Sunday, March 31, 2019

Technology Impacting Judging

There has been mention on this blog of the coming age of the robots. There are those who see technology invading our workplaces and changing the nature of, or even existence of, occupations and professions.

Certainly, the examples have become numerous. In 2018, "Flippy the robot" was featured in USA Today. This is merely an adaptation of robotics to a new degree. Robotics Business Review reminds us that "Manufacturing automation has been common since the 1970s." Automation is not new, it is merely becoming more visible and thus noticeable in our daily lives. 

But technological advances are not limited to robotics. Everyone by now has encountered the opportunity to scan their own purchases. Most of us by now has had the opportunity to place a fast food order using a kiosk. Most of us have noticed that the cycling of traffic signals in our community is less and less about rote cycles and is more reliant upon sensors providing data that triggers both signal pattern and duration.

There are also amazing advances in software. Computer programs are searching documents, prioritizing job applications, and replacing claims adjusters. Any doubters have not been around long enough to remember typing pools, correcting typewriters, and the amazing WordStar program us "old timers" were amazed by in the 1970s. As I type this and see WordStar underlined in red, prompting me to know of a possible spelling or grammar error "on the fly," I recall how far software has come in my short lifetime. 

In some ways, the technology is comforting, convenient, and helpful. But for those who would otherwise flip the burgers or take the orders, the technology may be disconcerting. But for business owners, the financial impetus is clear, as discussed in Three-D Employment, What of the Buggy Whip Makers?, Ross AI, and the New Paradigm Coming, Chatbot wins 160,000 Legal Cases, and Nero may be Fiddling, What are You Doing?

The debate rages regarding what these advances mean to workers and jobs. There seems agreement that technology is "on the rise in the workplace," according to 60 Minutes. Some steadfastly contend that automation will both eliminate some positions/occupations, but will necessitate various other new occupations. They see a net gain in both productivity and employment. Some estimate that the gain will be significant

A great many see the probability that the eliminated positions will be low-skilled labor positions. However, I have suggested in some of the posts cited above that effects could be of concern for paralegals, attorneys, judges and more. 

An article in March introduced us to computers taking over judgment and interpretation jobs. The Associated Press (AP) reported "Computers will call balls and strikes." Is there anything more a part of the fabric of American life than baseball (hot dogs, apple pie)? Well, perhaps there is, but I digress. 

All sports rely to some degree upon the interpretations and judgments of referees, judges, umpires, or others. There are rules to interpret regarding behavior and performance. There are lines that must be watched and calls that must be made regarding whether a line is or is not crossed. It is fair to compare the role or these sports officials to the role of judges in the dispute resolution process. Judges determining cases should be much like umpires. That is, calling balls and strikes, keeping the process on time, and assuring that our ultimate goals of due process and polite process are respected.

The AP story covers various changes being made in 2019 Atlantic League baseball, including changes in field dimensions. The new AI official is called TrackMan. This system uses Doppler radar (like speed devices used by police and weather predicting tools) to determine if a pitch is "ball" or "strike." However, for now, the computer will not announce its decision to the audiences. This season, the TrackMan will share its thoughts and perceptions with the plate umpire through an earpiece. Of note, the TrackMan only watches the ball, whether a player swings or check-swings is a decision left to the umpire alone (for now). Thus, there remains human necessity and nuance. 

The Umpire will have the option to override the interpretation of the TrackMan. The human element will remain, but will be perhaps enhanced by the technology. In the same way, some will recall that search engines like Westlaw once helped paralegals. However, as those search engines have progressed, some fear that their integration with artificial intelligence could replace paralegals. Similarly, early manufacturing robotics assisted workers, then evolved to replace them in some roles. 

Some umpires are not enamored with the TrackMan. In the AP story, they discuss the attributes of the system, and acknowledge that deployment of technology is not new. They mention the prior testing of QuesTec, and Pitch/FX. These technologies have been tested and evaluated since 2001. The evolution of baseball has been underway all of the twenty-first century. 

One umpire noted that "The beauty of baseball is that it’s not foolproof." He notes there are many complexities in the game, and seems to admit that the art of calling balls and strikes may be among "the beauty." It is not uncommon for people to cling to the human element. I have heard fascinating similar arguments in that regard as to the procedure of reviewing human calls in American Football. There is recognition that the person closest to a play may not be the best to make a call regarding a particular occurrence. And those calls can be polarizing

It is probably fair to say that not everyone is a fan of the TrackMan. But, historically, innovation after innovation has met both fanfare and criticism. Humans seem to both love and hate technology, in part on its merits and in part due to our inborn resistance to change. Time will tell if a computer can call balls and strikes, and whether those human umpires are inclined to accept or decline TrackMan's promptings. 

However, as generations pass, perhaps, technology will become sufficiently trusted to replace umpires. A day may come when its accuracy and internal (though artificial) discretion is deeply trusted and accepted. However, I suspect that just as there will always be those who distrust human judges, umpires, and referees, there will likewise persistently be those who will distrust less expensive, perhaps more consistent, and less human alternatives that technology brings us. Perhaps the human element, the art, has a beauty and efficacy all its own?

Thursday, March 28, 2019

It's OJCC Survey Time in Florida yet Again!

Albert Einstein is credited with suggesting that 
"Not everything that can be counted counts, and not everything that counts can be counted."
In 2007, the Florida Office of Judges of Compensation Claims (OJCC) began expanding the scope of the statutorily required (section 440.45(5)) Annual Report. In 2006, the report was 39 pages. In 2007, with the addition of individual charts for each judge, the report was 164 pages. Certainly, the OJCC produces and publishes a great many statistics. 

By 2018, it had expanded to 297 pages. That may seem like a great many, but it included the Settlement and Mediation Report. The OJCC is required to report specifically upon the settlement of totally controverted cases, see section 440.20(11)(a). The report of those settlements was expanded, however, beginning with the first Settlement and Mediation Statistics report in 2010. So, 49 pages of the 2018 report is attributable to that resolution-specific data

If not apparent to even the most casual observer, the OJCC is adept at counting things. Most of those things counted are what the Florida Legislature instructs us to count in section 440.45. There are some exceptions to that broad categorization, some additional things are thought to be worthy to "count" and thus are counted. 

But, back in 2007, there was discussion of the relationship between bench and bar. Many today will not recall the nadir of that relationship in the early part of this century. There were accusations, recriminations, distrust, and dissension. There were perceptions regarding professionalism and collegiality. One of our first steps toward alleviating that was a joint continuing education meeting with the Florida judges and the Executive Council of the Workers' Compensation Section of The Florida Bar. It was a professionalism program. Unfortunately, that effort was punctuated by one of the judges joining the meeting about 30 minutes late (irony).

The second step was a meeting of bar leaders and judges, a committee to discuss next steps. The question was how to deal with professionalism perceptions and build bridges between bench and bar. The outgrowth of that effort was a joint judge/mediator survey, which the committee decided should be an annual effort. This is a chance for the Bar to provide feedback both in numerical rating and comments. The consensus is that while litigation volumes and adjudication speed are numbers that can be counted, perhaps there is more that also should count.

