Tuesday, March 31, 2020

You are Essential

What/who is essential? That is a word game that has been getting some attention lately. The reactions to the novel virus in 2020 have come from national, state, and local government. There have been both focused and blanket "closure orders." Each of them has a unifying characteristic among their individualism: each one has exceptions. The most common of the exceptions is the "essential" characteristic. If you or your business is "essential," then that outweighs the risk and you may remain open or working. 

Some examples are clear and fairly simple to understand. Pharmacies are our only source of medication, critical to treatment, thus essential. Grocers are our only source of food, critical to life, thus essential. Doctor's offices are our source of treatment, critical to recovery, thus essential. No one questions the need for fire fighters, police officers, public utilities, and more. There are plenty of easy examples of "essential."

There are easy examples for truck drivers and warehouse workers. Anyone that has shopped for groceries readily understands that without these individuals there would be no product on the shelf to buy. But, WEAR television recently reminded of the broader impact of truck drivers. It describes log truck drivers working "pretty much non-stop” trying to supply the mills that can produce the paper. That is paper to package with as well as paper to use (plates, napkins, and of course the ever-elusive toilet paper). 

But, we may not be effectively scratching the surface. Someone posted on Twitter that several orders did not include insurance adjusters in the "essential" category. This person pointed out that adjusters make decisions regarding payment for treatment, care, and pharmaceuticals. What if a provider calls for authorization and no one answers. Will the care be rendered, the medication be dispensed, without that assurance of payment? There is a very valid argument therefore that insurance professionals are quite "essential." 

I never saw this one coming, but is a liquor store "essential?" According to PennLive, the Governor of Pennsylvania closed all the liquor stores there (state owned/licensed beverage control stores) on March 17. And, the agency spokesperson says the "Liquor Control Board is not considering reopening its Fine Wine & Good Spirits stores at this time." But, others are expressing concern that this societal deprivation could lead to alcohol withdrawal and even death. That article quotes physicians who fear such withdrawal patients might further test medical facilities struggling with COVID-19. Others report that addiction relapse is a heightened risk during the challenging times of this virus.

Last week, WorkCompCentral published Essential Designation Allows Attorneys to Keep Serving Clients During COVID-19 Closures (paid). This focuses on the recent Oklahoma emergency declaration. Some there questioned whether "law firms were considered essential businesses." It took an amendment to that declaration, a day later, to clarify that "legal services and myriad other professions" could continue operating. 

That article is certainly focused on the workers' compensation perspective. The author supports that attorneys have found themselves busy in recent weeks. A summary is provided of states in which attorneys have been deemed "essential" according to various orders: Arizona, California, Colorado, Florida and Illinois. Other state are noted as not specifying law firms, such as New York. 

There is significant detail in some orders. The Alachua County, Florida order (Gainesville) lists the "essential" businesses in 37 paragraphs of categories (lettered (9)(a) through (9)(kk)). Some paragraphs address a discreet category of worker, others are broader. There is much that is "essential." 

An attorney was quoted by WorkCompCentral to the effect that “these cases don’t stop.” The injured worker's "conditions are not put on pause. My clients’ ability to work is not put on pause.” The fact is that in the best of times, a work accident can be a life-altering event for a worker. Though it is not discussed as often, the accident can similarly have profound effects on the employer, and coworkers. When the best of times devolve into a more troubled time, those in the aftermath of a work injury may be more profoundly affected than their neighbors. 

One quoted attorney stressed that cases may end in settlement. That outcome requires negotiation, drafting of documents, processing of payments, and client discussions. He stressed that resolution has positive benefits for both the injured and their employers. Despite attorney offices being open, those tasks and goals may be more difficult without access to payers like adjusters or risk managers, case managers with details and documentation, and more. 

Not least among these are the dedicated team that manages the mediation and adjudication of disputes. There are a mere 165 (approx) judges, mediators, and staff in the Florida OJCC. Despite the challenges they all face, they are stalwart in their roles regarding this process, regarding the employees and employers that depend upon it. In a state of 21.3 million people, this tiny state agency strives to remain on course. 

In the end, it is likely that many involved in the workers' compensation community are in fact "essential." They have diverse roles and responsibilities, but they bring individual and collective contribution to the operation of this community. The what and when that is critical from each may vary from person to person, from situation to situation. But, there are a great many "essential" individuals in the collaboration that is required by litigation and resolution of workers' compensation issues. 

I am grateful for you being engaged and involved. Whether you are in the office as "normal," or adjusting to the telecommuting challenges, you are "essential." You are the strength of this community, and a benefit to the many employers and employees it serves. Thank you for all you do.

Sunday, March 29, 2020

Be Clear on the Merits

These are trying times. There is a great deal of stress in our communities. People are struggling with earning a living, maintaining a business, putting food on the table. Many find themselves suddenly fulfilling the role of teacher. Not as an alternative role, but in addition to their existing responsibilities. The news is full of angst and anger, tempers are short, and yet we must all find a way through this time.

This is a time in which conversation will accomplish much. Litigation is always a last resort for most. It is a time-consuming and often expensive methodology for solving problems. This is one of the reasons that mediation is so successful; it allows people to fashion their own outcomes to disputes. Often, I have heard mediators opine that a good result of mediation means no one is happy, but everyone is in agreement. 

Disputes will continue during this challenging time. Hearings will be scheduled and conducted. Discovery will progress. I was honored to participate in a webinar last week that allowed physicians to discuss how medical examinations might proceed in an Internet environment such as Zoom or Hangout. They offered opinions as to challenges, solutions, and trying. To some extent, our questions for some time may not be about the "best" process, but what process we can do best in this time. 

Returning to communication, the Chair of The Florida Bar Workers' Compensation Section published an outstanding message on professionalism last week. I fully agree with his plea for professionalism, and have republished his post from Facebook. The leadership of the Workers' Compensation Institute has likewise endorsed that message. Professionalism is critical right now. 

