Tuesday, July 30, 2019

The Florida Supreme Court Again

There was a time when the Florida workers' compensation community was fixated upon the Florida Supreme Court. There was significant interest and speculation about Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016) and Westphal v. St. Petersburg, 194 So. 3d 311 (Fla. 2016). It was a time of constitutionality discussions, conjectures, and educational presentations. There were criticisms about workers' compensation, statutes, and process. Castellanos is discussed in Castellanos is Decided by the Supreme Court, Constitutional Law in Florida 2016, and Another Look at Castellanos. Westphal is discussed in Westphal is over, Questions Remain, Stare Decisis, Goodgame, Livingood, and Westphal, and Micro Versus Macro Analysis

In 2016, the Court decided both cases after significant time. Castellanos was decided by the Court April 28, 2016, and it was filed October 31, 2013. That is 910 days, about two and one-half years. Westphal was decided on June 9, 2016 and was filed October 21, 2013. That is 962 days, just over two and one-half years. In fairness, there are those who find the issues in both cases to be significantly complex. But, the point is that such decisions take time. 

That timing came to mind recently as two potentially significant cases have been introduced to the Florida Supreme Court, Abreu and Valcourt-Williams. I say "introduced" because it remains uncertain that the Court will actually review either. There is a process by which a party seeks review by the Supreme Court. In that effort, the party describes to the Court why the Court should hear the case. 

There are various grounds that afford the Court the authority to review a case, but there are few instances in which the Court is obligated to review a case. See Florida Constitution, Article V., Section 3 ("shall" applies to death penalty cases, District Court decisions "declaring invalid a state statute or a provision of the state constitution," "final judgments" regarding "validation of bonds or certificates of indebtedness," "action of statewide agencies relating to rates or service of utilities," and certain advisory opinions when requested by the Attorney General. 

The majority of instances are instead referred to as "discretionary," stated in the Constitution as the Court "may" hear various cases. Two of the "may" are direct conflict among district cases and "expressly declares valid." Thus, what has occurred in these cases so far is a party has asked the Court to review. Those who remember Castellanos and Westphal may also remember Stahl v. Hialeah Hospital, and Padgett v. State of Florida, and even Brock v. State of Florida. The Florida Supreme Court was asked to review each of these three, but declined. The Florida Supreme Court in Workers' Compensation is not notably active; this analysis concluded that the Court has averaged about 6 workers' compensation decisions per year since 1979. 

The names Abreu and Valcourt-Williams should be somewhat familiar to the reader. Abreu v. Riverland Elementary (1D17-2755, 16-019165) was discussed in June 2019 in A Constitutional Challenge Denied. This is a challenge alleging first that a judge erred by following the statute and various appellate decisions regarding the effect of an Expert Medical Advisor opinion. The appellant (the party that appealed in the District Court), or "petitioner" (the party petition the Supreme Court to review) is the injured worker. 

Ms. Abreu contends that the Legislature that created workers' compensation does not have the authority to define how the system will work. She contends that such statutory procedural direction conflicts with both the statutory grant to the OJCC of the power to enact procedural rules, and with the constitutional maxim of separation of powers. The petitioner urges that the Court review this pursuant to one of the "may" provisions of Article V., specifically section (3) which says the court "May review any decision of a district court of appeal that expressly declares valid a state statute."

Valcourt-Williams v. Sedgwick is not a Constitutional challenge at all. The petitioner in this case alleges that the recent en banc decision of the Florida First District Court of Appeal in April 2019 is in conflict with other precedent. As such, she seeks review of the Court under Article V., section (3): "that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." Readers may remember Valcourt-Williams from Personal Comfort? Testing Compensability. It was also discussed later in Watching us, Help or Hindrance and Another Fall Case

The District Court decided Valcourt-Williams en banc (all the judges instead of the more usual panel of three judges). There was a lengthy dissent to the decision. Essentially, the issue for determination will be whether particular injuries may be non-compensable because the injury itself, or the circumstances in which it occurred, lack connection to the work an employee was performing or hired to perform. 

It is too early, of course, for any conjecture on the potential these decisions might have for the Court accepting jurisdiction. As discussed in Express and Direct Conflict, there are those who perceive the Court as recently narrowing what constitutes conflict. That is not a change in what the community perceives as conflict, but more a perhaps stricter perception of the Court.  Perhaps the jurisdictional decision in Valcourt-Williams will provide further explanation of that current perception. If the Court declines jurisdiction, the finality of these two petitions will be known sooner. If jurisdiction is accepted, however, it may be many months before the ultimate outcome is known.

What the effort illustrates is that there will continue to be some desire of parties for the Supreme Court to review workers' compensation cases. Whether these two cases become the community focus as Castellanos and Westphal did, or fade from our view as Stahl and Padgett did remains to be seen. But, for now the market will watch and wait to see if jurisdiction is accepted. 

Sunday, July 28, 2019

Shared Savings

Recently, this blog discussed the potential for a disconnect in medicine. In Transparency for Efficacy, there is discussion of the exceptional inflation that has existed in American medicine for decades. Several years ago in Medical Costs, Fee Schedules, Disparate Reimbursement and Medical Tourism, I suggested that "information can be a powerful tool." There is evidence that medical costs are different in various jurisdictions, and perhaps there will better consumerism in American medicine?

One great obstacle to that has been access to information. Perhaps as the tools described in Transparency evolve, the consumer will become better postured to make economic choices about medical care. Certainly today, with those tools in their current forms, sophisticated entities like health insurance companies are already either in or nearing the position to make fact-based economic choices regarding consumption. 

Generally, our consumption choices are somewhat rudimentary. When we shop, we see various items which attract us for whatever reason, and we consider the cost of those products against our perceived benefit. We make an (hopefully) informed decision between one product or another. These will be based in part on our perceptions of the quality of products we have experienced, the influences of Madison Avenue, and price. Too often we are fooled on the price element, with hidden fees, with dissimilar product volumes (not pricing per ounce by per can perhaps), and with gimmicks that attract us to a perceived "deal." 

But, with medical care, price may not be a determinate for many consumers. Price, that is, of the care or procedure which we are contemplating having. The cost of our health insurance is another issue altogether, one for another day (a hint, it is rising also). Some perceive that the cost of insurance has received too much attention in recent years, and that more attention on the cost of and access to medical care deserves commensurate focus. 

According to the Center for Disease Control, about 30.1 million Americans lack health insurance. That is about 9% of the 329,023,436 people in this country. So, it is fair to say that most people have health insurance. That product pays most of the bills for the medical care those people consume. However, there are deductibles and co-pays, see below. 

We purchase insurance to mitigate risk. The idea of the product is that many people pay a premium for coverage, and some percentage of us suffer losses. To some degree, consumers may be inclined to forego such a purchase unless they appreciate some significant risk. Thus, people that live on high ground may be disinclined to buy flood insurance. This tendency in some insurance situations has been labelled "adverse selection," although that term has broader definitions as well. 

