Tuesday, October 30, 2018

Fund Raising and Politics by Judges

The Code of Judicial Conduct has come to mind again recently. Driven by some news stories that have received little attention, but nonetheless which are nonetheless worthy of note. There are some things judges are not supposed to do, and recent stories have highlighted two of those quite well, one in Texas and the other in Pakistan. 

Regular readers will know that the world of adjudication has rules. Various states have a Code of Judicial Conduct. Those may be based upon the American Bar Association Model Code, but they are not necessarily identical, see The Code of Judicial Conduct and Scouting. The Codes limit judicial activity in a variety of ways, for examples, see The Sleuthing Judge, Sleuthing Addressed Again, Judge Reprimanded for Ex Parte Communication, and Judicial Ethics and "The Great Pumpkin."

And today's is a discussion of two that seem pretty obvious: Judges should not participate in political activities, and should neither lend the prestige of judicial office to causes nor engage in fundraising. It is fair to say that one gives up some significant rights and freedoms when she/he takes on the role of judge. 

The ABA Model Code of Judicial Conduct is a baseline from which a state might work in crafting a Code. And the Code with which I am most familiar is the Florida Code, in large part because the Legislature decided that code applies to Judges of Compensation Claims. See Section 440.442, Florida Statutes. But, more relevant today, both Texas and Pakistan have adopted a Code of Judicial Conduct.

In the first story, the recent confirmation hearings regarding Brett Kavanaugh had an apparent impact several miles south of our nation's capitol. There are, of course, differing opinions regarding Justice Kavanaugh; some love him, others hate him, and in between there are a multitude of opinions, feelings, and conclusions. But, a judge in Texas was apparently deeply upset about the confirmation of Justice Kavanaugh.

Judge John Lipscombe of Travis County allegedly "draped black funeral bunting over the double doors to his courtroom" according to a story in the Statesman. He was apparently not pleased with the Justice's confirmation. Judge Lipscombe also "closed his courtroom and refused to handle cases for one day to protest." The Statesman says that some believe "103 defendants" did not have their day in court that day, secondary to his protest. But, apparently anyone willing to just plead guilty could do so before one of the other judges. Perhaps a difficult decision for a defendant with limited time and resources, driven to "guilty" by exigencies beyond their control?

One Judge was quoted saying that the Judge Lipscombe protest "cost taxpayers $58,000 — the cost to run a courtroom for a day." That judge noted that "we are public servants, and I believe the best way to protest for public service at the federal level is to provide exemplary public service at the local level,” The Statesman concluded that the Texas Code of Judicial Conduct "does not cover courtroom protests." 

In a British Broadcasting Company (BBC) story from oversees, the Chief Justice of Pakistan's highest court has begun a "crowd-funding" campaign to raise money for dams. The subject of crowdfunding has been here before, see The Lienholding Concept and Questions. The price tag for the dams is about seventeen billion U.S. dollars, and the nation finds itself unable to either raise or borrow that money conventionally. So, the Chief Justice "set up a fund to raise" money to build two dams. The Judge is apparently a true believer, as he made the first donation of "roughly $8,000." 

Believe it or not, several others have contributed to the fund since the Chief Justice made his commitment public. This includes the nation's military, business, and students. The BBC notes that "almost every day there's a press release from the Supreme Court with news of different individuals and institutions meeting the chief justice and donating to the fund." 

Not only has the Chief Justice put his own money where his mouth is, he is personally meeting with potential donors to raise funds for the two dams. But, the BBC reports that of those meeting with the Justice, "many have cases pending in court, which has raised suspicions they may be trying to influence the judiciary." Donating to the Chief Justice's pet project as a path to litigation success? Intriguing indeed. Even if there is no influence peddling or pursuing, there is admittedly the potential for some observer of these activities to believe there is such influence in play. 

One might consider some Code provisions of interest:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Model Code Rule 1.2. 
A judge . . . should personally observe those standards so that the integrity and independence of the judiciary is preserved. Texas Code Canon 1.
A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Texas Code Canon 2.
To be above reproach, and for this purpose to keep his conduct in all things, 'official and private, free from impropriety is expected of a Judge. Pakistan Code, Article III. 
The conduct of either the Texas or Pakistan judge might be seen as not instilling the public confidence. Either might be viewed as demonstrating impropriety in their duties, or at least risking that their performance would have "an appearance" or be perceived as impropriety. 

The Pakistan Judge might note that "in particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law." Pakistan Code, Article V. Furthermore, in dealing with those who have litigation pending before the Pakistan Court, one might be concerned that "a Judge must rigidly refrain from entering into or continuing any business dealing, howsoever unimportant it may be, with any party to a case before him." Pakistan Code, Article IV. These are consistent with the ABA Model: "a judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so." Model Code Rule 1.2. 

The Texas judge might particularly note that "A judge shall perform the duties of judicial office impartially, competently, and diligently." Model Code, Canon 2. It is critical that "the duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and extrajudicial activities." Model Code Rule 2.1. These ideals are either explicit or implicit in the Texas Code, Canon 3. 

The Texas judge might also note that "A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office." Model Code, Canon 3. This is echoed in Texas Code, Canon 4. Those who had business scheduled before the court, whose business was deferred, ignored, and disrespected might well conclude that the judge preferred his "extrajudicial activities" to the "obligations of judicial office." 

In the broadest context, the "appearance of impropriety" may be the most challenging standard for any judge. Regardless of the sincerity of a belief, or the (self) perceived righteousness of a cause or statement, it may be most appropriate for a judge to merely defer either speech or behavior. Both of the situations described could be seen as inappropriate in either spirit of effect. 

More importantly, the potential for an appearance of impropriety is easily discerned. The actions of these judges are in spite of that potential. But, each is faced with specific ethical obligations that should caution against the behavior of which they are accused. Judges have obligations, and society as a whole is dependent upon the courts operating consistently, persistently, without fault or failure. Courts are comprised of people, and people are imperfect. That means failures will occur. The Codes do not forbid failure, but they should drive us to aspire to our best. The behavior illustrated in these allegations is no one's best. 

Every judge should remember that the public perception of a judiciary is perhaps more influenced by the few inappropriate and improper behaviors that are reported in the news than by the daily, diligent, and meritorious efforts of so many adjudicators. A momentary lapse of judgment by one or a systemic fund-raising campaign by another can seriously diminish the trust which the public so very much needs to have in the adjudication process. The concept of independence and effectiveness of that process is dependent upon people believing in judges, their humanity, consistency, and morality. Examples like these allegations do not instill that faith or confidence.

Sunday, October 28, 2018

An Intriguing and Powerful Dissent

Many years ago, in one of my first legal jobs, I was paid to peruse a weekly stack of various-colored papers ("slip opinions") issued by the Mississippi Supreme Court. These decisions encompassed all of the Court's decisions for a particular week. The pages' coloring had a significance, the details of which elude me today. But essentially,  certain categories of decisions were printed on yellow paper, others on blue, green, etc. The benefit being that a busy lawyer might nonetheless remain current on her or his specialty by perusing only those decisions on a particular paper color. 

For whatever reason, the firm that employed me wanted a written synopsis of each of the cases, a "Cliff notes" version created each week and distributed the following Monday. At the time, the Mississippi Supreme Court was the only appellate court in Mississippi, so there were often numerous and diverse topics. Summarizing its decisions was a difficult burden some weeks when the Court was busy, but other weeks not so much.