One context in which this may be raised is communication. It is critical, in order to receive something, to ask. Mahatma Gandhi is said to have suggested "if you don't ask, you don't get it." There is some of that in workers' compensation. There are requirements that litigants act in good faith. This is part of the Florida law. Section 440.192(4) requires that a petition include a certification that the person filing the petition:
"has made a good faith effort to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the carrier."
What is good faith? Does that mean a dozen un-returned phone call attempts asking for the benefit first? Does that mean one phone call? Perhaps the good faith required depends to some extent on circumstances such as the benefit that is sought, and the overall situation? If a carrier is represented, does that mean correspondence or request to that attorney may be sufficient? Some might say that good faith is a valid and genuine attempt to communicate first, before the Petition is filed.

The communication requirement is also in Rule 60Q6.115. Before a motion is filed, the parties are required to "confer." That means a conversation, not an ultimatum. That means an exchange of ideas. Sending a motion by email and threatening to file it if you do not hear back with some agreement is not a conversation. Lawyers seem to be eschewing the obligation to converse and interact under this rule.

The burden of good faith and communication was well illustrated in an appellate decision regarding change of physicians. There has been significant litigation surrounding the "one time change" of physician in the Florida law. Section 440.13(2)(f), Fla. Stat. (2013). The First District Court explained in Gonzalez v. Quinco Elec., Inc., 171 So.3d 153 (Fla. 1st DCA 2015), that this section:
"allows the E/C only five days to respond to a request for a one-time change of physician, failing which the claimant's requested physician must be considered authorized."
How those days are calculated might therefore decide whether the employee or the carrier actually selects the treating physician to provide medical care in a case. Those are calendar days, so a request on a Friday afternoon might afford a carrier only three days. Such a late-week request in the time of COVID might cause stress and a challenge.

In Gonzalez, the employee's attorney became "of record" in the litigation by filing a petition. Either a petition or a "notice of appearance" will associate an attorney with a particular case under the 60Q Rules. The Court noted that three weeks after filing the petition, the "claimant's counsel also filed a document titled 'Notice of Appearance.'" That, in itself is not inappropriate, though it is redundant. There might be some who would do this in an abundance of caution. Or, with less workers' compensation expertise, in ignorance of the rule that says the petition is also an "appearance." 

But, this particular "notice of appearance" included on the second page, "a request for a one-time change of treating physician." This inclusion was, in part, to take "advantage of . . . (counsel's) belief that adjusters do not always read in full every document they receive." When the Carrier discovered this request, on the sixth day after filing, it authorized a new physician the same day. Litigation ensued, with the attorney asserting the Carrier had lost that right because the statutory requirement is five days. 

The Carrier prevailed at trial. The injured worker sought review by the First District Court. It is likely that the published opinion that resulted was not consistent with the worker's desires or hopes. The Court noted that "this dispute was not the result of inadvertence or ignorance" on the Carrier's part. The dispute was instead "the result of an attorney's intentional act." The Court characterized this procedure of a notice of appearance with a lurking change of physician request as "inappropriate sharp practice and gamesmanship." 

The Court focused us upon "the Oath of Admission to The Florida Bar (which) obligates all Florida attorneys to" use and employ "such means only as are consistent with truth and honor.” The Court reminded that all attorneys are under oath to be true to “fairness, integrity, and civility.” By implication, the opinion suggests perhaps that a lurking request is not honorable, civil, or fair. 

The Court focused upon The Florida Bar Creed of Professionalism, which says that lawyers shall “strictly adhere to the spirit as well as the letter of [the legal] profession's code of ethics." The spirit is critical to the administration of justice. The Creed directs us to "at all times be guided by a fundamental sense of honor, integrity, and fair play.” Thus, perhaps another suggestion the lurking request is not fair. 

The Court cited the Rules Regulating The Florida Bar. These included obligations “to avoid conduct that undermines the integrity of the adjudicative process” and "prohibitions against destruction or concealment of evidence." Furthermore, it mentioned "improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” By implication, perhaps the Court suggests that the lurking request is obstructive and lacks integrity.

The Court reminded that these authorities all militate against inappropriate pleadings and tactics. The Court discouraged "improper 'gotcha' tactics that generate disputes." It noted that such process or abuse "unfairly and needlessly consume public and private resources while delaying the workers' compensation process and making it more expensive." Thus, perhaps a recognition that litigation for the sake of litigation does not exemplify the purpose of our process or the character that a member of the legal profession should exemplify. 

The Court affirmed the trial judge's determination that such tactics did not control in Gonzalez. It said that "the JCC properly determined that the request for one-time change of physician did not constitute effective notice." Thus, the Carrier authorization on the sixth day was timely and effective. This is a rare instance in which the "five days" stated in the statute would not control because the lurking notice to begin that period was not effective. 

This case is a clear example of poor communication. The method or process was interpreted as being intended to deceive or distract. That was not appropriate according to the trial judge, and the appellate court. The real point may be, simply, if you need something then communicate that openly. The more concisely and clearly a need is communicated, the more likely it will be quickly understood and appreciated. This may be of particular import in this time of stress, telecommuting, and staff shortages.

Today we are in an environment that has everyone under significant stress. Attorneys are struggling to maintain practices. Injured workers are finding clinics and facilities closed or operations limited. Families are challenged and routines are disrupted. Now is the time for clear and frank communication. If something is needed, say so. If it will not be provided, say so. Be clear with each other. Be frank. And, focus on the merits of the dispute. This is no time for personal attacks or name-calling. 

Let us strive to communicate effectively with each other. Let us remember that workers' compensation is a community. It was in Florida before any of us came along, and it will be here long after we depart. We are privileged to be a part of it. We owe a duty to the community, and the workers and employers for whom it was created. Let us keep our eye on the overarching "specific intent of the Legislature that workers’ compensation cases shall be decided on their merits." Section 440.105, Fla. Stat. Let's get to the merits, even if that is not the live hearing preference for which we might wish.

The current challenging environment will not last. We will all return to normal soon. We will reminisce on the COVID-19, the social distancing, the telecommuting, and the angst and uncertainty. We will return, and prevail. When we do, I hope we can all also reminisce on how supportive and professional our community was during that time. I hope we can remember that our community has sacred and critical obligations and that we rose to that challenge, despite it being anything but easy.

Let's communicate. Let's all act in good faith, focus on the merits, remember our obligations, and be a part of leading this community to a better day. I believe in you. I commiserate with what you are confronted with, and respect your many challenges (even though you may carry burdens you alone know). I find you all utterly and completely "essential." It is a privilege to be involved in this community, and to know you.