It is notable that our cost/benefit analyses, discussed above, limit our consumption. I neither eat caviar, drive a Bugatti, nor vacation annually in Fiji. It is the cost of some products that drive our consumption decisions. And, the same is likely true for medical care. If the health insurance company is paying the bill, perhaps cost is not part of the consumer consideration. 

Of course, that could be influenced generally by the "co-pay" or a "deductible." A "co-pay" is a share of the cost of care that the patient pays. Thus when a patient with a "co-pay" visits a doctor, there would be an out-of-pocket expense for the patient. A "deductible" is usually more of an annual policy-period consideration. A "deductible" is an aggregate or total amount a patient must pay before the health insurance pays anything. And, there are some health insurance programs that have a limit which they will pay, a "maximum benefit" for a particular year or even for the patient's lifetime. Thus, when that cap is reached the patient is paying for everything thereafter. 

So, a patient may be concerned about limiting immediate costs ("co-pay"), limiting annual costs ("deductible"), or limiting annual or lifetime costs ("maximum benefit"). The financial impact of each on the patient may influence decisions about consuming medical services. One might forego a trip to the doctor to save a $35.00 co-pay. Or, a patient who has fulfilled her/his annual deductible might go to the doctor for something relatively superficial "because it is free." Sometimes, the amount of these consumer costs are different if the provider/facility has an agreement with the health insurer, that is they are "in network." That caveat also may affect consumer choices as to which providers or facilities are utilized. 

Despite these "participation" costs to the consumer, the truth is that the majority of medical costs for those with insurance is paid by the insurance carrier. Thus, there is a "disconnect" between the consumption and the payment. If someone else were paying the bill, I would certainly drive that Bugatti. And, if someone were paying the tickets, I might drive it less cautiously than otherwise (top speed of some said to be 267 mph - Pensacola to Tallahassee in less than an hour!). 

The Daily Business Review ("DBR") reported recently on a Florida plan to encourage economic analysis in the consumption of medical care. The program affects only state employees and their families, and is called a "shared savings plan." But, pursuant to a new law signed by Governor DeSantis this year, other health insurers are encouraged to "begin offering similar options." The expenditures can be significant; Florida spends about $2.6 billion annually for medical care of current and former state employees. 

The state program encourages these consumers to "shop around" for care. The benefits accrue to the state, which would save money if a savvy consumer chose a provider or facility that charges less for some service or care. The benefit to the shopper/patient though is that she/he receives "a portion of the savings." But, The DBR says that the state program has shown "less than robust performance," which may merely be because consumers have not learned of the program as yet. In touting the potential for the program, the Governor used an important term that is also prominent above: "transparency." 

This type of arrangement begins to address the disconnect. That there is a detriment or cost ("co-pay" or "deductible") begins to address the disconnect. Those may steer consumption to "preferred providers" and may discourage some visits or procedures. But, this new innovation of "shared savings" goes a step further. This assists the patient, who has decided to consume, to find a competitive provider. This rewards the patient with savings, for effecting savings for the health insurer, in this instance the state itself.

The market for healthcare has thrived on both the inaccessibility of information and the disconnect effectuated between the service consumer (us) and the payer (insurance companies). As the market adjusts to encourage us to be better consumers, it is probable that the free-market will lead to decreased medical costs. And, if the cost of medical care is competitive and decreases, that will benefit all who consume services whether she/he has health insurance or not.

Thursday, July 25, 2019

Who Should be in the Room

WorkCompCentral recently reported "Task Force Members Surprised by Self-Insurers' Contention." The story describes efforts of the Alabama Bar to recommend legislative reform workers' compensation in the Cotton State (or the Camellia State; Alabama apparently has no official nickname). A legislative effort in that state had caused the state bar to form a committee for the purpose of recommending change. The story says that because it was a bar committee "only lawyers could serve." Mike Fish, an Alabama attorney, also wrote a blog post on the subject, republished by WorkersCompensation.com.

The reports from Alabama led to a blog post by Robert Wilson titled Should Legislative Reform be left only to Attorneys? He concluded about Alabama reform that "key stakeholders were left out of those talks." He opines that there are many "interests" in workers compensation and therefore perhaps there should be room at the table for a greater variety of voices. Of course, any corporate entity cannot be "in the room," except through some human agent. Some will say that it is quibbling to debate whether a particular agent is or is not an attorney. The real point, however, may be whether those corporate interests select some attorney as their agent(s), or whether some attorney(s) interjects him/herself purporting to represent that corporate interest. 

Just after I had read Mr. Wilson's opinions and thoughts, I received an email from Bill Zachry of the Sedgwick Institute. He is a long-time workers' compensation aficionado. He spent many years leading the risk management efforts of Safeway (a large grocery store chain). I have spent several hours discussing workers' compensation with Mr. Zachry, and he is a wealth of information. The email he sent was accompanied by a short paper he authored for the Sedgwick Institute: A Question of Legislative Reform.

With Mr. Zachary's permission, I share the article in hopes that it might stimulate conversation and debate about workers' compensation and our perspectives. What follows is all directly quoted from that paper. 
"A Question of Legislative ReformBill ZachrySedgwick Institute"
"Who should be responsible for “fixing” the workers compensation system?"
"In all States the ultimate responsibility is with the State Legislature (with some assistance from the Insurance Commissioner and the local Division of Workers Compensation). Workers compensation reform is a three-legged stool; Legislation, Regulation and Case Laws (Amicus). Focusing on only one of these is short sighted and ineffective. There are technical issues, social issues, and a whole lot of politics that goes into legislative and regulatory reforms." 
"First question is: What is your goal? What should the ideal system look like? As Yogi Berra once said “if you don’t know where you are going you will never get there.” Second question is “Who are the stake holders?” In some states the stake holders are only the employers and injured workers. In other states the stakeholders include additional bodies such as attorneys, doctors, insurance companies, third party administrators, the Division of Workers Compensation and even other vendors."
"Next question is who represents what? In some States Labor wants to be the exclusive representative and applicant attorneys want to have that responsibility. In many States representatives from self insured companies perform this responsibility. Some have defense attorneys doing the job."
"Much of the legislation which is done is intended to solve specific problems or overcome specific barriers. (Usually expense and inadequacy of benefits to the injured workers). The workers compensation system is rife with misplaced financial incentives and a lack of overall perspective. Most good legislation involves a vetting process (with front line practitioners) to ensure that the goals and intent are achieved. Oregon is a good example of having Labor and Employers managing the legislative changes over a long time. Double digit decreases in expense doubling of benefits."
That concludes his paper. His is one perspective of who should be in the room. A critical consideration that it suggests is that the analysis may be deeper than one might note at the outset. The WorkCompCentral article cited the absence of non-lawyers, as expanded upon by the Wilson blog post. That dovetails back into Mr. Zachary's description of the engagement of "self insured companies," which is at the heart of some of the recent Alabama discussion. Perhaps the real point is not so much "who" is in that room, but who selects the people in that room. As Mr. Zachry notes, "who represents what?"