Over the years, I have managed to forget virtually all of those cases. Many were interesting in the moment, and my job was to analyze them. But time fades memories. One I have never forgotten stuck with me for several reasons. I learned of it reading and summarizing Lambert v. State, 574 So.2d 573 (Miss. 1990). In Lambert, Justice Hawkins concurred (agreed) with a separate opinion. He agreed with the decision, and argued for the reversal of Hall v. State, 539 So.2d 1338 (Miss. 1989), rendered almost two years previously, in which he colorfully and eloquently dissented. 

Following that thread, I read Hall, and it has stuck with me for these many years. First, the topic of constitutional powers was central to the analysis, and the Constitution is a personal favorite. Second, the decision included a masterfully written dissent and at the time I was only beginning to appreciate the power of civil disagreement. Third, the Hawkins dissent in Hall referenced Florida, which was where I then intended to soon move. And, finally, the opinion gave prose to a Mississippi legend, memorializing what was perhaps a Hollywood-worthy moment in the course of oral argument. 

Justice Hawkins' Hall dissent came rushing back to me early this century as the Florida Supreme Court contemplated its role in Florida workers' compensation rule promulgation. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). His thoughts crossed my mind again when the Florida Supreme Court declined to adopt the legislative imposition of a stricter evidentiary standard (the Daubert standard) for opinion testimony in Florida court cases. In re Amendments to the Florida Evidence Code, 210 So.3d 1231 (Fla. 2017). See Daubert, We Hardly Knew Ye, or Do We?

Justice Hawkins' dissent in Hall was enlightening. The case focused on elements of the Mississippi Rules of Evidence, and the admissibility of information in court. The State sought to introduce evidence precluded by those court rules, under the authority of a statute passed by the Mississippi legislature. The Hall majority conceded that the statute "appear(ed) to suggest admissibility," but explained that rule-making power for courts was the exclusive province of the courts. It noted its evolution to Court-enacted rules stating that in 1981 "we crossed the Rubicon as the Court entered its Order Adopting the Mississippi Rules of Civil Procedure." Such judicial prose seems increasingly rare. The symbolism of both the Rubicon and crossing are noteworthy. 

Upon the conclusion that constitutional structure both created government and defined roles, the Hall majority focused upon separation of powers. From that separation of powers, the Court concluded that it and it alone had province to make rules for litigation. It perceived the legislative action as encroaching upon that power, and as such unconstitutional. Therefore, the trial court's admission of evidence under that statutory provision, in seeming violation of the Court's hearsay rules, mandated reversal for a new trial. Having "crossed the Rubicon," the Court remained colorful in declining to address other points raised on appeal, noting:
"What we have said above is adequate to adjudge this appeal. The bite is quite as much as we this day ought chew."
Justice Hawkins alone dissented. In an opinion that is both courteous and direct, the foundations of the majority analysis are questioned. And in that text, he recounts the legend of Mississippi attorney Weaver Gore. His was a story recounted in lawyer gatherings in Mississippi; though perhaps few remembered his name, most knew of the story, to which REO Speedwagon's lyrics might aptly apply ("And the tales grow taller on down the line"). 

You see, it seems that Weaver Gore found himself in an argument in court. As the legend is recounted by Justice Hawkins, "he is reputed to have been reading from his law book in making an argument," only to be interrupted by the judge, who told him, “that's not the law, Mr. Gore.” Justice Hawkins recounts that "whereupon, Mr. Gore tore the pages from his book and replied, 'If this is not the law, I don't want these pages in my book.'" I have heard the story told many times, and a fair few who also have will likely agree that Justice Hawkins' version is not necessarily one of the most embellished or fanciful they have heard. That alone makes this dissent interesting reading. 

But, Justice Hawkins proceeds. Perhaps answering the invitation of literary prose proffered by the majority ("Rubicon"), he too waxes a bit eloquent, noting that the 
"majority is stingy with its citations. Other states' experiences with this question are ignored. The citations the majority does give, as examination reveals, are no support." 
In the proverbial nutshell version, when I was a child on the playground, we regularly encapsulated such lofty espousal with a simple "oh huh." Justice Hawkins' language, with its courteous criticism impressed me in 1990, and its allure remains today.

See, Justice Hawkins believed that the "Legislature acted well within its sphere of Constitutional authority" in passing the statute in question. He perceived "no Constitutional authority in strike it." and accused instead the Court of "trespassing into forbidden territory, and not the Legislature in passing an Act." And he explained the lack of judicial authority quoting a poem by Samuel Coleridge, Xanadu:
"In Xanadu did Kubla Khan, A stately pleasure dome decree, Where Alph, the sacred river, ran Through caverns measureless to man, Down to a sunless sea."
Justice Hawkins explained that "Kubla Khan, being a dream king, did not need to build a palace; he simply 'decreed' it out of thin air," and he accused the majority of essentially doing the same with its assumption of power to strike the legislative enactment. 

Justice Hawkins reminds of the essential nature of our constitutional republic, that power comes to government not through some divine right or presumption, but from the people themselves. The people grant the government its right to exist, and the people, he reminds us, speak through their elected representatives, not through appointed judges. He reminds us that
"it is strange reasoning for the majority to say that the people, speaking through the Legislature, the only manner in which they can speak, can enact no such law under our Constitution." 
Truly a point to ponder. He drives the point home noting in conclusion "the majority is not picking a fight with the Legislature, but with the people. Guess who is going to win?" That may be the most intriguing phrase of the dissent, despite the lofty reference to Xanadu and the entertaining Weaver Gore story.

Justice Hawkins notes that "generally throughout the United States it has been accepted that the Legislature was exercising a Constitutional prerogative in passing procedural or evidentiary statutes." He describes legal encyclopedic support for his contention, and that "several hundred decisions are cited under each." Justice Hawkins cautions of “inherent power,” noting that it "can get risky. It can get especially so when there is no one to dispute the claim" (a rephrasing perhaps of the old saw "absolute power corrupts absolutely"). 

And, Justice Hawkins bolstered his rebuttal with "other states," naming in particular Florida. He noted that "in most states their Supreme Courts either have been given specific constitutional or statutory authority to promulgate rules of practice." He noted that Florida differs from Mississippi in that the Florida Supreme Court's authority comes from "The Florida Constitution," which "expressly directs that its Supreme Court 'shall adopt rules for practice and procedure in all courts.'” And despite that grant of power, he argued that Florida legislative adjustments to the admissibility of evidence had nonetheless occurred; accepted in Florida to some extent, but deemed unconstitutional by the majority in Mississippi. 

Justice Hawkins accused the majority of embracing "a quixotic idea that the umpire of a game should be vested with the exclusive authority to prescribe the rules." He explained that "this ignores the players, the ones who ultimately win, as well as the one who must suffer the misery following losing." His is an indictment of judicial activism in the strongest terms. He cautioned that in limiting or delineating which rules should be stricken, through any "attempt to clearly separate rules into 'substantive' and 'procedural' is a quagmire." He reminded that "a court is created to administer justice, to decide cases, to administer the law in court on a case-by-case basis, not to legislate." He lamented the majority action, and predicted repercussion. Justice Hawkins closed quoting Thomas Hobbes “Hell is learning the truth too late.”

