Thursday, January 30, 2020

It Helps us Think?

There is a trend in America. Our society appears to be increasingly in search of chemical solutions to problems. You cannot watch television without being bombarded with ads for various solutions. They encourage us to "ask our doctor" about their solution to our problem (whatever it may be). The truly aged may remember Mother's Little Helper in 1966. Others may instead remember White Rabbit by Jefferson Airplane:
"One pill makes you larger, and one pill makes you small
And the ones that mother gives you, don't do anything at all" 
The use of drugs is nothing new to American culture. Drug use, drug acceptance, and drug culture have been with us many years. It is glamorized or humored in music, television, and on the big screen. 

But, there are some who wonder about the current trend toward greater acceptance of recreational drug use. With the Millennials more interested in dope than alcohol, questions are asked and petitions are signed. "Legalization" is discussed in states, while "decriminalization" is a more accurate label in light of federal regulation. 

What do the pills do? What are the long term affects? What price might society pay in the long run (remember when cigarette companies had doctors endorsing their products, which we later learned actually can kill people?) Are we, as a society, simply enthralled with the pharmaceutical solutions to all our problems or maladies? If one substance can gain market acceptance without science or study, what is the justification for regulatory constraint on other substances?

A fascinating recent article on the British Broadcasting Corporation (BBC) website caught my attention: The 'Psychedelics Coach' with Drug-Fueled Career Advice. When one is seeking guidance, how prevalent is the thought "I need some mind altering drugs to help me through this?" Once one starts down that road, needing some recreational drugs for this decision, might one need some more for the next decision? And, on what training or expertise does one stand when claiming to be able to help people safely and effectively trip?

Though this is a BBC article, it focuses on a gentleman in California who offers services as a "psychedelics coach." Psychedelics include "magic mushrooms," and LSD. They are "best known for their hallucinogenic effects." Perhaps not the best path forward when making career decisions? In planning your future, is it really best to somehow chemically detach from reality? 

According to the BBC, psychedelics are "fixtures in Silicon Valley’s tech-heavy and success-obsessed culture." They are taken with the intent of enhancing mental acuity in some "altered state," in an effort to accomplish feelings of "humbling," "liberating," and to help "understand . . . potential.” 

The path is described as "microdosing," which is "the practice of taking a low dose of the drugs." This is seen as potentially enhancing "creativity, productivity, and general well-being." Apparently, the use of hallucinogens for enhancement dates to the 1950s, and has been linked to such technology luminaries as Steve Jobs and Bill Gates. The article contends this practice has enjoyed increasing acceptance, but concedes that "there is little data to back up these claims." One wonders if a little LSD is good, how much is bad?

A stated problem with microdosing is establishing the dose. Notably, those who are engaging this process are likely not doing so with the help of a physician. A physician would not prescribe LSD, but might they recommend it? One of the proponents says that finding the right microdose may require "a little help.” Thus, the role of "psychedelics coach." So, those purporting expertise from their own significant experience taking illegal drugs coach others in their use. The coach featured in the article believes that his clients are seeking meaning in their work and see psychedelic drugs as aiding in that search. He seeks to assist others with using these drugs "in a safe, meaningful way." 

We live in a society that may vilify or prosecute medical doctors for the advice they render or care they provide. But, it appears that anyone else, without training or license, is perhaps free to "coach" people in their use of recreational chemicals. 

When I hear someone suggesting that a small exposure to something may be acceptable. I think of the "slippery slope" arguments discussed in various legal analysis. Lawyers sometimes love to raise the slippery slope. I also think of Mae West's historic quote "If a little is great, and a lot is better, then way too much is just about right!” Would Mae make a good psychedelics coach? How much LSD is OK? Does your answer depend on whether the person taking it is your physician, airline pilot, or plumber? What will increased tolerance of such substance use mean to safety, in the workplace and in general? 

The Coach concedes that the drugs are illegal. He notes that they are obtained by his clients for their own use. He finds them "much easier to come by since being decriminalized." He contends that these drugs facilitate people being "more honest and open" with themselves, more objective "about themselves." The key to self-improvement, the coach seems to suggest, is becoming impaired. To make good decisions on a monumental scale (planning your life) is is best to hallucinate? 

The BBC claims that there is scientific evidence to support that LSD "unifies" the brain. As such, the ego is diminished and the brain works "in a more unified way." Through that, a researcher in England claims that those who take these elicit drugs come to perceive themselves as more connected to "connection within themselves and with their surroundings." As such, the contention is that there are "potential medical uses of psychedelics" (mental health, addiction, and headaches are mentioned), which have long been illegal in the U.S. 

Before we dismiss the potential of medical LSD, we must recall that not long ago the premise of "medical marijuana" was often summarily dismissed. Some might argue, despite the U.S. Government's conclusion that there is no medical use for pot, that "medical marijuana" is now mainstream. Based on anecdotal reports of efficacy, marijuana has become medical. Is there reason to doubt LSD's status or acceptance could similarly commute? 

As the American culture has changed, there has been a recent acceptance of dope for both treatment of maladies and recreational use. The blurring of lines has been noted in various discussions. Marijuana has been recommended by physicians because patients claim it is efficacious, with little or no research or science in support. While some substances undergo evaluation and await FDA approval, others insinuate themselves into commonality through illicit use later endorsed or at least acquiesced. 

Does our future hold similar promise for psychedelics like LSD? Is the decriminalization a path to more open and notorious use? We have seen the dealers of drugs face criminal conviction for the results in some instances. Will the same be seen for "coaches" who merely advise, counsel, and encourage? It is a curious transformation of society mores that we have witnessed regarding dope. Where the path leads next may be more interesting still. Where will we go next? "Go ask Alice, when she's ten feet tall."

Tuesday, January 28, 2020

Intrinsic Motivation

The British Broadcast Company (BBC) recently published The Things that Do and Don't Motivate Kids to Succeed. It is focused upon two potentials: "natural curiosity and the desire for a reward." Certainly, there are those among us that are interested in various topics and we learn for the sake of learning. I know people who read college textbooks for entertainment. But, others do not exhibit that tendency. 

The author contends that "children are naturally interested in exploring their environment." That is, in an innate sense, we are born with curiosity, and a drive to "know how everything works, feels, and tastes." The contention is that this natural curiosity is conditioned out of us by systems and institutions that teach us to expect, or at least that we might anticipate, some reward for our behavior (or avoidance of punishment). 

The "learning for the sake of learning" is referred to as "intrinsic motivation." And the benefits of this motivation are illustrated in a "soon-to-be published meta-analysis." Students across a spectrum of levels, in a large population (200,000) were tasked with completing questionnaires in hopes of determining the "measure (of) different types of motivation." Their grades and achievement were then monitored. The result, which is not shocking, is that "students who took more pleasure in particular subjects experienced higher achievement, increased persistence, and increased creativity." In short, it appears we naturally tend to do better on tasks or challenges that we like. 