The issue may be both about who represents any particular group and who "wants to have that responsibility." Thus, perhaps, the situation is one in which there is disagreement among groups who each have some desire to be heard as the champion of some constituency. There is the potential for an individual attorney to have thoughts, which may or may not be consistent with positions of some body corporate like the bar. Likewise, some employer may have contentions that may or may not parallel some business group. The positions and focus of any constituency group may perhaps represent internal compromise(s) that was required for group consensus. 

This suggests that in any discussion of "reform," there might well be debate as to what "reform" itself means; as Mr. Zachry says "What is your goal?" He queries what "should the ideal system look like?" Is the goal an ideal system? Is such an outcome, like beauty, in the eye of the beholder? In other words, what is ideal for one person, market segment, or entity, might be less than ideal to others. In the end, it seems likely that whatever becomes law will tend to result as compromise between the perspectives of various inputs, goals, and thoughts. 

In the end, the decision of which groups or individuals is listened to is up to the legislature (the "listener"). Any individual, market segment, or corporate entity can decide what, when, and how to express her/his/its thoughts. But, ultimately, the legislative process will decide which input is persuasive, who speaks for what perspective, and what the law will say. It will be an imperfect process, a human process. As Winston Churchill noted “democracy is the worst form of government, except for all the others.” Accepting our humanity, failings, and challenges, it is incumbent on us all nonetheless to strive for a workers' compensation system that is a "grand compromise" that has due consideration for the various perspectives of employees and employers. After all, that is who this system is for. 

Tuesday, July 23, 2019

Another Fall Case

In April 2019, I posted Personal Comfort? Testing Compensability. That post discusses an en banc decision of the Florida First District Court of Appeal in Valcourt-Williams v. Sedgwick Claims Management. The dispute there regards a telecommuting employee who had an office in her home. Taking a break one morning, she went to the kitchen for a beverage, tripped over her pet dog, and fell. The injured worker in that case has sought review by the Florida Supreme Court. 

There are various points of interest in the Court's analysis. And, in conversations since that time, I have had multiple lawyers contend that this decision is not really about telecommuting, but about whether the work performed "exposes a claimant to conditions which (sic) substantially contribute to the risk of injury." The majority in Valcourt-Williams concluded that fall was not compensable because the risk of tripping existed in the premises regardless of her working there. In other words, she might have tripped over the same dog in the same kitchen when she was off-work.

The Florida Court explained that there are two requirements to compensability, that "injury or death arising out of work performed in the course and the scope of employment." (Emphasis added) Section 440.09(1), Florida Statutes. Thus, the two requirements are both "location" and "activity" related, that is "course and scope." However, there is also the requirement that the work performed leads to the injury, "arising out of." As the work performed by Ms. Valcourt-Williams was not shown to contribute some "increased risk" of a fall, as compared to her life generally, the Court concluded the accident was not compensable. Notably, some judges expressed other thoughts. The decision is worth reading. 

The case came back to mind when the Kentucky Court of Appeals released Bluegrass.org v. Higgins in June. 

Ms. Higgins worked with patients suffering mental illness and "spent 60-70% of her work time in the field and the remainder working from home." Her occupation was "a mobile case manager." She had an office "set up in her house," which was neither inspected or controlled by the employer (in Valcourt-Williams the employer had approved a home-office workplace). 

On June 17, 2017, Ms. Higgins had been in the field, and returned home for lunch. She clocked out using a computer program, ate, and "clocked back in." Ms. Higgins then "did some computer work," and "spoke to a client." As the call was concluding, she arose from her chair "took a couple of steps, and fell." She testified that her reason for arising was to get her keys and drive to pick up a form for the client with whom she had just been speaking. Thus, she was "on the clock" at the time of the fall in her home. 

The trial judge found several questions relevant. 
"whether Plaintiff was considered to be on the operating premises of the employer, and"
"whether Plaintiff was performing a service to the employer under the going and coming rule." 
The Court clarified that "perils encountered during travel to and from work are no different from those encountered by the general public." Thus, they "are neither occupational nor industrial hazards." This is the "going and coming rule" which holds that "injuries that occur during travel to and from work generally are not compensable." 

The trial judge concluded that Ms. Higgins "did not sustain an injury in the course and scope of her employment, as the injury did not occur on the operating premises," and the "going and coming rule does not apply.” 

Kentucky has an administrative appeal process. In Florida, the trial judge decision is reviewed by the Florida First District Court. In Kentucky, the first level of review is by the Workers' Compensation Board. The Board reversed the trial judge. It reminded that an idiopathic fall, from a "purely individual cause" to which the "work does not contribute (to) independently," is not compensable.

The Board addressed the "going and coming rule" and concluded that it does not apply in this instance because Ms. Higgins was working, was clocked-in and had not left to retrieve the form when fell. Therefore, the Board held "the going and coming rule does not apply as a matter of law in this instance." The Board concluded that the fall occurred "in the course and scope of her employment," in rejecting the trial judge's "going and coming rule" analysis. 

The Board instructed the ALJ to "determine whether the accident occurred due to an unexplained or idiopathic fall or work-related incident." The fall is "unexplained" if the cause cannot be determined sufficiently." In that instance, the Kentucky law says there is "a rebuttable presumption that an unexplained fall which occurs during the course of employment is work related. The authority explaining that presumption, Workman v. Wesley Manor Methodist Home, 462 S.W. 2d 898 (KY Ct. App. 1971) was premised in part on the "statutory admonition to construe the law liberally." Thus, if "unexplained," the fall is compensable unless the employer meets its burden of demonstrating that the accident is not.  

The Court in Kentucky also explained in Workman that "idiopathic" is a cause. Thus if the fall is idiopathic, it is not "unexplained." Instead, it is explained by the idiopathic, "personal risk," explanation. This may correlate with the pet dog cause. Falling over a pet is not "unexplained." Falling because a normal every day body movement is not necessarily "unexplained." This analysis is discussed in Acker v. Burlew Construction, 654 So.2d 1211 (Fla. 1st DCA 1995), which was cited in Valcourt-Williams, both in the majority and dissenting opinion. A fall caused by some known personal condition are not compensable. Leon County School Bd. v. Grimes, 548 So.2d 205 (Fla, 1989).

In Kentucky, the employer sought review of the Board's determination, asserting that legally Ms. Higgins was "in transit" when the fall occurred. The Court of Appeals was not persuaded to accept this re-asserted and explained "going and coming" argument. The Court of Appeals affirmed the Board's interpretation of the law and the instructions to the trial judge on remand. 

The analysis of the Board and Court was thus focused upon whether the fall was "unexplained" or "explained." Presumably if Ms. Higgins had tripped over her dog, the accident would thus be "explained" and the analysis would shift to the other issues raised by the court, essentially whether the fall was a "work-related incident." That would necessarily follow a path analyzing both the arising out of and the course and scope of, perhaps similarly to the Court's analysis in Valcourt-Williams v. Sedgwick Claims Management.

