Sunday, April 29, 2018

Judicial Bullying in the News

A couple of news pieces caught my attention recently, and a connection began to form in my brain. The first was through a tweet from @TheGIRLATTORNEY with a link to a blog post about workplace bullying. A key take-away from the author's thoughts is "bullying is actually four times more common than sexual harassment in the workplace." That prevalence estimate was surprising. And, bullying is not a new issue. The Florida legislature considered two bullying bills in 2013, Bullying is in the News, is it in the Workplace

I recently had a chance to speak to a convention about issues confronting workers' compensation today. My summary post for that presentation is here. I noted that "Employers will have to grasp that the work environment is critical to the engagement and perception of those who work there." How employers, supervisors, and coworkers treat employees is a critical foundation of the work environment. People who are bullied, harassed, or simply unappreciated will not harbor fond feelings toward work. When they are hurt, then ignored or further mistreated, their feelings may morph into dislike or worse. Getting such an employee to return to work will be a challenge. 

Don't we have enough challenges in this world of work injuries, medical care, physical and vocational rehabilitation, and return to work? 

The second story that fits in this theme, to me, is one about a judge (not a workers' compensation judge) in Broward County, Florida. The Miami Herald reported on the incident; a lengthier video is available at the Sun Sentinel. It reminds us that "Somebody's Watching Me." Coincidentally last week, a New Jersey Commissioner resigned after her tirade was caught by a police car dash-cam, and spread on the Internet. As I have noted before, we must all remember that cameras and video have become far more than ubiquitous. 

This story in Broward began when Sandra Faye Twiggs was arrested April 13, 2018, on a domestic charge. As an aside, domestic violence is a predominant issue in our society. Some contend that "about 60% of all adult arrest for interpersonal violence in the U.S." are domestic violence. In the decade 2006-2015, a U.S. Department of Justice study concluded that "1.3 million nonfatal domestic violence victimizations occurred annually." That is significant. 

Well, Ms. Twiggs was arrested and found herself before Judge Merrilee Ehrlich. Judge Ehrlich. According to BallotPedia, Judge Ehrlich was first elected in 2008, and re-elected in 2014. Judge Ehrlich was admitted to The Florida Bar in 1979, a graduate of Nova Southeastern University Shepard Broad Law Center. 

Ms. Twiggs was described by the press as "a frail, out-of-breath woman — pushed into court in a wheelchair." But she was not in court. She was pushed in to a room at the jail and appeared to the judge over a video link. The judge knew that video was being captured. 

The video begins with discussion of the defendant's status. The domestic situation involves the defendant, and her 18 year old daughter. Apparently, the defendant has filed a domestic injunction against this daughter's boyfriend, and there is some dispute between the defendant and her sister involving something unrelated. There is a fair amount of conversation here, between the judge and an attorney. The efforts of the attorney to explain appear to be well-intentioned, but are forsaken by the judge. 

The judge then asks "does your daughter live with you," which Ms. Twiggs answered. And, which she then proceeded to explain. The judge interrupts with and emphatic "ma'm," "don't say anything beyond what I am asking you." The judge speaks to Ms. Twiggs' attorney: "will you say something counsel, in the microphone, so that she can hear you and you can give her instructions?" The judge emphasizes: "I'm not going to spend all day with her interrupting me." Ironically, some might conclude that it was the judge interrupting Ms. Twiggs. When counsel does not immediately respond, the Judge says "It's your turn to speak counsel." This comment appears to be at least sarcastic, and some might say caustic. 

Later the Judge tells the defendant "you've already said too much," and admonishes her "listen please!" The judge does some arm waiving, and is clearly frustrated with the situation. The defendant was released from jail. She passed away days later in her sleep, apparently related to her asthma and chronic obstructive pulmonary disease, according to the Herald. Reportedly, she experienced difficulty obtaining her medications while in jail. She had wanted to explain those difficulties to the judge. 

The Broward Public Defender, Mr. Finklestien, complained to the chief judge of the Circuit. He described the judge as "aggressive and tyrannical." The Judge was removed from hearing cases as a result. She had previously announced an intention to retire this summer. However, the judge reportedly resigned following publicity of this video. 

There are lessons here. First, technology can be frustrating. With telephones, an early bench lesson for me was that when the speaker is being used (the other party is speaking), the microphone is muted automatically. Thus, when the other party speaks, there is no way to interrupt or interject. That is frustrating as the conversation lacks both facial expression and easy interaction that we get face-to-face. 

Second, this is not nearly to the degree of behavior demonstrated by "Florida's fighting judge," Brevard Judge John Murphy, as described in The Washington Post. That interaction involved demeaning and threatening, but then devolved into physical violence. Though the Ehrlich example did not rise to this level, it demonstrated frustration, emotion, and impatience that is simply not that for which we strive. Interpersonal interactions can be stressful, but should not lead to such exhibitions of frustration. 

Finally, this reminds me that people have a need to express themselves. I try to remind lawyers, mediators, and judges of this. People experience life, whether a domestic encounter or a workplace accident. They often want to tell someone about it. Too often, they want to include tangential elements, potentially irrelevant references, and confusing anecdotes or recollections. But, they are compelled by their nature to want to discuss it. I recall a lesson in this from my days in private practice. 

A long time ago, in a galaxy far, far, away, I sat with a man who had suffered a fall at work. The issue in the case was legal, not factual. Everyone knew he fell, and everyone knew he was hurt. Whether one entity was a contractor and another was insured and whether an indemnification agreement would change who would ultimately pay, all made for really interesting lawyer to lawyer discussions. 

Not to be left out, the injured workers kept trying to interject, only to be told by his attorney that "this is not the time." He became agitated and eventually raised his voice, demanding our collective attention. He then rambled on for minute after minute about his life and livelihood years before. His speech was about dreams and aspirations from his youth, disappointments of career, frustration over medical science, and anger at a system he did not comprehend.  

I was admittedly frustrated with his interruption and his speech. He accomplished nothing, convinced us of nothing, changed nothing. When he finished, the lawyers returned to a fascinating conversation about the law and the questions in that case. But, we were free to do so without further interruption. The worker had said his peace. 

Later, a wizened workers' compensation attorney in the case offered me advice. He had sensed my frustration, and told me you can never forget the power, the catharsis, of saying your peace. People who face uncertainty, unfamiliarity, and change feel threatened, cornered, and scared. They will be better able to accept and absorb if they are allowed to express themselves. 

I learned a lot from that old lawyer. And, not just in that circumstance. But on that occasion, I learned that there is value in accommodating the natural need to vent, to express, and to explain. It may not be relevant, persuasive, or even comfortable to the listener. It may be perceived as a waste of time to the listener. But, to the speaker, it may mean the world. It might have meant the world to that lawyer in Broward or the defendant who wanted to discuss her medicine challenges in the jail. Perhaps none of it was relevant to the domestic violence, and would not perhaps have changed the judge's decision, but it might have meant the world to the speakers. 

