 

The Judge is merely choosing, as more credible, one expert's opinion over another. While this is primarily a medical opinion issue in workers' compensation, it can be as easily a decision as to which vocational expert is more credible, engineer, accident reconstruction expert, economist, and more. That a judge is not an expert in such field does not render the judge ill-equipped to render a decision. One need not be an expert in a particular field to decide which expert's testimony is more credible and believable. 

In Florida, the courts have concluded that "credibility issues are for the judge of compensation claims to resolve as the trier of fact." Judges are presented with opinions and conclusions, which they may accept or reject. And, "the judge of compensation claims is not required to accept an opinion not supported by the facts of record."  ABC Liquors, Inc. v. Acree, 695 So.2d 813 (Fla. 1st DCA 1997). So, this is not necessarily an issue of whether particular care is appropriate or not. 

It may instead be an issue of whether the expert has done a competent job of explaining her/his conclusions of the appropriateness of care. Opinions rest upon factual predicates. Thus, the credibility of the factual predicate (presented by an injured worker or other lay witness) and the credibility of the expert formulating opinions may each be critical to a decision. In fact, in Florida, this means that "lay testimony can prove dispositive on entitlement to medical benefits, in an appropriate case." State, Fla. Div. of Risk Management v. Martin, 690 So.2d 651 (Fla. 1st DCA 1997).

Because of this critical element of credibility, evidence can be developed and presented that may not directly bear on the sustantive issues in a case, but which does bear on credibility, of the worker, an employer, a doctor, or otherwise. Credibility, it seems, might be an issue in any case. Of course, the party seeking to introduce such evidence has the burden of demonstrating that relevance. 

The law has changed and evolved in Florida over the years. Court interpret statutes and Legislatures construe their interpretations in constructing new statutes. in 1980, the Florida Legislature changed the standards for medical proof, later explained in Frank's Fine Meats v. Sherman, 443 So.2d 1055 (Fla. 1st DCA 1984). The court there noted that previous versions of Florida's workers' compensation statute somewhat allowed judges to make medical decisions more broadly. The court noted that 
The deputy may consider not only lay testimony, but also his own personal view of the claimant as well. See, e.g., Square G. Construction Company v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982).
The deputy's observations of this distressed claimant, at the hearing, would be of considerable weight. Hillsborough Community College v. Miller, 440 So.2d 26 (Fla. 1st DCA 1983)
The Sherman court, interpreting the 1979 revisions to the Florida Workers' Compensation Law noted that "an accident occurring on or after August 1, 1979," were instead subject to the "very substantial changes to § 440.15(1)." Thus, the legislature altered the extent to which a Judge of Compensation Claims ("deputy")  could make and rely upon personal "observations" or "view" of the injured worker. 

And that returns me to the chair "of truth" that I encountered in 2006. A judge introduced me to an antiquated wooden chair, explaining that the antique chair was critical to decision-making. This chair, the judge assured me, had been the subject of discussion years prior between the judge and a local doctor. The doctor had confided in the judge, "off-the-record," that no person with a legitimate back injury could sit in that chair longer than 20 minutes without a break to stand and stretch. Thereafter, the judge had persistently arranged for injured workers alleging back complaints to be seated in just that chair. 

Thus was born the chair "of truth," and the judge confided in me that it had been most useful over the years in identifying injured workers who were exaggerating or fabricating complaints. There was no cross-examination of the doctor who had rendered such a broad conclusion about this chair. There had been no information provided to the injured workers who had sat in this chair over the years. But, I got the distinct impression that chair had nonetheless played a significant role in various lives.

Clearly, the judge's job is to determine credibility of witnesses. This includes workers, supervisors, coworkers, doctors, chiropractors, therapists, engineers, vocational experts, economists and more. In that role, the credibility may be judged by consistency or inconsistency, logic, thoroughness of explanation, and ability to withstand competent cross-examination. But, the judge is not a doctor or any of these other specialties. 

It seems incongruent and inappropriate for a judge to take some "off-the-record" supposition about a particular chair and apply that as fact in a variety of cases. In a more specific context, it seems inappropriate that any such measure or attribution of such a chair would reasonably be applicable to any and all back injuries. It seemed odd to me then, and remains inexplicable still. That is not to say that such a conclusion could not be true. That is to say that if sitting in that chair, by this worker, in this case, indicates a credibility issue. But, it seems that such a conclusion should be explained by an expert in this case, with this worker, and subject to cross-examination in this case. 

I doubt the chair "of truth," and suggest that decisions in workers' compensation cases should never be made based upon what a judge, or even "everyone," "knows." Decisions should be made in each case based upon the evidence that is adduced and presented in that particular case. It is the responsibility of the parties to bring that evidence, to cross-examine other evidence, and to advocate their outcome. It is the judge's responsibility to evaluate that evidence as presented, and to decide the claims and defenses based thereupon. 

Tuesday, February 20, 2018

Comparing Funding Processes

There are different ways to fund workers' compensation systems. This post compares North Carolina's model to Florida's. Depending on the funding model, adjustments might be necessary as inflation occurs. But, undoubtedly, adjustment is required in budget expenditure as inflation will undoubtedly affect the expenses of these systems. 

The Florida Office of Judges of Compensation Claims Annual Report 2017 ("AR") is now available on the Internet. It is a very comprehensive set of data regarding the performance of the OJCC. 

A critical conclusion of that report bears reiterating 
No other judge in Florida is more accountable than a Judge of Compensation Claims. No other judge in Florida is subject to the array of performance measures, such as those imposed by chapter 440, Florida Statutes.
And, the OJCC is funded 100% from non-tax revenue. The OJCC is funded by the assessments on insurance for workers' compensation. That was the subject of an earlier post Financing Work Comp Regulation. And this assessment model is fairly common in American workers' compensation. I was therefore a bit surprised by a recent notice regarding the method North Carolina uses to finance its workers' compensation system.