Across the country, hundreds of legal decisions are rendered each day. It is hoped that the vast majority of them are decided by umpires who enforce, but who do not attempt to create, the rules of the game. On a dreary afternoon decades ago, I stumbled across Justice Hawkins' wisdom and wit. It resonated with me. Writing about it today, I lament that we never met. I would have enjoyed a conversation with him.

Thursday, October 25, 2018

The Lienholding Concept and Questions

There exist various statutes in the United States which allow payers to be reimbursed a portion of their payment, when there is recovery from third parties. Florida’s embodiment of this concept is in Section 440.39, F.S. That statute and the two seminal cases interpreting it, Nikula v. Michigan Mut. Ins., 531 So.2d 330 (1988) and Manfredo v. Employer's Cas. Ins. Co., 560 So.2d 1162 (1990), have together consumed hundreds of hours of my time over the years.

Section 440.39, F.S. provides the foundation for this concept in Florida:
"(2) If the employee (or dependents) accept compensation or other benefits under this law or begin proceedings therefor, the employer (or insurer) shall be subrogated to the rights of the employee (or dependents) against such third-party tortfeasor. If the injured employee (or dependents) recovers from a third-party tortfeasor by judgment or settlement . . . the amount recovered from the tortfeasor shall be set off against any compensation benefits." 
An example is likely of assistance in comprehending this. Take an instance in which an employee has left the employer's (ABC Company) facility in a company vehicle, headed toward a work meeting or to call upon a company customer. Another vehicle, driven by Bruce Wayne runs a traffic signal and Bruce's vehicle hits the company vehicle, injuring the employee. The employee could both receive workers' compensation benefits and file a claim against, or even sue, Bruce Wayne (for which he or his insurance company might be responsible). 

If the employee recovers from Bruce Wayne, and has received workers' compensation benefits, then it is probable that some portion of the recovery or settlement from Mr. Wayne will have to be repaid to ABC company or its workers' compensation insurer. Similarly, some categories of the employee's future workers' compensation benefits may likewise be reduced. The methodology is somewhat complex, and involves mathematics. It is adequately described in Langham, Recovery on the Florida Workers' Compensation Lien, Trial Advocate Quarterly, July 1995, though finding a copy of that old publication might prove a challenge (email me and I will send you a copy). I consulted in several "lien recovery" cases after publishing that article, and once appeared as a witness in court regarding the procedure and somewhat difficult math. 

There has also been a great deal have news coverage regarding the innovative crowd-funding concept that is GoFundMe, and similar. Today, seemingly anyone who suffers a loss has a friend, neighbor, or coworker who will deploy an Internet platform in hopes of drawing the public at large towards donating money to benefit someone.

How does "crowd funding" affect other rights or obligations? This recently made the news when a Tennessee State linebacker was injured in the course of a game against Vanderbilt (I double checked this, Vanderbilt does indeed have a football team). According to SBNation, two people started crowd-funding efforts on his behalf. The school asked that those efforts cease to avoid "a potential violation of NCAA (National Collegiate Athletic Association) rules." The NCAA apparently will allow the university to have a campaign to raise funds, but "other crowd-funding attempts may put Abercrombie’s (the injured player) eligibility in jeopardy.”

A popular recent example of the potential of such fundraising regards a significant amount of money raised on behalf of a homeless Marine. He gained notoriety doing a good deed for a lady stranded on the highway. She started a GoFundMe campaign, raised significant money, and now litigation has ensued as to how much the homeless vet received. There are questions as to what happened to a significant portion of the money. 

Another intriguing story was documented on The WCC WorkCompWorld Blog in Groundhog Day. That post documented some naïve and ambitious sailors who put to sea in a $5000 sailboat, with $100 cash in their pockets, and found themselves almost immediately shipwrecked and in debt. Similarly, a GoFundMe effort pulled them from the financial abyss and saw them on their way.

The topic of third-party recovery and its confluence with GoFundMe came up in a recent discussion at a workers' compensation meeting. The question involved a tragic news story involving a Florida bank robbery suspect, spotted along a Kentucky highway. Local police intervened to make a traffic stop, which ended with the suspect dead, and a sheriffs deputy seriously wounded. The deputy is now reportedly "90 percent paralyzed after being shot in the back." The story is tenuously related to Florida but it is interesting. 

One pertinent element of the news story, is that associates of this sheriff deputy have begun fundraising for his survivors and family. This includes an effort on-the-ground in Kentucky. However, it also includes a GoFundMe page "set up to help cover Morales' costs, such as a wheelchair-accessible vehicle," according to a local television station. I located the site without difficulty, and there was a significant volume of contribution demonstrated, over $25,000. 

The question that was why would an injured worker need funds beyond workers' compensation. And then, whether the the workers' compensation carrier or the deputy's employer would have a lien as it would against Bruce Wayne in the example above. 

The first question is perhaps the easiest. While workers' compensation provides a measure of benefits following a work accident, it will not necessarily cover every expense. The vehicle mentioned in the article is a great example. In some states, a workers' compensation carrier will be obligated to provide transportation to and from medical appointments or therapy, but not liable to provide a vehicle. And a vehicle provides freedom, change of scenery, and flexibility. Thus, it is certainly possible for an injured worker to have a need that is beyond the obligations of a workers' compensation system in a particular state. 

The second question is intriguing. It drew my mind back to section 440.29, and the recovery participation-type statutes (lien) which exist in so many jurisdictions similarly. Presumably, a go fund me balance of $5000 would not attract a payer to seek to participate. However, if a go fund me and treaty raised $400,000(as it did the Marine above) to the benefit of survivors or the estate of an in person injured at work, is it possible that a payer might seek to participate similarly to third-party proceeds?

The answer will be found in the particular state's statute. In Florida, the provisions of Section 440.39 are reasonably specifically focused upon recovery "against such third-party tortfeasor." That specificity seems unlikely to encompass donations in a charitable situation, such as GoFundMe or similar. Despite carrier recovery seeming unlikely under this Florida statute, it is nonetheless possible that a statute in some jurisdiction might be more broadly worded, and might be subject to some viable argument for participation. 

As I told the questioner at the seminar, carrier recovery in such a situation would seem to be challenging, and ultimately would depend upon what the statute says. These are important workers' compensation reminders: that benefits may not cover everything, benefits and parameters may differ state to state, and the wording of a state's statute will be critical to determining rights and responsibilities.

Tuesday, October 23, 2018

Unrecused - is that a thing?

I recently ran across an analysis from 2014 that was interesting. Reuters noted that U.S. Supreme Court's Alito ends recusal in Aereo TV case. That might not be a headline that draws many outside the legal profession, or outside the specialized and dedicated groups that carefully follow the U.S. Supreme Court (Or Supreme Court of the United States, often abbreviated "SCOTUS"). But that headline grabbed my attention. It's statement is antithetical to me as a trial judge, and caused me to do some reading. As is my habit, that reading led to writing. 

I have written before about the manner in which judges remove themselves from a particular case in Lessons in Recusal and Disqualification. That post explains in some detail that a judge may not re-acquire jurisdiction over a case following either disqualification or recusal, see Miller v. Bell South Phone Co., 860 So.2d 523 (Fla. 1st DCA 2003). Thus, the idea of a recusal ending  or undoing was intriguing. Noting that Miller is a workers' compensation case, and suspecting its' prohibition might perhaps be somehow distinct to executive branch judges, it is worthwhile to explore this topic again in broader terms. 