The committee accepted that the volumes and speed calculated from the various orders and hearings was relevant. They contended that there are attributes of judges that perhaps cannot be measured in that manner, but that should nonetheless count. Thus, the survey was born in 2008. It was a struggle in development, beginning with a commercial platform which later came to be called Survey Monkey. That remained the paradigm four years, through 2011

In 2012, we evolved to a platform that was more customized and user friendly. This allowed the person taking the survey to select the persons about whom she or he wished to opine, and did not waste her/his time clicking to skip each of the others. We have retained that format now for 7 years. 

In April 2019, the OJCC will launch the 12th annual survey. It affords the opportunity to subjectively rate judges and mediators based upon your perceptions and experiences. We ask that you not rate judges of mediators that you have not appeared before recently, the past year. And, the survey provides an opportunity for comments. The point of comments is not to belittle, insult, or slur someone. The point is for professionals to have an opportunity to explain their perceptions and feelings; to provide constructive feedback and suggestions for positive change or evolution. 

Certainly, "not everything that can be counted counts," and likewise, what does count is up to you. The survey is your opportunity to provide feedback. Tell us what you believe is important, and how we can do a better job. 

The survey vendor will transmit you a link by email. It will come from ojcc@privatesurvey.net and the link will look something like this:
And, the subject line will say "2019 Office of the Judges of Compensation Claims Survey." The survey invitation is being sent to every attorney that is registered for e-filing with e-JCC. The link is being sent to the attorney's primary email address. So, alert your email program to trust ojcc@privatesurvey.net, watch your spam folder just in case, and please take this opportunity to tell us what you think.

If you are a registered e-JCC user and you do not receive your link, feel free to email david.langham@doah.state.fl.us and we will see what we can do to get you the opportunity to contribute.

I am proud of this joint effort and look forward to compiling the results for 2019. 

Tuesday, March 26, 2019

Ex Post Facto Law

Ex post facto law is defined by thefreedictionary.com as "retroactively" changing the law. Specifically, doing so to "increase the punishment for a criminal act," or to "punish conduct that was legal when committed." It notes that in regards to criminal law, ex post facto laws "are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution." Furthermore, that such laws are "considered a hallmark of tyranny because it deprives people of" knowing what is or is not permitted. That it "allows for random punishment at the whim of those in power." 

The Supreme Court of the United States concedes the literal meaning of ex post facto. However, it long ago (221 years ago) concluded:
"it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. Calder v. Bull, 3 Dall. 386, 390–392, 1 L.Ed. 648 (1798)." 
See Youngblood v. Collins, 497 U.S. 37 (1990). In the Court's view, ex post facto law in a civil setting is either less tyrannical per se or more acceptable tyranny. And, that conclusion ignores the literal meaning of the phrase "ex post facto," as the Court in Youngblood acknowledged. But, that conclusion is respectful of stare decisis as previously discussed on this blog.

In the same small portion of the Constitution, it also says that "no state shall" "pass any" "law impairing the obligation of contracts." This has been referred to as "The Contracts Clause" over the last 231 years (the Constitution was ratified in 1788). Constitution.law.com explains that
"Legal contracts are considered to be the glue that allows the general public, as well as the Government, to engage in honest and volitional business. The only instance in which contracts can be nullified is when they are ruled to in violation of public health and welfare."
Workers' compensation is effectively a contractual system. There existed a great many rights and obligation for employees and employers alike in the pre-workers' compensation world. But then states began to statutorily alter those. Workers' compensation has been referred to as a "grand bargain," an exchange, a social contract, in which employers and employees each gained benefits in exchange for yielding others. See Lyons v. Chittenden Central Supervisory Union, 185 A.3d 551, 555 (Vt. 2018). 

Though negotiated on a broader level than an individual contract of employment, it can be said to be a statutory contract between labor and management. The "grand bargain" explanation of mutual renunciation of rights has been voiced by the supreme courts of numerous states. Among them are Alaska, Arkansas, Iowa, Montana, Oklahoma, North Dakota, Vermont, and Wyoming. There are more references to the phrase in various state's appellate court decisions.

Beyond this "grand" theory of contract, there are also a multitude of contractual relations intertwined in the very foundation of workers' compensation. Laws imposing this "grand bargain" typically place responsibility upon employers to provide compensation and medical care to workers who are injured on-the-job. Despite that, it is more common that such benefits are instead delivered by an insurance company. 

That is, the employer has entered into a legal contract with someone else. In that contract, the employer has paid consideration (a "premium") in exchange for which the other party, the "carrier," has agreed to be responsible in the event a loss occurs. This concept of insurance is fundamentally a contract through which an employer and a carrier agree to an exchange of value for other value, perceived or actual. The carrier assumes risk (that an accident may occur) in exchange for some prescribed certainty (a set premium). That said, these contracts certainly can be far more complex, detailed, and confusing. But, the fundamental exchange between employer and carrier is this exchange of risk and benefit. 

The employee's and employer's rights regarding substantive workers' compensation benefits are typically fixed as of the date of accident in workers' compensation. That is, the law in effect on the date of accident typically controls the quantum and quality of benefit to which an injured worker is potentially entitled, and for which the employer (or its carrier, by contract) is liable. The Florida appellate court has explained regarding statutory changes" 

“If an amendment changes the amount of benefits a claimant may receive or impacts a claimant's entitlement to services, then it should be considered substantive. In contrast, if a statutory change does not alter vested substantive rights, then it applies retroactively.” Russell Corp. v. Jacobs, 782 So. 2d 404 (Fla. 1st DCA 2001). 

The "rights" of the parties are thus "vested" at the time of accident or disease as to substantive benefits, the amount to which one side is entitled and for which the other is obligated. 

I was reminded of these inalienable rights of the parties recently when a WorkCompCentral headline caught my attention: Bill Would Provide Benefits to Firefighters Hurt During Las Vegas Shooting. This details California Assembly Bill 932, introduced by "Assemblyman" Low, which would re-write that state's workers' compensation law and in effect re-write history. As a side note, it seems a bit genderist for California to continue to refer to people as "Assemblyman" in this day and age. Perhaps it would consider "Assemblyperson?" 

In October 2017 there was a catastrophic event in Las Vegas. That city, among its other accolades and distinctions, is in Nevada. As a consequence of its being in Nevada, it is as clearly not in California. This may seem axiomatic, but you might be surprised at the emails and calls I get from a handful of careful readers. That Las Vegas is not in California is perhaps an important distinction. 

California concluded there are instances in which the aid and assistance of firefighters is necessary, convenient, and to be encouraged. It recognized that those employees are, like the rest of us, sometimes "on duty" and other times "off duty." California therefore included in its workers' compensation law that any off- duty firefighter that elected to respond to an emergency in California is covered by workers' compensation. This to both encourage firefighters to rush to the aid of the public, and provide coverage if that response results in an accident or injury. 

The critical point, stated clearly in that statute (which changes the common law as it existed before that statute) is that this coverage is afforded if the emergency is in California. As noted above, Las Vegas was, and remains, clearly not in California. 

Assemblyman Low wants to change that law. He believes that this coverage should be extended by California cities, counties, or others for firefighters that suffer injury while responding to any emergency while off duty, regardless of where they may be at the time. Thus, if passed, and some firefighter is vacationing in France and responds to a fire, any injury suffered in France during that response would purportedly be covered by California workers' compensation. 