Thursday, March 26, 2020

Remember It's Contagious

These are times of stress. Stress in the Time of COVID begins to address that reality. There is a need in such times to understand stress and the effects it can have on us both physically and mentally. There are lawyers, doctors, therapists, case managers, and more who are struggling with doubts and challenges right now. They worry about the injured workers, their businesses, their employees. It is a challenging time. 

I have spoken with some in our workers' compensation community who worry about whether they can remain open and operational. They worry about how long they can make payroll. One recently described to me the productivity challenges with some employees who are frankly distracted by the onslaught of daily news and information about COVID-19. Some are doing nothing right now but striving to remain current on the latest information. Life can be distracting.

The bottom line is that there is ample stress and challenge for us all. 

A judge in Cleveland appears to have allowed that stress to get the better of her. It is possible, alternatively, that this judge simply lacks decorum or compassion in a general sense and that has merely been illuminated by the current situation. Some people lose their cool and we question if they should be judges

According to Cleveland.com, Municipal Judge Pinkley Carr has been temporarily relieved of some responsibilities pending an investigation. The Ohio Supreme Court is said to be looking into her intemperate behavior on the bench. The present situation stems from the COVID-19 situation, and its impact on the legal community and process in Cleveland. 

The news reports that the chief judge in Cleveland ordered that certain proceedings should be postponed because of COVID-19. That postponement led an assistant public defender to later raise its effects with Judge Carr. The setting was a court hearing in which Judge Carr allegedly issued "several arrest warrants" for some "who did not show up to court hearings." There are those who perceive the judge thereby as ignoring the Chief Judge's order, which was said to be published on the Court's website. 

The appearance is that the public received information from the Internet and the Chief Judge. Whether because of that information or some other reason, some thereafter elected not to appear for court. And, Judge Carr decided to have them arrested for not appearing. In one of those actions. Cleveland.com reports that an appellate court had to instruct Judge Carr to honor the Chief Judge's order. That is what appellate courts are for; they bring broader, decentralized authority to legal questions and correct error. 

When the public defender (PD) questioned Judge Carr's issuance of warrants for those not appearing, and asked if its clients could be advised not to present at the courthouse, Judge Carr allegedly told the PD not to call its clients. She allegedly reiterated that if the clients appeared, she was prepared to address their respective cases. In an interview, she characterized her efforts as a service to those who did show up. That, if true, is commendable. Being on the bench and available in this crisis is virtuous in my opinion and illustrates the true spirit of public service. Issuing arrest warrants for those who follow the Chief Judge's order; well maybe not so much. 

The PD also questioned whether the Judge was concerned with the COVID situation. Judge Carr's alleged response might be seen by some as sarcastic or insensitive (“Hi,” she reportedly said. “For the third time, I will be here. If people show up, I am here.”). But, after the PD departed, the Judge also "mocked" the PD in comments to "courtroom staff," and referred to the PD as "little idiot.”

The Ohio SupremeCourt Chief Justice reportedly "stripped Carr of her authority to hear any criminal and traffic cases" temporarily. The Cleveland.com story says that Court is now considering the merits of "an emergency motion" to "disqualify her from" various cases involving the Public Defender. The Judge is said to be a nine-year veteran of the bench. 

Lawyers were critical of Judge Carr in their remarks. One asserted that her "actions put lives in danger and violated the public trust in a time of global crisis.” The efforts of the Chief Judge were perceived as "protecting those in the court system, . . . and their families.” Another lawyer commented that "the safety of the community" should be "a priority" for the legal profession, including judges. It seems the community did not perceive Judge Carr's efforts in being there as commendable, perhaps because of the actions and attitude.  

There are various video clips included in the news stories. The modern age is one in which video recording has become commonplace. But, in the broader context, the fact is that the public has always been drawn to watching how public servants perform. The parties, lawyers, and witnesses in our workers' compensation proceedings deserve dignity and respect when they appear. This system of dispute resolution actually belongs to them, not to judges or mediators. No one deserves to be publicly mocked or demeaned. 

The responsibility we have is to mediate and adjudicate those disputes efficiently and effectively. That those disputes, and people's lives generally, may be stressful and complex must remain in our consideration. In a time of crisis, our demeanor and patience may be particularly tested. We must remember that those who appear before us are likewise perhaps being tested and challenged. Tempers may be short, patience may be thin, and frustrations may run high. Lawyers owe themselves and each other the same focus on professionalism. They must strive in adversity to avoid ad hominem (personal) attacks. Keep the case about the case, and not about the people in it (parties or litigants). 

Everyone owes it to themselves and others to strive to reduce stress. Name calling has no place among us. Accommodation and cooperation epitomize professionalism. Our ready and persistent goal of professionalism must be our collective practice. When times of crisis occur, it is incumbent upon us all to re-double our efforts in that regard. We owe each other respect and patience, even when times are tough and frustrating. 

These are challenging times. As we strive with stress and uncertainty, let us remember that those around us are likewise perhaps struggling. Without knowing the details of their personal situation (kids, loved ones, jobs, businesses, commitments, etc.), may we all agree to simply assume for the time being that others are struggling? Can we find compassion and concern for each other? If we can, hopefully that professionalism will be contagious. We can tear down or build up; each of us must decide. Be well, stay safe.  

Tuesday, March 24, 2020

Coverage Penalties and the Constitution

Penalties made big news in early 2020. Three articles caught attention in this regard recently: Rules Would Cap Penalties for Lack of Comp Insurance (WorkCompCentral, subscription), Supreme Court Rejects State's Appeal in Excessive Fine Case (WorkCompCentral, subscription), and U.S. Department of Labor Proposes $1,007,717 in Fines Against North Florida Roofing Contractor (WorkersCompensation.com).

The second, involving the Supreme Court of the United States (SCOTUS) rejection of jurisdiction is intriguing. Not because it is a rejection; I can assure you the Supreme Court rejects about 98 percent of cases in which review is sought (about 7,000 filed and at most about 150 accepted). The review in this instance was sought by the State of Colorado. It wanted the SCOTUS to reverse its own state Supreme Court, which ruled last June that the state could not collect a penalty of $841,200 that it had imposed for an employer failing to have workers' compensation insurance. 