The focus of the Reuters article is on Supreme Court Justice Samuel Alito, who was appointed to the Court in 2006 by President George W. Bush. The news broke because "online docket entries" maintained by Court then reflected that "Alito would allow himself to participate in the Aereo case and "in a dispute between beverage companies Coca-Cola Co. and POM Wonderful LLC." In an appellate setting, the involvement of all of a court's judges may be important because their efforts are collective in nature, one judge is one vote, and a majority of the court rules. Following the death of Antonin Scalia, the effects of an even number of justices was demonstrated recently, according to the New York Times

The Reuters story notes that there is no edification offered, that "the court does not comment on why justices disqualify themselves." Seemingly, the court also does not comment as to why justices "un-recuse" themselves "from certain cases." Reuters conjectures that the removals might perhaps result "because they own stock in one or more parties." Thus, conceivably, when the justice no longer owns the stock perhaps it is permissible to "un-recuse?"

A brief spate of research revealed that there is not a great deal of edification available for the idea of "un-recusing." The term is mentioned in multiple articles regarding the decision of Attorney General Jeff Sessions in various special counsel investigations of the executive branch. But the term is somewhat rare in legal decisions. It is explained in one Alabama Supreme Court decision, Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495, 564 (AL 2015). There, following the explanation of the Court's decision in the case, there is a separate section labelled "MOORE, Chief Justice (statement of nonrecusal)."

The Chief Justice of the Alabama Court explains that he had initially recused himself from considering the case because he had issued an "administrative order" therein. He explained that this recusal decision allowed him to "avoid sitting in review of my own administrative order." But, he later elected to "sit on the case to review a different issue," as the administrative order later became "no longer at issue in this case." In support of his decision, Justice Moore cited Justice Alito's decision noted above, American Broadcasting Cos. v. Aereo, Inc., 134 S.Ct. 2498 (2014), and a similar un-recusal of SCOTUS Chief Justice Roberts in Stoneridge Investment Partners, LLC v. Scientific–Atlanta, Inc., 552 U.S. 148 (2008).

Thus, the Alabama Chief Justice relied upon the decisions of two Supreme Court Justices. Despite that recitation of authority, however, Justice Moore also elected to support his un-recusal with reference to a 1956 federal decision rendered in an Alaska case, Stringer v. United States, 233 F.2d 947, 948 n. 2 (9th Cir.1956). Some may question whether that 1956 citation strengthens the Justice's explanation of his unrecusal or not. Justice Moore also noted that "it is a judge's duty to decide cases," and that overriding premise leads to support that "a judge may participate in a case after initially not sitting if the issues that prompted that abstention have changed."

There are a few other examples of un-recusing. In a Louisiana judicial discipline case, an investigatory commission concluded that a trial judge erred by "unrecusing himself after disqualifying himself in the first place. In re Judge Joel G. Davis865 So.2d 693 (LA 2004). In that instance, the accused judge 

"testified that he recalled his recusal because an ad hoc judge had not been appointed in the case." Fearing that his recusal was therefore prejudicing a criminal defendant, the judge unrecused himself and "just accepted the plea."
This Louisiana decision seems more in line with the Florida decision in Miller v. Bell South Phone Co., 860 So.2d 523 (Fla. 1st DCA 2003), discussed above and in the prior post. But, the unrecusal issue explained by a state court chief justice, citing the unexplained and somewhat cryptic unrecusal of two SCOTUS justices certainly does warrant consideration. 

In 2005, the Florida Fourth District considered Cusimano v. Fred Florio & Kinemed, Inc., 900 So.2d 627 (Fla. 4th DCA 2005). There, a trial judge, Judge Fleet, recused himself because one of the law firms involved in the case was also representing the judge in an unrelated matter. The case was then reassigned to Judge Green, but for some unexplained reason, Judge Green and the court clerk somehow reassigned the case back to Judge Fleet. No party objected to that, and Judge Fleet even commented on the record about his prior recusal. Following entry of a judgement, a party appealed and the District Court agreed that all actions by Judge Fleet were "void." Thus, a similar result in constitutional court to the decision regarding a workers' compensation judge in Miller.

The Cusimano decision cites Kells v. Davidson, 102 Fla. 684, 136 So. 450 (Fla. 1931). There, a Circuit judge recused himself from a case in which his brother was a defendant. The judge's brother later ceased to be a party to the case, and the matter was transferred back to that original judge. The Florida Supreme Court held "this court is committed to the doctrine that, when a judge is once disqualified to officiate in a cause pending, the disqualification continues throughout proceedings in the cause" (citation omitted). The Court explained
"It would be an unwise provision of law which would contemplate that, when a judge is once disqualified in a cause, the reason for his disqualification could be removed from the record, and thereupon such judge would become qualified to proceed with the disposition of the cause and act as though he had never been disqualified."
Instead, the Court concluded
"The safe and sound rule is that, when the record once shows that a judge is disqualified in a cause, it becomes his duty to certify such disqualification, transfer the cause to some other qualified judge, and thereafter take no part in the disposition of the cause."
Thus, perhaps there is a distinction for the recusal of Supreme Court justices or appellate judges. Or perhaps the law is different in Alabama or the federal system than it is in Florida. But, it appears clear in Florida that the disqualification or recusal of a trial judge, administrative or constitutional, is a disqualification or recusal for the duration of that case. Though circumstances may change and time will inexorably pass, the judge once removed is not to return. While such a rule might work hardship, result in delay or even expense, result in tie votes as noted by the New York Times, it is perhaps a "safe and sound rule" for any judge. 

Sunday, October 21, 2018

Supervisors Beware

In 2016 I wrote that Recent Decisions may Caution Supervisors. That post discusses cases on supervisor liability, one from Oregon and one from Missouri, McComb v. Norfus and Cheese. The court there concluded the law in Missouri was unsettled regarding supervisor liability. The facts of that case involved icy roads, and an supervisor's instructions to a driver that died on the job.

The Missouri Court of Appeals recently published an interesting opinion in Brock v. Dunne (as representative for Edwards), Case ED105739 (September 11, 2018). The decision helps understanding of workers' compensation immunity and the remaining potential of liability. In most instances the statutory immunity that employers enjoy from the "grand bargain" extends to an injured workers' co-employees as well. But in that regard, Brock is an interesting decision.  

Mr. Brock was injured at work when he was asked to clean a laminating machine "while it was still running," and from which his supervisor, Mr. Edwards, had removed a safety guard. By the time the case got to trial, Mr. Edwards had passed away, and the trial court had named a substitute to stand in for him, a "defendant ad litem." The jury found for Mr. Brock. The "ad litem," Mr. Dunne, sought review by the appellate court. He claimed that Edwards was "immune from liability pursuant to . . . the Workers’ Compensation Act." 

In Missouri, the statute expressly includes "employees in the immunity statute." But, the court concluded that "Edwards committed affirmative negligent acts that purposefully and dangerously caused Brock’s injury." The incident arose because Edwards perceived some glue leakage within a laminating machine. He removed "the safety guard while the machine was still powered on" and instructed Brock "to grab a wet rag" and then "squeeze water" onto the glue and "to scrape the glue off of the" roller. 