Another study cited by the BBC concluded that when we are interested in that way, we have "higher levels of reading comprehension" than those who have other motivations (extrinsic). 

Despite this, the article concludes that "a reward culture creeps into the classroom early on." There are various forms we have all seen from smiley faces and "good job" notations to stickers, privileges, coupons, candy, and more. The BBC report claims that among teachers in one survey almost "80% also used tangible rewards on a weekly basis." Some defend these as appropriate processes to maintain focus and attention on the subject matter.

Some teachers, though, avoid the "reward culture" and strive to build the "intrinsic motivation." They advocate for processes that match the student to the task such that their self-motivation flourishes. One example is in reading, allowing "comic books or magazines over novels" so as to facilitate the student's perception of control of, or at least influence upon, the learning process. By thus "broadening the conceptualization of what it means to be a reader," these teachers engage the natural implications of "intrinsic motivation." 

This is geared primarily toward conveying to the student that each has "choices and are doing things of their own free will." This leads to the engagement of the intellect and the motivation of individual through their own preferences and participation. Reading this, I was reminded of the words of a mentor in college. He championed engaging and involving groups in decision making. His mantra was that "members will support what they help to create." The results championed by the "intrinsic motivation" teachers cited by the BBC seem similarly focused upon the engagement and collaboration process. 

The "intrinsic motivation" teachers explain that this process means "listening to children and even acknowledging negative feelings" that arise in the daily work. They contend that listening to negative perceptions, and then explaining "why it is valuable even if it’s not particularly fun" engages the process of analysis and thus learning itself. Through this, the "intrinsic motivation" approach leads to acceptance of the importance of tasks or processes, even when they are not particularly enjoyed or enjoyable. 

There are those who want to extend the avoidance of "rewards" to the process of grading itself. They see grades, "the most obvious extrinsic motivator," as a distraction from the learning process. They are promoting the abolition of grading. They site studies from the 1980s in support of a process that provides feedback only, no grades. It is fair to say that this perspective, despite the cited research, is not universally accepted. There are others that see benefits from the grading of performance. And, we have many generations that have seemingly flourished under that paradigm. 

Except to those with an intrinsic interest in teaching, the point of all of this is perhaps less than clear. But, ultimately, is the workplace that different from a school environment? Would employees thrive more readily if they are engaged? Managers should find ways to educate others in the importance of the day's tasks. Those who will perform the work need to understand what it accomplishes and why that is important to the customer who receives it. Then, those contributors (an important distinction) can engage from a sense of purpose. And, if the person can be matched to tasks that they find some "intrinsic" draw towards, similar to the students reading comic books," then it is probable that more will be accomplished.

It seems that the same could be said of elements of the workplace also. For example the safety culture that is so critical. It is the safety program, the observance of rules and regulations, that has been so successful in recent decades. The rate of injury and death has improved dramatically. The effort to have workers focus upon safety might be improved by similar focus upon the safety culture. Knowing of its importance and participating in its planning and implementation might lead to even better results. 

It is likely that we will all need reinforcement over time, even when "intrinsically motivated." We all need to be periodically reminded of the value, the importance, of what we do. For the Office of Judges of Compensation Claims, what we do is essentially due process. We provide an environment in which people can define and refine their disagreements and disputes. When those do not bring resolution, we provide the facilitation and edification that is mediation; often this leads to solutions that are created collaboratively by the participants. And, when there is no ultimate agreement, our role is to be impartial, receptive, engaged, and decisive. To be "intrinsically motivated," we must find value in the due process and the procedure that we provide. 

How does the maxim fit in your business? First determine what value you seek to deliver. What attributes are worthy of your attention. How do they deliver value to those whom you serve? With that in mind, communicate that value to the (perhaps many) hands that will contribute to delivering that value. Explain and remind of the importance, of the value. If we are to be successful, it seems, our chances are enhanced when the team is collaborative, motivated, and engaged.

Sunday, January 26, 2020

Stare Decisis, Death Penalty, and Workers' Comp

These pages have featured the doctrine of stare decisis, a legacy of our English roots and the common law system that underpins our American judicial process. Literal translations are "to stand on the decisions" or "let the decision stand." This is an ingrained foundation that brings predictability and thereby stability to our legal system, and thus to our society generally. It is upon lawyers' interpretation of what courts have done that predictions and recommendations are made regarding what courts may do in the future. 

Previous stare decisis posts here have included Kentucky, Stare Decisis and Noncompliance Standards; A Kentucky Constitutional Decision, and New Jersey Judges have Inherent Authority, a discussion that integrated the anomaly of Florida's prior but now faltering reliance on the supreme court decision in Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351 (Fla. 1987). The stare decisis topic is not new. As a general proposition, litigants and lawyers benefit from stare decisis in the sense of predictability. But, every lawyer zealously seeks the outcome desired by her/his client, and thus may well argue against precedent in any particular case. Thus, the law evolves as time passes. The resistance of stare decisis versus the friction of circumstance in a persistent conflict. 

The Florida Supreme Court on January 23, 2020 rendered an opinion in State of Florida v. Poole, No. SC18-245, in which it reversed a relatively recent precedent. This is a lesson or reminder in stare decisis, and perhaps broader implications. There is little doubt that there will be discussions of the Poole conclusions in various legal circles that are engaged in the death penalty, as that is the substantive focus. There is likelihood of classroom discussion in broader contexts regarding the stare decisis foundation and the Court's recession from earlier authority. 

By this point Statler and Waldorf are perhaps asking: "what does this have to do with workers' compensation?" I am persistently surprised when even seasoned lawyers sometimes forget that workers' compensation is (in part) a judicial system in which quasi-judicial decisions are made, laws are interpreted, and stare decisis is critical. Predictability and evolution are as fundamental to this particular adjudicatory system as they are to any. Workers' compensation touches the law in broad contexts, and likewise the broad foundations of law are critical foundations to workers' compensation. 

Though the Florida Supreme Court rarely decides a workers' compensation case, it does occur. Frequent readers may recall The Supreme Court Declines Review of Padgett; Padgett, a case known by several names, was a direct challenge to the constitutionality of Florida workers' compensation. There may be those who remember the Court similarly declining to hear the challenges in Brock and Hector; there was even effort thereafter to have the Supreme Court of the United States review the Florida workers' compensation statute in that context. 

Everyone involved in Florida workers' compensation is familiar with the imaginative decision of the Florida Court in Castellanos. The Court's sua sponte (or spontaneous) adoption of the Daubert evidentiary standard in 2019 brought clarity to Florida's courts, and perhaps squelched an academic debate regarding expert testimony in workers' compensation. Some will remember cases like Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005) and its ripples through the insurance and employer communities. And, of course, there were implications and clarity brought to the community by the 2004 decision in Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004). Though rare, the Court does impact this community periodically. 