The foundation for the Colorado Supreme Court decision was the Eighth Amendment to the U.S. Constitution, which prohibits "excessive fines." Colo. Dep’t of Labor & Emp’t, Div. of Workers’ Comp. v. Dami Hosp., LLC, No. 17SC200. The Court noted that the purpose of the Amendment "is to prevent the government from abusing its power to punish." As such, the law requires that in imposing fines there must be "an assessment of whether the fine is grossly disproportional to the offense for which it is imposed." 

The employer there was a hotel owner. The article quotes Dami Hospitality's attorney. He asserts that the owner of that business "speaks little English and doesn’t understand technical or legal concepts." Though the business is being fined for lacking workers' compensation insurance for an extended period, the business "owner had no idea that its workers’ compensation coverage had lapsed." Some may perceive that as troubling, feeling affronted by such a surprise. Others will perhaps feel that knowing of the coverage and the technical concept of "you must have insurance" should not be beyond a business owner. 

The Colorado Supreme Court took no position in determining whether the fine in this instance was "grossly disproportional." Instead, it reversed the decision endorsing that fine and instructed the lower tribunal (Division of Workers' Compensation) to "develop an evidentiary record sufficient to determine whether the $250–$500 fine" daily was "proportional to the harm or risk of harm caused by each day of noncompliance." It is not necessarily that the fine is too much, then, but that the Court could not decide that on the record that was developed. 

That raises some interesting questions. Is the risk of harm a "best case" or "worst case" scenario? A work accident might result in needing first aid and nothing further, or could be a catastrophic injury requiring near boundless medical intervention and lost income. There have been many injuries across the country in which the claim costs exceeded the $841,200 this business was fined.

Is the analysis a risk of harm to the state's population, or just to the individual employees of Dami Hospitality? Obviously, the risk of harm to an individual employee group might be statistically low. That is, it is possible that a particular employer might have a stellar safety record; or, alternatively, that an employer records many injuries. The same might be said of any particular industry. Is it appropriate to look at injury or risk rates for a particular employer, an industry, or the whole state when assessing "risk of harm?" And, is there any equal protection under the law issue with treating some more specifically? 

This will be interesting to watch. I am certain our workers' compensation community compatriots in Colorado are up to the task. It will be interesting to see what they decide. 

The Oklahoma story, Rules Would Cap Penalties for Lack of Comp Insurance, is seemingly a relaxation of penalties there, at least for first offenses. But, the article raises curiosity in describing that under the proposed rule, the "commission would no longer be able to consider the appropriateness of the penalty or the employer's circumstances." The failure of Colorado to consider just such topics may well lie at the foundation of the Colorado Supreme Court reversal. Some will argue that the Colorado Court is specifically instructing the Colorado Division to engage in such considerations. Does that mean Oklahoma should not eschew that analysis in such instances? Is there solace in that respect from the fact that penalties would be capped at $50,000 and not allowed to reach the significant figure in Dami Hospitality

Finally, there is the story of the U.S. Department of Labor Proposes $1,007,717 in Fines Against North Florida Roofing Contractor. There is nothing in this story that describes how the Department of Labor engaged in an analysis of "proportional risk of harm." It stresses the government's allegations that this employer is engaged in a dangerous field, that falls are a significant risk and preventable, and that the company has been cited repeatedly for "improper fall protection" and other violations. Thus, the analysis of the federal government seems focused on both the field (roofing) and the particular record of this employer. 

The U.S. Department of Labor website, discusses the various forms of violations. It mentions the employer's option of abating the violation. But, there is no apparent discussion of being excused from OSHA fines because of failure to understand the law, knowing that there were violations, or not "understand(ing) technical or legal concepts." Furthermore, there is no mention of reduction of fines based upon some analysis of proportional relationship between the fine and the "harm or risk of harm." It is unclear whether the Occupational Safety and Health Administration (OSHA) processes are constrained similarly to Colorado's. 

In all, the three stories illustrate a few points. First, it may be difficult sometimes to understand what the law requires. That might not be ameliorated by the presence of various national, state, and even local laws that might be interpreted to be inconsistent with each other. Second, that three stories surface within days of each other suggests that penalties are on the mind of regulators and business people in 2020; this may be a topic to watch. 

Finally, with the Colorado decision it is perhaps likely that other state workers' compensation systems may face legal challenges regarding the imposition of penalties for failing to have workers' compensation insurance. Shall they consider the possible harm to that one employee in that one workplace, or is it relevant to think and act on broader basis and consider the impact that uninsured employers may have collectively on a state's workforce? The subject of harm is likely to be increasingly discussed as employers are encouraged by the Colorado court to avoid premium expense and claim ignorance when someone is hurt.

Sunday, March 22, 2020

Shifting Paradigms

The world finds itself in a different place this week. I have been reluctant to join the cacophony regarding COVID-19. The subject permeates the news and our respective consciousness. With each day, we have worries and anxiety. I succumbed to the topic March 15 with mention in Remotely Swearing Witnesses. It is surprising how seemingly few attorneys were aware of the 2019 legislative changes enabling this new process. I followed on March 19 with Stress in the Time of COVID-19. There is ample stress to go around.

People are anxious about the availability of products. Somehow toilet tissue has risen to commodity status. I have heard complaints about reduced store hours, constraints on restaurant availability, the closure of night clubs, and more. I have been amazed that some complain about how COVID-19 is impacting their individual existence, and then moments later will lament that this or that entity or agency is not doing more in response. I think much of that is stress. 

Following the Remotely Swearing Witnesses post, I had an inquiry from an attorney regarding how practitioners might conduct discovery in a "social distancing" world. We did a fair amount of research regarding various platforms that are available in our Internet-focused world and that yielded refreshing news. On Saturday, we published Internet Platforms for Conferencing. Since that post published, I have had the opportunity to use one of the platforms, and it appears these alternatives might well facilitate multiple attorneys, a court reporter, and a witness for deposition.

Many are unfamiliar with these platforms. The potentials they offer for virtual interaction may impact the process of litigation. One of the effects of COVID-19 has been an increased awareness and acceptance of telehealth. I will be participating in a webinar this week discussing these platforms and how they may be implicated in the delivery of healthcare and litigation, specifically in the workers' compensation environment. I plan to write about what I learn later this week. 