In North Carolina, there is a charge imposed to settle a case, to process a report of a mediator, or to intervene in a workers' compensation case. The provisions are in 04 NCAC 10E.0203 (North Carolina Administrative Code). The fees in place since 2015 are as follows:

Processing a compromise settlement agreement ($400)
(1) four hundred dollars ($400.00) for the processing of a compromise settlement agreement to be paid 50 percent by the employee and 50 percent by the employer(s) or the employer's carrier(s). The employer(s) or the employer's carrier(s) shall pay such fee in full when submitting the agreement to the Commission and, unless the parties agree otherwise, shall be entitled to a credit for the employee's 50 percent share of such fee against settlement proceeds; 
Notice that the default in this regulation is for the employer/carrier to pay this fee, but to collect half of that charge back from the injured worker. Of course, any right can be waived, so perhaps these charges are or are not regularly recouped from the worker? 

Processing a Report of Mediator
(2) two hundred dollars ($200.00) for the processing of a I.C. Form MSC5, Report of Mediator, to be paid 50 percent by the employee and 50 percent by the employer(s) or the employer's carrier(s). The employer(s) or the employer's carrier(s) shall pay such fee in full upon receipt of an invoice from the Commission and, unless the parties agree otherwise, shall be reimbursed for the employee's share of such fees when the case is concluded from any compensation that may be determined to be due to the employee. The employer(s) or the employer's carrier(s) may withhold funds from any award for this purpose; and
This is similarly paid by the employer/carrier, at the same time that the mediator is paid. The process suggests that mediation in North Carolina is primarily or wholly performed by private mediators rather than state employed mediators. This is supported by the Mediation section of the Industrial Commission's website, which provides a list of mediators that the Commission might "appoint" and also the names of others that "are not eligible for appointment," but which the parties might select. 

Processing an Intervenors Request that Claim be Assigned for Hearing (this appears to be a process by which a medical care provider can seek payment). 
(3) a fee equal to the filing fee required to file of a civil action in the Superior Court division of the General Court of Justice for the processing of a Form 33I Intervenor's Request that Claim be Assigned for Hearing, to be paid by the intervenor.
The Florida OJCC budget in 2016-17 was $17.4 million (AR page 21). That equates to about $244 for each of the 70,365 petitions filed in 2017 (AR page 11).

In Florida, there were 25,983 settlements in 2016-17 (AR page 21). If each of these had generated the $400.00 charged in North Carolina, that would have yielded $10,393,200. 

In Florida, there were 16,079 mediations held in 2016-17 (AR page 22). If each of these had generated the $200.00 charged in North Carolina, that would have yielded $3,215,800. 

According to the 2016 Florida Division of Workers' Compensation report of Results and Accomplishments (R&A)(the latest data available), 5,526 Petitions were submitted by medical care providers or facilities (2016 R&A, page 7). The charge in Florida for filing in the court of general jurisdiction (Florida Circuit Courts) is likely $400.00 (AR page 19). Thus, if each such petition filed with the Florida Division had yielded $400, that would have generated $2,210,400.

The total revenue from the fees charged in North Carolina, applied to Florida volumes, would total about $16 million, or not quite 91% of the Florida OJCC budget.  And, that does not account for the $29 million budget of the Florida Division of Workers' Compensation. 

What is intriguing is the structure. In most systems assessments fund the cost of regulatory agencies. (costs shared based upon market share). Thus, in those systems, one participant (employer or carrier) paying a percentage assessment might pay more than its share of the overall cost. However in the North Carolina model, the cost is not up-front but "pay as you go," with the employer/carrier paying their share based upon how much or how little they engage in certain behavior (settlement when chosen, mediation being mandatory when a claim is contested). 

WorkCompCentral reported recently that the Commission has proposed changes to its fee structure. This would increase the fee associated with a  compromise settlement agreement from $400.00 to $430.00, an increase of about 7.5%. This is logical in the framework of inflation and the changes in cost. As time passes, it is not uncommon for costs to increase, for rent, salaries, etc. In a model like Florida's, those increases in system cost are perhaps more readily accounted for because the same inflation affects the premiums upon which assessments are calculated. 

In a system like Florida, as general cost of living increases, it is likely that insurance premiums increase somewhat in parallel. Thus, there is no need to address the inflationary affect periodically as North Carolina, and any fee-based financing program would. The parallel structure of assessment would naturally account for those changes in many instances, though adjustments to the assessment rate might be warranted periodically. 

However, the Expense of operating this system does not have a parallel that provides adjustment without action. The budget of this Office is legislatively set. And, over time inflation can have significant effects. This was discussed in Judicial Pay several years ago. And, the inflation affect is being seen in other expense elements as well. The cost of real estate, and thus the 17 District Offices throughout Florida, is increasing. 

For the last ten years, the OJCC, and to some extent the landlords, has absorbed rent expense. Landlords were more flexible as the market sought tenants, but the recent indicators are that property markets are no longer soft. As a result, the real estate expenses of agencies like the OJCC will increase in coming years. Some of that will be apparent in the 2019 budget year, but the full impact will take years to become obvious as much of the increase will be noted only as long-term leases expire and require renewal negotiations or office relocation. 

The expense elements of operating this Office are significant. Though we strive to continue our accomplishments without significant budget increases, the inflationary affects on salary, real estate and other expenses will eventually necessitate increases in the Florida OJCC budget. Fortunately, the assessment system used to fund these expenses is already in place and is adjusting for inflation to accommodate those needed expenditures. 

Sunday, February 18, 2018

An Illustrative Story

An intriguing story ran this year in the Oklahoman, Father Blames Oklahoma Workers' Comp. The crux of the dispute is how workers' compensation benefits are delivered. The story begins with a 28 year-old from Slidell, Louisiana. Though many will perhaps not remember Slidell, they will have driven through it. It is a little town at the confluence of Interstates 10, 12, and 59. For us Floridians, it is where we make our hard left turn to the south when headed for the Big Easy.