However, whether Ms. Higgins' fall is or is not compensable begins with an analysis of whether the cause of that fall is or is not determinable. Recently, I engaged in a conversation with an outstanding intellect that practices in workers' compensation. He asserted that much in the law has to do with "lines" that the law, or the legislature, draws. Through the conversation, I discerned that there may or may not be universal agreement as to where and when lines are established, but the role of the law is to do so. And, in that process, there may be outcomes with which any individual may take issue, or in which find disappointment. However, those are nonetheless the lines that define what is or what is not workers' compensation.

The Kentucky Court analysis is interesting, and it reinforces the importance of two points. First, the parties must recognize the legal issue that is of importance. In Higgins, the Court concluded that focus on the "going and coming" was misdirected or misdirection. Second, having identified the legal issue, it is incumbent upon the parties to present evidence in support of their respective conclusions. Finally, the "lines" of the law will assign to one side or the other the obligation of a burden of proof. Thus, the law ascribes to one or the other the burden of proving, and the logic of those lines is for the legislature to define.

Sunday, July 21, 2019

Some Marijuana Findings Reconsidered

Recently in Science and Doubt, the credibility of opinions was discussed. I was reminded of that recently when the headlines proclaimed Medical Pot Laws No Answer for US Opioid Deaths, Study Finds (Associated Press, June 2019). See, when states began decriminalizing marijuana (pot is not "legal" in any of these United States, see Federal Law Matters in Maine Also), there were many who hypothesized (guessed) and advocated that pot could be the answer to pain. 

In February 2018, there were reports in the news of a connection between "medical marijuana" (an oxymoron, see Medical Marijuana) and opioid deaths. Without question, the volume of opioid deaths in this country is a crisis. See Opioids 2019. The 2018 discussion was centered upon the results of "several studies" according to Science Daily. Those resulted in an "association between medical marijuana and lower levels of opioid overdose deaths." So, science was bringing proof (or indicia) that pot use as an alternative could relieve the burden of all the opioid complications. 

At that time, the Rand Corporation had released a report, described as the "most-detailed examination of medical marijuana and opioid deaths conducted to date." That report concluded that "legalizing" pot was seen as associated with fewer opioid deaths "only in states" which made "medical marijuana easily available to patients." The states that merely afforded protection to "patients and caregivers" who grew their own medicine did not experience any decrease in opioid death. That may be curious in itself. 

In June 2019, the Associated Press reported, however, that researchers have now repeated the analysis "that sparked excitement years ago." The new study "shoots down the notion that medical marijuana laws can prevent opioid overdose deaths." Apparently, the "original authors speculated" that some patients might be substituting marijuana for painkillers," and upon that premise some states may have "begun to rethink marijuana." 

However, the new research analysis included additional data. It concluded that "states passing medical marijuana laws saw a 23% higher than expected rate of deaths involving prescription opioids." Note that the focus here is specifically upon prescriptions. There is ample evidence that most opioid deaths are related to heroin, fentanyl, or other street drugs. See The Federalist March 2019. The author there advocates that efforts to monitor prescriptions and dosage are misplaced. The author urges more focus on street drugs. 

According to the Associated Press story, in explaining the results of the latest marijuana report, the authors noted that "it's unlikely" "that medical marijuana laws caused first one big effect and then the opposite." Instead, they conclude that "any beneficial link was likely coincidental all along." A Rand publication in February 2018 explained that the coincidence was that states that had adopted decriminalization early had "loosely regulated marijuana dispensary systems." As dispensary regulation tightened, and as the opioid death causes shifted to "illicit opioids, mainly heroin and then fentanyl," the "association between medical marijuana dispensaries and opioid harm" diminished. 

Therefore, according to the Associated Press story, the "experts agree" now that "evidence doesn’t support marijuana as a treatment for opioid addiction." The Associated Press contends that the authors of the original report are pleased with the new analysis. One noted "we weren’t happy when a billboard went up saying marijuana laws reduce overdose deaths." One of the original study authors noted in this latest story that when she "was told my paper helped change the law in New York. I was appalled.”

In the end, there is some support for marijuana relieving pain. There is "suggestion" that medical marijuana "may reduce opioid prescribing." Therefore, for "some people, marijuana can substitute for opioids as a pain reliever." However, the "evidence doesn’t support marijuana as a treatment for opioid addiction." And, if those arguing that the main opioid issue is not prescription - but street drugs - are correct, then changing what and how much physicians prescribe or recommend may not be as impactful on the death and overdose issues as one might otherwise hope.

A lesson here is that coincidence can happen. Trends and results do not necessarily correlate to causation. And, the practice of repeating analyses and studies likely has merit. Speculation and supposition are not the foundation upon which to risk lives. 

Thursday, July 18, 2019

The Pony Express

I was surprised recently to learn a 20 year Worker’s Compensation professional did not remember the "pony express," at least not in the workers' compensation context. In the course of a casual conversation, when I mentioned the "pony express," there was general consensus about the “old days.” and some knowing nods. But as discussion continued, I realized that this reference had been presumed a joke by a long-time practitioner who thought I was being facetious about horses in the old west. I was not. As late as the 1990s, the Florida OJCC did business with "the Pony Express," which was a courier company that was perhaps affiliated with Borg Warner, Inc., Baker Enterprises, and Wells Fargo.

Not so many years ago, the division of Worker’s Compensation was interrelated with the Office of Judges of Compensation Claims. Each was part of the Department of Labor and Employment Security, before the significant changes to Florida's executive branch early this century. While the OJCC had adjudicatory responsibilities, it was not a custodian of records. The records regarding Worker’s Compensation cases and claims were all maintained by the Division.

Those records were printed on a fibrous substance derived from trees and other plants, colloquially referred to in the “old days“ as “paper.“ individuals would use machinery or other instruments to inscribe information, words, and numbers on this “paper.“ In order to seek payment of Worker’s Compensation benefits these papers were sent to the division of Worker’s Compensation by US mail (yes, documents were created in one location and physically moved to another location where they were read, interpreted, and misfiled). In the paper age, we filed documents by mailing them to Tallahassee. 

When a workers' compensation hearing was imminent, the judge would require the compilation of various papers that had been submitted by various parties. Over the course of a case, such documents had been periodically "filed" with the Division in Tallahassee. We referred to the compilation colloquially as the “Division file.” And, that Division file had to make its way from the Division office in Tallahassee to the assigned a judge in one of the District Offices. Back in those days, District Offices were not referred to by city names as they are today. There was an alphabetic code instead, but that is for another post. 

Most practitioners today remain familiar with the US Postal Service, Federal Express, and United Postal Service. However, there are a variety of other package delivery services, including entities such as DHL, TNT, and others. But then, as now, the state of Florida operated on a procurement contract system. And the contract it had signed was with a company called “The Pony Express.“ So, a request for the Division file would be sent to Tallahassee in preparation for a hearing. 