Some will question what interest the taxpayers of California have in the extinguishing of a fire in France. Generally we would think of taxpayers because firefighters tend to be employed by cities, counties, and other government entities. However, there is an element of firefighting that is private instead, and some claim that segment of the firefighting industry, is "on the verge of catching fire." But, whether public or private employers, those entities are hiring firefighters to respond to emergencies in specific communities. Their services are retained for those specific communities. 

When a company agrees to assume the risk for those benefits, that is when an insurance carrier agrees to be responsible for workers' compensation benefits for some employer, it will do so after assessing the probabilities both for the occurrence and severity of such injuries. Based upon its assessment of the potential of loss (having to pay or provide benefits), that carrier will determine what price (premium) to charge in exchange. In some jurisdictions, the premium it can charge may be set by the state (non-negotiable), in which case the carrier will instead decide simply whether to accept the risk in exchange for that mandated price or to decline. 

This is an issue of contractual right. The two parties to that potential contract, employer and carrier, each assess what they will receive and what they will give. They each decide whether to enter the agreement. It is a voluntary exchange, based in no small part upon what the law requires of each. For example, deciding what to charge for coverage might depend upon the risk of loss; why does your automobile insurance company charge less to insure a 1992 Chevrolet Caprice ($900) than to insure a 2019 Lamborghini Aventador? Because replacing that Lamborghini will be inherently more costly ($410,000). In fact, replacing the side-view mirror on it might cost more than the whole Caprice. 

Therefore, there is the potential in Assemblyperson Low's proposal that the price of coverage (premium) could be affected because the potential risks that are covered are thus expanded. To illustrate, what if you agree to repair or replace my Caprice ($900) if it was "damaged." And, when you made that decision, the law defined "damaged" as "diminished in value due to a collision." You might evaluate how often cars are in collisions and what collision repair of that particular model tend to cost, and quote me a price (premium) for you to take on that risk. 

But, would you charge me more the next year if the law changed the definition of "damaged" to "diminished in value due to a collision or fire." It seems likely that you would want more compensation (premium) as you are now taking on more risk. You would then decide whether the price you could charge is worth the increased risk that you take. 

Assemblyperson Low's bill is more intriguing than that however, He does not seek only to change the definition of the risk for firefighters in the future. He seeks to redefine the risk from 2017. His bill would allow firefighters that were in Nevada in October 2017 to seek workers' compensation benefits related to an event that was not covered by the California workers' compensation law at that time. Some would argue that Assemblyman Low seeks to pass an ex post facto law that impairs the contracts that were entered into by those parties in 2017. 

Others will stress that ex post facto prohibitions in the U.S. Constitution are actually focused only upon criminal sanction, see above. They might be said to be ignoring thereby the underlying themes of justice and fairplay. Either argument might be both appealing and interesting (such arguments and discussions are the stuff of which great WCI Conference conversations are made). 

But, the impairment of contract is a more direct impact. Those who employed firefighters in 2017 did so with an understanding of the implications of the risk of injury. Those implications, costs, and challenges, were defined by law. The parties to the 2017 employment contract relied upon that law. The parties to any 2017 insurance contract relied upon that law. For the State of California to consider retroactively changing that law impairs both those contracts of employment and any contracts of insurance. 

There will be "angry old men in the balcony" at this point of the analysis, who are quick to point out that perhaps there are cities, counties, and others that did not purchase workers' compensation insurance. Those subdivisions would be labelled as "self-insured,"  so "what does this have to do with insurance contracts" they may say. They will note that government entities in many American jurisdictions are self-insured. The law allows entities with significant financial wherewithal to self-insure against losses. It is allowed because those entities are seen as financially responsible and dependable. 

As an aside, in the case of a city or county, they are perceived as absolutely able to meet any financial risk. Government is in the ultimate "Doritos" position. In the 1990s Doritos advertised "crunch all you want, we'll make more." And in that spirit, government can confidently say "increase the risks all you want, we'll tax more." Government can always use the power of taxation to extract more from its citizens in pursuit of payments to others. 

WorkCompCentral reports that Assemblyman Low's bill is not a novel California idea. Last year, the legislature there passed a retroactive workers' compensation liability upon employers of "peace officers who were injured during the Las Vegas shooting." The decision, whether constitutional or not, has been made in California to impair contracts and to retroactively amend laws. The current proposal merely expands upon that decision, in order to provide this retroactive support to firefighters as well. 

It is natural to have sympathy for those injured or killed, as it is for their families. Events like those in Las Vegas are chilling and they strike at our souls. But, there is a benefit in law that is predictable, dependable, and consistent. The extraordinary act of making retroactive changes in law in response to a particular tragedy, however, is perhaps a slippery slope. It could undermine the faith Californians have in contracts, obligations, and the law. In the end, it could thereby do more harm than good. 

Instead, the Assembly might have considered responding to the past tragedy in Las Vegas more similarly with the response to the terrorist attacks of September 11 in New York. The response there was a specific fund legislatively created to provide compensation due to the specific past facts and circumstances. Such a response to a past event would arguably be more conducive to stability and predictability of contracts. And, if coupled with a prospective change in contractual rights, a more rational remedy.

But, at the end of the day, the legislature has significant latitude in fashioning remedies. It will be interesting to see where California goes with this proposal.

Sunday, March 24, 2019

Cancer Diagnosis and Workers' Compensation

Workers' compensation cancer presumptions are not new. This blog has addressed the topic some with Cancer Presumptions for Firefighters (2014), Firefighters Seek to Change Cancer (2016), and Cancer Presumption in Australia (2016).

There is a bill introduced to bring a cancer compensation process to Florida. Senate Bill 426 ("SB426") would define "cancer" to include the specific maladies of "Bladder cancer, Brain cancer, Breast cancer, Cervical cancer, Colon cancer, Esophageal cancer, Invasive skin cancer, Kidney cancer, Large intestinal cancer, Lung cancer, Malignant melanoma, Mesothelioma, Multiple myeloma, Non-Hodgkin’s lymphoma, Oral cavity and pharynx cancer, Ovarian cancer, Prostate cancer, Rectal cancer, Stomach cancer, Testicular cancer, (and) Thyroid cancer." 

There are those who are referring to this as a "cancer presumption," but that may not be an accurate description. This bill does not interact with Florida workers' compensation, but is instead "an alternative to pursuing workers’ compensation benefits under chapter 440." It is available if a firefighter (or former firefighter for up to 10 years) is diagnosed with cancer and 
"has been employed by his or her employer for at least 5 continuous years, has not used tobacco products for at least the preceding 5 years, and has not been employed in any other position in the preceding 5 years which is proven to create a higher risk for any cancer."
This is not an entirely new subject. Several states have workers' compensation firefighter cancer presumption laws. According to Pennsylvania Judge David Torrey, thirty-three states have addressed firefighter cancer in some way. 

Meanwhile, officials in Ontario, Canada are analyzing work cancer claims in a more holistic and inclusive manner. The "director of the Occupational Cancer Research Centre at Cancer Care Ontario" has undertaken to study "workplace-related cancer for the Ministry of Labour." TheRecord.com suggests that cancer claims are "a contentious issue today." It notes that more "than a century ago" workers compensation laws were enacted, and their effect is a prohibition on employee lawsuits against their employers. 

The Research Centre Director contends that workers' compensation was not designed for the modern world. He claims that it is structured based upon knowledge founded "in an era long before occupational disease was understood." Therefore, he advocates that workers' compensation needs to "to adapt to the hazards" to which people are exposed at work. He opines that the various jurisdictions' systems have not evolved in parallel with medical science. 