This young lady, Victoria Chiri, went to work in 2016 at a girl scout camp in Oklahoma. She is skilled at horseback riding, and she was "equestrian director at Camp E-Ko-Wah." One morning, she fell from her horse and suffered a "burst compression fracture in her lower back." She was provided medical care, but has not returned to work in that capacity. She has been able to perform some work "as photography assistant for minimal wages," apparently "at her father's Louisiana newspaper." 

The Oklahoman article notes Ms. Chiri's complaints about the delivery of workers' compensation benefits. She characterized this as "slow and indifferent." Despite the "insurance-approved treatments, physical therapy and injections," she contends that she is not recovering appropriately. 

One of the most surprising allegations in the story is her contention that she is "forced to drive hundreds of miles from her Louisiana home to receive treatment." She implies (or alleges) that the Oklahoma workers' compensation system will not provide medical care in Louisiana. While Slidell may not be on the medical technology cutting edge (much of "small town America isn't), Big Easy visitors will remember that it is a short trip from there to New Orleans, and a great many exceptional specialists, clinics and hospitals. 

Another surprising contention is that Ms. Chiri has been making those trips to Oklahoma at her own expense. She contends that this is "costing her money she didn't have." Not every workers' compensation system provides transportation reimbursement to medical care appointments, but many do. Florida has provided such mileage reimbursement since the 1960s. The requirement was instituted by rule, and paid $.075 per mile back then. The Florida Supreme Court upheld that rule in Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla. 1964). Since then, the Florida per-mile allowance has of course increased and is currently $.445 per mile. 

Despite the article's contention, there is evidence that Oklahoma does in fact reimburse medical mileage. One law summary says that reimbursement is a benefit whenever travel exceeds 20 miles. The Oklahoma Commission also publishes notices regarding the reimbursement rate for mileage. Possibly the reimbursement is not provided out-of-state, or perhaps there has been a misunderstanding regarding medical mileage? The issue is notable however. According to Google Maps, the distance from Slidell to the Oklahoma state line is about 500 miles. The 2017 Oklahoma notice sets the reimbursement rate at $.535, which would purportedly reimburse over $500 for the 1,000 mile round-trip. Is Ms. Chiri not receiving mileage reimbursement because it is not due, or is there some hiccup in the process (such as how it is being requested)?

The article goes on to describe valuation of disability in Oklahoma, as well as settlement negotiations. Recent comparisons in the national media have illustrated that state workers' compensation benefit comparisons are both complex and potentially misleading. That is because some states compensate "wage earning," others "impairment," and others some combination of factors. Determining a fair method to compensate for permanent effects of work accidents has proven challenging. Whether the article's representations of either settlement or disability value are supportable or accurate is best left to those with specific Oklahoma expertise. However, it is an interesting read nonetheless. 

Ms Chiri's father is critical of the medical treatment she has received. He contends that she has not received "nearly enough treatment." He is critical of the workers' compensation system and perceives that it is not providing what his daughter needs, "action." He expresses a common sentiment for his daughter that she "be fixed and have her life back." The article expresses a theme I hear from many patient advocates, that provision of medical treatment is too slow in workers' compensation. Advocates often point to professional sports as a comparison, and the seemingly instant provision of care in the "sports medicine" paradigm. But, unfortunately, it is worth remembering that sometimes the human body cannot be "fixed" even with the best medical care. 

An Oklahoma attorney quoted in the story asserts that "Workers' compensation cases," are "rarely resolved quickly." He says that “if you get it done in a year, it's a miracle.” Ms. Chiri places the blame on the Girl Scout's "workers' compensation insurance." As with any example or anecdote, one might validly wonder whether the described delays are commonplace or isolated to this particular litigation. 

In one specific cited example, Ms. Chiri sought a medical procedure to alleviate symptoms. It would "sever nerves" in her spine. That procedure was later ordered by an Oklahoma judge, but the decision was appealed. It is likely that appeal remains pending at this time; appellate review can sometimes take longer than it requires to initially bring a case to trial. The argument against the procedure appears to be centered on the employer's perceptions that her recovery has been sufficient to accommodate a return to work. Ms. Chiri contests that perception, arguing she has since worked only in the shelter of her father's Louisiana business. 

Ms. Chiri's story is not uncommon in some respects. People get injured, unexpectedly, and often while doing something with which they have extensive experience or even expertise. There is no "accident exemption" for the experienced or even for the careful. Though some contend that accidents are more common among new hires or the inexperienced, accidents happen to everyone. 

It is also not uncommon for injured workers to migrate to family. Life is a complex series of commitments and challenges under the best of circumstances. And, when those are exacerbated by an injury, bodily dysfunction, and the commitments of therapy and recovery, it is not unheard of that workers seek to be in some supporting environment. Moving home to family is often that environment. But, that move home to family may distance a worker from the injury location and initial medical care providers. 

Ms. Chiri returned home to Slidell. Then, about a year after her fall, she "slipped into a deep depression," and "attempted suicide." She reportedly took "a combination of medications prescribed for her back injury," but was timely discovered and saved through medical intervention. That aspect of the story also bears some consideration. When people suffer major life events, some effects may be apparent (broken arm and cast; abrasion, scar) and others may be less readily discernible. 

Another interesting aspect of the story is health insurance. Ms. Chiri reportedly does not have health insurance. Time and again, I have recently been told that although Obamacare mandated health insurance, a significant population (millions of Americans) nonetheless did not have coverage. Until very recently, the federal government said that health insurance was mandatory. The story reports that Ms. Chiri's father also does not have health insurance. Certainly, if he had a policy it would not likely cover her as she is 28 years old, and the dependent inclusion of Obamacare ends at 26, according to healthcare.gov. But, how is it that "mandatory" did not mean what so many thought it meant (that everyone would have health insurance)? How is it that some people were fined for not having such coverage, but it appears others blithely ignored the requirement? 