Try to remember that the next time someone wants to get something off their chest. It may help them to cope with challenges, or even bullying in the workplace, frustrations with their work accident, or just circumstances of life. You never know what someone else is going through, unless you chose to listen. And thankfully, listening costs you nothing but a few minutes of your time, at work, at home, or in court. Think of it this way, anyone can chose not to be a bully. But, by being the listener you can maybe likewise chose to be the anti-bully. I commend it to you.

Thursday, April 26, 2018

Hurricanes - Past and Future

Hurricane season begins June 1, 2018. It is time to think and prepare. A recount of 2017 may help us remember. 

On September 5, 2017, the Florida Office of Judges of Compensation Claims began to post regarding predictions for Hurricane Irma. Thereafter, that post was periodically updated for twenty days, concluding September 25, 2017. Those posts illustrate the Irma impact on operating a business, our example that may or may not be typical. Some were affected less, and obviously some were impacted profoundly. 

As an aside, the real impact of hurricanes is human. These storms disrupt lives, destroy property, and touch people in a thousand ways. There are impacts on home and family, friends, activities, and more. There is anticipation, anguish, and recovery. Or, often there is anticipation, anguish and relief. Sometimes, they threaten us and then land elsewhere. But, these storms are a reality for Floridians. Unable to change that, we must do what we can to accept that and prepare. 

In preparation for hurricane seasons past, I have written posts including The Waffle House Index, Time to Prepare for Hurricane Season, It is That Time of Year Again, and more. And, in encouraging preparedness for the 2018 season, I add this documentation of what happened in 2017, for perspective. Each Floridian has her or his storm. Mine will hopefully forever be Ivan (2004); for some it was Andrew (1992), Jeanne (2004), Francis, (2004), Katrina (2005), the list goes on. The following is intended as a cautionary tale, recognizing that for the OJCC things could have been much worse in Irma (2017), and for many businesses and people, it was absolutely worse.

Back in 2006, the OJCC adopted an office closure policy, and updated it periodically. The current version of the Closure Policy was published in 2016. Essentially, since 2006, we have followed the lead of the Circuit Court in the county in which a particular OJCC office is located. Thus, if the Circuit Courts in Leon County close, then the OJCC office in Tallahassee closes. It is a policy designed to be transparent, and easy for the public to follow. But what happens when information on court closures stops flowing?

Last September 7, we began announcing closures due to Irma. The deferral to Circuit Courts resulted immediately in closure of Ft. Myers, Miami, and Tampa for Thursday and Friday; Ft. Lauderdale Palm Beach, Port St. Lucie, and Sebastian for Thursday, Friday and Monday; Gainesville, Jacksonville, Orlando, and St. Petersburg for Friday and Monday; Daytona for Friday, Monday and Tuesday; Lakeland for Monday. By the "closed court" policy, 13 of 17 offices noticed to close. But, by the end of the day, we had an Executive Order closing all 17 offices on Friday. The storm was large, predicted paths varied, Florida was in most of the various predicted paths, and it was time to make last-minute preparations. 

On September 10, Sunday, Irma made landfall in the Florida Keys as a category four (130-156 mph winds). Later Sunday, it made landfall again in Marco Island as a category three (111-129). Floridians had watched the storm through its path across the Caribbean, hands had wrung, predictions had been made, and fears had riveted many, paralyzed some. So, offices had closed, we had hunkered down, and watched the weather channel. Some predictions likened her to Andrew, and fears for southeast Florida were on the news. As she made landfall, we sighed relief for Miami and Ft. Lauderdale but feared for Ft. Myers and others. 

The Florida panhandle was worried that Irma would remain in the gulf, regain strength, and come ashore again. But, the panhandle was spared for once, with Irma instead travelling straight north from Marco Island to Lake City, and then to Georgia and beyond. She appeared to head right up I-75. Sighs of relief were heard. The much prognosticated "Miami landfall" and the comparisons to Andrew had not come true. But in our relief, we feared for Ft. Myers, Tampa, St. Petersburg, Lakeland and Gainesville. With facilities and people all over, for me there is worry with any path. 

Monday dawned sunny and mild in Pensacola, and I began to assess status. With automated equipment to answer phones, and with our videoteleconference system, I began checking in on offices, to ascertain electrical service. I began checking in with judges regarding their safety and well-being, gathering their understanding of their respective staff's situations as I did. I was as pleased as anyone that the "Miami landfall" had not come to pass. My initial results were mixed. I was ecstatic when the Miami phone system answered, power was on! I got that response a lot, but not in cities like Lakeland and Jacksonville. The initial news was not catastrophic, but there was plenty of unknown about which to worry. 

Monday brought other challenges. Various court websites across the state ceased to respond. Those websites reside on servers and those servers require electricity. The Supreme Court server in Tallahassee went off-line and it became challenging to find information on court closures. With a policy in place that is dependent upon the status of courthouse closures, frustration reigned with those resources constrained. The OJCC began publishing court closure information on this blog, gathered in no small part from monitoring social media. See, as servers went down social media remained. Courts and news media published on social media and information flowed, just in a different format. 

Monday also brought news of flooding in Jacksonville and Miami. The pictures were disturbing. For Jacksonville, the flooding was the worst in a century. The hurricane's path over land, combined with its size, had pulled huge volumes of seawater into the St. John's river, the high water combining with volumes of rain and creating difficulties and issues for many. 

It is easy to fall into the mindset that only storm itself is a danger and threat, but effects can linger. For example, a week after Irma, there were issues with flooding in the Gainesville area. All that rain to the north fell onto fields and yards fed into creeks, which fed into rivers, which later crested from the inundation of rain. The drainage created issues for many spared by the storm itself. We think about the "what if" of the wind and rain of the storm as it hits, but we have to think about the aftermath as well. 

The aftermath is not always nature either. There are trees to cut, limbs and debris to remove, holes in roofs, broken windows, cars without fuel, grocery stores closed, and more. I know many who lament the storm and immediate effects, but somehow some of us can forget the aftermath sometimes. Restoration of power is a challenge in the best storm circumstances (minor storm, impact on single community). The aftermath is magnified when multiple communities require restoration, and more so still when a storm like Irma impacts virtually every county. There are only so many power crews, trucks, etc. And, they can only each be in one place at a time. 

On September 22, 2017 power was finally restored to Ft. Lauderdale. That was an office at which I got an answer on September 11, when I began assessing. For the first few days, neither Ft. Lauderdale's or Miami's offices were a concern. Both had power. As we focused on other Districts, and as they began to reopen, the power failed in Ft. Lauderdale and we learned that the Miami building had suffered significant air conditioner damage. Having initially breathed a sigh of relief regarding southeast Florida, those communities again became the primary concern.

Daily calls to Florida Power and Light (FP&L) had become the norm. Judge Lewis made daily trips through the debris to monitor the Ft. Lauderdale District status. Each day we spoke and concluded "maybe tomorrow." We shared frustration as electricity was restored among our neighbors, but remained elusive for us. Herculean efforts were attempted in Miami, with portable air conditioners, relocation contingencies, and more. But those efforts also led to a series of frustrations and disappointments. 