The next question, of course, may be whether such a platform might be viable for hearing a case. The OJCC has been working toward that potential for days. Webcams have been procured, and several districts already have them in place. These will facilitate judges utilizing such platforms for hearings at their discretion. It will not "be the same" in the eyes of some. It will not be "as good" in the eyes of some. But, in the time we are living this may be the only alternative that offers a chance for hearing at the present. We are not alone, other states are moving toward such an Internet-hearing paradigm potential.

Some will prefer to accept the other alternative, delay. This COVID-19 is not here to stay. The incredibly imaginative and creative scientific community is intensely focused upon this virus, and I would suggest its days are numbered. Each day brings stories of survival and scientific progress. The virus began in China, and yet more recently that country has provided positive news of progress in a diminishing volume of new cases, according to CNN. Various medications are showing progress. A vaccine is actually already undergoing human trials. This virus will not last. The decision on delay for trials is up to each practitioner and ultimately the assigned judge. 

But for now, we find ourselves in a new reality. What will come next? The news trumpets recent decisions in California, NewYork, Illinois, and New Jersey to require residents to "shelter in place." There have been instances in which municipalities have similarly requested residents to do the same. And, there is conjecture overheard in communities as to "what if" and how such an order might affect you or I in our locality, profession, or lives. What such an order addresses, or how it might impact really depends upon the details of such an order. The devil, they say, is in the details. The "what if" does not move us forward. If such decisions are made, the OJCC will adapt.

Will depositions occur on the Internet? Will hearings be conducted that way? How long will this virus last? What are my chances of getting it? How can I best avoid it? What do I do if I know I have been exposed? Should I go to the hospital? What if there is a "shelter in place" order in my community? The questions abound, and we await the answers. 

If you have been exposed, there is good information from various health organizations: the Center for Disease Control, Department of Labor, Florida Department of Health, and more. A commonality in advice seems to be calling your healthcare provider if you have symptoms. If you do not have a regular physician, then a call to your county health department is likely a good decision. These professionals are best situated to provide advice on how you should proceed with any symptoms. The key seems to be having symptoms. 

Exposure is a reality; the potential exists for any of us to be exposed. It is the minimization of our personal contact, the "social distancing" that best limits the potential for exposure. Some will ignore the plea for social distancing; we have seen that with ignoring requests from government officials. Some are reluctant to follow instructions, and that has led to increasing efforts on our behalf. Night clubs, restaurants, and more are being shuttered or restricted to accomplish this "distancing" that some eschew and reject on a voluntary basis.

How will the virus end? Yes, it will end. There is an interesting opinion piece by a physician published on Fox this morning that is worth reading. It propounds potential outcomes as weather, human action, and science converge on this threat. 

Where will the restrictions end? How will the OJCC operate in coming days? Valid questions. We will continue to strive to answer them as and when we can. It is conjecture to wonder or prognosticate as to "what if." Know that the OJCC team is striving to work through the implications of this virus and its impact on your workers' compensation litigation. When changes occur, if any, I will strive to post them here. And, they will be included in social media.

For now, if you are ill or think you are ill please stay out of our OJCC facilities. If that means filing a motion for continuance or other relief, do so. If you are not able to even file a motion, that can be addressed in days to come. You staying out of our facilities while ill is an act of responsibility and I applaud it. You really should stay home if you are ill, or if you reasonably believe you have had a significant exposure (you know that for more than ten minutes you were within 6 feet of someone who has been confirmed as infected). Stay home. Use your sick leave or other accommodation. Coming to work in such scenario risks infecting others and necessitating cleaning and disinfecting. 

You can follow the @FLJCC on Twitter. And, can see those posts even without joining twitter (instructions here). You can follow the FLCC on Facebook. Announcements and communications are also found on LinkedIn. All of these are monitored during urgent situations and updated as often as practical.

In the end, there are concerns about COVID-19. It is serious, and it is not over. As time passes, it will affect our professional lives. Tune in here for updates. When I know more, you will hear it here and on the various social media platforms at our disposal. For now, "socially distance," wash those hands often, keep your hands away from face (eyes, nose, and mouth particularly), and follow the advice of government officials. As sure as the concerns are inevitable, it is just as sure that this situation will subside. We will get through it.

Thursday, March 19, 2020

Stress in the Time of COVID

Heraclitus is credited with “The Only Thing That Is Constant Is Change." The fact is that we cannot control our world or the people in it. At best, we can moderate our own reactions to it all. We can decide the extent to which, and how, we react as the world swirls around us.

Times are challenging lately. That is affecting some of us, whether we admit it or not. It is up to us to persevere or not. As Judge Smails said in Caddyshack so many years ago . . .
"It's easy to grin When your ship comes in And you've got the stock market beat. But the man worthwhile, Is the man who can smile,"
. . . when things are perhaps not going so well.

There are a multitude of news stories about the Coronavirus (COVID-19). There are school closures, function cancellations, inconveniences, routine changes, and even dire predictions. The world around us is changing, due to forces we really cannot control or even perhaps understand. And, that is causing stress.

The Centers for Disease Control publishes a list of the leading causes of death. The good news is that the Novel Corona Virus (COVID-19) is not on the list. Influenza is on the list, but down at at number 8. What is also not on the list is stress, but the American Institute of Stress reminds us that truly stress can kill. 

In the midst of the COVID-19, as the OJCC strove recently to adapt and adjust to the reality of school and business interruption, I received a frantic communication from an attorney. The message, essentially, was a plea for advice regarding fear of the COVID-19, a desire to postpone a hearing, and a fear of appearing in-person during this time. It ended with a "what do I do?" I was inclined to email back the Rule 60Q6.115(1) language I so often do ("any request for an order or for other relief shall be by motion"). But, I paused.

This attorney already knew that. The issue was not of intellect, but  of emotion. The situation was apparently overwhelming and thus impeding analysis, and the attorney chose to contact me. It was not a time to quote rules, but to facilitate a reduction in stress. When we are stressed, we are seldom at our best. As Judge Smails reminds us above, it is easy to be our best when the skies are clear and the sailing is smooth.

Stress can have physical causes and effects. The human body is an incredible machine that runs on a variety of systems and processes. The manner in which stress may stimulate or suppress those systems' normal function is not entirely clear. But, there is belief that stress has an impact. The effects may include anger, anxiety, weariness, doubt, and more. Demonstrably, there may be physical effects. 