TheRecord.com sees an example of this in "former rubber workers." It notes that some of these have unsuccessfully sought workers' compensation benefits "for cancer and other diseases," only to suffer "long delays, road blocks and frustration." The Director contends that compensation for such disease "should not be an adversarial situation." Instead, compensation "should be a right to people." TheRecord.com says that the research the Director is performing will be used by province officials to reconsider rubber workers' claims for occupational disease between 2002 and 2017. 

In some cases, the evidence around specific workplace carcinogens isn't new at all, but the compensation system has still struggled to adequately respond to the problems it causes for workers, he said. He contends that "our knowledge of what causes cancer at work improves every year," and that this body of evidence to which he refers might be used to support claims for cancer or other occupational disease. 

The Director "believes the majority of occupational diseases are never reported." Despite that, the story says that in an eleven year period, the province workers' compensation system "allowed about 125,000 occupational disease claims which totaled more than $950 million in benefit costs." Thus, almost a billion dollars (presumably Canadian dollars, which would convert to about $717 billion U.S.). But TheRecord says "that's just scratching the surface of the problem." 

The publication and the Director seem to be advocating for physician education in order that such allegedly work-related conditions are diagnosed as being work-related. Secondarily, there seems to be advocacy of a claims process that is geared toward compensating more such claims after they are "assessed based on the latest science." There is no description provided of what this science is, however. Perhaps that will all become more clear after the next year of the Canadian study. A recent Canada British Columbia news story draws comparisons between firefighters and other employees. 

In the mean time, Florida will not be alone in a legislative discussion of cancer this year. WorkCompCentral reported recently that Montana is considering a sweeping presumption bill for firefighters. It reportedly "lists a dozen conditions that would be presumed compensable when diagnosed after a specific period of employment." This bill also addresses cardiovascular disease. 

The same day, WorkCompCentral reported that Maryland is considering a bill to expand its firefighter cancer presumption. This would "add bladder, kidney or renal cell cancer to the list of diseases presumed to be compensable for firefighters." The article notes Maryland presumptions already "include throat and lung (cancer) because of the smoke conditions." 

And, Texas is reportedly considering legislation to clarify its firefighter presumption law. WorkCompCentral reports that the law is considered "murky." According to the story, "insurers say (the law) limits firefighters to just three types of malignancies, but fire workers say already includes most types of cancer." Employees are seeking better enforcement of compensability decisions, and employers are seeking clarity of the law's scope.

Recently, a California jury awarded $29 million to a woman for cancer it related to the use of baby powder. The American Cancer Society notes that some talcum powder contains asbestos, and warns that inhaling asbestos-laced powder can cause cancer. Its' website is more circumspect regarding talcum powder and cancer: "The evidence about asbestos-free talc is less clear." Thus, there seems some potential for debate regarding this causative link. 

The Environmental Protection Agency has recently banned the sale of Methylene Chloride, according to WebMD. It notes that this chemical compound can cause carbon monoxide poisoning, and "over the long term it increases the risk of cancer." Despite those warnings, the EPA ban only affects consumer purchasing. The chemical will still be obtainable for commercial applications. It is estimated that some "32,000 workers use methylene chloride at work. New Jersey attorney Jon Gelman has addressed this substance in his blog. 

Back in California, The Telegraph reports Bayer (which purchased Monsanto in 2015) was found responsible by a jury that concluded "glyphosate-based weed killer Roundup caused non-Hodgkin’s lymphoma." Notably, the plaintiff had "sprayed the herbicide on his property for decades." According to the Chicago Tribune, there is disagreement about glyphosphate. On one hand "Monsanto says studies have established that Roundup's active ingredient, glyphosate, is safe," and "many government regulators have rejected a link between cancer and glyphosate."

The manufacturer claims that "hundreds of studies have established that the chemical is safe." However, the jury concluded otherwise, finding "using Roundup was a significant factor in his cancer." The recent trial there was in federal court, suggesting that the science that was presented by both plaintiff and defense was subject to the Daubert standard discussed in Dissing Daubert, Daubert Better Explained, and Daubert, We Barely Knew Ye

Thus, there are questions about what does and does not cause cancer, causation issues. There may be issues as to how long after some exposure cancer will appear, latency issues. There may be occupations in which exposure to various chemicals and compounds is more or less likely. There may be variables such as the degree of exposure, intensity of exposure, use of safety equipment, and more. In total, there may be more questions about cancer than answers. 

The legislative efforts seem focused only upon firefighters, and yet a great many questions appear unanswered. Is there justification in tiered recovery systems that treat some workers differently than others? Is there recent science, as suggested by the Ontario Director, that antiquates existing workers' compensation decision making? If so, where is that science? So many questions. 

Thursday, March 21, 2019

2019 Marijuana Statute in Florida

The Florida Legislature has passed CS/CS/CS/SB182 (committee substitute for Senate Bill 182), and it has been signed into law. This amends section 381.986, Fla. Stat. There has been significant news coverage of this change on platforms such as the Orlando Sentinel and CBSNews.com. For some reason, the statutory changes have spawned a fair volume of questions and conjectures.

Coincidentally, I ran into a former Vermont Judge last week at the American Bar Association Midwinter Workers' Compensation seminar in Coral Gables. Judge Phillips was part of an exceptional panel discussion regarding alternative approaches to pain treatment. Marijuana naturally arose in that conversation. According to NBC News Miami, "people are signing up for medical marijuana in Florida in record numbers – about 3,000 new patients a week." The NBC investigators concluded that "more patients are taking medical marijuana for chronic pain than anything else." 

(L-R) Katherine Poirer, Teresa Bartlett, M.D., Becky Curtis, Phyllis G. Phillips. 

Judge Phillips was asked about her decision in Hall v. Safelite Group, Inc., Opinion No. 16-18WC. She was kind to forward me a link to that decision, in which she adjudicated the issue of medical use of marijuana in a workers' compensation setting. The primary question was "does use of medical marijuana constitute reasonable treatment." And, if so, "can the Commissioner compel Defendant to reimburse Claimant for his medical marijuana purchases? 

There is no doubt that under U.S. law, there are significant challenges to "Medical Marijuana." The Maine Supreme Court has declined to order an employer/carrier to pay for marijuana. Federal Law Matters in Maine Also. In an employment setting, the Colorado Supreme Court concluded that "medicinal" use of marijuana is not "lawful activity," despite the state's legislation to decriminalize marijuana. So Federal Law Matters in Colorado (Coates v. Dish Network). However, there are at least seven jurisdictions that have ordered employer/carriers to violate federal law and provide marijuana reimbursement. 

Judge Phillips noted in her order that Hall's "only measurable symptom relief" comes from marijuana. That is similar to the factual finding in Coates, regarding the efficacy of pot for his seizures. Mr. Hall was noted as smoking "between four and six marijuana joints daily." He was expending "between $190 and $300 for a half ounce to an ounce of marijuana" on a "four to six week" basis. 

Judge Phillips concluded that the claimant's evidence was persuasive regarding the "reasonable treatment" question. She accepted as persuasive the treating physician's testimony regarding the substance, Mr. Hall's use of it, and the physician's observations of the claimant's symptomatology. 