On Friday, September 22, 2017 the Florida Department of Management Services (DMS) confirmed that the Rhode Building (Miami) could in fact open the following week. The DMS had brought in a trailer-mounted air conditioning system that ran like a huge generator and pushed cooled air through the building. They had innovated, re-engineered, and overcome. As pleased as we were, Ft. Lauderdale still lacked power. Alone among the Districts, alone among the buildings on that street, Ft. Lauderdale lacked power. And, we checked it every few minutes. 

Later that morning, FPL tweeted (I was then following FP&L on Twitter) that Broward County (Ft. Lauderdale) was 100% restored. Having failed to get a voice mail to answer minutes earlier, I was skeptical. But, I called again and the phone system answered. The OJCC may have been the very last power restored in Ft. Lauderdale, we were certainly among the last. But, the real point is that the power was finally on. 

The truth is that people have many concerns after a storm. A workers' compensation mediation or hearing may be the least of someone's worries. As a system, we have to remain cognizant that many people are dealing with human problems, personal challenges, and that recovery can take time. If people need accommodation after a disaster, we must respect that and be reasonable. It is not that the OJCC needs to be open for the sake of being open, it is that we need to be open and ready to deal with people's concerns and workers' compensation issues when they are ready. 

As a system, we must be both conscious that various people will be delayed, unprepared, or distracted, and conscious that people will need us. They will need us to effectuate their progress with orders and approvals, to facilitate their discussions through mediation, to hear and decide their disputes. In being ready and prepared to fulfill our function, we constantly remind ourselves that some of those distracted and in need are the very people that make the OJCC great, our staff, mediators, and judges. We are challenged to simultaneously recover and restore personally, while we reopen and facilitate progress and a return to normalcy for our customers. 

In these regards, we are likely no different than any business following a disaster. Law firms, insurance companies, doctor's offices, and more all faced issues with power, premises damage, and employee's personal challenges. If you have lived through your life hurricane, you have stories, memories, and usually a heartfelt desire not to do it again. But, it is imperative that we remember those experiences and use what we learned to prepare. 

The fact is, another serious hurricane will hit Florida. Where, when, and how strong are all unknowns. But, we learn from the past. We plan and prepare. There are many resources like Ready.gov, FEMA, and the National Hurricane Center. Prepare now for the 2018 season that starts June 1, 2018. As weather.com reminds us, storms can come anytime, and 2018 is predicted to be an active season. 

Today is the time to "follow" or "like" or otherwise connect with your local courts and @fljcc through social media. Think now about how your business and family can be best preserved in the event you find yourself in the path of the storm. Where will you go, what will you take, when will you leave, how will you communicate? The resources above are more detailed, but the time to think "what if" is not when a storm is on your doorstep. The time for "what if" is now, in the sunshine and cool breezes of spring. Think about "what if" and make your plans. Be prepared for the storm, the aftermath, and the challenges of your recovery.

Tuesday, April 24, 2018

"No Driver" Wins a Race to the Bottom

I often have the opportunity to speak to young people about their future goals and plans. And when the subject of economics arises, I try to instill in them the concept that they will need to find ways in which they can distinguish themselves from others. I encourage them to work on identifying the things at which they personally excel, in which they are personally interested or passionate, and the performance of which leads to feelings of fulfillment. I am no guidance counselor, but I think people should find a vocation, occupation or profession which they find fulfilling. 

An example I use to illustrate economics with them is sand (as sand is familiar to Floridians). I suggest to them a business idea in which they set up a table in the beach parking lot and sell Solo cups of sand for $3.00 each. Their investment is minimal, buying solo cups (product expense), getting a table (capital investment), scooping sand, and attending the table (labor expense). I often have a student volunteer their perception of just how idiotic they think my idea is. I have often heard some variant of "it would never work, they can just scoop their own sand."

This leads to a discussion of various elements of basic economic analysis. What are you asking the customer to buy? An argument can be made that there is no real product, as you are offering merely a commodity; one which is readily and freely available in great quantity. An argument can be made that you are instead marketing a service (convenience of a cup of sand versus the burden of obtaining a cup elsewhere and scooping one's own). 

But, if you went into the sand business, what would you expect of your marketplace? What if someone began selling solo cups of sand on the Internet (that firm needs no table at the beach nor anyone to staff it), and beating the prices you have charged? What if they enjoyed lower labor costs, such as China, and shipped in sand cups that could thus be sold for a lower price than locally sourced sand?

There is some inclination to suggest that these are competitive forces, and that supply and demand will interact to accomplish market efficiency. The sand stand that sells locally sourced sand cups may be unable to compete with the price point of the website selling Chinese sand. Local people may find demand for their services decreases because they cannot compete with the price point that results from some non-local sources. An establishment ("sticks and bricks") may find that lease, maintenance, and staff costs render it unable to compete with the Internet-based competitor. This has been a reality of the disruption of the information revolution. 

These are rudimentary examples, but they illustrate some of the analysis of why business may succeed or fail. A couple of years ago, I proposed an analysis of workers' compensation and change, What is Right with Comp. There, I suggested that we might apply Newton's laws to business, or to an enterprise like workers' compensation. Newton offered that "bodies" tended to retain their character or performance, "motion" or "rest," until acted upon by some outside force. I question whether people, businesses, or enterprises are really any different.

A recent story of a New York suicide made my thoughts return to this subject. Just before the recent school shooting in Florida, there was a suicide outside the City Hall in Manhattan, as reported by National Public Radio (NPR). A professional driver posted a lengthy Facebook explanation of the desperation of that profession, drove to City Hall, and ended his life by suicide. 

The NPR story explains and laments that it is increasingly difficult to earn a living driving a car in New York city. They say some might work a 12-hour shift and take home as little as $50.00 (just over $4.00 per hour). Drivers lament that they have no alternative but to work these hours, some saying they have not had a day off in years. 

As in the sand example, there is a glut of readily available supply, and as a result the price that can be charged has decreased. NPR interviewed a representative of the union which is "fighting for the rights of NYC's 50,000+ taxi drivers," the New York Taxi Worker's Alliance or NYTWA. Its executive director, Bhairavi Desai, suggests that the solution to the problem is decreasing supply. She believes that government should regulate the number of drivers that can ply their trade in New York, a "cap on the number of vehicles." This would decrease competition for passengers and as supply decreases price would correspondingly increase. Similarly, the government could limit your ability to take sand from the beach, thus increasing the likelihood that you would purchase some from a vendor. 

Ms. Desai also suggests that every driver, in every such vehicle, should be required to charge the same price, a government mandated "one metered rate." This would decrease competition among drivers, and assure that those who drive would be sheltered similarly to the protection that a "minimum wage" provides to workers in other avocations. Ms. Desai suggests that the "one metered rate" must be increased from the current norm. This, she contends, would produce a living wage for those drivers. It would allow them to "work with dignity and justice" through "proper regulation."

So, if the government steps in as suggested there would be a change in a marketplace. In such a change, there would be those who gain and those who lose. For example, the higher "one metered rate" would ostensibly result in a driver making a greater wage (gain) but the passenger paying a higher rate (loss). I say "ostensibly," because a passenger confronted with a higher rate might instead (1) walk, (2) catch a bus, (3) ride the subway, or (4) not make the trip. If the passenger chose any of those four alternatives, the passenger would in fact save the fare (gain) and the driver would earn no fare (loss). While the probability is that trips would still be consumed, and volumes would likely adjust after the initial effects of such change, some volume of consumption might be permanently lost. 