As an aside, the court noted that the design of the machine resulted in a "pinch point." This is a term we hear often from safety professionals, referring to a place where injury can occur because of the proximity and movements of machine parts. It is common in safety manuals and procedures to recommend that machines are "de-energized" before people perform maintenance or adjustment around such pinch points. Over my career I have heard much about pinch points, de-energizing and a safety practice called "lock out/tag out" (a method for preventing unexpected or accidental re-energizing of equipment during maintenance or repair). 

Brock cleaned as instructed, and he testified that Edwards "was standing right next to him during the process." He said he was never told his actions were unsafe or provided alternate instructions. Eventually, the machine caught the wet rag and pulled it in, and with it Brock's thumb. The thumb was crushed and Brock sued both Edwards and the company that manufactured the laminating machine. He settled with the manufacturer and proceeded to trial against Edwards,' "ad litem." Brock prevailed, and after various calculations, a jury verdict of $1,050,000 resulted in a "verdict in the amount of $873,000" against Edwards' estate. 

The Court noted that the Missouri immunity statute provides co-employees with “immunity under the workmen’s compensation law, but that “he does not have immunity where he does an affirmative act causing or increasing the risk of injury.” An employee must show that the co-worker somehow proceeded beyond merely "a breach of his duty of general supervision and  safety.” It referred to this as the "something more test." The Court noted that in the early part of this century, Missouri courts had concluded that immunity provided supervisors no protection. But, that interpretation was changed when the legislature amended the statute in 2012. 

The Court held that "the 2012 amendment to §287.120.1 provides immunity to co-employees." That immunity is abrogated however "when the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” This choice of language, according to the Court, returns Missouri to a posture of protecting co-workers from liability in a variety of circumstances, but not all. This is similar to the logic applied by the courts in the "something more test" prior to this statutory amendment. 

Noting the similarity, the Court concluded the statutory amendment however is not "a wholesale adoption of the 'something more' test." The Court discussed recent authority on supervisor liability, earlier in 2018. It concluded that 
"the actions of Edwards, (a properly trained and experienced supervisor), particularly, removing a piece of equipment specifically intended to make the machine safer (thereby creating the danger that an employer has actively taken measures to prevent) and directing Brock to clean the rollers of the machine near the unguarded pinch point while the machine is running is not reasonably foreseeable to an employer"
It concluded that Edwards' removal of the safety guard was "against both logic and an employer’s instructions and the machine’s warnings" was thus beyond what the employer could expect. As such, Edwards’ "actions were not reasonably foreseeable to" the the employer and thus the employer retained its statutory immunity. The Court concluded "Edwards’s actions constituted a breach of an independent duty that he personally owed to Brock." The verdict was therefore affirmed. 

It is likely that the outcome in such a situation could be different under laws of various state workers' compensation laws. It should be of interest to supervisors in any setting however, The supervisor should be wary of safety risks to employees. The removal of safety devices, ignoring or safety rules, and engaging in dangerous activities should be carefully monitored and quickly corrected. While it is probable that Edwards'  actions would not have resulted in liability in some states, in Missouri it did. And, that liability is substantial, impacting the supervisor or in this case his estate (and thus any surviving family). 

Such liability may place a supervisor in a difficult position in the day-to-day of work. A business owner or general manager may place time or production demands upon a shift, crew, or department. It may be that such constraint led Edwards to instructing Brock to work near the pinch point while the machine was energized. That may have been quicker than de-energizing (turning off) and locking the machine out (unplugging at least, but really somehow physically preventing re-connection of power without Brock's knowledge). And quicker may meet production goals or demands.

A supervisor facing personal financial liability is perhaps encouraged to place safety concerns above those more mundane production or performance demands. It should certainly be enough to give a supervisor pause.

Thursday, October 18, 2018

I am not Available

I had a recent inquiry that returned my attention yet again to the "Notice of Unavailability." Across the state each day, attorneys will file various notices of unavailability in civil and workers' compensation cases. These are essentially statements of dates that a particular lawyer will not be available due to other professional or personal commitments. They are commonly used to advise of vacations, multiple-day trials, and medical leave. 

The question that arises, however, is "why do judges schedule mediations or hearings for dates for which I have filed a notice of unavailability?" And, sometimes the secondary question that accompanies this is "what can I do about it?" 

It is notable that there is no mention of, or reference to, a "Notice of Unavailability" in the Rules of Procedure for Workers' Compensation Adjudications. And those rules control process in the Office of Judges of Compensation Claims. Astoundingly, there are lawyers that remain unaware of that, and they file documents citing other rules, court rules, that are inapplicable. The authority to support this "Notice" practice, if there is any, must lie elsewhere. 

An instructive decision was rendered by the Florida Fourth District Court in 2008: Delio v. Landman, 987 So.2d 733 (Fla. 4th DCA 2008). There, the defendant complained on appeal that the "trial court erroneously scheduled the trial for a day it knew his trial counsel was unavailable." There, trial was scheduled for a "calendar call," but the defendant did not appear. A "notice of trial" was then sent. Defendant's counsel "filed a motion to strike notice of trial and/or motion for continuance." This asserted that counsel was not available for the trial as scheduled. Counsel did not set his motion for hearing, nor were any further orders entered regarding the scheduling. 

The trial proceeded as scheduled, and neither the defendant or counsel appeared. After the plaintiff presented his unopposed evidence, a judgment was entered in plaintiff's favor for $34,936.99. The appellate court concluded that "there was no abuse of discretion in the trial court's scheduling the case for trial." It found fault with the defendant's counsel failing "to attend calendar call, timely file his notices of unavailability for trial, and obtain a stipulation or court order for continuance of the trial." 

The Court explained that 
"a notice of unavailability is a useful pleading for apprising the court and the parties of potential scheduling conflicts and for assisting them in efforts to accommodate counsel." 
However, a notice of unavailability 
"is not an adequate substitute for obtaining a continuance order. The notice of unavailability does not divest the trial court of its authority to set trial dates and control its docket." 
The Court also noted in a footnote that it 
"found nothing in the Florida Rules of Civil Procedure, Judicial Administration, nor the Local Rules or Administrative Orders of the 17th circuit which provides for use of a 'Notice of Unavailability.'” 
It concluded therefore that 
"The use of such a filing seems to be a creation of the Bar, and may be helpful in scheduling matters in the trial courts. This court (the appellate court), however, routinely strikes such notices when filed." 
Thus, it appears that there is no authority for the “Notice of Unavailability,” and as such filing this pleading does not control the progress of a case. As a side note, when asked for "authority" by a trial judge, it is uncomfortable for an attorney to admit they know of none. Certainly, such a "Notice" provides information, which if seen by judicial staff might assist a trial tribunal. However, searching a case docket for such conflicts might well consume a great deal of judicial or staff time when scheduling. 

Having considered the Court's logic in Delio, one might next ask the question "then what is the appropriate procedure for counsel?" The Fla.R.Pro.Work.Comp. perhaps provide the answer. Rule 60Q6.115(1) essentially says that if a proceeding is not satisfactory in some manner, if a party needs "relief" through a ruling by the judge, then a motion is the appropriate tool. See What do I do Now? This Rule says that "Any request for an order or for other relief shall be by motion." 