During the recent National Conversation regarding workers' compensation, a great deal of time was spent discussing Maine's requirements for treatment. There, a health insurer cannot deny treatment because of allegations that injuries are related to work. In Maine, the group health carrier has to provide care under its contract (policy), and may later be reimbursed if the injury or illness is determined to be workers' compensation. That requirement exists elsewhere and has been discussed in still more states. Such a requirement might help some who struggle with delays in workers' compensation medical care, perhaps those involved in disputes regarding occupational causation.

Of course, such a requirement only benefits those with health insurance. And, according to the Centers for Disease Control, over 28 million Americans do not have health insurance, despite the "individual mandate" in place until recently. As an aside, what was done with the at least $10 billion in penalties from this 28 million people (minimum penalty $347.50 times 28 million). Of course, the Maine solution would not assist those like Ms. Chiri, or her father. But, it would perhaps help the (at least) 177 million Americans who do have such coverage? It is an idea that will perhaps be discussed further in other states. 

Ms. Chiri's is an informative story. It highlights that workers' compensation is defined by state laws, and various states may have similarities but also distinctions. It raises questions as to whether a program does not provide certain benefits, like medical mileage, or whether there are merely obstacles to obtaining them (informational or otherwise). There are questions of "medical necessity" and extent of recovery, as well as issues regarding the emotional impact of both physical injury and the process of recovery. And, it reminds us that accident can happen to anyone, even when they are skilled, experienced, and careful. 

In all, it is an illustrative story of workers' compensation. It is worth reminding everyone that it is only one side of that story, and it is always appropriate to listen to both sides before forming conclusions. But, it is worthy of consideration for the potential implications that it suggests and reminds about this system in which we strive.

Thursday, February 15, 2018

New Jersey Judges have Inherent Authority

Last October, Jon Gelman published a post about workers' compensation in New Jersey, The Inherent Judicial Power of Judges of Compensation. Jon is an attorney representing injured workers, but also a prolific writer, blogger and student of workers' compensation. I found this particular post intriguing because it suggests a significant procedural difference between Florida and New Jersey, and the role of trial Judges. 

In Conferring Jurisdiction, I described the lack of inherent authority vested in Florida Judges of Compensation Claims. Florida workers' compensation judges are not "courts" and are authorized only as state in statute. "Inherent" authority in Florida is power that exists merely because the office itself exists. The constitutional courts in Florida have inherent authority to act as courts act and to do what is necessary for a court to be a court, but workers' compensation judges do not. 

It was likely that the headline of Mr. Gelman's article, and the use of "inherent" therefore caught my attention. He explains that in New Jersey compensation judges have a wider discretion, a greater authority to act in adjudicating a case. 

In Elias v. Life Care Services, Docket No. A-4867-15T3 2017 WL 4530879 (Decided October 11, 2017), a worker suffered a back injury in 2010. Medical care was provided, and an impairment rating was assigned. For more on impairment ratings, see MMI and other Artificial and Arbitrary Distinctions. In 2012, the case settled, with compensation for the permanent impairment, and "functional loss." Ongoing back pain affected the employee's ability to work, and she later moved to reopen her claim. That is another distinction, in Florida "settlement" is apparently more final than in New Jersey.

In Elias, after a decompression and fusion surgery, testing established permanent lifting restrictions were appropriate. The physician, however, noted that the patient performed the functional evaluation "with significant submaximal effort." Another doctor concluded that the worker had decreased spinal range of motion, and a "material lessening" of the employee's "working ability." A third doctor concluded the fusion was not "complete" and disagreed that the employee had reached maximum medical improvement. A fundamental truth in workers' compensation is that doctors often disagree with one another. 

These various disagreements of opinion were presented to a New Jersey compensation judge. In most proceedings, the parties are obligated to gather, organize and present the evidence that either proves their respective allegations, or disprove the allegations of her/his opponent. I have many times heard judges lament perceptions of incomplete or even incompetent effort in that regard, leaving the judge to make the best decision possible from the presented evidence and its flaws or omissions. 

In Elias, the Court noted that the trial judge "was dissatisfied with the clarity of the medical evidence provided on the papers." The trial judge therefore "asked that Dr. Cohen be made available to testify via a telephonic conference." From the appellate opinion, it is not clear if some flaw was discerned in Dr. Cohen's conclusions, or if the judge sought further explanation, or answers to additional questions. However, Dr. Cohen did testify, and the employer did not object to his appearing as a witness pursuant to the judge's request. 

The trial judge then issued an order awarding workers' compensation benefits. In doing so, the judge rejected the opinion(s) that the employee had reached maximum medical improvement, and relied instead upon Dr. Cohen's testimony and conclusions. 

The employer appealed and argued that "it was improper" for the judge "to call Dr. Cohen sua sponte as a witness to help Elias bolster her case." The Court noted that conclusions of credibility of witnesses are a decision for the trial judge. This is because the trial judge is in a position "to observe and hear the witnesses and to evaluate their credibility, and to the judge's expertise in the field of workers' compensation."

As an interesting aside, the Court also reminded that "it must be kept in mind that judges of compensation are regarded as experts" in New Jersey. As an aside, there was a time when Florida workers' compensation judges were afforded such deference by the Florida Supreme Court. Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351 (Fla. 1987)("We are convinced that in the ordinary case, deputy commissioners, by reason of their experience, are well qualified to determine the reasonableness of attorney's fees without the opinion of an expert on the subject"). However, the Florida First District Court has more recently expressed its disagreement with that deference. 

The New Jersey appellate court concluded that the trial judge's conclusions "were legally sound and are amply supported by the record." Thus, the trial judge's decision was upheld. However, the Court wrote this opinion to "briefly comment on a few of the main points presented by" the employer. One of the more critical points being the trial judge's decision to call a witness, Dr. Cohen. 