Examined through a different lens, consider someone who is no longer a driver. There are many drivers in New York. There are an estimated 13,587 Yellow cabs in New York, and perhaps four times that many other cars affiliated with private services and "ride hailing" computer apps like "like Uber, Lyft, Via, Juno, and Gett," a total of almost 75,000 cars. If the government effected Ms. Desai's suggestion and cut that number in half, to 37,500, the effect would likely be increased price per ride. The decrease in supply would be likely to yield the desired increase in price. And, this assumes government could stuff the ride app genie back into a bottle somehow. 

The 50% of drivers that remained on the street after her proposed action would likely make more money than they did before. If they were taking home $50.00 before, then they would perhaps take home $100.00 per day after (more like $8.00 per hour perhaps). But, from where would that increase come? Arguably, it comes from the consumer, who is again faced with the four alternatives discussed above. But, perhaps more so, the increase to the remaining 37,500 drivers would come from the pockets of the other 37,500 drivers who are no longer allowed to earn a living driving. Those, now prohibited, drivers would earn $50.00 less per day from driving than they are earning now. The lucky driver gets twice as much for the same work, and the unlucky driver gets nothing, through "proper regulation."

The change would be government. Government regulating who may earn a living and who may not. Government preventing competition and efficiency. Some would suggest that a similar effect on supply would occur if those drivers who are not satisfied with the earnings currently available from this work would instead leave the profession and work in some other field. The basic laws of economics seem to dictate that workers will operate in their own best interest. If they perceive that their reward for labor driving is insufficient for their support, then they would work elsewhere. 

In the end of the analysis, the fact is that this debate may be a tempest in a teapot. While today's drivers are arguing over how government might regulate to force a market to pay more, they are seemingly missing the coming age of technology. The self-driving car is a reality. Entities like Waymo, Uber, Ford, and others are bringing us cars that will require no driver. And, the predictions of when are now being expressed in months. This innovation has the potential to eliminate all of those 75,000 driver jobs in New York. Those who believe the disruption of Uber, Lyft, and similar apps has been devastating need to get ready for the real disruption that is coming. 

Will advocates like Ms. Desai be successful enacting "proper regulation" to require that autonomous, "driver-less" cars still retain a human operator for our old friend Justin Case? Similarly, might regulators require each beach visitor to purchase at least one cup of sand from a local vendor while here? (If that had been the solution in the past, would we each be forced to buy a new buggy whip each year in the interest of protecting the employment of those who make them). Or, will the driving profession (along with auto body repair, car insurance and medical care professions) adapt to the reality of change? It is a question that is being heard in many professions. How Will Attorneys (or any of us) Adapt?

Is the solution to this technology revolution having government force outcomes through "proper regulation," to the benefit of some workers and the detriment of others? If that is the course chosen, does anyone think that government can keep up with the disruption that technology and innovation are bringing? No one would suggest government force people to buy sand cups to start a "sand cup" business model, why would they suggest it to preserve a model overtaken by progress?

In the end, it is likely that "no driver" will become the paradigm. Some will argue that this is a race to the bottom, to the detriment of workers. Others will see it as a boon to consumers. In the end, the consumer will demand it for their benefit and technology will deliver it. It seems that the smart drivers would recognize the current paradigm is not serving them and the next one will less so. Suicide is not the answer, but adaptation is. The smart drivers should look for a way to transition to a new employment role. 

Sunday, April 22, 2018

An Indomitable Spirit

I met an indomitable spirit recently at the Mississippi Workers' Compensation Education Association (MWCEA) conference in Biloxi, Mississippi. Her story is not of a work accident, but her words moved me. She is a storyteller, an inspiration, and an indomitable spirit. There are people around us that bring us down with their words and attitude, we deal with them everyday. But, occasionally we are also uplifted by someone. There are amazing people in this world, and I was honored to meet this one.  

The circumstances of our meeting were simple. A few years ago Bill Pipkin of Alabama and Dr. Christopher Brigham of South Carolina started a ministry called the Faith Based Claims Association (FBCA). The basic idea is to afford people of faith the simple opportunity to enjoy fellowship and interaction. The organization welcomes people of all faiths, and has held events in conjunction with the Workers' Compensation Institute, CompLaude, MWCEA, and more. 

At the MWCEA, organizers brought an inspirational speaker for a FBCA breakfast, to share her story of injury, recovery, and faith. Having arrived early for my morning presentation, I was fortunate to hear her speak. It was intense, touching, and even humorous. Anyone who can find humor in their personal circumstances is a inspiration in my book. Life can throw a lot at you that you cannot control, but you can always strive to control how you react and respond. I have found that strong people often respond to adversity with good humor.

Her name is Nicole Marquez, and perhaps I am the only person there that had not heard of her before. As she jokingly reminded us, she is "kind of a big deal." She is an articulate, vivacious, and compelling presence. She shuffled to the podium, deprecating at her grace and speed. She introduced herself by playing a video produced by one of those morning television news programs. It documented her circumstances, and I expect that she uses it because of its detail and descriptions, which are perhaps difficult for her to recount. As it played, you could have heard a pin drop in the room. 

Ms. Marquez became a television personality in her teens, a singer, dancer, and actor. She is clearly at home in the limelight. She graduated from the University of Southern Mississippi and moved to New York in pursuit of the perceived pinnacle of Broadway. She recounted a great audition, in which she says she read enthusiasm and acceptance in the faces of her audience. She was exuberant about her day when she returned home only to realize she was locked out of her apartment. 

Lacking keys, roommates out, she was faced with choices she lamented. And, she acknowledges she took an unfortunate path. Being a problem-solver rather than a complainer, she concluded her best course was to enter her apartment through a window. This involved going to the roof of her six-story building, using a fire escape, and more. She was not successful in gaining entry. And, worse, somewhere in that process she mis-stepped. She candidly recounts her last memory of the evening and the next thing she knew she was awakening in a hospital bed. 

Ms. Marquez' mis-step resulted in a fall down an "airshaft," an architectural feature within a building that affords natural light and ventilation to the offices or apartments within. She later learned that she had fallen six stories, landing on her buttocks. This resulted in an array of injuries including a broken back (collapsed lumbar disc, "crushed like a tin can"), a broken neck (internal decapitation), each rib on her left side broken, a punctured and collapsed lung, and a large bleeding laceration. 

She was lucky someone found her. But, that took about eight hours. Bruised, broken, bleeding and unconscious, she lay for eight hours before being found. She describes her medical course. She recounts overhearing doctors lament her condition and express doubts for her survival. Someone told her that a patient coming into the hospital with an internal decapitation was exceedingly rare; the usual result of such injury is immediate death not hospitalization. She was told that while such an injury getting to the hospital was rare, one recovering from such an injury was more rare. 