Notably, in that last example, the Court had a long history of promulgating Comp procedural rules dating to 1973. Amendments provides in-depth discussion of the involvement of the Florida Legislature, delegation of constitutional authority, and precedent built case upon case in the periodic adoption of procedural rules for over 30 years. Amendments, however, enunciated the conclusion:
"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 this executive entity." Amendments., at 478. 
In effect, the Court there concluded it had acted without authority and it declined to proceed in doing so thereafter. It admitted it had been long and repeatedly wrong. Precedent was disregarded, upon the conclusion it was ill founded. 

Returning to the present, the Court recently considered State of Florida v. Poole, No. SC18-245 (January 23, 2020). At issue was the process by which decisions are made regarding imposition of Florida's death penalty. It will be for that reason that the case may attract news coverage. The decision link is provided above, but the reader is warned that the factual details recited by the Court may be disconcerting or disturbing. The defendant was sentenced to death for his actions, and took issues with the procedure. 

The Court explained that "from 1973 until 2016" there was a framework for considering such sentences (it is an odd coincidence that 1973 similarly marked the first adoption of Court rules for workers' compensation). This "penalty phase" begins with a proceeding in which evidence is heard of the "nature of the crime and the character of the defendant." There may be presentation of "statutory aggravating and mitigating circumstances." and such a sentence is based on whether such circumstances do or do not exist. The fulcrum of the Poole debate is how jury and judge interact in deciding the existence of those circumstances. The Court noted that the United States "Supreme Court itself (has) considered and rejected Sixth and Eighth Amendment challenges to" that process. 

The Court explained various Supreme Court of the United States (SCOTUS) decisions, and the intriguing evolution of death penalty consideration. That itself illustrates that the law has experienced change in reaching its current state. Lawyers have argued, and change has occurred. The Florida Court noted that ultimately the SCOTUS concluded:
“If a State makes an increase in a defendant’s authorized punishment contingent on a finding of fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.” 
Thus, a judge, alone, may not make such a finding of aggravation, in rendering this sentence. 

In Hurst v. Florida, 136 S. Ct. 616 (2016), "the (Florida) Supreme Court addressed the significance of" that analysis on "the constitutionality of Florida’s capital sentencing procedure." The Court in Hurst concluded that the Florida law "which required the judge alone to find the existence of an aggravating circumstance" was unconstitutional. Therefore a "new rule" was announced by the Court: 
"before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death."
In Poole, the Court concluded "our Court was wrong in Hurst v. State." It said:
"this Court clearly erred in Hurst v. State by requiring that the jury make any finding beyond the section 921.141(3)(a) eligibility finding of one or more statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or Eighth Amendment, nor the Florida Constitution mandates that the jury make the section 941.121(3)(b) selection finding or that the jury recommend a sentence of death."
There are those who would argue that there is merit in owning an error. The Court explained that stare decisis is important. But the Court must be "willing to correct its mistakes." Therefore, “[t]he doctrine of stare decisis bends . . . where there has been an error in legal analysis.” (citation omitted). Admittedly, "it is no small matter for one Court to conclude that a predecessor Court has clearly erred." The Court concluded that in 2016 it had misapplied "a narrow and predictable ruling" and "disregard(ed) decades of settled Supreme Court and Florida precedent" in deciding Hurst

Thus, the Court explained the Hurst decision was a failure of stare decisis; one which created new rules for the adjudication of such cases. The Court in Hurst did not follow the precedents, its own prior decisions. Thus, the Court essentially concluded in 2020, that following the misplaced Hurst further would be error. To give that decision the respect of stare decisis would be to compound the error that it created. 

The Court was similarly critical of its decision in North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003). That decision and its analysis of the  why and how of overruling prior precedent was urged by Poole in arguing to retain the Hurst analysis. But the Court noted that the reversal considerations listed in that opinion were accompanied by "no citation to support its compilation." In other words, those considerations are perhaps of questionable origin. The Court did not go as far as saying they were imaginative or creative, but noted they had no precedent. Furthermore, the Court concluded that such "multi-factor stare decisis tests or frameworks" are "malleable and do not lend themselves to objective, consistent, and predictable application." The application of them could lead to decisions that are not "principled."

The Court concluded that the "proper approach to stare decisis is much more straightforward." Of course, where higher legal authority is binding, the Courts' "job is to apply that law correctly to the case before us." But, "when we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield." That is, when an error has occurred such as Hurst, it is necessary, beyond appropriate, that stare decisis not blindly compound and amplify that error. Thus in deciding whether to follow prior decisions, the Court will look to the logic, reason, and precedent for such prior decisions. 

Interestingly, the Court noted that "stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up.” Thus, when the Court concludes that prior a decision(s) is "clearly erroneous, the proper question becomes whether there is a valid reason why not to recede from that precedent." The critical point, it seems is what type of case is being considered when this balance of predictability and correction come to the fore. The Court noted that reliance upon such decision(s) is broadly critical, but more important in cases of "property and contract rights” than in cases of "procedural and evidentiary rules.” Thus, whether poorly reasoned precedent is abandoned or maintained may be a function of the type of law interpreted (or created?). In some instances stability may militate toward reinforcement of bad law. 

The Poole decision acknowledges that Florida's legislature responded to Hurst and made statutory change. The Court specified that Poole is neither criticism nor endorsement of those legislative actions. It clarified instead that Poole is simply the restoration of the "discretion that Hurst v. State wrongly took from the political branches." Though not announced as such by the Court's introduction to Poole, this decision is thus largely a separation of powers decision, not dissimilar in that regard to Amendments, supra. The Court has concluded that the error of Hurst, in lacking legal foundation, inappropriately invaded the province of the legislature. 

That issue is the subject of the composite of the Poole decision. Four justices of five concurred in the Poole decision. It is noteworthy for the sake of history that Florida's Court is composed of seven Justices. However, currently two vacancies exist following the appointment of two Justices to the Eleventh Circuit Court of Appeal in 2019. Justice LaBarga dissented in Poole with a written decision. Justice Lawson specially concurred with a written opinion responding to the dissent criticisms. Both are worthy reading. Some will perhaps see therein hints of a difference of opinion regarding the appropriate separation of powers as between a Court interpreting and a representative body legislating. There are also differences of opinion as to precedent and stare decisis specifically.

The decision has implications for those who stand accused of capital crime. In those settings, Poole will find citation and argument. My brief experience with death penalty litigation was both enlightening and frustrating. The stakes are high and the advocates on both sides are among the most intelligent and resourceful I have encountered. It is a difficult and challenging area of practice. 