Stress can also influence and interfere in our relationships with others. One commentator warns that self-isolation currently underway for some suspicious of COVID-19 could lead to an increased prevalence of divorce. Some suggest that the impact of stress or change could lead to increased violence; concerns are expressed for spouses, children and even pets. In a humorous social media post, one person suggested that in working from home, he and his spouse have invented an "imaginary co-worker" ("Janice"), upon whom they each blame everything they dislike ("why does Janice keep leaving dirty dishes around the house?"). 

As we deal with the changes around us, it is imperative that we remain conscious of the stress that our lives are undergoing. We, alone, decide how we each deal with the stress of the changes and challenges. I am not a mental health counselor, and thus cannot charge you for this advice, just as I cannot regarding nutrition. But, I will propose a suggestion or two.

I am not a licensed therapist or professional (if you are suffering anxiety, depression, malaise, or otherwise, seek direct help; some resources in that regard are offered free by PsychGuides.com). I can, however, offer some free advice for the coming weeks. I have either found each of these to have value to myself, or have been told of their value by others in whom I trust:

(1) Exercise. No one wants to hear that. We all hate it, except for those super-fit (do they really need it? they are already picture-perfect). But, it is not about how you look (sorry Fernando), it is about how you feel. Getting even a short walk or jog can do wonders for your stress. I know one person that walks in the kitchen to avoid weather and risk. No treadmill, no membership, just walks in circles and thrives on it.

(2) Disconnect. The world around us is persistent in data, information, and noise. Turn it off. You may feel unable to disconnect frequently or completely. But, find a way to do it at least periodically and completely. Put the electronics away and read a book, stare at the sky, lay in the grass, converse with your pet (they never disagree). Revel in the opportunity for a few minutes of peace. If you can find an hour a day for such quiet, even if you do it 5-10 minutes at a time, it may help.

(3) Diet. No, I do not mean calorie counting as in "on a diet." I mean watch and be aware of what you eat. How does what you consume make you feel? It is possible that we may eat not to nourish, but to compensate. We may overeat or under eat due to stress. I find I feel better when I have certain foods regularly. With focus on our habit, we can strive to moderate, and to deny stress this control. 

(4) Unload. Find someone to talk to (obviously your neighborhood bartender is out of the question). Stop a neighbor on the street. Maintain your "social distance," (6 feet), but stop and chat. Get your perceptions and fears out there. There is power in clearing the air.

(5) Quiet time. There is power in mediation and idle time. Sit somewhere quiet and "focus your attention" to "eliminate the stream of jumbled thoughts that may be crowding your mind." That is what the Mayo Clinic says. 

(6) Sleep. I know, this one is a bit hypocritical for me. But sleep and rest are your friends. This is when your body recharges and replenishes. Try to get to bed at the same time nightly. Try to clear your mind with some interesting reading right before. More tips are offered by PsychCentral.com. A good night's sleep is a very powerful tool in your defense against this situation. 

This is not an exhaustive list. And, there are others out there far better trained to provide advice and guidance. The Florida Bar and Florida Lawyers Assistance have published a web page full of information and resources for working through this time. It includes anxiety, stress, coping, and more. There are also good resources in publication from authorities like the Mayo Clinic. The "how" is up to each of us, with our own personal traits and needs in mind. But the "if" and "when" are important; we all need to minimize the stress and its effects.  Will you look out for you? If you will, then "when?"

The fact is: Yes, Heraclitus there is a lot of change. There is ample stress and uncertainty. But, in the end, everything will be alright. The world will recover. The day-to-day to which we are accustomed will resume. We will persevere and return. And, you can always look forward to telling your grand kids you survived the great Corona Virus of 2020 (start now documenting the feelings and updates in your diary to share in 30 years).  Start a Twitter feed, blog, or Instagram story to document your experience, thoughts, or feelings. If you need someone to talk to, email me david.langham@doah.state.fl.us (if it is about a case, make sure to copy the other parties). 

Good luck and be well. This too shall pass. 


Tuesday, March 17, 2020

Reminders on Prejudice

The Florida First District Court recently granted rehearing and provided an explanation of its decision to affirm a Judge of Compensation Claims in 2K South Beach Hotel, LLC v. Mustelier, No. 1D19-0713. The Court had originally decided the case on October 15, 2019 in a Per Curium Affirmed order. Those ("PCA") orders essentially inform the parties that the trial judge's decision stands and the appeal is denied. But, those orders do not explain why. 

There are a fair number of lawyers that find PCA orders frustrating. They have invested in the appeal, written a brief they think is eloquent and persuasive, then they lose the appeal and do not know why. A lawyer that obtains that outcome can ask the court to expound, by filing for rehearing. I have known several attorneys over the years that did just that. It is somewhat rare for a court to grant such a motion and provide explanation. However, the Court did so here in a January 15, 2020 decision. 

The injured worker in this case was seeking various medical benefits for "complex regional pain syndrome (CRPS) after a right shoulder injury on September 8, 2013." A final hearing was set, and a pretrial stipulation was submitted in preparation for that hearing. Pretrial stipulations or hearings are an opportunity for the parties to clarify or narrow their claims and defenses, to identify witnesses and documents that will be relied upon, and to generally make sure both (all) sides are informed as to what to expect. The use of these pretrial processes is really fundamental to about due process.

In this case, after that process had occurred, "at 5:11 a.m. on the morning of the final hearing, the E/C moved to admit the surveillance (evidence) or alternatively to continue the final hearing." The final hearing appears to have been set for 9:30 a.m.  Shortly after that filing the E/C also filed a motion "to amend the pretrial stipulation (to add a misrepresentation defense and to “clarify” their witness and exhibit lists to include the surveillance evidence)," and again to "continue the final hearing." About an hour before trial, "at 8:25 a.m., they filed the surveillance report." It was delivered to the Claimant when the parties arrived at the Judge's office for trial. 

The trial judge concluded that the late notice regarding the change in defenses and the addition of evidence was prejudicial. The judge also concluded that the E/C had not demonstrated "good cause for the E/C’s delay." After trial, the Judge awarded claimant the benefits. The Court, in affirming the Judge's decision to deny the E/C motions, noted that the correct analysis in such late disclosure of evidence is whether the other party (claimant) "was prejudiced by surprise and that the prejudice was incurable." 