That rule is seemingly consistent with the Court's analysis in Delio. The Court explained that a "notice" filed with the tribunal "is not an adequate substitute for obtaining a continuance order." The Court there did not fault counsel for filing the objections to, and motions regarding, that trial date. The Court faulted counsel for neither obtaining an order on those motions/objections or setting them for hearing to obtain an order. It is up to counsel to (1) make conflict known (file a motion) and (2) to obtain relief by order (with or without a hearing). This follow-through would seem preferable to instead having to inform a client "you have to pay $34,936.99 because we did not show up for trial," or worse. 

There are critical lessons in Delio. First, filing (a notice or motion) alone does not protect a client's rights in some instances. Certainly, filing is a start for a process, but it may not be the end. Second, there is simply no authority for a "notice of unavailability," and thus the authority of the trial tribunal is not somehow truncated by such a filing. That is not to say a lawyer cannot file such a notice, but such a notice may accomplish nothing.

Finally, when the workers' compensation question is "what do I do?" or "what do I do next?" it is quite probable that the answer is file a motion. The "Notice" circumstance is interesting and curious. It appears, as the appellate court noted, that over time practices and habits become ingrained. Lawyers would be well served to periodically question their own practices, that is "why do we do this in this manner?" and perhaps even "what is the authority for this practice?" Such periodic introspection and consideration might well save confusion and consternation ("why do judges schedule mediations or hearings for dates for which I have filed a notice of unavailability?").

Tuesday, October 16, 2018

In Camera Inspection is Necessary

An educational decision was recently rendered by the Texas Fourteenth Court of Appeals, styled In Re Atlantic Sounding Co., Inc.. It is a proceeding for a writ of Mandamus (seeking an order to compel a lower tribunal to take action). There are three "extraordinary writs" that are of general interest. They are discussed more in If it's Moot, What does it Matter

It is noteworthy that Atlantic Sounding was decided August 28, 2018. The petition for writ of mandamus was filed just over 60 days before, on June 26, 2018. That is an expeditious review. When parties seek appellate review, the proceedings in the trial tribunal often stall awaiting a decision. Thus, it is beneficial when appellate courts move rapidly in such decisions. 

The facts of Atlantic Sounding are reasonably simple, though the casual reader might find some terminology challenging (the court refers to the parties seeking review as "relators," rather than "petitioners"). Essentially two companies involved in a lawsuit were asked to produce documents. They resisted, claiming a privilege protected those from disclosure. This is a common situation in litigation. 

Having objected to producing certain specific items, the two companies produced a "privilege log," which is simply a cataloging or listing of those documents that were not provided in response to the request. Having received that listing of what was not produced, the party that requested production filed a motion to ask the trial tribunal to compel the companies to produce those documents. That motion likely asserted that the claim of privilege was not appropriate as regards those items. Thus is framed a dispute for the trial judge to sort. 

In Florida workers' compensation, the vast majority of that kind of sorting occurs based upon a motion and some response filed by the other party. Motions are the appropriate method for seeking relief, Rule 60Q6.115. That rule also allows, but does not require, any other party to file a written response to such a motion. Thus, in motion and response, the parties should have capably framed the dispute for decision. It is surprising to some how often no response is filed however. Thus, one party seeks relief and the other responds with silence. Often the silent party finds itself later disappointed with the results of its silence. 

But in this Texas litigation, the trial judge convened a hearing. After that opportunity to verbally address the issues, the judge granted the plaintiff's motion to compel. The opinion makes no mention of a motion for rehearing, which is somewhat curious. With trial court decisions in Florida, it is usually appropriate to seek rehearing before filing an appeal, Rule 60Q6.122. That is an opportunity to advise a trial tribunal of the allegation of its error and thus allow that judge to correct it. Such process greatly reduces the  volume of cases that require appellate review. 

The Texas appellate court was thus asked to compel the Texas tribunal court to perform an "in-camera," essentially "in private," review of the documents that the Plaintiff had asked for and which the two companies claimed were "privileged." The in-camera inspection is an opportunity for the judge to view the actual documents, not the description of them that would be appropriately found in a privilege log. The trial judge is then in a position to make decisions as to whether each such item is or is not privileged, should or should not be produced to the requesting party. 

The Atlantic Sounding companies were troubled that this trial judge had not conducted such an examination of the actual documents. In this instance, the trial judge had relied upon what each party had said about the documents, in motion, response, privilege log, or argument. But, the actual documents had not been viewed. 

The Court provided a review of the burden that must be satisfied to prove entitlement to mandamus relief. As it is one of the "extraordinary" writs, it requires extraordinary proof, essentially that the "trial court clearly abused its discretion," and that there is "no adequate remedy by appeal." That is logical in discovery and privilege instances like this. If the companies could only seek review by appeal, then they would have to have produced the requested documents as ordered. And, once such documents are seen, the privilege overruled, a later appeal might be unable to cure the resulting prejudice (once seen, the documents cannot be "unseen"). Once disclosure has occurred, it might affect the litigation in various intractable and unpredictable ways. 

It is appropriate therefore for a party to object to production and assert a privilege. That claim of privilege should be specific and clear however, identifying the privilege that is asserted. The requesting party is entitled in most instances to a privilege log that describes the withheld documents with some specificity and identifies how the privilege applies to them. 

But, the Court in Atlantic Sounding explained that when
"the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege.” 
Thus, in those instances, the only evidence may well be the very documents that have been requested and withheld. Thus, the appellate court held that the judge's decision should be based in such claims upon what is gleaned from those very documents. In this instance, the companies repeatedly offered to provide the documents for such a review. As such, the Court concluded that the trial judge should have conducted that private, "in-camera," inspection. 

The Court therefore instructed the trial court to vacate the order compelling discovery and to review the documents in-camera before deciding to grant or deny the motion to compel. While the delay for appellate review in this instance was reasonably brief, it was also avoidable. The trial judge could have as easily reviewed those documents in June, negating the necessity of this appellate review and the delay it entailed. It is difficult to understand the purpose of denying the producing party's request for that examination. 

Sunday, October 14, 2018

Human Nature in the News

There is plenty in the news to depress and exhaust us. That came back to mind this week when video surfaced showing a store clerk collapsing from a heart attack. Two teenage patrons ignored his distress, as reported by ABC News. This occurred in Washington. Finding the store clerk incapacitated, the teens did not reach out to 911, attempt CPR, or help. They chose "instead to step around him to rob the store." 

The store manager was heartbroken by the event. The store clerk received aid when others apparently summoned help. However, he thereafter remained "on life support at an Auburn hospital." The police are seeking the teenagers, and have asked for "the community’s help in identifying the three males seen in the store at the time of the incident." According to Fox13, the teens have now been identified, but "it's unclear what charges, if any, the teenagers will face."

Reading that reminded me of a CNN story in June. This one a little closer to home. This one involved five teenagers in Florida "taunted a drowning man as they recorded his death." The teens were identified, but prosecutors decided not to press charges. Reportedly, the teens "laughed as Jamel Dunn, 31, struggled to stay afloat."  They told him that "he was 'going to die," and he did. 

The phones that could have dialed 911 that day were used instead to record his demise, which the teens uploaded to YouTube. Florida officials noted that "there is no Florida law that requires a person to provide emergency assistance under the facts of this case." The State Attorney spokesperson nevertheless said that "everyone was sickened by the callous disregard for human life." 