But, in deference to Statler and Waldorf, I return to workers' compensation. There continues in this county a "grand debate" about the "grand bargain" that is workers' compensation. Are benefits sufficient? Should sufficiency be a "system" analysis, or is it "personal" and individual? Is the process afforded appropriate? How does evolution of tort law (the system Comp supplanted) enter that analysis? The list goes on. There have been a fair volume of constitutional challenges to workers' compensation in state courts in Florida. Will that trend continue? Will there be a tendency therein to remain true to precedential decisions, or is it possible that in workers' compensation there might be coming court admissions of having "clearly erred," and therefore a court being "willing to correct its mistakes?"

Whether one's perspective is of reliance upon Florida Court precedent or is of imaginative argument in opposition in such a challenge, the Poole decision is informative. How and when predictability of stare decisis may prevail against the imaginative or innovative challenge is worthy of any litigant's consideration and analysis. Workers' compensation may not be as grave as the criminal death penalty. However, it literally permeates the world of work for millions of Floridians. It is a critical lynch-pin of the employer/employee relationship. Its stability and continuity are foundational to lives and livelihoods. Its importance cannot be overstated, and should not be misunderstood. 

Thursday, January 23, 2020

Predictability and Certainty

An intriguing decision of the Minnesota Supreme Court caught my attention recently. In November 2019, the Court decided Block v. Exterior Remodelers, Inc., A19-0584. The Court was asked to interpret a statute, not an unusual occurrence in workers' compensation. But, the nature of the statute made the interpretation interesting.

The injury occurred in 1988, resulting in two back surgeries. The worker then settled with the Employer in "a full, final, and complete settlement agreement." This was approved by the Workers' Compensation Court of Appeals (WCCA) in 1992 and the settlement proceeds ($40,000) were paid. 

About 17 years later, "in 2009, Block experienced new symptoms related to the 1988 injury. He had two more back surgeries." Then, "in 2016 (24 years later), Block filed a Petition to Vacate the Award (settlement)." He argued this was appropriate because the parties had made a "mutual mistake of fact" in making the settlement, and that he had suffered "a substantial change in his medical condition that could not have been anticipated at the time of the Award (settlement)." 

The WCCA "vacated the Award based on the substantial change in (Mr.) Block’s medical condition," but disagreed there had been a "mutual mistake of fact." The matter would seem concluded when "neither party appealed the WCCA decision." But, Mr. Block then sought "additional benefits." The Employer sought "a credit for the $40,000 already paid under the vacated Award (settlement)." The parties submitted this question to the trial "judge on stipulated facts." The judge concluded the Employer was entitled to this credit for funds it paid associated with the retroactively eliminated settlement. 

Mr. Block brought the appeal, claiming that the trial judge erred in not applying Minn. Stat. § 176.179. The Court reminded that “[i]t is . . . a basic tenet of workers’ compensation law that the substantive rights of employer and employee are fixed, not by their agreement, but rather by the law in effect on the date of the controlling event (accident).” Therefore, the law as it existed in 1988 is applicable to the parties' disagreement. 

The Court explained that Minnesota law allows the settlement of workers' compensation claims, "subject to approval by a compensation judge." However, the Minnesota statute also allows the settlement to "be set aside later if the WCCA determines that there is cause to vacate it." 

The "mutual mistake of fact" argument is worthy of note. Mr. Block contended "when the parties settled Block’s claim, they believed that Block’s back injury was cured and, thus, payment of an award that is later vacated must be a mistake." Therefore, he contended that the Employer cannot be entitled to a credit for money it paid by "mistake." He cited "the version of section 176.179 in effect at the time of Block’s injury in 1988," which provides: "no lump sum or weekly payment, or settlement, which is voluntarily paid to an injured employee . . . shall be refunded" if it is later determined to have paid by mistake of fact or law. 

The Court explained that when benefits were "mistakenly overpaid" in other cases, that has been deemed "a mistake in fact that made the overpayment 'mistaken compensation.'” Mr. Block's argument was that the settlement proceeds paid ($40,000) pursuant to his agreement and judicial approval, was likewise a "mistake" and therefore this is "mistaken compensation," which should be a windfall to him and not recoverable by the Employer following vacation of the settlement agreement twenty-seven years later. 

The Court distinguished the instances of such "mistaken compensation" cited by Mr. Brock. It concluded that the $40,000 "was not paid mistakenly." It noted that the record did not support any evidence of a "mutual mistake" in 1992. Instead, the record indicated "the parties negotiated the settlement at arms-length and based on all of the information available at the time." And, notably, the "settlement was approved by the compensation judge."

The Court conceded that "neither settling party in 1992 could have foreseen or predicted medical developments," as demonstrated here. That the parties cannot accurately predict the future does not equal a "mistake of fact or law." Therefore, the Court affirmed the trial judge's denial of Mr. Block's objection to the Employer's credit for the $40,000 already paid. 

The case is intriguing for several reasons. First, the law allowing a "a full, final, and complete settlement agreement" to be set aside is curious. The setting aside, by definition, means that the settlement was neither "full, final, nor complete." Settlement comes with risks. It is possible that a patient may deteriorate or improve following a settlement. If a patient thereafter improves unexpectedly, through happenstance or the advancement of medical science, would it be appropriate to order the worker to return the settlement proceeds based upon "a substantial change in his medical condition?" Or, should the parties, in an arms-length transaction, each be permitted to assess and value their respective risks and make a forever-binding "full, final, and complete settlement agreement?" 

The second matter of interest, comparing Minnesota to Florida, is that this settlement was approved by the workers' compensation judge. In that setting, some might argue that the judicial approval militates in favor of permanency and unassailable nature of the settlement. In Florida, the vast majority of settlements are not approved by judges of compensation claims. The Florida Legislature removed the requirement of judicial approval for settlements of cases in which the injured worker is represented. Section 440.20(11). Despite that, there is no similar avenue for revisiting a decades-old settlement in Florida. If a settlement can be undone by either party, some would argue that the expense of settlement might be hard(er) to justify. 

The final matter of interest in this litigation is the court's reminder regarding the substantive rights of the parties. It is difficult for many in the workers' compensation community to accept that statutory rights and obligations are controlled by the statute in effect when an accident or injury occurs. The subsequent amendment of the statute may change procedural processes, but no substantive rights and obligations. It therefore remains pertinent for everyone involved in any claim to return to that applicable statute, even decades later. Workers' compensation claims may indeed have significantly long lives as Mr. Block's 1988 injury has.

Tuesday, January 21, 2020

Progress or Folly

A major debate rages in workers' compensation today. It is centered on who must be covered by the program, and the practice of hiring "independent contractors" rather than employees. There are a variety of issues intermingled in that debate including taxes, overtime pay, minimum wage, unemployment, and workers' compensation. California is in the midst of striving to implement the "ABC test" legislated by its supreme court (yes, "legislated"), and then adopted by the state legislature in statute. The Governor there has recently reportedly asked for $17.5 million and over 100 new state employees to implement the change. Classification of workers is a challenge. 