The appellate court stressed that the judge decided to supplement the record by calling this witness. And, the employer "failed to object." The Court explained that appellate courts do not address issues that were not "raised below." In other words, the appellate court will not review an "error" unless there has been an objection at trial. An objection is made by a party, like the employer, to alert the trial judge to the reason the party feels some action (calling a witness) is improper or unduly prejudicial. Objections are critical to the record in any litigation. 

After such an objection, the trial judge may agree and therefore elect not to take that action or not allow some question, thus preventing the alleged "error." When a party does not object, and does not point out the prejudice or harm, the judge is not afforded this opportunity to eliminate or ameliorate that harm. The appellate court concluded that it should not review "error" that was not pointed out to the trial judge. This is a common sentiment among appellate courts. 

Thus, the Court clarified the election to call Dr. Cohen was not an error upon which it would reverse the trial judge. Having thus concluded not to reverse the trial judge, concluding that the issue was not properly "preserved," the Court then nonetheless volunteered how it would have decided that question if it had been properly raised. 

The Court said that "even if we did reach the issue," the Court would not reverse. The Court said that "the judge had clear authority and justification" to call the doctor to testify. The Court reminded that in New Jersey compensation judges have "inherent power" to "call and examine expert witnesses." The judge need only decide that such a witness, "in the judge's sound judgment," is "necessary for a proper determination of the case." (Citations omitted).

There is a final point in Elias that bears mentioning. Time and again, I have written about the value of precedent. In America, we collectively embrace the concept dubbed "stare decisis." See A Kentucky Constitutional Decision, Kentucky, Stare Decisis and Non Compliance Standards, and Stare Decisis, Livingood, Goodgame and Westphal. Suffice it to say I am a fan of stare decisis. In that regard it is always disappointing to see an appellate court publish an opinion with a warning like this one in Elias:
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the Internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
In other words, the Court says no transparency or predictability may come from this decision. Admittedly, the Court made no change to the law in Elias. The Court merely reiterated what other cases had held regarding inherent authority, calling of witnesses, and application of the New Jersey benefit statutes. 

However, if there was nothing in Elias worth preserving, explaining, for the benefit of other future litigants, judges and courts, then why take the time to write the opinion? The Court could more simply have merely "affirmed" the trial judge. And, conversely, if there is value in the Court writing this explanation opinion, then why not allow others to be educated and benefited by it? The existence of the opinion frankly seems contradictory to the instruction not to use it. 

Elias does have the benefit of highlighting the differences that state statutes create, specifically as to the inherent authority of workers' compensation judges. It is also a poignant reminder that litigants themselves must protect their record, and timely, competent, evidentiary objections are critical for that. Finally, it raises yet again the curiosity of courts limiting the application of their decisions by fiat. All are points worthy of discussion.

Tuesday, February 13, 2018

Recusal Lessons from Pennsylvania

The Commonwealth Court of Pennsylvania issued a December 13, 2017 opinion in Brinkley v. Workers' Compensation Appeal Board (US Airways, Inc.), Case No. 1182 C.D. 2016 (2017). 

The employer/carrier sought and obtained a judicial determination terminating compensation benefits. At trial, there was a disagreement between a treating physician and an independent medical examiner. The injured worker sought review by the Workers’ Compensation Appeal Board (Board), which affirmed the termination of benefits. 

Procedurally, there was a hearing. Thereafter, the two parties "submitted their respective briefs, proposed findings of fact, and proposed conclusions of law." There was some issue with receiving the employer/carrier's materials, and the workers' compensation judge's staff requested "a copy of Employer’s brief in Microsoft Word format." The WCJ never "requested a copy of Claimant’s brief in Microsoft Word format." The employer’s counsel "complied with the request by email (forwarding the Word document) but did not copy the email to Claimant’s counsel." 

At a later meeting between the two counsel, in an unrelated matter, the employer's "counsel mentioned that to claimant’s counsel." Claimant's counsel requested a copy of the email. The published opinion is somewhat unclear regarding whether the email was thereafter received by the claimant's counsel. However, it is clear Claimant's counsel received the brief in some manner, but was unable to open the document. 

Regardless, based upon the occurrence of the email communication communication between counsel and judge's office, the claimant "filed a motion for recusal, alleging that the judge violated the code of ethics" in the Workers’ Compensation Act (Act). The claimant alleged the judge "engaged in ex parte communications, improperly delayed issuing a decision, and at all times demonstrated an unfair bias in favor of Employer." 

The judge "held a brief hearing to consider Claimant’s recusal motion," and thereafter "issued an order denying" the motion. The conclusion was that "the contact with Employer’s counsel was clerical in nature and not ex parte, as it was not a communication “as to the merits of the case.” The judge "explained that Claimant was not asked for a copy of his brief" because the judge "was already in possession of Claimant’s brief."

The case proceeded to an intermediate appellate review by the Pennsylvania Board, which has been part of that state's system for its 100 year history. The Board decision is not available publicly, but it provides facts not found in the court opinion. According to the Board, there were two judicial contacts with defense counsel, (1) "office personnel contacted defense counsel" and later (2) the judge "left a voicemail message for defense counsel," all regarding the brief. The Board noted that on this foundation the motion for "recusal" was filed, but curiously, "no formal motion for recusal has been made a part of the record." It is critical for attorneys to strive for a complete record. It also noted that the employer had filed a "response to the recusal motion."

The Board noted the Claimant perceived bias in the judge's conclusion, denial of the recusal, and in closing the record without further opportunity for claimant to testify more regarding the merits of his claims. Claimant complained of "inordinate delay in . . issuing the final decision, and that the denial of benefits was "an act of retaliation for filing the motion for recusal."