The Court reminded also that whether to allow an amendment to the pretrial is within the discretion of the trial judge. The Court will not reverse such a decision absent an "abuse of discretion." The Court clarified that the amendment in this instance "was not a mere 'clarification' of the witness list." The "pretrial stipulation listed only 'Surveillance rep, if any,'" which the Court noted was "in contravention of the instructions" that said parties should list the "full names of all witnesses.” A valid "clarification" amendment might have been appropriate, and an amendment that did not result in prejudice might likewise have been permitted. But, that was not the case. 

Further, the Court noted that "the lateness of the motion to add a misrepresentation defense was not excusable." From the Court's perspective, the "lateness was caused entirely by the timing of this particular surveillance." And, the purpose of the surveillance, "to determine whether Claimant was using a cane," was not pertinent to the misrepresentation defense "because it does not contradict Claimant’s testimony that she was not using a cane." The focus of this analysis seems very focused on the timing of the motion and the surveillance itself. 

In explaining the possibility of a witness being called for "rebuttal or impeachment," the Court explained that such evidence must be expected to contradict some other evidence. In this instance, it concluded that the surveillance would not have done so. The opinion is instructive on these points and on the subject of cumulative evidence, as regarded a referral for medical care made by one of the physicians involved in the case. It is a reminder of the challenges involved in development, documentation, and disclosure of evidence in litigation. In the end, litigation can be stressful and complicated. Those who are good at it plan, construct, and periodically review their progress. 

2k South Beach will perhaps be a reminder to all litigators that disclosures in the dark of night (or morning) are potentially problematic. A 5:00 a.m. motion to admit evidence might be appropriate in some circumstances. But, some will wonder why such a motion was not accompanied by the surveillance evidence itself. Certainly, video might be memory-intense and difficult to email. But, handing such surveillance to counsel literally minutes before trial might seem obviously short-notice to some also. The lessons of 2K South Beach seem to be more advanced focus on the litigation plan. 

By the time of the pretrial, counsel should know and disclose the evidence. Anything thereafter obtained or disclosed has the potential for such issues of exclusion or inappropriate prejudice. Litigators should remain cognizant of that in both constructing and periodically evaluating that litigation plan. 

Sunday, March 15, 2020

Remotely Swearing Witnesses

Is it a challenge to swear a remote witness in the current challenge we face?

A new reality is upon us with the threat of COVID-19. In an unprecedented quarantine effort, the government is striving to encourage us to limit our movement, interactions, and potential exposures to this novel infection threat. For several weeks, I have been reminding judges and mediators of the potential for telephonic attendance and appearance in our proceedings. More recently, I have been encouraging OJCC customers to remember the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications. A brief post on those was published about a week ago

On March 14, 2020, the OJCC moved to mandatory telephonic appearance for the next two weeks. That action is parallel to the unprecedented decision in that regard by the Florida Courts on Friday. Travel presents risks, it always has. There is a preference for in-person appearance at both mediation and hearings. That preference has arguments for and against, and the paradigm has long been defaults each way (in person and telephonic) with discretion for changes in the mediator her or himself. We expect to return to that paradigm following this viral situation. 

One of the issues that has arisen, relative to telephonic hearings, is the swearing of witnesses. This comes to us in two forms. First, a witness may need to be sworn for hearing, but is not in the presences of the judge. Second, as some telecommute from home and others are limiting their exposure to people, there will be some need in depositions for a witness to be sworn. As a practical matter, some may be unwilling for a court reporter or notary to enter their home or even office at this time. Thus, swearing the witness may be a challenge.

For the hearing, there is a simple solution. The Rules empower the judge to conduct proceedings by telephone, and to administer the oath of a witness over the telephone. 60Q6.116(4). There are those who raise concerns about the identity of the witness being verified, credibility of witnesses being evaluated, and those are certainly worthy of consideration and evaluation in any case. 

As to the identity of the witness, it may be of particular concern in the unrepresented settlement situation. A worker may have striven with an adjuster or risk manager to settle a case, The section 440.20(11)(a) or (b) "joint petition" is submitted for review. There is a need for a hearing through which the assigned judge can reach factual findings regarding that settlement. It is common for the assigned judge to require that the worker either present in the district office or in the presence of a notary to be sworn. This is a method to verify that the person delivering the testimony is in fact the injured worker in that particular case. 

This is not an instance in which the judge cannot administer the oath telephonically, but merely an instance in which some are reluctant to do so. That is certainly within the discretion of the assigned judge, but in the time of COVID-19 it may present logistical challenges for some. 

As to the deposition, the challenge seems more onerous to some. I have had contact from attorneys who accuse others of "not playing nice." They assert that some attorneys are perceived as seeking procedural advantage in the current situation. They accuse attorneys of making telephonic deposition appearance from home challenging by asserting a court reporter or notary must present at the witness' home for the swearing. 

First, the real solution this is a stipulation and good faith. If there is no real issue of a witness' identity, the parties are free to enter a stipulation to the administration of an oath over the telephone. Citrus World, Inc. v. Mullins, 704 So. 2d 128 (Fla. 1 DCA 1997). Of course, stipulations may be avoided in certain settings. See Jacobs v. Volker Stevin Constr., 609 So.2d 132, 133 (Fla. 1st DCA 1992); Gus Stephens Drywall v. Durr, 569 So.2d 844, 845 (Fla. 1st DCA 1990).

Second, however, the problem presented by this telecommuting or isolated witness was solved by The Florida Legislature in the 2019 session, Its solution is equally valid for both the remote/isolated deposition witness and the unrepresented settlement situations. The legislative proposal was House Bill 409, which is discussed in last June's Electronic Legal Documents. The bill altered the authority of notaries in Florida, amending Chapter 117. 

A Notary Public may administer oaths in Florida. That has not changed. See section 117.03. What changed in 2019 is the addition of a second section to Chapter 117. Section 117.05 defines the necessity of verification of a witness' identity, and even includes a list of documents upon which the notary may rely in such verification. See section 117.05(5)(b)2. This section now specifically contemplates and provides "In the case of an online notarization." Yes, notarization can be accomplished over the internet, as well as the "in person" to which we are all historically acquainted. Some notaries are already qualified and set-up to perform this function. 