The Kentucky Court of Appeals recently provided analysis of independent contractors and homeowners who hire them in Dexter v. Hanks, No. 2018-CA-000362-MR. The case was filed in tort for premises liability after the plaintiff fell from the roof of the defendant's home while performing repairs. The trial court dismissed the lawsuit, concluding that the homeowner breached no duty of care and that the plaintiff was an independent contractor. As an independent contractor, the Court concluded, the homeowner had no duty to supervise Plaintiff or to provide him with safety equipment. 

The Court described that the homeowner had procured a variety of services for his home over the years. He typically had used Tim McQueary, for whom Mr. Dexter (plaintiff) had sometimes worked. When McQueary became too busy, he recommended Mr. Dexter to Mr. Hanks (defendant property owner). When a roof leak occurred, Mr. Hanks hired the Plaintiff to perform repairs. Plaintiff was to be paid $10 per hour for the work. Mr. Hanks purchased the roof sealer, and plaintiff "used a combination of his own tools and tools supplied by Hanks." 

In the process of painting the roof in 2013, Plaintiff slipped and fell, then slid from the roof and "fell twenty feet to the ground, landing on his feet." He was diagnosed with a broken foot and broken ankle, "incurred medical expenses of $70,953.67, missed thirty-seven weeks of work, and lost approximately $27,000 of income." 

The lawsuit alleged that Mr. Hanks' property was in a "dangerous condition," which Mr. Hanks’s either "created," or of which he at least "knew, or should have known.” Plaintiff "characterized himself as an 'invitee' to Hanks’s property." Therefore, he contended that Mr. "Hanks had a duty to discover, warn, and/or protect Dexter from the dangerous condition of his property" (apparently water on the roof, which Plaintiff presumed, but could not prove, Mr. Hanks had sprayed there to "clean" the roof prior to the sealant application). 

The Court noted that Kentucky's Supreme Court had previously concluded that “a possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” However, while the Dexter case was pending this appeal, the Kentucky Supreme Court rendered another decision in which it further described "the nature of the duty owed to" contractors such as Dexter. The Court concluded that a property owner that hires an independent contractor is not responsible for supervision or providing safety equipment, noting an independent contractor should be "aware of the risks associated with" work and should have "provided his own safety equipment." 

The Court enunciated legal parameters defining the distinction between an employee and an independent contractor. It was persuaded by the fact that the work performed was "unrelated to the normal operations of the "business that had hired the contractor," which may have been homeowner, but there is suggestion that Mr. Hanks is in the real estate investment business. 

The Court explained that "a landowner is not liable to an independent contractor for injuries sustained from defects or dangers that the independent contractor knows or ought to know of." The property owner is liable only if “the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know.” In this, a landowner owes less of a duty to such a contractor than would be owed to a "business invitee" (a customer on the property for the purpose of doing business there). 

The Court reminded that Plaintiff admitted the defendant "was not overseeing or directing his work in any way." The property owner "was concerned only with the end result, a sealed roof that did not leak." The Court noted the presence of the homeowner's tools, but concluded "that was more out of convenience than a desire to control how the work was performed." This supported "that Dexter was an independent contractor." This, overall, illustrates the issues of control that are pervasive in various states' analyses of the contractor versus employee dichotomy. 

The Court noted, however, that the test it applied in making this decision as regards premises liability "is different than the broader and more lenient multi-factor test used to determine whether an individual is an employee or independent contractor under the Workers’ Compensation Act." Despite the test being different, the Court concluded that "most of those (workers' compensation) factors weigh toward Dexter being an independent contractor." As examples, the Court enunciated different factors such as who set work hours, whether particular skills were required for the work, whether Mr. Hanks trained plaintiff or dictated how the work would be performed, and how Plaintiff was paid. 

In this instance, a civil liability case, the critical issue of contractor status was subject to varied legal analyses. The Court concluded that the outcome in this case, "independent contractor," would be the same whether the analysis was the concise liability standard or the "broader and more lenient" workers' compensation test was engaged. Though the outcome was the same in this instance, it is worth consideration that outcomes could be different. That danger exists when a jurisdiction has multiple definitions of any term, such as "independent contractor." The confusion that is created by multiple legal tests for such a decision is curious and may lead ordinary citizens to confusion. 

In an attempt to legislate consistency, and perhaps simplicity, the California Supreme Court recently made a new independent contractor law. There are those who have been critical of the court there "making law," arguing that courts should instead limit themselves to interpreting law. It is seen as an issue of "separation of powers" a constitutional construct worthy of consideration. But, the California Legislature, others would argue, certainly has the last word in such a scenario. The people's elected representatives could certainly correct such judicial legislation by passing a law to the contrary. California's Legislature did pass a law, but it essentially adopted the court-made law

That legislation became the law of California on January 1, 2020. WPXI (an others) report that the new law defining independent contractors will simplify such legal analyses. Some also suggest that the change will force businesses to adjust their staffing practices. The seemingly obvious conclusion would be that such effects will only be for California businesses. However, there are also concerns that the law will affect businesses elsewhere, in the event that they require California staffing for any purpose. 

There is benefit in simplicity. If clear and simple definitions render the nature of business relationships easier to classify, then there is a probability of less litigation over whether someone is or is not an independent contractor. There is value in simplicity. Similarly, there is benefit in freedom of contract, flexibility, and creativity in the delivery of business services. Thus, there is a conflict between flexibility and predictability. There are advocates on either side. Across the country, many will watch the experiment upon which California has embarked. Time will tell if its ABC test is progress or folly.

Sunday, January 19, 2020

Cybersecurity 2020's Hot Topic

In 2020, you should be thinking about cybersecurity.

What is the hot topic for 2020? There are many subjects on the minds of workers' compensation professionals. It can be hard to keep up without attending an awful lot of meetings. But, a general overview comes our way each January from the Kimberly and Mark team at Out Front Ideas. In the January 2020 edition, they gave us a lot to think about; everything from industry and individual engagement, to technology, to dope. They touched on cybersecurity, and frankly that is likely to be an overriding concern not just in 2020 but for years to come.

The workers' compensation community may be better at some things than others. But throughout our history, workers' compensation has been great at accumulating data. There have been many complaints and lamentations over the decades about how good we are at categorizing, analyzing, and digesting the data, but collecting it has been a strength. It is likely that these volumes of data incentivized the community embracing technology. In terms of data management, information storage, and now artificial intelligence, the workers' compensation community has been fully engaged in technology. Increasingly, all of that information may be at risk.

In 2019, Florida recognized the cyber risk to our livelihoods. The Legislature passed House Bill (HB) 5301, which created and enabled a Cybersecurity Task Force. The bill has multiple other implications that exceed my space here. The task force includes The Lieutenant Governor (who serves as chair), a "computer crime" specialist from the Department of Law Enforcement (FDLE), another representative of FDLE, the state chief information officer, the state chief information security officer, a representative of the Division of Emergency Management, a representative of the Office of the Chief Inspector General, an individual appointed by the President of the Senate, an individual appointed by the Speaker of the House of Representatives, and members of the private sector appointed by the Governor. 