The Pony Express driver would arrive in the District Office with canvas bags filled with the files that had been requested. She or he would then retrieve similar canvas bags containing files previously requested and utilized in other hearings. It was common for those Division files to increase in volume during their time in the District Office. Some became voluminous. Those files that the Pony Express driver picked up from the Division were then transported back to the Division in Tallahassee for storage, to await the next time the file was needed by the District. 

Once the files were back in Tallahassee, in the really old days, the papers were warehoused. But, there was a technological innovation that assisted with that in the 1980s. It was called microfilm or microfiche. Images of documents could be created, similarly to the way documents today are scanned and saved as images in a PDF (portable document format). In those days, the pages were scanned and the images were saved on a spool (film) or sheet (fiche) of transparent film. The images were very small, and so a special machine was required to read them. This was a boon to record keeping and storage. 

After the Division began using microfiche, the storage of paper diminished. In my early practice there were instances in which I requested portions of Division files (former claims, etc.) and the Division would print those documents from a microfiche and mail to me. The process for such record retrieval involved submitting a written request to the Division, which would reply with an estimated cost for duplication (printing from the fiche). The requester then submitted a check (a method of moving money in which a paper document was transmitted that ordered the requester's bank to pay money to the recipient, in this case the Division). 

Once the check "cleared," meaning the Division had the requester's money, then the images were printed on paper and sent to the requester. But, when the Division sent documents to the requester, they were sent through the U.S. Postal Service (the folks that still deliver those holiday cards and various advertisements to the metal box in front of your home). It was never clear to me why the Division used the U.S. Mail to send documents to a requester, but used the Pony Express to move files back and forth to Tallahassee.

Thus, while no horses or riders were involved, the Florida OJCC used the Pony Express. And if you are more than twenty-five years old, the OJCC used the Pony Express in your lifetime. It is easy for us, today, to scan and email a document instantly. It is normal, today, for records to exists only in PDF, and for our requests to be answered with only digital files instead of paper copies. As easy and normal as that is today, it may be a struggle to comprehend that PDF was only first conceived and discussed in 1991, less than thirty years ago. 

And, much else has changed in the meantime as well. While credit cards have been around since 1950 the technology and information evolution in the last 30 years has been dramatic. In 1998 the idea for PayPal was revolutionary. The inspiration of Digicash and later Bitcoin are last-century ideas that have recently become common place. Today, in many instances, a request for records might be submitted by email, paid for through a digital transfer, and the required records transmitted back again by email in a PDF. 

And, today, we all find this perfectly normal. It is intriguing therefore to remember that just a couple of decades ago we were all creating paper-based documents (and using tons of paper). We were sending those papers around to one another in trucks and vans (and burning millions of barrels of oil). In this process we were both destroying forests and generating "green house gasses." 

It is important that we recognize not merely where we are today. Let's recognize that much has improved in the world of workers' compensation claims. Gone are the 1990s, the days of the Pony Express, couriers, postal drivers, and paper. As we revel in the efficiency of today, let us remember the struggles of yesterday. And, be not complacent, there is no telling what is coming tomorrow. 

Tuesday, July 16, 2019

The Coaching Conundrum Again

In Sanctions and Speech, I discussed a December 14, 2018 decision of the Florida Third District Court in On December 14, 2018, the Florida Third District Court decided Bank of America, N.A. v. Atkin, ___ So. 3d ___; 2018 WL 6595138 (Fla 3rd DCA 2018). That decision was an order to show cause regarding statements by an attorney that were found to impugn and disparage various judges. The litigation is interesting for other reasons as well, however, judicial behavior and ex parte communication. They are interesting to me because I have seen similar behavior in Florida workers' compensation proceedings, when I practiced in the old days. 

In the Atkin litigation, two lenders had sought foreclosure. The borrower had signed a note in 2006 and stopped making payments in 2008. Nine years of litigation followed. Eventually a trial was set for May 24, 2018, and a deadline of fifteen days prior to trial was ordered regarding any "pretrial motions."

Nine days before trial, the borrower hired a new attorney. Three days before trial, he filed a motion seeking to have one of the defendants held in criminal contempt. On the morning of trial, the attorney asked to have that motion heard, and over the objections of the defendants, the trial judge allowed it. 

In overruling the objection to hearing that motion, the trial judge explained: 
“I've known _______ (attorney) a long time – and I was here before the foreclosure thing got crazy – he's been trying to make law,” and “_______ (attorney) has done a lot of work over the course of the years to be able to be standing here in front of everybody and making these suggestions.” 
There followed a "five-hour hearing" on that motion. As an aside, nothing is any more irrelevant than how many years the judge has known the attorney; decisions should be made on the facts, the evidence, and the law. It is also irrelevant what motivates an attorney ("trying to make law"). What is relevant is that the parties are there to present their case, and the judge should decide what they present. 

The judge's first mistake was failing to create a clear record of the proceedings. The Court noted that the trial judge allowed the attorney over "objection, to advocate as a lawyer and testify as a witness in a seamless manner." Because of this, the Court concluded "that the record is unclear when he was advocating and when testifying." The trial judge has many responsibilities, and keeping the record straight is one of the most critical. This is a challenge in workers' compensation fee proceedings when an attorney testifies about volume or reasonableness of her or his hours; judges should assure the record is clear as between testimony and argument. 

The trial judge's second mistake was her/his abandonment of the role of umpire for the role of coach. Twice, the trial judge rendered advice to the attorney, saying "I think you need to get that established as a matter of fact, and maybe by a person with knowledge” and “I don't think you're the person to talk about it. I think you want to put together that evidence in some fashion.” This is clearly advice. 

The Court held “trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.” Shore Mariner Condo. Ass'n v. Antonious, 722 So.2d 247, 248 (Fla. 2d DCA 1998). “A trial judge crosses the line when he becomes an active participant in the adversarial process, i.e., gives ‘tips’ to either side.” Great Am. Ins. Co. v. 200 Island Blvd. Condo. Ass'n, Inc., 153 So.3d 384, 388 (Fla. 3d DCA 2014). 

At the end of the hearing, the trial judge "orally announced" she/he would grant the motion. The trial judge instructed the attorney to submit a proposed order. As an aside, drafting orders is the judge's job, not the attorney's. When the proposed order was submitted, it reflected that the trial court was granting "the Court's own motion” (which was false). And, the submitted order "relied upon an affidavit filed after the hearing." The trial judge thereafter entered her/his own July 30, 2018 order denying the motion without prejudice. 

Within days of denying the motion, on August 3, 2018, the trial judge found her/himself in another proceeding with the same attorney (but which hearing did not include all the other attorneys in the case in which that denial had just been entered). There, on the record, the trial judge and the attorney "discussed the July 30, 2018 order and the Borrower's plan to file another motion." The discussion was significant, and the appellate Court quoted it in the opinion. 