She then turned to an in-depth analysis of the legality of an employer/carrier paying for pot. Her analysis is one of the most detailed I have seen. Of note, she concluded that various memoranda from the federal government "neither altered the (Vermont) Department’s ability to enforce federal law nor provided a legal defense to any violation of federal law." That conclusion is logical and sets a stage for all involved in the use of marijuana, both directly (patient, doctor) and indirectly (payer, such as an employer/carrier). 

Judge Phillips provides analysis of litigation in New Mexico, Maine, Connecticut, and Montana. Ultimately she turns to the "Vermont Medical Marijuana Statute." She notes that this law says it "shall not be construed to require that coverage or reimbursement" be provided by health insurers, Medicaid, employers, or specifically "an employer defined" for "purposes of workers' compensation." She notes that not all of the states' medical marijuana statutes are so specific as to workers' compensation. Judge Phillips notes that a Maine decision specifically concluded that if its legislature had intended to exempt workers' compensation from paying for marijuana, it would have said so specifically. 

Judge Phillips characterizes the implication of federal laws as a "shadow cast" on the subject of payment for marijuana. Ultimately, she concluded that an employer/carrier in Vermont cannot be compelled to pay for a substance that is listed in Schedule I, that is illegal under federal law. At the Coral Gables program, she mentioned that a significant hurdle for marijuana is the dearth of research. She was quite dismissive of Mississippi, when mentioning that the University of Mississippi is the only place federally legal marijuana is grown for research. But, dismissive New Englanders should remain mindful that Mississippi has a comma; not every state can boast such sophistication as Mississippi. 

The question for Floridians may now be whether an employer/carrier must provide marijuana for an injured worker. A subset of that question may be raised based upon the construction and conclusions of other states, that is whether an employer/carrier might be compelled to reimburse an Florida injured worker who has self-obtained marijuana. During the panel discussion Coral Gables, one of the panel members questioned "can the carrier be compelled to pay for the worker's scotch?" That is an interesting comparison which may stimulate interesting conversations and perhaps arguments. 

So, what does CS/CS/CS/SB182 change in Florida? It essentially adds marijuana smoking to the "delivery" methods allowed; the "devices intended" for "smoking need not be dispensed from a medical marijuana treatment center." (Line 101, Line 684). However, smoking is specifically still not allowed in a "public place" (Line 126) or on "public transportation" (Line 124), or "a school bus, a vehicle, an aircraft, or a motorboat." (Line 134). And, smoking it is not allowed "in an enclosed indoor workplace." (Line 136). Some may interpret that as allowing smoking marijuana in an outdoor workplace. But, there is a limitation that says the law "does not impair the ability of any party to restrict or limit smoking or vaping marijuana on his or her private property." (Line 745). There is also constraint on smoking as a delivery process if the patient is "under 18 years of age" in certain circumstances. (Line 244). 

The statute limits the supply of marijuana in a "form for smoking" to "one 35-day supply" "within any 35-day period." That 35-day supply "may not exceed 2.5 ounces" unless an exception is granted by the state (Line 283). 

The addition of smoking as a delivery process comes with a warning. The physician must obtain "voluntary and informed consent of the patient" regarding use of any marijuana "each time the qualified (Line 180) physician issues a physician certification for the patient." This "must include" "information related" to 
"The potential side effects of marijuana use, including the negative health risks associated with smoking marijuana" (Line 202). 
One of the proponents of marijuana has argued that "there have been no reported medical cases of lung cancer or emphysema attributed to marijuana." There will thus perhaps be differences of opinion regarding what the side effects and risks of smoking are, and thus what will be included in that "informed consent." The statute later (Line 599) concludes however that "marijuana smoke contains carcinogens and may negatively affect health." The packaging for "marijuana in a form for smoking" must be labelled with a warning that so states. Thus, there will be a warning signed by the patient (consent) and one posted on the packaging. Those who smoke may later find it difficult to seek compensation if lung disease or other maladies result from smoking marijuana. 

What does the enactment of CS/CS/CS/SB182 change in Florida workers' compensation? That is a more specific question. The subjects of workers' compensation and insurance are not addressed in the bill. Section 381.986(15) already addresses "workers' compensation, but not by name. This provides that: 
"(15) APPLICABILITY.—This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440." 
And, thus the issues for Florida workers' compensation appear to be minimal for now. That is not to say that issues will not or cannot arise. However, it is likely that those developments are for another post, another day.

Tuesday, March 19, 2019

Universal Income Again

Universal Basic Income is back in the news. A recurrent theme of this blog has been the ever increasing impact of artificial intelligence and robotics. The world of work is changing, and that is affecting us all. The evolution of the working world will impact what we consume, how it is produced and delivered, and more. 

For background, read How Will Attorneys (or any of us adapt). About a year later, I broached the topic of Universal Income in Universal Income, A Reality Coming? That focused upon technologists who had begun to float the idea that in a world of technological utopianism there would be little if any work, and thus a need for people to received money from some source in order to engage in economic exchanges, that is to buy the goods their lives require. 

Last Labor Day, I penned Let them Eat Brioche. The discussion there focused significantly on the recent end to an experiment in Finland regarding Basic Income. That attempt involved 2,000 Finnish being paid "$685 a month whether they found work or not" There were various perspectives expressed regarding whether that experiment was a success and even about whether it was even of sufficient size and scope to make such conclusions. 

In February 2018, the British Broadcasting Company (BBC) reported some analysis of the results of Finland's foray in to UBI. It concluded that Finland basic income trial left people 'happier but jobless.' In what was seemingly a surprise to some, handing people almost $700 per month with no strings attached somehow made those people happier. Conversely, there is surprise that the UBI program did not result in those recipients finding work. 

Those who advocate for UBI are convinced that such a program of free and unconditional support will benefit recipients. They contend that payments like this will free people to undertake education or training opportunities in order to adapt to an evolving economy. They believe it would alleviate the impact of technology on the workforce. 

Since the Finland experiment ended in December 2018, officials there have been measuring the impact of their foray into UBI. The contention or theory was that "a guaranteed safety net would help people find jobs." In many systems that provide support for "unemployment" or "underemployment," there are requirements that a recipient looks for work. And, the obtention of work and income may result in a decrease or elimination of the support payments. 

Not so in the UBI experiments. In the Finland effort, the monthly payment remained guaranteed regardless of any attempt to find work or absence thereof. There was apparently some conjecture that people were disinclined to accept some types of work in an unemployment benefit setting, "insecure gig economy work," because that might impact receipt of benefits. Thus, the guarantee of UBI might mitigate that fear and lead to more robust participation in the workplace since working would not reduce government benefits. 

That contention appears unsupported by the data from Finland. The BBC reports that "employment levels did not improve." It notes that the beginning of this effort "attracted international interest." However, the Finland results "have now raised questions about the effectiveness of such schemes." The BBC outlines various other experiments underway in places like Kenya, Italy, and the Netherlands. 

The BBC notes Finland's researchers are "still trying to work out exactly why" more people did not become employed through this UBI experiment. They expect to publish a report in another year, detailing their findings. There are some who contend that the UBI focus is "too heavily on individuals' personal wealth and buying power." Instead, they advocate focus on "companies wasting resources by producing far more stuff than people need, and over-working their employees in the process." That is, a seeming advocacy for market controls that would exert more control on what is produced for consumption.