But, this is a woman of indomitable spirit. Delivering this presentation, she remained upbeat and positive. At only one point did I perceive her tone wavering, when she delivered the line "seven long years later," in describing her course of therapy. At that moment, I sensed a tension. Though her voice never broke, I perceived strain. At that moment, despite her strength and presence, I sensed a slight hesitation, a trial, an extra effort, and the involuntary intrusion of emotion. Perhaps I was alone in that perception, but I spend a lot of my life listening to people. I perceived that "seven years" touches a nerve, even still. 

She was told she would never walk again. She was told a lot of things apparently. Doctors and others were honest with her. They expressed their reservations and pessimism. She was severely injured, and while their job was to repair those injuries, they were realistic with her regarding expectations. She gazed across us briefly and then emphatically said "never tell me what I cannot do." And that spirit is behind Ms. Marquez walking again about 18 months post-injury. She may never run a marathon, but the difference between her and me is that I believe she could run a marathon if she decided to. Me, on the other hand, not so much. I wish I had a modicum of her verve, resolve, and spirit.

The spirit and humor were touching. She jokes about her pace and gait. She related how people may perceive her walking and conclude that she has had too much to drink. She self-deprecated about her slow pace walking to the podium, and periodically thereafter. She exudes confidence, inspiration an accomplishment. Her face shines describing her fiance and his teasing embracing of her as she is. She proudly recounts his acceptance of her aspirations, challenges, and enormous personality. She laughed aloud describing him saying, as she one time walked slowly, "come on memaw." Her spirit has suffered unimaginable pain, fought extreme circumstances, and yet stood before us neither broken nor bent. She stood before us triumphant, indomitable, and uncompromising. 

This life periodically brings us all lemons. Most of us do not go through an experience like Ms. Marquez has, but we all get lemons, curve-balls, and detours. Too often, we sit and complain about them instead of getting up and doing something. Ms. Marquez shared her faith, her recovery, and her humanity with us. She acknowledges that she made a decision to climb that roof, and reminds us that we all make choices every day. We have free will and will make decisions. Some may not be so positive for us, but we decide how we recover from them. 

Ms. Marquez was not a "speak and split" presenter; she stood about seemingly forever afterward. She speaks to everyone, shakes hands, takes pictures and delivers hugs. She is engaged, interested,  genuine, and frankly inspiring. As I watched, I sensed she is surrounded by friends, one of those people who never met a stranger. Here on the Mississippi gulf coast, she is a "home town girl"; she is one of us. But, in fairness, she could appear in any venue and the audience would feel she is "one of us." She has that spirit, that connection, and that presence. Gift or achievement, she is a people person. 

I was inspired to meet her and moved by her story. That story gives pause. I was moved to this post in hopes that her story might touch, move, and inspire you similarly. It is gratifying and empowering, and it draws us to reflect on more than the nuts and bolts of this business. It turns out that we are each in various professions, but we are all ultimately in the people business. We chose how we receive, perceive, and treat those people who we encounter on this journey. We make choices, but often cannot change circumstance. However, each of us can decide how we will react and respond. Any of us might have a chance to be kind to someone today, and hopefully we will each embrace it. 

There will be a Faith Based Claims meeting at the WCI in August. I do not know the details yet. But, I look forward to it and to a brief time of reflections and inspirations among the sometimes frantic pace of our day-to-day. We benefit from our time together, and that can sometimes just be about us, about people. There will be plenty of chances for classes, techniques, and "hot topics" in workers' compensation gatherings. But we must make time to both remember our humanity and to share it with others. 

I now follow Ms. Marquez on Twitter (@Nicoledancer), and will watch for her on LinkedIn. I will be watching this inspiration for what comes next. No, her story is not about workers' compensation. But it is about adversity, engagement, and triumph. It is about humanity. It is about an indomitable spirit that should inspire us all. Though I doubt I have adequately conveyed her presence and spirit here, I hope you are nonetheless as moved by it as I was. 

Thursday, April 19, 2018

Mississippi and Significant Issues in Work Comp

As you awaken this morning, ready to enjoy this post and start your day, I am headed west. I have often been asked if I am "from" Mississippi, and I am not; no more than I am "from" anywhere. However, I have many ties to Mississippi and a great affinity for the state and its people. Returning always brings a measure of nostalgia, and today I will address the Mississippi Workers' Compensation Conference, illuminating or obfuscating the current "significant issues" in workers' compensation. 

It is a worn path I travel today, literally and figuratively. For both I-10 and the significant issues are routes I have trod before. This blog has been a vehicle for attempts at understanding and appreciating this thing we call workers' compensation. This post is for those who cannot join us in Biloxi, and perhaps as a handy re-reference for those who do. 

I will remind us that change is inevitable. The world is changing around us, a topic that has been a repeated theme here. See, Baseball, Hot Dogs, Apple Pie and Chevrolet or How will Attorneys (or any of us) Adapt? And, workers' compensation is perennially in a process of change (change is constant). Some is legally driven, some scientifically. 

Historically, the indemnity (lost wage or impairment benefit) was the predominant portion of the claim expenditure. But that has reversed in recent years, with medical expense now the more pervasive portion in many studies and reports. This is coming from both scientific advances and the effects of medical inflation. Since 1948, the U.S. inflation rate has averaged about 3.5%, while the medical care rate has been significantly higher, averaging 5.3%. The cost of medical care is increasing more rapidly than inflation generally. 

Certainly, the government has been criticized for the inclusion and exclusion of goods in the market basket that defines inflation. Despite that criticism, inflation generally will drive wages and prices, but the medical segment is expanding more rapidly. This is impacting all payer systems, group health, workers' compensation and even Medicare/Medicaid. 

Some contend that tort liability, or the risk of it, contributes significantly to the overall medical costs. That is, that doctors practice "defensive medicine," being very cautious so as to avoid the sting of malpractice. Others contend that diminishing supply of medical professionals is naturally creating a greater demand, and an expansion of price that is wholly consistent with economic theory. And, there are those who believe that medical costs are being driven by interference with market forces; they say that government interference and regulation is stifling innovation, competition, and improvement as well as constricting supply. Each of these has potential to be part of our explanation. 

Despite the reality of increasing medical care cost, there has not been a corresponding acceptance of increasing workers' compensation premiums. The income side of the equation is avoided as it is seen as a tax and a cost. Thus, the regulatory process has engaged in an effort to manage medical costs through fee schedules, treatment guidelines, medication formularies, tele-medicine, and more. Workers' compensation is not alone, states find themselves struggling to accommodate the increasing contributions required to maintain Medicare status quo as Baby Boomers require more care, and the cost continues to rise. 

We have recently begun to realize that spending more does not necessarily mean better results. We have seen massive investments in education that have not yielded the predicted student improvement. Likewise, our ever-increasing medical expenditures have not yielded medical improvement. The U.S. spends over 50 percent more on health care than most other developed countries, but we are not the healthiest, do not enjoy the lowest infant mortality, do not enjoy the longest life expectancy. In fact, U.S. life expectancy decreased in recent years for the first time in decades. 