In December, the Task force met in Miami. The New Year (and decade) brought it to Pensacola on January 17, 2020 for an informative and compelling agenda. This included an intriguing cyber-industry panel discussion regarding cybersecurity resilience in Florida, a presentation by Dr. Eman El-Sheikh of the University of West Florida on Workforce Education, and a presentation on "Cyber Florida" by Dr. Sri Sridharan, of the Florida Center for Cybersecurity. Florida is pro-acting on this subject, and a key word is collaboration. The interaction and cooperation between academics and industry was apparent throughout.  

Dr. El-Shiekh noted some disturbing facts. First, the United States is the #1 target for cyber-attacks. The average cost of a data breach is more than $8 million dollars. The government currently spends about $15 billion annually on this threat, and there is an obvious and increasing need for cybersecurity professionals in the marketplace. She cited statistics that 50,069 cybersecurity jobs are currently staffed in Florida, but there are about 24,618 current job openings here. There is a lot of opportunity apparent in this field, and a great deal of unfilled demand.

Unfortunately, those hiring cybersecurity professionals nationally are not fully satisfied with their foundations or training. Dr. El-Sheikh noted an ISCA (Intl. Symposium on Computer Architecture) study that concluded a third of survey respondents felt that less than 25% of job applicants were qualified for cybersecurity jobs. Almost 40% said that "university graduates are not prepared for the challenges they will face." That may be a factor of the constant evolution brought upon us by the bad actors, but it is refreshing to see educators focused on improving the preparation of the students. 

There are educational standards in place for training undergraduates in preparation for the array of opportunities. There is also an impressive list of state institutions that are focused on academic preparation of the next generation of security experts. Florida's universities seem acutely aware of the challenge we face. There appears to be room for greater compliance with those educational standards. It is positive to both have such goals, and to periodically evaluate how well our efforts are addressing them. The meeting also included discussion of the impact on this problem affected by an NSA structure of a select few Regional Resource Centers such as the University of West Florida here in Pensacola.

It was inspiring to hear the progress that is being made in educating those who will protect our networks, data, and livelihoods. More impressive was the description of how the educational curricula are involving students in hands-on training conducted in virtual environments in which there are emulations of the World Wide Web infrastructure, websites, and social media. The training and education is coming off the white board and being performed in real-world environment simulations to prepare students for their challenges. Students are academically experiencing first-hand the situations they will face upon graduation.  

Where will the employees come from to fill these opportunities? Efforts are underway to identify, attract, and even recruit the next generation of experts. Programs are underway to partner with high schools for the increasing of awareness about these careers. The cybersecurity educators are also seeking to inform and attract far younger students. The need for cybersecurity is seen as a long-term situation, with a major growth potential still unmet. The effort is to both recruit for the immediate college class and to inspire the young to pursue a future steeped in computer and technology professions. 

The discussion turned also to diversity of perspective in the field. Multiple speakers noted the tendency to presume that cybersecurity requires people with backgrounds and skills in coding. There has been a focus on the STEM (science, technology, engineering and math) curriculum in recruiting security students. The speakers stressed, however, that cybersecurity requires multi-discipline contribution. There was discussion of understanding what motivates bad actors (hackers, etc.), and the need in response for collaboration of coders, programmers, communicators, and others. The underlying characteristic most sought is dedication and commitment to the goal of protection. It was stressed that cybersecurity is not a 9 to 5 job. 

The main take-aways from this short introduction to cybersecurity were: (1) Florida is exceptionally postured to address this need; the institutions here are already partnered with industry and aggressively pursuing cyber threats; (2) the need for producing effective, trained, and enthusiastic people is immediate; (3) the interests of academia and industry are notably intertwined, and public/private partnerships and cooperation are already the preferred paradigm for research, preparation, and remediation. Florida's foresight in forming this Task Force is impressive.

I found the program engaging, though I have not programmed a computer in decades. This will be a subject that concerns every business in the workers' compensation community for years to come. While there is much on our collective plate, it is without question that cybersecurity is a significant and serious subject that is fundamental to every business' effective function in this community. How will we expand our understanding and address our communities' need?

Thursday, January 16, 2020

Opioids and Credibility

The subject of narcotics was addressed by the New Jersey Superior Court, Appellate Division in Martin v. Newark Public Schools, No. 2011-17344 (October 2019). It is another of those cases that was not published by the court when decided in October. However, on December 13, 2019 the Court "approved for publication." 

The injured worker in this case sought temporary indemnity benefits and "reimbursement for continued prescription opioid medication to treat a lower back injury." The motor vehicle accident was nearly a decade ago, in May 2011. It resulted in an orthopedic low back injury. In 2017, the Employer/Carrier denied reimbursement for Percocet, and the subject claim was filed. 

The treating physician began treating Mr. Martin in June 2011, which included prescriptions for pain medication. These prescriptions were "monthly" "from 2016 through 2017."  In September 2017, he released the patient from care, placing him at maximum medical improvement. As a "courtesy," the doctor wrote one last Percocet prescription at that time. 

The doctor testified that he had recommended alternative care such as "surgery or epidural injections," which were declined. Other physicians also unsuccessfully recommended surgery as well.  He noted "that Percocet was poorly controlling Martin's pain." He also concluded that "prolonged narcotic use [would] not manage his radicular complaints." And, the treating doctor testified that "Martin would never heal through continued use of pain medication," though that course had been pursued for six years. 

It is notable that the treating physician was focused upon remedial care, the kind of care that is intended to improve a condition or diagnosis. The physician was not foreclosing palliative care, intended to alleviate symptoms or complaints associated with an injury. In fact, the physician advised the worker that continued complaints might lead him to "pursue something from a palliative care point." 

A pain management physician was consulted before hearing, in "a one-time evaluation in support of the motion," which is seemingly similar to a independent medical examination in Florida. The pain management physician noted multiple spine findings, and recited that the patient "self-reported that Percocet abated his pain symptoms by approximately sixty percent, and he was more active on the medication." The extent reported was, however, "small pain relief." The pain management physician concluded that "it was reasonable that [Martin] be on opioid medication on a long-term basis for his pain."

The trial judge denied the claim seeking "reimbursement for prescription Percocet." He concluded that Mr. Martin "failed to prove continued treatment with opioid medication would reduce . . . pain or permit him to function better." In so concluding, the trial judge accepted the treating physician's opinion as "more credible than the testimony of the one-time evaluating physician." The logic of the trial judge is pertinent in understanding determinations of credibility. Credibility is a difficult subject, and much can contribute to the analysis. 