Coincidentally, Business Insider recently reported on the Green New Deal. The legislation that would begin that proposal apparently includes some reference to wages and work. However, a website maintained by the sponsor apparently included a statement describing the bill as striving to support "economic security to all those who are unable or unwilling to work." That was also included in document about the proposal, published by National Public Radio (NPR). This was The "unwilling" wording created some controversy. 

That sentence is included in a topic labelled "overview." This section also includes "guaranteeing" everyone "a job" with significant benefits, "higher education," "healthy food," "adequate housing," and "economic security." In the Business Insider story, the bill sponsor's chief of staff was quoted explaining that this "unwilling to work" refers to "pension and retirement security," as well as to individuals who may be unwilling to "switch (careers) this late in his career." That description could perhaps apply to various individuals who are displaced by the technology, artificial intelligence, and robotics discussed in the various posts linked above.

Meanwhile, a major U.S. city is apparently poised to venture down the UBI path. The Daily News reports that New Jersey's largest city, Newark, will "create a task force and pilot program to study" UBI. The Mayor has expressed belief in the concept and contends that it is necessary because many essentially live under a consistent threat of a financial setback and much of the population lives in poverty. While the city is reportedly committed to UBI, no plan is in place regarding how to fund such a program. The News article references recent suspensions of similar experiments in Finland and Canada, as well as one recently instigated in California for 130 people in a city of 300,000 (some might find that .04% less than "universal"). 

While UBI is not identical to the Green New Deal, there are potentially similar underpinnings. Where UBI seeks to encourage engagement and productivity through decreased stress and flexibility, the Green New Deal seems focused on both mandating a job for everyone that wants one and providing income replacement to those who do not care to. 

Thus, there is evidence from Finland regarding how such programs affect employment. There is evidence from Canada that UBI is "expensive" and "not sustainable." Despite these conclusions from small scale experiments, however, proponents remain and they are striving to implement UBI elsewhere on perhaps an even broader scale.  

What remains, however, is for someone to explain how such programs can be economically feasible. Remember in school when finding the answer was not sufficient on the test? There were those teachers that simply insisted "show your work." Where is the math? How can government, dependent upon tax payers for revenue, support everyone ("universal")? If everyone is an income recipient, then no one is seemingly a taxpayer. 

While the socialistic Green Deal seems less than "universal" the reality of funding it seems as challenging nonetheless. When will someone show the math of how everyone ("universal") can have as much of everything that they want, and no one has to pay? Or, perhaps the facts and figures can be ignored and it will work if everyone just believes?

Sunday, March 17, 2019

Reasonable Fee May be No Fee

An interesting decision of the Federal District Court for the Northern District was rendered in November 2018. The connection of that decision to workers' compensation may not be obvious to some. However, it determines attorney fees, which in a general sense are the subject of discussion in Florida workers' compensation. The subject of fee calculation and "reasonableness" comes up in many conversations I have with regulators in various other states as well. A significant number of those discussions generated in part by the decisions of Florida courts in Castellanos and Miles.

The November ruling is by Judge Roger Vinson in the Pensacola Division of the Northern District Court. The case is Moss v. Pav'r Construction Inc., and Michel Breton, Case No. 3:17cv408-RV/EMT. It is a 35-page explanation of some of the intricacies of the Fair Labor Standards Act (FLSA). Workers' compensation sometimes is intertwined with such analysis; a common workers' compensation issue is determination of the injured worker's earnings, based upon which wage replacement or "indemnity benefits" are paid. 

The case involves Mr. Moss' departure from his employment with Pav'r. The Court noted that he "broke multiple pieces of company equipment during his brief stint with the defendants." When he was "told he would have to pay for some of" that equipment, he "'walked off' the job and quit." Therefore, the defendants elected to keep Mr. Moss' last paycheck in partial payment, "a small portion" of that debt.

This withholding "meant that he was paid less than minimum wage for that one pay period." Judge Vinson concluded that withholding pay in that manner violated the FLSA. And, if violation of the FLSA is "willful" (meaning "with knowledge or reckless disregard"), then "the employee may recover the full wages," and additionally recover "double that amount in liquidated damages." By that calculation, "assuming" the action was willful, the Court concluded the wages due would be $248.31 and the total damages "at most" would be $496.62.

There is a popular idiom about "not making a federal case out of it." The Free Dictionary imparts that this means "to exaggerate or build up the importance of something; to make a big deal out of something." Some might see the total here of $496.62 and express some surprise that this was in fact a federal case. However, the FLSA is federal law, and those disputes normally proceed in federal court. But, even when a case thus belongs in federal court, it can nonetheless be exaggerated or overstated.

Judge Vinson describes how the lawsuit was originally filed against two companies, each of which was owned by defendant Breton. The Judge noted that it "soon became clear" that the second company (PRCP) "had never employed plaintiff," and "had been sued in error." But, the plaintiff's attorney did not dismiss the claims against that second company, despite that knowledge. The case continued against this second company "even after plaintiff himself testified he had no evidence to" contradict Mr. Breton's testimony that "plaintiff never worked for the (second) company."

In January 2018, the defendants (Pav'r and Breton) filed an Offer of Judgement. This is a procedural tool to "encourage settlement: and to "discourage protracted litigation." The plaintiff did not accept the offer. Thereafter, the plaintiff conducted "a shockingly large amount of discovery," which included interrogatories, requests for production, and at least nine depositions." Judge Vinson conceded that this volume of discovery is not uncommon in a "typical federal lawsuit," but characterized it as "objectively excessive here." 

Three months later, PRCP (mistakenly sued) filed for summary judgement. The plaintiff filed a nine page response to the motion, essentially concluding plaintiff "does not disagree" with the summary judgement (Plaintiff might instead have just dismissed PRCP). The judge "finally dismissed (PRCP) from the case in June 2018. In that order, he mentioned the prospects for a claim for attorney fees in this matter, noting "I am not inclined to award much - if anything - more than a nominal fee award," citing the overall circumstances in the case. 

In November, in a brief paragraph, Judge Vinson cited Rule 68 of the Federal Rules of Civil Procedure, and awarded costs to the defendant. He explained that when "an Offer of Judgement is made" and that is "not accepted, and the offeree later fails to obtain more than . . . was offered, the offeree must pay the offeror's post-offer costs." Thus, plaintiff recovered $496.62 in his wage claim in this litigation, but was ordered to pay $1,133.54 in costs. Plaintiff's net recovery from filing this litigation was -$636.92. Plaintiff prevailed on his claims, and ends up writing the defendant a check. 

Judge Vinson then turned attention the Plaintiff's claim for  $28,351.00 in attorney's fees, noting that prevailing plaintiff fees are "expressely provided" by statute: "shall . . . allow a reasonable attorney's fee." Judge Vinson noted that authority supports that "distinct courts have very broad discretion in determining the amount of the (fee) award." (citations omitted). In fact, citing Sahyers v. Prugh, Holliday & Karatinos, 560 F.3d 1241, 1244 (11th Cir 2009), he noted that "there are some cases in which a reasonable fee is no fee."

The discussion of the fee claim proceeds for pages of the November order. Judge Vinson cites various decisions involving prevailing party fees. He notes the obligation of the Court to consider facts such as the "Rule 68 Offer of Judgement," the:
"stage of the litigation at which the offer was made, what services were rendered thereafter, the amount obtained by judgement, and whether it was reasonable to continue litigating the case after the Rule 68 offer was made." Marek v. Chesney, 473 U.S. 1 (1985). 
Judge Vinson noted this was not "an exhaustive list" of appropriate considerations. He concluded that "it appears well established" that the Court could "deny attorney fees" if the Court found the attorney "acted in bad faith."