The Court held that "whatever the trial court might have subjectively intended, a prudent person would reasonably fear the exchange reflected a consultation between the trial judge and Borrower's counsel." The conversation included discussion of how to "make the trial court's future decision in the Borrower's favor 'bulletproof on appeal.'” The gist is that the trial judge had decided how to rule on a motion that had yet to be filed. The Judge appeared to coach counsel as to what to file next, and perhaps what it should say. Ex parte communication is inappropriate, and the Court held that it alone is "an independent basis for prohibition." See What is Ex Parte, and Judicial Behavior and Ex Parte Communication

The lender/defendant moved to disqualify the trial judge. The judge denied the motion and therefore the matter proceeded to the Third District Court on a petition for a writ of prohibition (one of the three common extraordinary writs, see If it is Moot, what does it Matter?)

The Court concluded that the motion was timely. It explained that such a motion has to be filed "within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.” (citation omitted). There was argument that this meant 10 days after that August 3, 2018 hearing. The Court explained that a party first must have "standing," that is be part of the lawsuit. One of the lenders, "BA," that moved to disqualify the judge was not even part of the lawsuit on August 3, 2018. Furthermore, the borrower struggled to prove when BA became aware of the grounds. The only real evidence was essentially its admission that it received information August 8, 2018. The Court concluded that the motion to disqualify was timely based on that date. 

Reading the opinion reminded me of one of my first motion hearings in workers' compensation. Having spent a day (over) preparing, I was frustrated when the judge and my opposing counsel spent many minutes discussing some other matter in which neither I nor my client was involved. At the time, as a very young lawyer, my irritation was about distracting from the case on which I was present, and the arguments that I was waiting to make. In retrospect, I have frequently marveled at that cavalier conversation between the judge and counsel. Clearly, I should have informed the other party in that case they were discussing. I wish I had. 

I was also reminded of the delineation between coach and umpire that is discussed at length in Adjudicate not Litigate, and When Judges Become Opponents. The trial judge's job is to listen to argument and evidence, to weigh them carefully, and to make an unbiased and impartial decision. The Judge should never devolve to the role of a fan or a coach. For that matter, neither should a state mediator, though that has happened from time to time. Also during my tenure as a young lawyer, I tried a case in which I made objections during the injured worker's testimony. After each, the trial judge would look at opposing counsel and say something like "ask her __________ instead." That was a very frustrating morning.  

Despite the plethora of examples that can be discussed and the many instances that are recorded in decisional law, it seems that such coaching and favoritism persist. It is possible that it is merely perceived, that the trial judge in question in Atkin has not intended to display bias or to coach. But, the point is not intent, but whether some party perceives some favoritism; whether some party concludes "that he could not get a fair and impartial trial.” Atkin, at 4. 

Trial judges know better. Perhaps we just all need a periodic reminder? Hopefully this post serves.

Sunday, July 14, 2019

Opioids 2019

The opioid guidelines are back in the national news. The debate about prescription pain inhibitors rages on multiple fronts. Just over three years ago, the Center for Disease Control published guidelines on the prescribing of these medications. See Opioid Guidelines from the CDC - Finally (March 2016). 

A fair amount of attention has been devoted to opioids in this blog. Opioids can Interfere and Complicate, PDMP and Opioids in Ohio (includes a list of multiple related posts). As a society, there seems to be significant disagreement between those who are experiencing pain and thus need opioids and those who are concerned with the rate of prescribing, the potential downsides, and even overdose. 

One physician that has written extensively on opioids is Dr. Charles Argoff. He concludes that the results of the Guidelines have been "significant adverse consequences to the person in pain." In a recent article, he notes that "three of the authors" of the CDC Guidelines have noted misapplication which they say "can risk patient health and safety." Dr. Argoff notes that "misapplication of recommendations" poses a risk to patients. This is particularly pertinent to those "outside of the guideline's scope," such as "active cancer treatment patients, people experiencing sickle cell crises, or people experiencing postsurgical pain."

Another article on Statnews delineates that the CDC Guidelines authors have said "that doctors and others in the health care system had wrongly implemented" the Guidelines. They stressed that the Guidelines are not a "“inflexible application of recommended dosage and duration thresholds." They decry "hard limits and abrupt tapering of drug dosages.” As to tapering those already taking high doses of opioids, the two noted "we know little about the benefits and harms of reducing high dosages of opioids in patients who are physically dependent on them.”

There are those who feel there are pharmacy industry influences at work in the pain debate. Recently, Medical Express reported that two U.S. Congressional Representatives have accused the World Health Organization (WHO) of including "false claims about the safety of prescription opioid painkillers" in a recent report. They assert that these "WHO guidelines could result in" similar opioid crises in other countries. There is allegation that this is an effort to bolster distribution elsewhere as use in the U.S. is decreasing. 

TheFix recently published an article stating that “criticism of the guideline follows a consistent pattern." The authors note there are critics, but that the critics provide "no evidence . . . to refute any statement in the guideline." These physicians are seemingly asking where is the proof against the Guideline or the proof of it having deleterious effects. There is an allegation that opposition to the Guideline is connected to the pharmaceutical industry. The authors contend that:
"Opioid manufacturers stand to lose substantial profits with the widespread adoption of the CDC guideline. Public health, however, benefits from the guideline, and attacks on it bear industry’s fingerprints."
The American Medical Association (AMA) has published a new report, detailed on the website of Orthopedics this Week, which says that physicians have "cut opioid prescriptions 33%." That decrease between 2013 and 2018 amounted to "80 million" "opioid prescriptions." That is a significant volume. Note, however that "80 million" is a third of the prior volume. This suggests that the annual volume remains at about 160 million, which is likewise significant. 

The AMA conclusion is that prescribers must be judicious, and that prescribing nonetheless remains potentially "medically necessary and appropriate." The author takes no position on whether prescription opioids were "a significant trigger for the nation's opioid crisis," but conclude unequivocally that "the main causes of the problem are now elsewhere." The suggestion being that prescriptions may no longer be the primary concern, encouraging more focus on street drugs. However, the implication is that prescriptions remain of concern and worthy of ongoing attention or study. 

In 2017, I noted that overdose was significant. The 2016 numbers were available, and in The Hot Seat, Opioids, Marijuana, and More I noted that in 2016 64,000 Americans died of overdose (that is more than the Americans that died in the Vietnam conflict). We might hope to impact that rate, with all the attention this crisis has now received. In 2017, the CDC says there were 70,237 deaths; "opioids were involved in 46,700" of those, "67.8% of all overdose deaths." The death rate is increasing. A CDC prediction tool says that 2018 is anticipated to evidence about 66,986. The decrease was also reported last year by Time. It urges "cautious optimism." Certainly a decrease is good news, but what is hoped for is continued downward trend; 67,000 is not a figure to celebrate except in that it may mark a beginning. 