Part II of Chapter 117 was added in 2019. It is titled "Online Notarizations." This means that to “Appear before,” “before,” or “in the presence of” a notary now includes "Outside of the physical presence of another person, but able to see, hear, and communicate with the person by means of audio-video communication technology." Section 117.201(1)(b). Thus, the identity of a remote witness can be verified by a licensed online notary through an examination via webcam of identification documents, just as those documents could be examined by the notary (or certainly the presiding judge) in person. The paradigm of personal presence remains, but the new Part II adds a new alternative. 

For clarity, 
"If a notarial act requires a principal to appear before or in the presence of the online notary public, the principal may appear before the online notary public by means of audio-video communication technology that meets the requirements of this part and any rules adopted by the Department of State pursuant to s. 117.295." Section 117.209(2).
Thus, there is no reason that a witness must have another person visit their office or home. Any witness can be validly sworn by a notary with the aid of a webcam and the Internet. Will there be expense associated with that effort, likely so. If there is some reason to require such formality and effort, then parties should know of and engage this process. I return, however, to the better process of stipulation when there is not a good faith reason for requiring proof of a witnesses' identity or the administration of oath in this manner. In most cases, it will be more appropriate for the professionals to stipulate to a court reporter administering the witness' oath telephonically. 

These are challenging times. People are in quarantine, they are stressed, and stressors may accumulate. This last week, the Florida Commissioner of Education has mandated the closure of schools for a week (in addition to the impending spring break for which many were already prepared). Parents are suddenly and unexpectedly providing child care. There are those in our community who are providing care, or merely looking in on and shopping for, older family members at risk of infection. The fact is, none of us truly knows the challenges that others in our community may face. 

Now is not the time for procedural advantage or gamesmanship. Today is the day of professionalism and cooperation. If there is a genuine dispute regarding identity, solve it with remote notarization or swearing as the law allows. If there is no genuine dispute, enter a stipulation and get to the merits of the matter. In the course of our disagreements, let us remain true to our collective goal of not being disagreeable. Remember, we must be accommodating, for one day we might ourselves need accommodation. 

I am persistently impressed by the professionalism of practitioners in Florida. I am convinced that this state, and our workers' compensation community specifically, is blessed with some of the very best attorneys anywhere. Their intellect, imagination, and expertise are boundless. In this time of challenge and stress, they will rise to the call and persevere in zealously representing their clients. They will, however, cooperate with each other, accommodate each other, and this community will come through the threat. I know that because I have seen them. I know of their professionalism and collegiality. I trust in it, revel in it, and am thankful for it.

Thursday, March 12, 2020

It is Laude Nomination Time 2020

It is that time of year again. The nominations for Comp Laude awards closes April 6, 2020 at 5:00 (likely Pacific Time, but let's not take chances). I was highly honored to be nominated for the awards once upon a time. And, I have been honored to present twice on the educational program that accompanies it. A third presentation opportunity was foreclosed by Hurricane Michael's near simultaneous landfall more recently. 

The Laude event and recognition are about celebrating what is good in the workers' compensation community. Who is changing the conversation about this community? There are a multitude of people striving to make a difference for the employees and employers that depend upon the various workers' compensation programs across the country. There are some negative folks out there to, The Eoyores Walk Among us sometimes. That post also contains links to various posts I have authored focusing upon the Laude program (full disclosure, I am a fan). 

By my calculation, there have been 87 Comp Laude awards presented since the program began in 2014. That means that in 2020 it is likely the 100th will be recognized! Recipients have included insurance professionals (6), employers (5), judges (3), applicant/claimant attorneys (5), defense attorneys (6), physicians (6),  a physical therapist (1), a pharmacist (1), a medical facility (1), a nurse case manager (1), industry leaders (7), seminar presenters (5), philanthropists (4), service providers (6), injured workers (17), and more. The overall awards, the David DePaolo Summa Comp Laude (6) and the Magna Comp Laude (6) are a little harder to categorize regarding the honorees. 

There, over the course of 6 years, is the illustration of David DePaolo's vision of recognizing what is good in the workers' compensation community. David was a visionary who walked with us in this community. He lamented the way our efforts are often derided, and sought to build this community through recognition of our successes. There are stories of dedication and perseverance. There are stories of contribution and commitment. There are stories of adversity and pain. The nominees celebrate who and what we are. The Comp Laude is an effort that I have been proud to participate in, and to write about periodically. 

I am proud that on the list of honorees there are 11 that I nominated. But, I am more proud that in 2017 I nominated at least one. In 2018, I nominated fourteen. In 2019, I nominated thirty-two. That is at least 47 nominations total. The nomination process requires very little time. You will need your nominee's name, job title, company, email address, and phone number. You will need to explain why the nominee is worthy of recognition (a short paragraph - speak from your heart). And, it is all automated for your convenience. What greater compliment can you pay someone than making a nomination?

So far in 2020, there had been 79 nominations as of March 10, 2020. 

In 2020, I submitted 23 nominations, bringing my career total to at least 70. That brings the total so far in 2020 to 102. That may seem like a great many, but literally hundreds of nominations have been submitted over the years. The website does not list them for 2014 through 2016, but in 2017 there were 175 nominations by my count; in 2018 there were 159; and, in 2019 there were 169. From an entire national community of workers' compensation, that is just not a very high volume of nominations. I am confident that there are many worthy individuals and organizations whose efforts, spirit, and impact are being overlooked. 

My little effort of 23 nominations added almost 30% to the 2020 total. But, your nomination of even one will have a significant impact. I am nominating some whom I know, and some I have merely noticed. I am nominating those who are professional, capable, dependable, and outgoing. I am nominating attorneys, claims professionals, doctors, philanthropies, and more. Each of them is impacting the world of workers' compensation through dedication, focus, and leadership. 

In this vast community of workers' compensation, it is certain that you know one person worthy of nomination. Take the time today to submit one nomination for recognition by the Comp Laude. Recognize one person in your community that you think is changing the conversation about workers' compensation through their efforts, imagination, and commitment. Being nominated is a major compliment. I was more flattered by my nomination than I can adequately voice. Is there no one that you have noticed? Do you really not have 5 minutes to make their day? Make a nomination today. The clock is ticking.