We are faced with a rapidly growing population, yet a much smaller increase in those seeking to practice in the medical professions. We face shortages. And lower supply will inevitably lead to higher prices. We are stuck in a pay for procedure paradigm in which we have lost sight of people's reaction to care (improvement, restoration of function) and instead remain focused on performing more tests or procedures as that drives income. Rather than address that flaw, we struggle to minimize the cost of those superfluous procedures.

With the commitments made, we face a reality that will demand better answers. The paradigm must be changed. 

Constitutional Challenges have become a new normal for workers' compensation. In Florida, Castellanos v. Next Door (Fla 04.28.16), and Westphall v. City of St. Petersburg (Fla. June 2016) have demonstrated a willingness of the Supreme Court to apply imaginative outcomes to workers' compensation disputes. However, the same Court has displayed restraint in Florida Workers' Advocates v. Florida, and Stahl v. Hialeah Hospital

There is discussion of why the Supreme Court accepted some for review and denied others. In that discussion, there is often raised the specter of Brock v. Waste Pro. That one challenged the state law prohibition on fraud, and review was denied by both the Florida and United States Supreme Courts. Is it the character of certain disputes, limited Court resources, or constrained Court interest?

In the end, limitations on benefits were declared unconstitutional as were caps on attorney fees and limitations on the right to contract with attorneys. Along the way, we have seen the Florida First District Court struggle with its role, en banc decision-making, and confusion over "natural justice." 

In Pennsylvania, the appellate courts have similarly struggled in their roles regarding delegation. In Protz v. Workers' Compensation Appeals Board (Derry Area School District), the Commonwealth Court and Pennsylvania Supreme Court reached similar conclusions, but with different effects. Each waded into Constitutional waters when statutory interpretation was available as an alternative. Scholars will question the wisdom of this approach, with analysis of the New Mexico approach providing contrast. 

In Alabama and Florida, there have been broad declarations of system unconstitutionality. Florida's litigation that began as Padgett and evolved into Florida Workers' Advocates made broad proclamations regarding system sufficiency. The Florida Third District reversed, concluding that the case was procedurally flawed. 

Alabama's trial courts similarly made broad findings regarding constitutionality. The fundamental issue had to do with weekly caps on benefits which have been in place for many years, without adjustment for inflation. In Clower vs. CVS Caremark, the trial judge identified this as constitutional infirmity and noted the absence of a "savings clause." A savings clause or severability clause in a statute says that if a portion is stricken the remainder of the statute is saved by severing only the problematic portion. Alabama lacked one, and thus the conclusion regarding weekly caps implicated the whole statute. 

The trial judge magnanimously stayed his order to allow the state legislature to change the law regarding benefit caps. That was later extended to a longer stay. The Alabama workers' compensation community is thus only now contemplating how to write a whole new statute. All the issues and ideas are on the table there for discussion. 

Utah's Supreme Court struck administrative limitations on attorney fees recently. in Injured Workers’ Association of Utah v. State (UT May 2016), the Court concluded that such limitations violated Separation of Powers. The Court concluded that only the court could regulate the reasonableness of attorney fees in Utah. A similar outcome to the Miles and Castellanos decisions, but reached through a different route. 

Kentucky has been harder to understand. Beyond imaginative, that state's Supreme Court has recently been willing to abandon previous analysis and decisions. This was seen in Livingood v. Transfreight and Consol of Kentucky v. Goodgame. There are those who see these cases as adjustments to existing law, and others who see broad and inexplicable departures. In Parker v. Webster County Coal, the Court found constitutional infirmity in a theory not even advanced by the parties. The parties likely did not challenge based on equal protection as the Court had previously explicitly rejected that argument. There are those who feel nothing changed in the interim other than the personalities on the Court. 

The decisional challenge is not so much in the courts interpreting the law. The challenge is in the courts refusing to remain true to the rules of construction, the rules of interpretation, the rules of judicial restraint, and the courts' own previous decisions. Stare decisis is struggling in American workers' compensation. That is aggravated by a tendency of various courts to preclude the application of stare decisis - either not "publishing" decisions or restricting their applicability. 

That is not to say these are the only challenges, there are regulatory issues as well. Of course, the primary driver is medical cost escalation, which is driving states to regulate. The alternative is raising premiums. Premiums are like taxes, the higher they are the higher product and service prices will be. They are, in themselves arguably inflationary. 

As medical costs rise, there is increasing competition for access to limited resources. Thus states are turning to control mechanisms such as formularies, treatment guides, and impairment guides. The application of these standards will lead to increased litigation in some jurisdictions as injured workers resist the spirit of constraint. An individual naturally has more interest in their personal well-being than in the "greater good" of any system. 

Pain will continue to vex and challenge. Pain is real. And people will continue to experience pain. Certainly, pain is personal and subjective. It cannot be measured or tested. Following some now dubious conclusions regarding patients in end-stage cancer studies, a great many of our trusted medical professionals jumped aboard the Opioid train in the 1980s and 1990s. We have seen the outcome of their enthusiasm, paid in ruined and lost lives. 

In 2016, we think the final numbers will demonstrate 64,000 dead of overdose. America, it seems, has a problem. In the entire history of American involvement in Vietnam we lost 58,220 lives. We mourn them, honor them, thank them and put their names on a wall. But we lost more Americans to Opioids and overdose in just one year. And the numbers seem to be increasing. 

The same year, we lost 37,461 to motor vehicle accidents, another 10,000 or so to gun deaths (a mere 374 to rifles). Though we see activism and excitement to address the gun deaths, there seems less enthusiasm about the overdose. Only in 2017 and 2018 have we seen states begin to find the overdose issue critical. Certainly, the states went after pill mills earlier, supply was diminished. But overdose remained and increased with illicit drug deaths. Supply is only one part of this complex equation. 

Pain is real. I return to that again and again. That means that the solution to overdose and the solution to pain must remain co-joined. There must be alternatives for pain, whether in the form of alternative medications, yoga, bio-feedback, psychosocial conditioning, or otherwise. There must be compassion for the condition and perceptions of pain, even among acceptance of the inappropriateness of over-medicating with addictive and delitreious substances. 

There is a perception of the Pandora's Paradox here. We have a population of people in pain, acute or chronic. And, as a system we must address dealing with that pain. Within this is the realization that pain is a perception of our brains. The human body experiences pain, but our brains interpret that bodily perception. Thus, there is arguably a psychological component to many or perhaps most traumatic injuries. Yet, as a system, workers' compensation has been reluctant to engage psychology. 

There has been resistance because of the subjective nature of mental health. There is no x-ray, conduction study, or similar for the diagnosis of either existence or extent of psychological condition. How we cope or perceive is personal and is subjective. Thus, there is a perception that disputes regarding psychological injury or condition devolve to wearing matches between hired experts. 

Thus, the Pandora reference. Some believe that the condition must be addressed psychologically or at least psycho-socially. Others fear that starting down that path leads to greater disability allegations and dysfunction. Without addressing the emotional aspect of pain and dysfunction it is possible we can never improve it, but there is also the potential that by addressing it practitioners would (seemingly) create dysfunction. Thus, the paradox. 