Pew Research reports that "Americans overwhelmingly see drug addiction as a problem." It is a problem that is growing in "urban, suburban, and rural counties." It notes "substantial increases in fatal drug overdose deaths" have been experienced by "whites, blacks and hispanics." In short, Pew reminds that this is everyone's problem. And, it seems to be getting worse. Despite this, there are various reports of populations that are more starkly affected. CBS News reported that the overdose death rate for "females aged 30 to 64 have skyrocketed," increasing "260 percent from 1999 to 2017." 

USA Today reports also that Millennials are particularly affected. It says that "young adults were more likely than any other age group to die from drugs, alcohol, and suicide over the past decade." It suggests that these adult's are experiencing mental health issues that are tied to debt they have incurred for education, the challenges of graduating into the "great recession," and their perceptions of where they are in society. Thus, while it seems fair to say opioids remain an issue for society at large, there are indicators that some populations are experiencing greater impact than others. 

So, where does all this leave America? First and most obvious is that death remains a serious concern with drugs. It is possible that the death rate peaked in 2017, and that continued downward trending might be expected. However, even at the 2016 level, drug overdose deaths rival suicide, nephritis, influenza, and diabetes according to the CDC. Something over one-half million Americans died of overdose between 1999 and 2017 (19 years). At 64,000 annually (2016 number), we will lose that many every 8 years. Therefore, it is clear significant challenges remain.

Many of the news cites linked herein make mention of the role that Fentanyl plays in the current crisis. As a street drug, it is increasingly available, deathly potent, and a significant public health threat. Addressing the role that it and other street drugs play in this health crisis would be an appropriate next step in stemming the death and overdose rates.

But, in the end, it appears that there is no demonstrated foundation for criticism of the CDC Guidelines. It should be noted that first, they are Guidelines. Second, it is important that the Guideline critics cite no evidence that is critical of the Guidelines themselves. The criticism is seemingly directed instead at the application and use of those Guidelines, as to when they should be (not with end-stage cancer patients) applied, and how they should be interpreted regarding people with long-term dependency already established.

In fairness, the subject of pain is complex. There are those who need such medication. There are those whose reactions to such medication will be more profound than others'. And, in the end, we have to be able to trust doctors to make hard decisions about who,  how much, and how long. The Guidelines seemingly help in that analysis process, but cannot be absolutes or inflexible. Human beings are different, as are situations and circumstances.

While the commentators are urging that attention be turned to the street drugs now, there has been little suggestion of what those efforts could or should be. If the rate of overdose is to be addressed, how would that best be approached? Can the flow of Fentanyl and Heroin be stemmed? That is a supply issue. Can the users that purchase and use these be convinced to decrease consumption? That is a demand issue. In the economics of the problem, perhaps there are ways for us to address both supply and demand?

Thursday, July 11, 2019

The Man (or Woman) in the Glass

Many years ago I ran across a poem titled The Man in the Glass. It is compelling advice regarding the struggle for what you may personally deem to be important (it is perhaps too gender specific, but that is easily changed). Too often, each of us is perhaps driven by base human emotion, and perhaps even the seven deadly sins (lust, gluttony, greed, sloth, wrath, envy and pride). There are also seven virtues (faith, hope, charity, fortitude, justice, temperance, prudence). What drives us?

As I practiced law in the 1990s, I witnessed clients, attorneys, and service providers struggling to do the "right" thing. In retrospect, I am hopeful that I was helpful to some of them as a counselor, regarding both what was required by the law and what was right. I think that most lawyers have faced the challenge of doing what is right. All have made choices, and perhaps regretted some. And, as I reflect on that I am reminded of the closure to The Man in the Glass "your final reward will be heartaches and tears if you've cheated the man in the glass." 

Ultimately, we have to be individually and personally proud of what we do. I recently spoke at a seminar on the topic of professionalism. Certainly, there are rules and laws to define what is improper and forbidden, but professionalism is above that. It is similar in that regard to the spirit of our having personal constraints and aspirations, and of striving to do the right thing, to fulfill our expectations of ourselves. If we are true to the "man (or woman) in the glass," perhaps that is a good measure of our professionalism?

I have traveled to, and spoken at, a fair number of conferences and conventions across this country. I find that travel can wear one out, and I go to far fewer events than so many industry regulars. People attend, they display their wares or services, network, and discuss how the world of workers' compensation could be better. Sometimes the flaw they perceive or the suggested solution they propose is directly related to the product or service they are selling. Yes, Virginia, there is self-interest out there. 

Don't mistake me, because they are selling something does not mean their perception of either a problem or a solution is wrong. It is possible someone's close association with some niche enhances their perspective. It is possible that some have arrived at perceptions, solutions, and suggestions altruistically. But, it could be that some very small minority has "got a price," see Jesse J - Price Tag. That said, there are some outstanding altruistic efforts underway in the community of workers' compensation that bear recognition. 

WorkCompCentral presents the best of workers' comp annually in the Comp Laude Gala. Likewise, WorkersCompensation.com focuses us upon the contributions of industry bloggers. Kid's Chance and many other similar organizations provide academic scholarships to dependents of workers' who suffer workplace injury. RIMS works with Spencer & Sedgwick to provide scholarships for "tomorrow's education leaders." The Workers' Compensation Institute provides an immense volume of support to Give Kids the World Village in Orlando. The Workers' Compensation Claims Professionals conduct a teddy bear drive each December to benefit children. And, each of these efforts involve a great many individuals and companies from the workers' compensation community. There are so many examples (email me if I have missed some).

But, one effort that has recently caught my attention is an effort in Australia called Craig's Table. It is an enterprise focused on returning people to function following a workers' compensation accident. It seeks to "upskill" those who are recovering. That is, by teaching new functions and abilities. A work injury may make return to a former profession or avocation impractical or impossible, but with appropriate training and focus new skills can be gained, honed, and applied. The Craig's Table effort is collaborative and it is focused not on the greater world around us, but specifically upon injured workers. See, you can focus on a single element and through it improve the greater whole. Remember "The Starfish Story?" (“Well, I made a difference to that one!”).

The Craig's Table program runs for 28 weeks, over six months, and is divided into two "stages." The first stage (weeks 1-12) is designed to address the "confidence and capability of the members." Notice that these people are not "patients," or "claimants" or "workers," they are "members." That vernacular distinction is worthy of note (Bob Wilson has advocated for clearer community language, with stress on "recovery" rather than "disability," the words we chose may make a difference).

The list of training that may be provided is extensive, including vocational and personal topics. The vocational includes "food handling," "computer skills," and "leadership." The more personal topics, which may also enhance a worker's employability, includes "emotional intelligence and resilience," "time management," and "effective workplace communication." All of us could likely benefit from those more personal topics.

In the second stage (weeks 13-28), Craig's Table focuses on "reintroducing members to the community and the workforce." The mission is described by Rosemary McKenzie-Ferguson as ensuring "that injured workers no matter where they are can be engaged via a truly community based training and engagement concept." Ms. McKenzie-Ferguson is an injured worker. That such a program exists makes sense, and that it is led by an injured worker is simply poetic.