Regarding the appeal of the recusal denial, the Court noted that the Act requires: 
the WCJ to avoid impropriety and the appearance thereof in all activities and to perform duties impartially and diligently, 
to avoid ex parte communications in a contested, on-the-record matter before the Department of Labor and Industry. 
The appeal in the Commonwealth Court addressed two points: (1) that the denial of benefits was in error (should have relied on the treating doctor), and (2) that the judge should have granted the "recusal" (technically, a motion for "disqualification," as "recusal" refers to a voluntary or sua sponte act of the judge). In Florida, this is specified in Rule of Judicial Administration, Rule 2.330 ("may move to disqualify . . . "). The discussion of the first point is interesting legally, particularly in the manner that recognition of "work-relatedness of an injury" can affect weight of evidence in Pennsylvania. 

The second point, however, is more interesting. The Court disagreed with claimant and concluded that the denial of recusal or disqualification was not error. The Court reiterated the Board's conclusion that a judge "is presumed capable of recognizing in herself the symptoms of bias and prejudice." That presumption, in Pennsylvania, is overcome "on the record." 

There was also the allegation that the WCJ demonstrated unfairness to him throughout the proceedings." As to this, the court noted that "an adverse ruling does not, by itself, indicate partiality." While there may nonetheless be allegations of bias, if “there is no support in the record," then those allegations are "insufficient to rebut the presumption." 

Addressing the voice mail left for defense counsel, the court, the court concluded that "the WCJ’s voicemail message to employer" and the resulting "employer’s responsive email" did not establish "a relationship between the" judge and counsel.

The delay in ruling is an interesting allegation. The hearing was in March 2012. After the hearing, "claimant's medical deposition" and an IME were to be concluded within 135 days. Another hearing was held July 17, 2012 (121 days later) and the judge "expected the evidentiary record to close" in 90 days. Another hearing was held April 23, 2013 (280 days after the 07/17/12 hearing), at which time claimant's counsel did not submit "a medical deposition," but requested another hearing. Instead, the judge closed the record and afforded the parties time to submit briefs (claimant given 45 days and defense 30 days thereafter; 75 days expired July 7, 2013).

Then, apparently, a year passed. The recusal motion was filed on August 27, 2014, and the hearing was held September 19, 2014. The recusal motion was denied, and the claimant asked the Board to review that decision before any further determinations in the case, called an "interlocutory" appeal. The Board denied that 6 months later on May 15, 2015. According to the court, the judge issued her final decision on September 4, 2015 (112 days after the Board decision not to review the denial of recusal). The Board issued its order affirming the judge's final decision on June 24, 2016 (294 days after the judge's decision). The court's decisions was issued December 13, 2017 (537 days after the Board decision). 

The claim was filed January 9, 2012 and the litigation concludes December 13, 2017, 2,165 days from start to finish. That is a long time for finality, for either party. The description provided by the Court and the Board seem to illustrate various opportunities to have shortened that timeline, such as (1) submitting evidence when ordered, (2) electing to seek interlocutory review, (3) allowing submission of briefs in lieu of a closing argument, (4) the year between closure of the record and the recusal motion. There are possibly others, but these bear mention. 

In Florida, it is incumbent upon the trial judge to act upon a motion for disqualification "before making any other rulings in the case." Loevinger v. Northrup, 624 So.2d 374 (Fla. 1st DCA 1993). The motion must be ruled upon within 30 days. If not ruled upon within that time, then the "motion shall be deemed granted," and the moving party may seek reassignment. Fla.R.Jud.Admin. 2.330(j). Those rules require that the factual allegations in a motion for disqualification be accepted as true. 

There is no prohibition on holding a hearing regarding a motion for disqualification, but conventional wisdom in Florida recommends against it. See, Davidson, Disqualification and Disclosure, Florida Judicial College. Judge Davidson cites various instances in which a hearing created an adversarial environment, in which the moving party and the judge were on opposite sides of an issue (the judge remaining or departing). That adversarial environment itself, even if the stated reasons for disqualification are inadequate or the motion is untimely, can itself be the basis for disqualification. Judge Davidson contends that if any hearing is held, the discussion should be solely about whether "the stated grounds are legally sufficient." There should be no foray into whether such grounds are or are not true. 

The Pennsylvania case provides a chance to reflect on process and procedure in the broadest sense. Should cases proceed to conclusion in the most expeditious manner that affords appropriate due process? When a case requires thousands of days to reach finality, who is served by that? As much as everyone should be concerned with ex parte communication and the potential for an appearance of impropriety, have we reached a point where telephone messages cannot be left, where missing documents cannot be obtained informally? Would the better course have been for the judge to enter an order compelling the filing of the Word document? Might the challenge have come out differently had the motion for recusal been made a part of the record, available for appellate review? These are all points to ponder.

Sunday, February 11, 2018

A Modern Dilemma of Productivity and Supervision

One of the great debates of the technology age is telecommuting. It has its advocates and its detractors, success stories and anecdotal examples that may discourage the practice. Last summer, NBC reported that "big" companies "such as Yahoo, Bank of America, Aetna, and IBM" had recently curtailed or eliminated "telecommuting programs." There are those who believe such programs increase productivity, but corporate America seems inclined to maintain a "drive to work" paradigm. 

There is data that supports the prevalence is decreasing. Bureau of Labor Statistics figures were cited, demonstrating a decrease in "the number of U.S. workers who worked partially or fully from home." However, contradictory data is also cited, with a worker survey reporting more workers' claiming to be "working remotely." And, there are studies cited regarding the preferences and motivations of the millennial generation, particularly as regards schedule flexibility. 

NBC concludes that the data is not really contradictory, except in perspective. The perceptions of employees, that they are working remotely, may not represent people that necessarily work remotely instead of commuting, but instead that work remotely in addition to commuting. This remote work is perhaps more of the traditional taking of work home at night or weekends, a supplement rather than substitute for other efforts. 

Managers are cited regarding complaints with telecommuting. There are perceptions that some workers are not as productive or as disciplined with their use of time when telecommuting. One quoted by NBC noted a company eliminated the practice. Reasons cited included "immaturity of certain staff members," some employee's "lack of desire/ability to focus on work while out of the office." This manager noted "the things people did on their ‘free’ time astounded me.” 