But, it is not always bad news in the morning headlines. Fox News reported recently about  a Georgia teen that sprang into action when two co-workers were stabbed, Officials praised him for his "quick thinking after two of his Target co-workers were allegedly stabbed." This young man "noticed that two of his coworkers had been stabbed" and "rushed to their assistance.” He improvised with what he had, fashioning a tourniquet from his shirt for one and applying gauze and pressure on the other. He attended the two until medical help arrived. 

The Palm Beach Post reported a less dramatic, but as inspiring story at a fast food outlet. Two "blind patrons" were assisted by an employee. The gesture made an impression on others, one of whom "shared the story to social media." There was no injury or urgency, just "little things (that) are a big impact on people’s lives." The employee helped these customers, checked on them, valued them. 

In another example from Colorado, "surveillance video from a doorbell camera" captured three kids discovering a wallet in the home's driveway. Though there was $700 in the wallet, and "no one was around," these three "did the right thing anyway and returned the wallet."  The Internet is seemingly not lacking in instances that can inspire and reassure us. 

At times those stories may eventually disappoint us. In 2017 a homeless veteran came across a motorist who had run out of gas. He walked to a station and spent his last $20.00 to buy her fuel, and got her on her way. The Internet was inspired by the story and about $400,000 was donated through a crowd-funding campaign. A great "feel-good" story. 

But last summer the news broke that this veteran had not received all of the money raised. Questions were being asked about where the funds went. Now there is a lawsuit, and talk of criminal charges against the lady that he rescued, the lady that championed his cause on the crowd-finding site, according to CBS News. The motorist and her spouse are accused of spending significant sums "on lavish vacations, a new BMW and more." Authorities have seized records and the BMW. Stories like this have led to "a website called GoFraudMe." It "tracks online donation scams." Officials there note that donors are often called upon to deliver "a quick fix to complex problems." 

It seems that there is no end to the challenges of daily life. We are all presented with situations involving those with whom we share this journey. We see character and contribution, but we also see behavior that ranges from below par to downright despicable. We may wonder how we would react in a situation of danger, would we fight or flee? But, it is truly a sad day when we would step over a heart attack victim to rob his store. It is truly a sad day when the charity of others might be stolen by those whose predicament gave rise to people helping in the first instance. 

It is encouraging to see that some young people not only understand citizenship, but practice it. We hear a great deal of derision for young people today, and it is encouraging to know that for all the negative stories like the heart attack thieves, there is a kid returning a wallet, providing first aid, or just helping someone with daily tasks at the local Wendy's. Perhaps in their selflessness we can all see ourselves as we should hope to be? Maybe we each have a chance each day to do something kind and helpful, if we only remain vigilant and seize the opportunity when we see it?

Wednesday, October 10, 2018

Some 2018 Comp Laude Honorees

I planned to proudly to stand on the stage at Comp Laude 2018. I was to have the honor of presenting the Magna Comp Laude award to a most deserving individual. A great many outstanding workers' compensation community members were nominated for the Comp Laude this year. Those I nominated are listed in 2018 Comp Laude Finalists Named. I planned to, but did not. I got distracted this year by Hurricane Michael. I spent Wednesday glued to the Weather Channel, the NOAA website, and Twitter, striving to keep up. 

As an aside, it is such an honor to be associated with the Comp Laude. It is inspirational and rewarding. It helps me remember David DePaolo, who always inspired me with his enthusiasm. Comp Laude inspires and motivates me. I am proud of it, and of those amazing professionals that make it a reality each year.

I am also proud of all of those who were nominated. In a shameless plug, I suggest that everyone reading this post knows someone worthy of nomination. And the nominations for 2019 will open soon enough. Get ready now to recognize your leaders, your exemplars, your inspirations. 

You cannot win if you are not nominated. But, more important, by making a nomination you are making a huge statement about your nominee and about your personal commitment to the goal of recognizing those that motivate and influence you. You cannot control who wins, but you alone decide who is nominated. 

I am so proud of everyone nominated, the finalists, and those ultimately selected. I cannot call those selected "winners" as that implicates that not everyone is a winner (OK, not every kid gets a trophy). In my opinion, everyone that was nominated is a winner. But, from a phenomenal crowd of finalists, I am so very proud of my nominees that were selected. What follows is the explanation of each that I submitted in the nomination process.

Summa Comp Laude - Workers' Compensation Institute (WCI)
The nomination of Workers’ Compensation Institute’s (WCI) philanthropy is founded on action. WCI produces and presents the nation’s largest workers’ compensation education event each year in Orlando, Florida. Some 8,000+ people converge on the world’s largest Marriott hotel and there are four days of an incredibly diverse and densely-packed educational agenda. For decades, WCI has devoted a portion of its proceeds to fund scholarships for children of injured workers.

But, in 2012 WCI initiated a broader philanthropy, and some background will assist. Orlando is a frequent destination for children who are honored by the Make a Wish Foundation and similar efforts. Sick children are brought to Orlando to escape the day-to-day of serious illness. In 1986, Henri Landwirth started a grand facility to provide those children and their families with accommodations during their Orlando visit. He named it Give Kids the World Village (GKTW).

It is a like no other hotel, offering the anticipated lodging, but with intriguing twists. Children staying at GKTW (http://gktw.org/about/) enjoy an 84 acre facility complete with meals, entertainment, resort tickets, transportation, and more. “More,” like an ice cream parlor that is open for breakfast (yes, ice cream for breakfast), a train, swimming pools, you name it. It has delivered on its promise in excess of 160,000 times since its founding.

In 2012, WCI adopted GKTW as its official philanthropy. And there is an element of fundraising and financial contribution involved. Each year, since 2014, the Saturday night before the WCI conference, a Gala and silent auction is held. In four short years, WCI has raised and donated over $200,000 to GKTW. And additional fundraising has been added since. But, at that Gala, workers’ compensation professionals from across the country are gathering, dining, bidding, and contributing to a phenomenal cause. Impressive, yes; but, that is not the best part.

In partnership with conference attendees, sponsors, and partners, WCI buses volunteers to GKTW Village each Saturday morning before the conference, the morning before the Gala. And those volunteers provide the labor to make GKTW Village work. They scoop ice cream, drive the train, and interact with the kids and their families. But, they also weed, trim, paint, rake, sweep, repair, and anything else that is asked. They contribute sweat, emotion, and heart where it is needed most, in the lives of children struggling with medical challenges.

The work party groups have grown over the last four years. In 2017, over 700 volunteers participated in the GKTW philanthropy work day. They promoted human welfare, demonstrated goodwill to people, and performed an act of humanitarian love. Seven hundred workers’ compensation professionals from all walks of life, professions, businesses, and perspectives came together to give back, to build, and to serve.

There are a great many benefits that come from financial donation to such an enterprise as GKTW. Operating such an enterprise is undoubtedly expensive. And, the benefits of $200,000 can hardly be overstated.

However, the focus here should be on the 700 plus volunteers and their day of work. Barriers were overcome, conversations were started, and friendships were formed. People from across the amalgamation that we refer to as “workers’ compensation” met and learned from each other in service to others. People came together for the benefit of children and contributed their time, sweat, and effort. They formed teams, wore matching t-shirts, and they were a bit competitive. But, they contributed.