As I reflect on a fairly long career in this workers' compensation community, I have a couple of conclusions. First, why there are not more such efforts focused on returning people to function and activity? Why is Ms. McKenzie-Ferguson so unique? Second, it seems that much of these efforts to celebrate our community and contribute to others are reasonably recent. In my professional youth, there was no Comp Laude, no Best Blogs, (O.K., no cracks here about there being only stone tablets and dinosaurs back then). That these efforts exist is inspiring, and perhaps could lead us to anticipate that more such efforts will be forthcoming. There is hope that this community will be blessed with more celebration of contribution and more engagement, involvement, and collaboration.

This community has much about which to be proud. There are so many of you out there, making a difference in people's lives. You are what makes this community great. But, what could this community do to promote hands-on, developmental aids like Craig's Table? How could that concept emigrate to America? Would such a focus on re-energizing, strengthening, and re-employing or re-engaging, injured workers benefit our community, employees, and employers alike?

If we are not improving our community, we have simply "cheated the man (or woman) in the glass." Our community needs us. Injured workers and their employers need our community. There are so many ways to engage today, and there is promise for more. How will you engage in and improve this community? Will you invest effort in outlets that exist, or will you bring us new opportunities? How will you participate?

Tuesday, July 9, 2019

Sarcasm - it's Irritation

Remember Baz Luhrmann and Everybody's Free to Wear Sunscreen? A great line in that song is: 
"Don't worry about the future; or worry, but know that worrying is as effective as trying to solve an algebra equation by chewing bubblegum."
That song is running through my head as I write this. More on that below. 

I was recently reminded of a 2016 film in which Ben Affleck (Christian) and Anna Kendrick (Dana) starred, The Accountant. It is an iteration of the old trope of opposites attracting, and perhaps learning they are not really opposites. They each become targets of an assassination attempt, and Christian rescues Dana from the would-be assassins. On the run, they visit Christian's hideout on wheels, an Airstream trailer. As he packs mechanically, she expresses feelings and some of the stress accumulated through the preceding assassination attempt, erupting at him eventually with:
"Dana: Sarcasm, is that sarcasm?"
"Christian: No. it's not sarcasm, I don't use sarcasm, its irritation."
See, Dana was put off, and upset because she perceived sarcasm. That perception leads to her angry confrontation. Christian never intended sarcasm, but it was taken as such. And, he is clearly as unwelcoming of sarcasm as she is. That is because his statement has merit: "it's irritation," perhaps it is more specifically "an irritation." He is blithely conversing with her, relaying facts, and not intending either sarcasm or offense. And, they have the advantage of facial expression, tone, and tenor. In email or other writing, it is even easier for someone to perhaps misconstrue your statement, to take as sarcastic something you never intended. 

I was reminded of The Accountant scene recently told of a communication reaching a judge. The story started when an attorney filed a "notice of unavailability" in a case. The document was titled in the docket "CLAIMANT'S NOTICE OF UNAVAILABILITY" in all caps. At the outset, at the risk of being called an old codger, ALL CAPS is seen by some as shouting. Perhaps not so much by the Millennial and Next-Gen folks, but still by some of us old-timers. 

The Notice listed 34 dates in an 84 date period during which counsel would "be unavailable." It noted that counsel would therefore be "unable to attend hearings, depositions, mediations, and trials." Furthermore, it requested that "motions, notices to produce, interrogatories or other pleadings which require a timely response not be filed during these dates."

The Notice did not provide or cite any legal authority upon which a Notice of Unavailability would be based. The Florida Chapter 60Q Rules of Procedure for Workers' Compensation Adjudication do not provide any authority for a notice of unavailability. And, these are the only rules applicable to the litigation of workers' compensation claims in Florida, see Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004)("The Office of the Judges of Compensation Claims (OJCC) is not a court"; "this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for" the OJCC).

It is always advisable to include authority when filing a motion or notice with any adjudicator. Lawyers that cite authority (rules, statutes, case law) increase their chances of prevailing. This is a practice tip I commend to all attorneys, one I learned from a great mentor years ago. Show the adjudicator the path to the outcome you wish. Cite authority; attaching a case, statute, or rule is not a bad idea either. 

The story now returns to the 34 dates of unavailability. During one such period, an email inquiry was sent to counsel by the assigned judge. The attorney's response was not responsive to the inquiry. The response merely sarcastically thanked the judge for "acknowledging" the Notice that was filed, and reminded the Judge that the attorney would "not be available" until the attorney returned to town. The response was inappropriate and did not epitomize professionalism. If not available, it is counsel's responsibility to arrange for rescheduling or coverage of events such as hearings or depositions. Yes, that is work. It is the work of lawyers. 

The Judge responded and explained that there is neither any "provision in the 60Q rules for the filing of such notices," nor any way for a judge to keep track of everyone's availability. We currently have about 4,000 attorneys registered with e-JCC. Some of those are likely dormant, and others still are infrequent users. But, that is a significant number. The OJCC does not have any way of keeping track of when 4,000 various attorneys are available or not. Imagine yourself striving to keep tabs on the calendars of a couple thousand of your closest friends (sarcasm, it is an irritation even when I use it). 

That response by the judge, that there is no authority for such a notice nor any way to keep track of such dates, precipitated an interesting response: 
"You are so particular - and my having filed it knowing that - I thought it would matter, but clearly it doesn’t..... I’ll make a note for all of my cases with you in the future. Thank you have a wonderful day." 
The implication is that the fault lies with this particular judge ("cases with you"), when the fault lies with the attorney. I am curious what would make an attorney think "it would matter?" Is there a rule or statute that says so? If there is, cite it in that notice.

This attorney relies upon a notice that is founded on no discernible authority, a notice neither defined or allowed by the rules. This attorney, confuses the courtesy of informing co-counsel and opposing counsel of unavailability, and some prophylactic constraint on the judge. A notice of unavailability is a useful and courteous communication to others in your case. There is no authority found that says such a communication controls the assigned judge, or that any judge or mediator has some obligation to search each of her/his assigned case dockets for such information, even if it is in ALL CAPS.

So, one might remember that courtesy is appreciated. But expecting that the filing of a notice of unavailability will somehow control a judge or a court is likely about "as effective as trying to solve an algebra equation by chewing bubblegum." In other words, it is not effective. It might be noticed, it might save some time, but such filings are really a courtesy to co-counsel, they are notice, not protection. And, sarcastically chiding a judge, who follows the published rules, for not following your perceptions or ideations about such a document (that is not in the rules) is inappropriate. 

Let's all strive to remember we are in this practice, system, community together. We need to try and be empathetic for the challenges that each other face. Lawyers should be specific, cite authority, and remember the rules. Judges should issue timely rulings, cite authority, and remember the rules. But above all, everyone should remember we are all in this together, and "sarcasm is an irritation." It has no place in our practice or in communications with your assigned judge. And, if you could refrain from the ALL CAPS, "that would be grreat." Office Space, 1999.