This will be broader than injury. How emotionally facilitative is the employer, the work, and the environment pre-injury? How do we feel we are treated by the employment situation? If we are satisfied, motivated, valued, that will likely drive our return to work following an injury. If we are a commodity, a "cog in the wheel," a nameless and unthanked component, we are likely less motivated to return and contribute. The human spirit itself is at work in these emotions and feelings. 

And, employers can affect this, both before and after an injury or illness. Is the employer engaged and communicative or withdrawn and sullen? Is the return-to-work program real, productive, and compassionate? Are perceptions and reality of the workplace discussed and collaborative? In essences, are the employers and their agents interested in the people and their contribution, or merely in the production (the "bottom line")?

From this recent analysis and focus, we see advocacy models. We see partnerships in which insurers and employers are collaborating to effectuate deployment of medical resources early, facilitating of return to work, and engagement of workers. That process will continue to evolved. It is long since time that this process leverage technology to build communication and engage the worker. There is a profound sense produced by work absence and isolation. Employers can and should engage in the recovery process, communicate with workers, and make them part of the return-to-work team. 

Medical marijuana will be a challenge. There are a great many who react even to the phrase. They contend that if it is medicinal, it is cannabis, not marijuana. Proponents proclaim the efficacy and safety of this substance. One lawyer has even sued to force a state to allow patients to smoke marijuana. The same legal system that has (and is) held tobacco producers liable for promoting smoking is revolting against state regulators that preclude smoking of marijuana. If smoking is unhealthy, damaging, how can smoking one substance be safer or better than another?

As the market considers marijuana, which many see as an eventuality or reality of treatment, the proponents are loud. They espouse that this is a non-addictive, natural, and harmless treatment. They urge the market to acceptance. But, there is a population whose only experience with it are the Jeff Spicolis that they knew in high school. Whether the marijuana made them dull or whether the dull used the marijuana, the collective perception is real. 

There are also those for whom the opioid crisis is too recent. They recall being "duped" by the experts. The promises of the panacea of opioids seemed too good to be true, and in the end it was. There are those who feel there is today not enough real research on the potential downsides of marijuana/cannabis. They fear that the "truth" may include burdens that will not become apparent for decades and that the scourge of the the 2030s could be the mistakes made in too rapidly accepting marijuana hype and promise today. 

But today, marijuana remains a Schedule I drug. The federal government has determined it has "no currently accepted medical use and a high potential for abuse." Despite that, we have seen little willingness of the federal government to enforce laws. There are those who see this as part of a larger evolution through which America ceases to be a nation of laws. States openly defy federal law on marijuana and immigration. We now see municipalities and political subdivisions electing to similarly defy state law. The result is a patchwork of perceptions, laws, and practices that make predictability and transparency elusive.

Remembering the discussion above of psycho-social issues post-accident, employers will increasingly have to focus on emotional engagement and well-being even before work injury. The workplace consumes the predominant portion of our time each week. There are increasingly publicized issues with interpersonal relationships, bullying, discrimination, and more. 

Employers will have to grasp that the work environment is critical to the engagement and perception of those who work there. Perceptions and conclusions of employees will influence their satisfaction and participation. That will affect bottom-line in the near term, and the culture that is created will impact return to work and engagement post-injury. 

The current challenge is sexual harassment. That is not because it is a current issue, but because it is currently receiving attention in Hollywood, politics, and more. But, the fact is that this is not new. The fact is that workplaces have included sexual tension as long as sexual tension has existed. The same is true for bullying and a variety of other human issues. Employers will have to accept and deal with the fact that when a person is hired, the "whole person" and all that human baggage is included. The whole person will influence productivity, cooperation with co-workers, and that "bottom line."

It is perhaps because people are complex that we see evolution to technology. Robotics and artificial intelligence will replace humans. We see an amazing increase in both of these paradigms as the bottom line of the workplace drives efficiency. Robots and artificial intelligence are more efficient than humans. And, they do not come with the emotional baggage, they never call in sick, the are consistent, persistent, and efficient. They are not human. 

There is the rub, they are not human. We inherently crave personal relationships though. As humans, we prefer a human touch us, listen to our heart, and diagnose us. Would any of us be happy with a robotic doctor? The robo-doc may be smart, effective, and efficient, but it will never be human, compassionate, and caring (some have criticized me for this, claiming human doctors often are none of these; cynics). Are we any more likely to be satisfied with an animatronic voice acting as the claims adjuster on our work injury? But, perhaps instead of replacing claims adjusters and doctors, these technologies can free them from the mundane and facilitate them having more time for the human interactions we crave?

The American economy will change. As it does, the world economy will be drug along behind. Driver-less cars will decrease or eliminate accidents. There will be less need for auto body shops, chiropractors, orthopedic surgeons and personal injury attorneys. There will be less demand for those billboards, radio stations and bus benches that advertise those services. The world will change and that includes the world of work. 

There is some discussion that the "current immigration policy" will challenge us. There is a perception that somehow enforcing the law is a lamentable situation. If the law is not helpful or is damaging, then perhaps there should be discussion of changing the law. However, the suggestion that executives state or federal should ignore law merely contributes to the demise of the rule of law upon which this nation was founded and upon which foundation so much has been built. 

The workforce is aging. This is driven by a variety of factors. First, we are living longer, and some perceive retirement (fishing each day) as less than interesting. This is leading some to remain in the workforce longer. We have a social security system that is not appropriately structured financially. Too little is collected and too much is dispensed. Some of that was predictable or even obvious, but our politicians of the past ignored reality of the future (our present) for their own present. 

Some of the challenge was less predictable. The life expectancy and health improvements that science has delivered have been astounding. Even with recent regressions, people are living longer. That means retirement to death has become a greater time period than predicted, feeding the "too much is dispensed" side of the equation. Congress has noted this, and for many the "new normal" will not be a full retirement at 65, but at 67. That age progression is likely to increase. 

The policies of government created a housing bubble and then collapse. The effect has visited many. They find their retirement savings, investments and plans inadequate. Thus, they remain in the workforce longer. Their reaction is logical and in some instances unavoidable. For whatever combination of causes, people are remaining in the workforce longer. Regardless of our personal perceptions of invincibility, the fact is that our bodies tend to become less resilient with age, and this increasing workforce age will likely lead to more injuries, extended recoveries and difficult return-to-work. 

We have heard a great deal about the Millennial generation. There is a tendency to lament their motivations, work ethic, and focus. The reality is that every generation has doubted the wherewithal of the next. It is time to accept the Millennial generation, because their ascendancy is inescapable. Despite older Americans remaining in or rejoining the workforce, the Millennials will become the predominant generation in the American workforce in 2019

I have heard lamentations and complaints. Some employers have told me they avoid hiring millennials. But, they are the future. They bring challenges and weaknesses (as we all do), and yet they will bring strengths and advantages. The challenge is not in finding how to conduct business without them, but in accepting that they are critical and have to be integrated. That will mean change, but change is inevitable. 