Judge Vinson noted that both plaintiff and defendant contended that the other acted in bad faith, and thus prolonged the litigation over the $496.62. The judge expounds for several pages on the communication between the parties, quoting at length from various correspondence. He concluded that plaintiff's counsel was "churning the file to prolong the litigation and run up his attorney fees." A key lesson here may be that communicating in writing is effective for memorializing and documenting.

As an example, the Judge reminded of the failure to dismiss PRCP from the suit "even after it was or should have been obvious that plaintiff never worked there." This might be characterized as continuing litigation "without reasonable ground." When PRCP moved for summary judgement, Plaintiff filed a "nine page response" with "47 pages of exhibits" to "say that he agreed PRCP" should be dismissed. The court also discussed the apparent lack of any real dispute. The plaintiff initially asked for $496.62 and the defendant essentially offered to pay that amount, yet the litigation continued and even  intensified.

Judge Vinson noted that 15.7 attorney hours at more than $220 per hour average were claimed to draft Plaintiff's motion for summary judgement. The 31-page motion and 90 pages of exhibits for payment of $496.62. He noted that the defendants agreed in response to pay the "full $496.62," that plaintiff then "filed a 10 page reply . . . requesting that plaintiff be awarded the $496.62 that the defendants had just stipulated to." That reply was "another 4.7 hours, at $215 per hour or $1,010.50. This was perceived by Judge Vinson as inappropriate and perhaps indicative of the tenor of the litigation overall. 

Judge Vinson noted that the defense had opposed the "plaintiff's motion for fees." Its attorney had "painstakingly gone through (counsel's) time sheets to show even more file-churning and bill-padding." The judge cites several of these in the order. He describes the use of a "boilerplate complaint," drafting of "standard form letters ordinarily handled by secretaries or paralegals," and over a half hour "accrued . . . to read three sentences."

In another example the attorney "logged 2.1 hours to draft nine Notices of Deposition . . . (which) were identical except for the name of the deponent and the time of their appearance." He question why "the lead and named attorney" would perform that work instead of a "secretary or paralegal." Coincidentally, when some depositions were rescheduled, "incredibly, he listed the exact same amount of billable time for each amended notice." The order seems to express incredulity about these various time entries. 

Judge Vinson concluded the "billing records are both inflated and unprofessional." He said "there is simply no justifiable reason why he (plaintiff's counsel) accumulated 103.9 hours" on "a case with a maximum of $496.62 at issue." He conceded that a "lopsided fee" could be justified in some circumstances, citing one such case. But noted that in this case "the damages at issue were always in the nuisance value range," a distinction from the example cited in which a "lopsided fee award" was justified. 

Judge Vinson finally noted the attorney's contention that "he should be awarded fees because he expediently and with great skill achieved in the excellent result for the Plaintiff." But the judge disagreed, concluding "he actually did the exact opposite." Instead,, "he dragged this exceedingly simple and straightforward lawsuit out as long as he could and made his client wait to receive what  the defendants had offered several months before." Thus, "his unprofessional conduct shocks the conscience of the court." On that finding, Judge Vinson held "a 'reasonable fee' in this case is no fee."

In closing, the judge noted that the defendants did not ask for payment of "some or all of their fees," but they "expressly declined to do so." Had such a request been made, the judge "would have granted that request as an appropriate sanction." Thus, he noted, Plaintiff's counsel "should consider himself lucky" receiving zero.

The lesson of this, applicable to workers' compensation and any litigation, is that all parties should be constantly vigilant for opportunities to resolve issues. When there is agreement (such as PRCP should not be a party to the suit), that agreement should be effectuated immediately and simply. That should occur by admission, stipulation, or dismissal. It should not require lengthy motions, responses, and time investments to effectuate issues upon which the parties agree.

Furthermore, the obligation of attorneys is clear. They are bound to represent the best interest of their respective client. They are officers of the legal system, and they owe a duty to be efficient, honorable, and truthful. Their aspirations should be "fairness, integrity, and civility." See Oath of Admission. Their goals should encompass effectively representing their client's interests, while remaining respectful of the time and resources of the judicial system in which they practice. Those obligations may bear periodic reinforcement or reminder. 

Thursday, March 14, 2019

Compound Objections and Hearsay

One of the persistent challenges for trial attorneys is the admission of evidence to prove their claims or defenses. The admissibility of evidence in workers' compensation proceedings is controlled by the Florida Evidence Code ("FEC"). This statute establishes parameters and requirements for the admission of evidence of various descriptions. Each party to a trial has the opportunity to provide evidence (documents, testimony, etc.) in support of its position, and every other party has the opportunity to object to that evidence. The FEC is the standard by which the trial judge sorts out those proffers and objections and decides what will and will not be admitted as evidence. 

The party objecting is not limited to any single objection. One element of evidence in a case might be objectionable for more than one reason. It is therefore not uncommon for a trial judge to be presented with a "compound objection," expressing multiple grounds upon which some evidence should be excluded from the trial. It is also not uncommon for opposing parties to fixate upon one of those multiple grounds, and focus the entirety of its response on that one ground. 

This, of course, ignores the other grounds for the objection and potentially leaves the trial judge with a lopsided analysis (three reasons proposed for excluding, and only one grounds explained away by opposing party). A recurrent example of this phenomenon is "objection hearsay, and not authenticated." This is two distinct and separate objections to which the only response will perhaps be regarding hearsay. 

It is important for counsel to remember that demonstrating admissibility as regards one section of the evidence code "does not mean that the article is insulated from other rules of evidence governing admissibility." Dollar v. State, 685 So.2d 901 (Fla. 5th DCA 1996). In Dollar, the Court explained that demonstration of authenticity (one requirement) does not lead to admission of evidence that is nonetheless hearsay (a second, distinct, requirement).

The point of the hearsay rule is to afford the opportunity to conduct cross-examination, that is "confrontation" of the statements. That opportunity is a foundational element of the due process guaranteed by the Constitution in American legal proceedings. If someone's statement is to be taken as proving something true, it is most appropriate that statement is made in the trial where the person saying it can be observed first-hand and all of the parties are afforded the opportunity to challenge that statement through cross-examination.

The "rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination." See, Dollar v. State, 685 So.2d 901 (Fla. 5th DCA 1996). 

The FEC defines "Hearsay" as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Section 90.801(1)(c), FlaStat. Hearsay is not admissible as evidence unless it is within one of the statutory exceptions to the hearsay rule. Section 90.802 FlaStat. Some hearsay rule exceptions are dependent upon the propounding party demonstrating that the witness uttering the out-of-court statement is “unavailable.” See, section 90.804 FlaStat. Other exceptions to the Hearsay Rule are set forth in section 90.803 FlaStat.; the availability of the declarant is immaterial to the application of these exceptions. 

It is common for a party proffering evidence, confronted with a hearsay objection, to begin its analysis and explanation with reference to one of these enumerated exceptions. A caution is worthy of reminder. The analysis, might more logically begin with whether the statement is offered "to prove the truth of the matter asserted." Because, if offered for some other purpose, the statement may well not even be hearsay and the exceptions may be irrelevant and unnecessary. 