Coincidentally, also in July, a Forbes writer wrote to advocate for telecommuting, calling it "the future of work." Forbes contends that telecommuting is not just "another annoying millennial trait," but is a "complete design in how we approach the way we work." Forbes says there are many benefits, including better productivity, cost savings, diminished environmental impact, increased employee morale, and employee retention. 

I have seen several people thrive and produce working exclusively or primarily in their own home. It is certainly possible. The issues cited by NBC may be persuasive with certain employees. The benefits cited by Forbes might be persuasive with certain employers. The issue seems anything but unequivocal and simple. 

These issues and various discussions of the topic returned to the fore with a recent news story from Australia. Yahoo News reports that an electrician there was accused of performing his assigned work, and eventually lost his job. The employee was apparently given work assignments, which were to be performed off-premises. He was provided a "personal digital assistant," which Yahoo described as "a phone-like device that has a GPS inside." That device would provide the employer with updates on where the employee was. 

But, this employee was familiar with the work of Faraday almost two centuries ago. Faraday constructed metal cages, which protected the occupant from electricity and electromagnetic fields. These have been demonstrated in various Hollywood productions, such as Disney's 2010 Sorcerer's Apprentice. Coincidentally, the Faraday cage has been discussed recently as protection from electromagnetic pulse, a possible effect of North Korea's nuclear aspirations, and was highlighted among a variety of products for protecting electronic devices. 

Courtesy Disney, 2010

The Australian electrician understood Faraday's work. He defeated the GPS function of the "personal digital assistant" by putting the device inside "an empty foil packet of Twisties, a puffy cheese-based snack that is popular in Australia." Sounds a bit like "Cheetos" perhaps. The electrician was fired after the employer found that he had evaded their monitoring with his makeshift Faraday cage, and was thereby able to play golf during work hours" occasionally, "at least 140 times over the last two years." The evidence included both documents from the golf club, and some customer security evidence that supported the electrician had not visited as he asserted. One very interesting point here, it required this employer two years to notice. 

The employee was terminated, and an appeal of that was heard by the "Australia Fair Work Commission." The Commission concluded that the "Twisties" packaging was "deliberately used" to defeat the GPS function, and the termination was upheld. One Commissioner noted, that there was "no plausible explanation why" the electrician would put the device in a foil Twisties bag "except to obstruct the GPS collecting capacity of the device." 

An expert quoted in the article noted that any "metallic" covering "could work to create a Faraday cage." He suggested "a birdcage," and even an airplane" could act to defeat the energy and thus frustrate the employer's monitoring. I have seen a few individuals with cell phones wrapped in foil. That practice has always amused me. Perhaps those who employ it are supposed to be elsewhere? 

This example in the news reiterated a concern regarding remote employees, whether telecommuting or performing off-site customer service. How can managers effectively monitor work, attendance, etc. And, back to the two years it required to catch this electrician, how did no one notice that the repairs or installations he was sent to perform were not completed? Or, is it possible that he did complete them, but in less time than either he represented or the employer perceived? It is also possible that the work assignments were completed by co-workers who believed they were supplementing his efforts when instead they might have been substituting for his efforts? 

This example is also somewhat contrary to some assertions of the manager cited by NBC. That referenced "maturity" as both NBC and Forbes cited the millennial generation and its desires and motivations. But, the fraud Australian employee with the Twisties Faraday cage was 60 years old (a "boomer"). It is certainly possible to be an immature 60 year old, but that does not seem to be the suspected demographic that either NBC or Forbes was addressing. Perhaps there is potential for fraud and misfeasance at any age? 

It seems likely that telecommuting is part of our new reality. There are undeniable benefits to employers. But, it is equally clear that there are challenges, and more effort will be devoted to effectively monitoring production, output, and function when telecommuting or working remotely. There will likely be innovation and adjustment for appropriate measures of work or value. This evolution will struggle to minimize the potential and real downsides, while maximizing the potential benefits to both employer and employee.

Thursday, February 8, 2018

WCRI 34th Annual Conference - March 2018

The world is changing around us. I had an opportunity to deliver a lecture to college students recently, and we veered from "what is so" into the "what could be." I cannot see the future of course, but I have spent a fair number of hours studying the past. The reality is that markets and occupations will be disrupted by technology and change. And, while we have all experienced this over recent decades, the pace of change in increasing. So, the main points I made with the students were:

Change will happen. 
You cannot prevent change 
Change will affect you 
Successful people will accept and adapt 
The most successful people will leverage change 

I remain unconvinced that there was unanimous acceptance of these points. There were those whose faces seemed to read incredulity and doubt. Some are counting on graduating from college and entering careers that will provide them 40 years of sustenance and a comfortable retirement. They have seen that path traveled by their older family members, and they seemingly cannot doubt they will travel a similar trajectory. It is entirely possible that they are right and I am wrong; it is at least worthy of discussion. 

In March, the Workers' Compensation Research Institute (WCRI) will produce its 34th Annual Issues and Research Conference in Boston, Massachusetts. The last time I attended, the town was covered with snow and some sidewalks were impassable as they strove to pile and store it. I am hopeful that 2018 will offer a warmer, more welcoming climate. I will speak on a panel this year, titled "The World of Work is Changing - Fast. Are you Prepared?" It will be Friday, March 23, 2018 at 11:05, and will be the climactic conclusion to the two-day event. 

There will be four speakers on a panel, moderated by none other than WCRI CEO John Ruser (@John_Ruser). I am fairly confident that he had just been named CEO when I last attended the WCRI Conference in 2015. I seem to recall the significant snowfall precluded his attendance that year, and that we met thereafter at a more temperate opportunity in Florida. But this will be my first experience at WCRI since John took over. 