In this case, the trial judge found it pertinent that the pain management physician did not "expressly find continued opioid medication would relieve Martin's pain." And, the judge noted that the physician "simply opined long-term opioid medication was 'reasonable' without explaining why." Credibility may be a matter of which doctor has the most experience, relevant training, or credentials. But, there is a value in providing a logical and careful explanation of "why" recommendations are made or conclusions are reached. 

Having not convinced the trial judge to order ongoing Percocet, Mr. Martin sought review by the appellate court. He complained that the judge accepted the testimony of the treating physician and alleged the "judge misapplied the standard governing an application for palliative care." The appellate court first addressed the acceptance of testimony. It concluded "that [the judge] gave more weight to the opinion of one physician as opposed to the other provides no reason to reverse the judgment." The Court noted the trial judge's explanation of his finding of credibility, and found it appropriate to "defer to the compensation judge's factual findings under the circumstances."

The Court explained that the Employer/Carrier is obligated to provide both "curative or  palliative care" following a work injury. Each is required if shown to be "reasonably necessary to cure or relieve the effects of the injury." As such, in New Jersey, an injured worker must "show the treatment would 'probably relieve petitioner's symptoms and thereby improve his ability to function.'" The Court reminded that in making such decisions, "the touchstone is not the injured worker's desires or what he thinks to be most beneficial."

Instead, the Court explained, there must be "competent evidence to be reasonable and necessary to cure and relieve him." In that, it is not sufficient to merely show "that the injured worker would benefit from the added treatment." Citing a prior decision, the Court reminded that "there may be a point at which 'the pain or disability experienced by the worker is insufficient to warrant the expense of active treatment.'" Relying upon the treating physician's testimony, the Court found sufficient evidence that "continued prescribing of pain medication did not, and would never, heal petitioner or relieve his condition."

The Court provided a detailed comparison of the testimony and conclusions of both physicians. It reiterated the pain management physician's conclusion that Percocet was "reasonable," but returned again to the criticism of the physician's explanation for, foundation for, that conclusion. The Court concluded that there was credible evidence to support "that further treatment with opioid medication would not cure or relieve Martin's injury." 

There are many who would find fault in such an outcome. They would argue that ongoing medication in such a situation may be the only potential for relief from symptoms. Others would note that narcotics are often dangerous and that increasingly strong doses over time are a risk to health. There is no doubt that pain exists, and that patients need some method to deal with symptoms. There is an ongoing debate in this country about these difficult questions. The New Jersey decision supports the proposition that some patients may be denied opioid medications for pain. That potential suggests some patients may need to find and attempt alternatives. 

Tuesday, January 14, 2020

Offer First then Act

A great many years ago, a lawyer named Louis Brandeis wrote:
“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone’"
He was an advocate of privacy and individual rights. He later joined the Supreme Court of the United States, authoring further thoughts on privacy. The underlying theme, in some estimations, is this "right to be left alone." The focus was often criminal in nature, and involved the Fifth Amendment.

As an aside, there was a recent decision by the Florida First District Court of Appeal regarding compelled access to a person's cellular phone. That is Pollard v. State, a discussion of both the Fourth and Fifth Amendments. There are worthy points of discussion there, which may be discussed in a future post. But, for today, the case is interesting in the context of Justice Brandies at least in assurance that privacy remains an unresolved topic under the law. 

The "right to be left alone" is thus admittedly an issue under the law. But this post is actually about the broader, human interaction, right to be left alone. It came to my attention in a British Broadcasting Corporation (BBC) article Spikes - and other ways disabled people combat unwanted touching. It seems that there are people who perceive others as needing assistance. As good Samaritans, they are extending them a hand-up. However, the intended recipients do not necessarily want that assistance, and are offended that it would be foist upon them without even the courtesy of a verbal offer or inquiry. As a result, some are taking exceptional methods to discourage the Samaritans. 

The first example cited by the BBC is a person who uses a wheelchair. She describes going about her daily tasks when people will unannounced and uninvited grab her wheelchair by the handles and propel her "down the street." She notes that this creates a sense of losing "control over where you're going." She describes the sensation as "really terrifying." And, despite her resulting cries for help no other Samaritan stepped in to suggest to her assailant that they leave her alone. She says that since this incident the mere sound of footsteps behind her wheelchair brings feelings of anxiety. 

Most of us can likely empathize with her feeling of helplessness. She illustrates it with an analogy. Essentially, how would any of us react if some pedestrian picked us up on the sidewalk and began walking away with us? As a result of her anxiety, and the helpless feeling of that incident, she has since "added metal spikes to the handles of her chair to make it harder for people to take control."

Another example cited by the BBC is a sight-impaired person using a cane to walk. Since she began using the cane, she noted "a significant change in attitude towards her." While she reveled in the independence that the cane brought, she laments that "she was being touched almost every day." People apparently thought nothing of reaching out to physically touch her, likely with the very best of intentions to aid and guide. But, she objected to it, and argues against it. 

There is social media discussion of these well-intentioned interventions. They have coined the "hashtag #JustAskDontGrab." Their contention is that before one touches or helps someone, they should first announce themselves and verbally offer assistance. One source cited by the BBC contends that the urge to reach out is human nature, a "natural instinct to use their hands and not their words." A natural instinct that we must recognize and resist consciously.

Thus, there is a recognition that the unannounced touching is not "malicious or creepy, just dehumanizing." There is a perception that the manner of interaction does not match the intention. While someone means only to help, the perception and reaction may be unintended fear, anxiety, or demeaning. Another quoted source notes that there is also the potential for causing injury or damaging assistive devices such as wheelchairs. These may be expensive and specialized tools.

But, repeatedly, the sources in this article stress their approval of someone offering help. The verbalized recognition that someone might require assistance, and a simple offer are welcome by at least some. The spirit of the article suggests that even among those who would prefer to simply be left alone, these people would far prefer an unwanted verbal offer than an unwanted and unexpected physical touching. 

What should we see when we perceive someone that is differently abled than ourselves? It is appropriate to recognize that people may be different from ourselves. That does not mean that we can appropriately make assumptions that they are in any way less abled than ourselves. Different does not equate to less or more. It is merely different. 

As human beings, we are absolutely compelled to offer help to others. That may include people using assistive devices, but as readily can apply to anyone that we perceive could use a hand. Against this inclination, we must remember that conversely, every one of us has that "right to be left alone." From the conflict between these two, the best path forward seems to be an unassuming and genuine verbal offer of assistance. The decision then rests entirely with the offeree, to accept or decline your generosity. 

And, finally, the process and result is personal, and as such private. If someone does not want assistance, that is her/his business. If our offer is rebuffed, that says nothing about us personally or about the offeree. It merely means that we did the right thing in offering, and the offerree did the right thing for her/himself either in accepting or declining. In that, we preserve our humanity, obey our natural tendency, and yet respect the "right to be left alone."