When we discuss philanthropy in workers’ compensation, I can think of no function more laudable. The GKTW workday is philanthropy of the mind, the heart, and the body. It is contribution of effort, teamwork, and cooperation. It builds bridges, spans chasms, and promotes understanding (or at least interaction). It is a great effort and a great investment on behalf of selfless volunteers under Florida’s August sun.

Magna Comp Laude - Tom Glasson, AIG Insurance
Tom Glasson is a fixture at numerous conferences and conventions around the country. He is active in the International Association of Accident Boards and Commissions (IAIABC), the Southern Association of Workers’ Compensation Administrators (SAWCA), and more. When the industry elected to have a National Conversation regarding workers' compensation in 2016, Mr. Glasson was a natural invitee. His depth of knowledge is unparalleled. He has a vast appreciation for state subtleties and distinctions in substance and procedure.

Mr. Glasson is a soft-spoken advocate for change in the systems. He explains the benefits of communication, state-to-state interaction, and maintaining focus on the heart of this industry – employers and employees. Professionally, he is focused on the assessment and management of risk. At heart, professionally, he is an insurance person. But, he is engaged and engaging on the issues that are at the heart of the challenges that we face and confront.

Mr. Glasson is an advocate for simplification, streamlining, and reducing system friction. I have heard him repeatedly discuss the benefits that would inure to injured workers and employers if state processes were focused more upon them, and less on bureaucracy. He is a critic of government waste and inefficiency, but always quick with a compliment. My favorite phrase from him is his seemingly constant “you know what I like about (fill in your state) is . . . ."

Mr. Glasson engages by always finding something positive to say. That may be followed with a criticism, suggestion, or thought. But he leads with compliments and is always gracious and engaging. Mr. Glasson is adept at starting conversations and thoughtfully examining the issues on the table. His experience is deep and his perspective is broad.

Mr. Glasson’s biography speaks for itself. He is an engaged in planning and producing educational programming for SAWCA. He is a lecturer at programs like the Workers’ Compensation Institute. He is proof positive that differences in perspective do not have to be divisive or damaging. He makes an art form of disagreeing without being disagreeable. He steers the conversation, challenges thoughtfully and artfully, and brings perspective respectfully.

Mr. Glasson epitomizes the spirit of engaged, listening and conversing about workers’ compensation that is needed in this country. Despite his travel and engagement schedule, he has time to work with young people, mentor the next generation in claims, and strive to better an entire system. He epitomizes the spirit of Comp Laude.

Industry Leader - Steve Rissman
Steve Rissman has practiced workers’ compensation for his entire professional career. That career now approaches 50 years. His successes have included legal practice and education. I have never litigated against him, but having observed a great many lawyers over the years, and knowing his tenacity and drive as I do, I believe he would be the worthy adversary that so many have described.

Steve has “been there” and “done that” in Florida workers’ compensation. He has served in the process of workers’ compensation rules, served as chair of the Workers’ Compensation Section of The Florida Bar, served on the statewide nominating commission for Judges, been involved with innumerable committees and conferences and groups.

Steve is one of the four founders of the Workers’ Compensation Institute, and for the last 30+ years has been the curriculum chairperson of the largest gathering of workers’ compensation professionals in America. The WCI attracts 8,000+ each August in Orlando. Steve is the architect behind the curriculum for hundreds of breakout sessions. He coordinates topics and themes, interacts with speakers and program leaders, and manages the many demands and needs of all of those agendas. To refer to the task as herculean is an understatement. This year’s WCI program includes more than 450 speakers. Throughout the WCI, he is constantly on the move, checking room set-ups, gathering attendee feedback, and facilitating problem solutions. Certainly, he is a leader of a great team, but despite the many others involved, Steve is always on the field, engaged, active, and focused on the program’s success. 

Steve has been recognized as a “super lawyer,” and many other superlatives. But, he is a man that is about the community of workers’ compensation. Steve was a driving force behind the establishment of the Florida Workers’ Compensation Institute Hall of Fame. He was its first President and remains so to this day. This group recognizes each inductee’s “lifetime achievement” in workers’ compensation. There is no fanfare, no reward, for forming such a group. Steve formed the group for others, not himself. Through it, those who have likewise “been there” and “done that” in Florida workers’ compensation recognize each other. It is an imperfect group of imperfect people. There are a great many significant egos in that room. And yet, Steve successfully leads the Hall to fairly honor and recognize those who have contributed so much time, effort, and dedication to Florida workers’ compensation. 

Steve has been honored by induction to the College of Workers’ Compensation Lawyers. He has delivered untold lectures on workers’ compensation law, professionalism, ethics, and more. He has built and managed one of the largest and longest-standing workers’ compensation law firms in the state. And despite that success and stature, he is concerned primarily about recognizing others, encouraging others, inspiring others. 

He knows the value of talented professionals, and he strives to engage them in the WCI programming. He is focused on their growth, their development, and their success. As is obvious to far too few of us, the future we all face depends on those talented professionals that are on the path that could one day lead to the Hall of Fame. We need those up-and-comers, as they will be tomorrow’s “been there” and “done that.” And along the way, they will each have likely gained something of value from the educational programs that are Steve’s hallmark. 

Steve is an advocate, a critic, an educator, a mentor, a leader, and more. He is most worthy of Comp Laude recognition for his achievements and for his focus on training, persistently, the “next generation” for over 30 years. 

Applicant Attorney - Geoffrey Bichler
Mr. Bichler is an exemplary attorney representing injured workers in Florida. He has developed a practice focused on “first responders,” a description that was not always well defined in Florida workers’ compensation. He has been an advocate for both expanding and clarifying the various statutory presumptions created in favor of first responders, including firefighters, police, correctional officers, and more.

Mr. Bichler has been involved in the legislative process in Florida through his leadership in the Florida Workers’ Advocates and the Workers’ Compensation Section of The Florida Bar. That involvement has also seen him involved in regulatory discussions about both the fundamentals of workers’ compensation and the processes for adjudicating disputes involving those benefits.

Mr. Bichler is a member of the Board of Directors of Kids Chance of Florida (KCFL). He has been involved since just after the founding of that affiliate in late 2015. He has been an active participant in the KCFL scholarship selection committee. Those efforts have been instrumental in establishing criteria for acceptance, defining award categories, and the actual selection of worthy scholarship recipients.

Mr. Bichler is known for his advocacy and involvement. He is a persistent, but professional, advocate on behalf of his clients. His leadership in the field of workers’ compensation has been inspiring to others in this field and he inspires emulation of professional, passionate, and patient practice of law. He is adept at disagreeing without being disagreeable, at focusing criticism on action, inaction, or outcome rather than on people or even institutions/entities.

Mr. Bichler is integrally involved in the Workers’ Compensation Institute (WCI), which produces and presents the largest workers’ compensation educational conference in the country. Mr. Bichler is a member of the WCI Committee, and is in charge of planning curriculum for both the attorney program and the first responder/heart and lung bill programs. That includes recruiting and arranging national and state speakers, balancing topics among competing interests, and producing a program of value to an assortment of interests and concerns.

Mr. Bichler has been a steady and professional advocate for many changes in heart/lung and now PTSD presumption in Florida. He has much responsibility for the legislative changes in that specialty over the last 20 years. He is a consummate professional and a respected leader in the field of workers’ compensation. He leads by example and treats those around him with dignity and respect despite ideological or other differences of opinion.