The U.S. census bureau defines Millennial as born 1982 to 2000. These are the people who "come of age" in the new millennium. They are defined by who and what they are. And, that is in large part our doing not theirs. I recently enjoyed hearing a manager respond to criticism with "hey, I am not the one that bought them all those participation trophies." There is merit in that perhaps? As they were raised and educated, they are who they are. As they ascend, we will have to make modifications to assimilate them.

There is some doubt about the cohesive nature of the entirety this group however. The Pew organization has expressed doubt. It suggests that the Millennial generation ended instead in 1996. It identifies a different value set, motivational drivers, and attitudes in those born after 1996. It suggests that the "next" generation of Americans is evolving and developing, and it notes that this groups' values may be more closely aligned with its Baby-Boomer predecessors than with its Millennial peers. That does not mean the "next" generation is better or worse, but reminds us that change is constant.

I will enjoy this opportunity to interact with the Mississippi marketplace, and am thankful for the opportunity. I am likewise hopeful that this overview of the Significant Issues will be of value. 

Tuesday, April 17, 2018

Nonsensical and Punitive - the Law for Now

Texas, a "Scottish pop rock band from Glasgow" sings Say What You Want. It's a catchy tune. A lyric sticks with me:
Yeah, you can say what you want
But it won't change my mind
Perhaps that is a recurrent theme in America. It somehow takes me back to a Dave Edmunds hit in 1970, I hear You Knocking
I hear you knocking
But you can't come in
These pop culture references came to mind recently when I read about the decision of the 11th Circuit Court of Appeals in Humana Med. Plan v. W. Heritage Ins. Co., 832 F.3d 1229 (11th Ci. 2016). The case has to do with a Medicare Advantage Organization (MAO) and a suit for reimbursement under the Medicare Secondary Payer Act (MSP). The case is 18 months old, but came back to the fore recently because of another decision in the case rendered January 25, 2018. The effect of the January decision is that the 2016 decision stands.

In 2016, a three judge panel of the court, Judges Pryor, Black and Parker concluded that the MAO had a "private cause of action" as against "a primary payer." The MAO was Humana, and it provided medical services to a Ms. Reale. The MAO was not a "primary" payer for medical services, because federal law specifically provides that "Medicare payments are secondary and reimbursable if any other insurer" has responsibility. The primary payer, the "other insurer" was Western Heritage Insurance Company. 

Western Heritage insured the condominium association which Ms. Reale alleged was responsible for her injuries. While the Reale lawsuit against that association was pending, Humana issued a "reimbursement request" to Ms. Reale for $19,155.41. Then Western Heritage and the condominium association settled with Ms. Reale (remember Settlements are Contracts). 

That contract called on Western to pay Ms. Real $115,000 in exchange for which she dismissed her lawsuit and released the defendants. The Court noted that Ms. "Reale represented in the settlement agreement that there was no Medicare or other lien or right to subrogation." This is perhaps semantics, "request" as opposed to "lien" or "right?" Furthermore, Ms. Reale "agreed to indemnify Hamptons West (the condo association) and Western against any Medicare or other lien or right to subrogation." Thus, if either defendant were called upon to repay Medicare, Ms. Reale would step in and pay instead. 

Thus, there was a contract, negotiated among the interested parties, upon the representation that no lien existed and that one party (Reale) would be responsible for any lien or other subrogation obligation. And that returns us to Say What You Want, because that is certainly the parties' right. But, this court decision teaches that such an agreement is of little value. 

Humana sued Ms. Reale and her attorney for the $19,155.41. The federal court dismissed that lawsuit concluding that "an MAO does not have a private cause of action to recover reimbursement from a beneficiary." Learning of that development, Western Heritage first tried to make the settlement check ($115,000) payable jointly to Ms. Reale and Humana, but Ms. Reale objected (despite her agreement to be responsible). Western elected to make full payment to Ms. Reale only. Ms. Reale then made unsuccessful efforts to determine the appropriate amount due to Humana. 

Finding itself unsuccessful with Ms. Reale, Humana then sued Western Heritage for the lien amount, and alleging entitlement to "double damages" under the federal law. The federal trial court concluded that Humana had a "private cause of action" against the "primary payer," Western Heritage. On August 8, 2016, the 11th Circuit affirmed that conclusion on appeal (three judge panel of the court described above), agreeing with an earlier similar decision from the Third Circuit in In Re Avandia Marketing, Sales Practises & Products Liability Litigation, 685 F.3d 353 (3d Cir. 2012). 

The affirming opinion in Humana was not unanimous, however. Judge Pryor dissented. He noted that "Medicare is governed by a notoriously complex statute." Judge Pryor illuminated issues with Avandia, as well as with the majority's reasoning in Humana. He concluded that "the text of the statute is clear and that Humana failed to state a claim." He would have reversed the trial court. 

That was 18 months ago. Following the rendition of Humana, one of the judges of that court asked that the decision be considered by the entire court. This is called a rehearing en banc. And for 16 months that request was being considered. Then, on January 25, 2018, the 11th Circuit in a short order declined to hear the case en banc, leaving Avandia and Humana the law of the land.  While that decision required less than a page to communicate, the entire decision is 39 pages long. 

The "other" 38 pages of that order is a dissenting opinion by Judge Tjoflat. Judge Tjoflat agreed with Judge Pryor's interpretation of the statute in the panel decision dissent. He concluded that the panel decision "exterminates the state law" that protected payers and MAOs, and instead "substitutes in its place a scheme that is at once nonsensical and punitive." He explains that the outcome "creates a windfall for MAOs that do elect to pay" medical benefits. And, in the process, perhaps discourages that election?

After describing the existing subrogation (assertion of the rights of one party by some other party) rights under state law (the injury to Ms. Reale occurred in Florida), Judge Tjoflat concluded the Court's "decision renders the above provision irrelevant." As framed by the Court’s decision, an MAO’s reimbursement right is vastly expanded." Essentially, he concluded, the decision "amounts to a rewriting of state insurance laws."

What does this illustrate?

First, you can say what you want in a settlement agreement, agree to be responsible for the Medicare lien, but the courts are free to disregard. "Yeah, you can say what you want, but it won't change (the court's) mind." In settling cases with potential Medicare liens, payers will perhaps now settle for less in order to retain funds for resolution of the Medicare lien? Or, they will perhaps insist on proof of satisfaction of the Medicare lien before settling at all?

As for a judicial correction of the situation, the courts may perhaps hear Judges Tjoflat, Pryor and others "knocking." But, for now, they "can't come in." Perhaps a court will readdress this federal revision (or "extermination") of state law. Perhaps Congress will revise the law to address the intriguing interpretations. Or, perhaps Avandia will remain the law of the land, for litigants and payers to study, interpret, and follow?

For now, at least, the law is "a scheme that is at once nonsensical and punitive." But, at least it is consistently so. Predictability at least allows litigants to plan and act. And, though I began with Texas and Dave Edmunds, the Humana conclusion leads me to Men Without Hats, and their 1982 Safety Dance:
And we can act like we come from out of this world
Leave the real one far behind
The market, government, and most importantly the people would benefit from a better process; a "real world" process in which contracts are respected and honored by courts, one in which the law is neither nonsensical nor punitive.