Sunday, January 12, 2020

Hearsay within Hearsay

Hearsay is a legal maxim that challenges even the best trial attorneys from time to time. The general prohibition on, and definition of, hearsay are in Better Understanding the Hearsay Rule from 2016. When attorneys object to hearsay, there is a tendency for the initial response to involve some exception to the evidentiary exclusion of hearsay. The law recognizes that hearsay should be avoided. Sections 90.801 and 90.802, Florida Statutes. But it proceeds to provide many instances in which hearsay is acceptable. Sections 90.803 and 90.804, Florida Statutes. 

The basic premise is that the law requires perceptions or conclusions to be stated within the trial setting (either in the hearing or courtroom itself or under oath in a deposition). The hearsay prohibition is to prevent people repeating in that setting what she or he has heard somewhere outside. For example, if there is to be testimony that a traffic signal was red or green, the law generally prefers that the person who saw the traffic signal testifies about it, rather than someone else testifying that they heard someone who saw it say that it as red or green. Hearsay can be a challenging subject. 

Imagine that the person who saw the traffic signal spoke to police officer afterward. And, the officer then wrote a report, memorializing what was said. The witness' statement about the traffic light color was potentially hearsay (an out of court statement). The report written by the police officer is likewise potentially hearsay. Thus, If the police officer was asked at trial "what did the witness see," there is a potentially valid hearsay objection to prevent the officer from repeating what she/he heard. And, if there is an effort to place the report in evidence, then there is hearsay (the statement) within hearsay (the report). For this complication, the law has a specific rule, section 90.805, Florida Statutes. 

Of course, this analysis depends upon the statement or the report being "hearsay" to begin with. Too often, even the best trial attorneys jump from the hearsay objection to the hearsay exceptions. The first analysis should instead always be: "is this hearsay?" That is, first is it an out of court statement? Second, which is so often overlooked, is it: "offered in evidence to prove the truth of the matter asserted?" If the statement is offered for some other purpose, then it is not hearsay, it is not precluded, and there is no need for the "exception" analysis. Imagine the issue is whether this police office was at the accident scene, that she/he took a statement from a witness might help prove that point. What was said may not be as important as that the officer was there to hear it.

The Florida First District Court of Appeal recently rendered its decision in Hauser v. Goodwill Industries, D19-1054 (Fla. 1st DCA December 20, 2019). The case is a sound reminder of the perils of hearsay. The injured worker in this litigation sought temporary partial disability benefits, which are generally payable when a worker has been released to return to work following an injury, but the worker is not yet at a full capacity either as to work intensity (e.g. limitations on activity, such as walking, lifting, bending, etc.) or duration (e.g. only some limited number of hours per day). A defense to a claim for such benefits is referred to as the "misconduct" defense.

This defense is founded on the allegation that a particular injured worker would be working post-accident, but is not because the employer discharged her/him due to employee misconduct. The defense is essentially that it is the misconduct that results in the loss of earnings, rather than the results of the work injury resulting in that loss. The defense is set forth in section 440.15(4)(e), Florida Statutes. In this particular instance, the worker was accused of misconduct, making "derogatory comments about persons of Mexican heritage to a co-employee that were overheard by a customer." Based upon the allegation of insulting behavior, the injured worker was fired. 

The employer conducted an "exit interview," a process of conversation with employees who leave the employer. Many place great stock in such interviews as a methodology for evaluating employer processes. However, I have known various employees to be less than frank or forthcoming in such situations. The value of these processes is dependent upon the skills of the interviewer as well as the candor and forthcomingness of the departing employee. 

In the workers' compensation hearing regarding the benefits, the Employer/Carrier (E/C) presented the testimony of a regional director. She testified that she spoke with "the complaining customer" by telephone and typed the information provided into a form. There was no audio recording of the call, and the director could no longer recall or locate any contact information for the customer. Apparently, there was no place on the form for either this person's contact information or even the customer's name. The director had not been present for the alleged incident in which the derogatory statements were made. The director admitted that she did not interview the co-worker to whom the statements were allegedly made.

At trial, the injured worker denied making the statements that were recounted by the district director on this form. She objected to the admission of the investigation form, claiming that it was hearsay. The trial judge overruled the hearsay objection, concluding that the exit interview form was a business record, and therefore admissible under section 90.803(6)(a); There was also reference to this being an "admission" (90.803(18)) but the Court found that exception inapplicable because the injured worker denied making the derogatory statements. 

The District Court reminded that whether or not to admit evidence is a decision within the discretion of the trial judge. In that regard, the decisions are reviewed by the Court using an "abuse of discretion" standard. The Court reminded, however, that "whether a statement is hearsay is a matter of law." As such, the Court considers that question anew on appeal, what the courts refer to as "de novo review on appeal.” That standard is used on legal questions because the appellate court is as well situated, if not better (the appellate courts consider such questions with more time and with three judges; trial judges must make such calls during the hearing, and often with little or no explanation by the parties), than the trial judge in considering questions of law. 

The Court explained that if the injured worker admitted to the statements, then the admission of the district director's form would not be problematic. However, the worker "adamantly denied making the derogatory comments." The Court also explained that the interview form might itself be admissible as a business record, subject to the "exception to the hearsay rule found in section 90.803(6)(a), Florida Statutes." This document is a business record, and the Court noted it "appears to satisfy this exception."

Thus, in a general sense, the form itself would be admissible over objection. However, the Court reminded, that does not mean that everything in the form is itself admissible. The Court concluded that "the portion of the form setting forth the alleged misconduct" is hearsay. As such, that information about misconduct is “hearsay within hearsay." The Court explained that "hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.” 

Thus, what was generated by the district manager herself, and placed on the form is admissible in evidence to prove the truth of the matter. For example, to prove that the form was completed on a particular date, the director's notation on it of a particular date would be admissible. However, the recitation of hearsay (what someone else told the director) remains hearsay even if it is restated into a form that is a business record. As a side note, if that were not the case almost any hearsay would be admissible; anyone wanting to admit hearsay would merely have it typed into a business record of some form for that purpose. 

The Court noted precedent excluding statements integrated into various business records, including police reports. It reminded that "if the person who prepared the record could not testify in court concerning the recorded information, the information does not become admissible as evidence merely because it has been recorded in the regular course of business.” The Court did not foreclose the potential that other hearsay exceptions might apply in such a situation. 

However, in this instance, the"E/C has not alleged any other hearsay exception that would apply" to those alleged statements. That is merely a reminder that it is up to the parties in a case to raise their issues and make their argument. It is not up to the adjudication process to examine each and every potential argument and then make that argument for the party affected. 

The Court thus reversed the denial of temporary indemnity, which had been based upon that form memorializing the alleged derogatory comments. The effect will be the injured worker having a new trial on the claims for benefits. The benefit for the workers' compensation community is an apt and informative reminder of the perils of hearsay statements, the challenges of arguing evidence admission, and the hearsay within hearsay complication that may affect many written records.