The "compound objection" thus has to be listened to carefully. What are the elements expressed? Each must be addressed as demonstration of admissibility as to any one objection is not necessarily a cure for any other objections. Too often, human nature has us thinking intently about what we are going to say and we are thus inclined to stop listening carefully to what is being said. Attorneys must guard against that inclination and listen carefully to the entire objection, noting each individual element thereof. Each must be addressed in turn. 

Another human failing from which we all suffer is hubris, or pride. We are inclined to worry about how we appear or about perceptions others may have of us. There is no certainty that any particular objection will be either legally sufficient or even clear. There is no harm in saying so (though in a jury trial setting, one might wish to do so in the privacy of a sidebar).

The real point is to listen first. Note each grounds for objection, and then address each in turn. The "compound objection" requires in most instances a "compound response." That response, to any hearsay objection, should begin with whether the information is or is not hearsay. Proceeding to some statutory exception before that is established may bring complication to a situation that could instead be cured with simplicity: "it is not hearsay because . . ."

Tuesday, March 12, 2019

The Representation we Make

In much of workers' compensation across America, benefits are delivered to injured workers administratively. There is an accident or illness, the employer is notified, and either that employer or an insurance company with which it has contracted begins delivering benefits to the injured worker. The majority of workers' compensation accidents or illnesses are in this category. There are some, however, that become disputes. 

In many states, there is a single workers' compensation regulatory agency. That agency handles the regulation of those insurance carriers, the reporting of injuries, and the documentation of expenditures. Those agencies also have an adjudicatory function through which the cases that become disputes can also be heard and decided. In Florida, that adjudicatory function is separated completely from the regulatory side of workers' compensation. In Florida, the Division of Workers' Compensation handles the broad regulatory function, and the Office of Judge of Compensation Claims handles only the mediation and adjudication of disputes. 

To begin that Florida adjudication process, the injured worker files a petition for benefits, or PFB. This is stated in Section 440.192, Fla. Stat.:
"Any employee may, for any benefit that is ripe, due, and owing, file with the Office of the Judges of Compensation Claims a petition for benefits which meets the requirements of this section." 
The Petition is a method for seeking benefits in Florida workers' compensation. That Petition is required to provide: 
"A detailed description of the injury and cause of the injury, including the location of the occurrence and the date or dates of the accident." Section 440.192(2)(c), Fla. Stat.
The location of the accident is a critical element of the petition. Because, Section 440.25(4)(d) requires that 
"The final hearing shall be held within 210 days after receipt of the petition for benefits in the county where the injury occurred."
For that legal requirement to be fulfilled, the case must be assigned appropriately when the petition is filed. For that assignment to be correct, the injured worker must accurately state in the petition where the accident occurred. 

If the parties to a case later agree to hold the hearing elsewhere, that is in an alternate venue, the statute permits that, if:
"authorized by the judge of compensation claims in the county where the injury occurred." 
That is, the parties may change the site of hearing to a different geographic location, but that agreement is dependent upon the judge in the presumptive (initial) venue agreeing with that change in venue. The parties are not free, before instigating the case with a petition, to agree to some particular venue and acquire an assignment there by misrepresenting where the accident occurred. The parties may later stipulate to a change, but that is not dispositive. The Judge of Compensation Claims may approve or deny such a stipulation. See Rodas v. Commercial Forming Corp., 976 So. 2d 620 (Fla. 1st DCA 2008).

There is also provision for assignment of a location for trial, for "venue" if the accident did not occur in Florida. 
"If the injury occurred outside the state . . . then the final hearing may be held in the county of the employer’s residence or place of business, or in any other county of the state that will, in the discretion of the Deputy Chief Judge, be the most convenient for a hearing."
Another provision of the Florida law is worthy of consideration in  regard to venue. Section 440.105(4)(b) provides 
"(b) It shall be unlawful for any person: 1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter."
Making false statements in either pursuing or defending benefits in Florida workers' compensation is illegal. It is "insurance fraud," and is punishable under the law. Depending upon the value of the benefits sought, which are connected to the false statement, it is a first, second, or third degree felony as described in Section 440.105(4)(f). All are felonies. Making false statements regarding claims is potentially a serious situation. 

Why is venue important? Because the statute says so. The statute says the hearing shall occur in a particular location. But, proceeding in the wrong venue can lead to wasted time and money.

The appellate court reversed a denial of a motion for change of venue in Cenvill Communities Inc. v. Pierre, 393 So. 2d 662 (Fla. 1st DCA 1981). There, a party had sought a change of venue asserting similar statutory language regarding venue. After denying the motion to correct venue, the workers' compensation judge heard the case, over objection, and entered a final order. The objecting party then appealed the decision. The appellate court concluded that because "there was no evidence nor agreement to allow the hearing to be held in" that venue, the decision was reversed. The parties had to try the case a second time in the correct venue. 

Venue, that is the "choice of venue for workers' compensation hearings is a matter of legislative decision." See Chittick v. Eastern Airlines, Inc., 403 So.2d 595 (Fla. 1st DCA 1981). It is a legislative decision that can be changed. However, the change has to occur as the legislature has allowed. That is, with the agreement of the parties and the approval of the judge in the county where the accident occurred. The initially assigned judge is responsible for ultimately deciding whether to approve or deny the parties agreement to change the venue. 

If an injured worker misrepresents the location of an accident in filing a petition, that misrepresentation may be criminal. However, it may also be a simple mistake. Upon discovery of a misstatement of the location of accident, that misstatement should be brought to the attention of all the parties by a party filing a motion (Rule 60Q6.115(1) - "Any request for an order or for other relief shall be by motion"). Or, that matter could be brought to their attention by the assigned judge or Deputy Chief Judge by an order to show cause. 

When the parties are thus on notice of an error, it should become quickly clear whether a simple mistake has occurred. In the event that some mistaken misstatement has been made, this is the moment at which it is acknowledged and withdrawn. If the misstatement is not acknowledged as a mistake and withdrawn, then someone might conclude that the misstatement is not a simple error, but an intentional misrepresentation. Regardless of the motivation for a misrepresentation, intentional misrepresentation has no place in litigation generally, and is illegal in pursuit of workers' compensation benefits. 

This is not an issue of convenience. That is, it is not permissible to make misrepresentation of the county where the accident occurred because that misrepresentation would result in a venue more convenient to someone in the litigation. 

Beyond the issue of legality, the Florida Bar Rules of Professional Conduct provide that a lawyer "shall not knowingly" make a false statement of fact (such as where an accident occurred) or law to a tribunal." Rule 4-3.3. Furthermore, a lawyer may not "fail to disclose a material fact (where the accident actually occurred). By making an honest mistake as to the location of a workers' compensation accident, a lawyer is not violating this rule. However, if the representation is not an honest mistake, acknowledged and corrected upon discovery, then seemingly the rule has been violated. That, of course, would be a determination for The Florida Bar however.

The processing, mediating, and adjudicating of Florida workers' compensation claims is delegated by the Florida Legislature to the Florida Office of Judges of Compensation Claims. In that delegation, the "enabling statute" of this administrative process, the legislature has delineated duties, rights, and procedures. It is incumbent upon those seeking and defending benefits, and the judges appointed under Chapter 440, to understand and abide by those legislative directions.