The panel for this symposium on change will include Denise Algire of Albertsons, Charlie Kingdollar of General Reinsurance, Steve Tolman of the Massachusetts AFL-CIO, and me (@fljcc). And, I am hopeful that in the weeks leading up to this discussion, there might be some discussion on the "Twittosphere" regarding your perceptions of the change technology promises for our future, and your predictions of whether technology will deliver on those promises. Each speaker's Twitter account is listed, and they are all listed together at the end for ease of cutting and pasting. 

Denise Algire is the Director of Risk Initiatives for Albertsons, a grocery and pharmacy retailer founded in 1939 in Idaho. The company is operating in 35 states today under "banners" including Albertsons, Safeway, Super Saver, Supervalu, and Shaw's. With over 2,000 stores and about 265,000 employees, this retailer touches the lives of a vast diversity of Americans that are employees, suppliers, and customers. 

Ms. Algire has written regarding the findings of an extensive survey regarding "cost-drivers, claim trends, workforce demographics," and more. The Benchmarking Study provides insight into both change and perceptions. She has also been involved in an evolution (revolution?) in claims practices dubbed the "advocacy-based claims model," a process built upon a foundation of treating the injured worker as an individual, a person, and a consumer of services that are workers' compensation. Ms. Algire's Twitter feed (@denisezoe‏) and LinkedIn include technology, medical care, disruption and the Opioid crisis. 

Charlie Kingdollar is the Vice President and Emerging Issues Officer at General Reinsurance Corporation (GenRe). GenRe is involved in underwriting risk through reinsurance in the markets of life, health, property, and casualty insurance. Thus, there is an interest in the workers' compensation marketplace, but as a part of a more generalized spectrum of risk assessment and reinsurance. Obviously, his companies products touch a vast assortment of Americans who purchase such coverage for themselves (health, life, auto) or who enjoy the benefits when others purchase such coverage as liability, workers' compensation, health, etc. 

Mr. Kingdollar has been a predictor of effects technology may impose on the insurance business. This is a complex topic for insurance because technology and artificial intelligence are changing the manner in which insurance is sold and managed (internal change), and it is changing the world of risks that are insured and affecting the definitions and demand for insurance (external change). He has prognosticated on one example, the driverless car, which "will reduce frequency, severity, and likely overall auto premium" in coming years. Mr. Kingdollar's Twitter feed (@ckingdollar) and LinkedIn activity are brimming with news stories regarding technology and disruption. 

Steve Tolman is President of the Massachusetts AFL-CIO. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) is a group in which represents various Central Labor Councils, affiliate unions, and their members. It is involved in striving for policies and goals favorable to workers and constituency groups that promote a labor focus. His Twitter feed (@StevenATolman) is focused on collective bargaining, increasing the minimum wage and collective bargaining issues. 

Mr. Tolman has been a witness to change, having begun his career working for railroads, including Amtrak, which have seen disruption from deregulation and competition. He has participated in regulatory change serving in both the Massachusetts House and Senate for over a decade. Mr. Tolman's foci included critical workers' compensation issues such as "addictive pain medication and the opiate epidemic." His role in representing workers is intertwined in what disruption will do to (for?) the American workforce. 

And, at the far end of the stage will be the lone voice from Florida (or the south at all, frankly), yours truly. I have been blogging, speaking and writing for more years than I am willing to admit. I recently calculated that I have now delivered over 1,000 professional presentations or lectures, and I am honored to participate in this one. 

I have written about investment in technology, automation, innovation, job loss, obsolescence, disruption, adaptation, and government response. I am not as prolific as some, but I have published well over 800 blog posts. I believe the fact is that technology is not coming, it is here. In my own lifetime, I have witnessed the demise of the "typing pool," the disappearance of the "pay phone," the advent of the "Internet" and "robotics," and more. I remember an age without cell phones or home computers. Not to put to fine a point on it, I remember cars without airbags, seatbelts, or even a radio. I also remember the first airbag option, and various dire predictions about how it would never work, or sell for that matter. 

Technology is here. It has its hooks in us in a multitude of ways, and it is infusing itself into our very existence. We are, consciously or not, adapting to it, craving it, and allowing it to change how we both perceive and interact (or not) with our world. 

In Boston, we will attempt to address the issues that this all poses for us. We will remain conscious that we may individually make choices about artificial intelligence, robots, and other technology, but the world around us will evolve with or without our individual permission. The decisions of others, our employers, our peers, and the generations that follow will support evolution even if we individually elect a "head in the sand" posture. This panel will address how we see technology impacting and disrupting our future, our work, and our leisure. 

And, we will attempt to provide insight as to how these changes will impact this "little corner" of the world that we call workers' compensation. There are implications for workplace safety, elimination of jobs, creation of new careers, demand for training and skills, and much more. Certainly, the technology revolution and disruption will affect our world of workers' compensation. 

Notably, this "little corner" is much ignored and often maligned. But in honesty, it is not little by any stretch of the imagination. This little corner was paying out over $60 billion annually when I last studied it. This little corner is bigger in annual revenue than the NFL, MLB, NBA, NHL and NASCAR combined. Workers' compensation may be unassuming and quiet in the grand scheme of things, but it is undoubtedly "huge." See Langham, Where did it Come From, Where is it Going, and How "Huge" is it Anyway, Lex and Verum, June 2014, p.7-14. 

We who study comp gather, periodically, to discuss workers' compensation. There are a handful of organizations striving to build understanding and comprehension of this little corner and all it affects. I have been honored to work with the best of these, including WCI, NAWCJ, NCCI, WCRI and more. And, I look forward to Boston in March, and the opportunity to share perspectives, thoughts, and more with a national audience focused on greater understanding and better performance of this little corner of the world, workers' compensation, which we call home.

Tweet us to raise or discuss issues: @John_Ruser @denisezoe‏ @ckingdollar @StevenATolman @fljcc. See you in Boston or on the Twittosphere!