Tuesday, September 29, 2020

We Must do better with Pleading and Proof

A recent post regarding an August decision by the Florida first District Court of Appeal resonated (The Burden, the Law and Uncontroverted). I have heard from several in the community regarding perceptions of an unexpected juxtaposition in the practice of law during COVID-19.  

Apparently, a great many attorneys in our Worker’s Compensation community have taken professionalism to a whole new level in the age of COVID-19. It is heartwarming to hear the stories of mutual support, amiable agreement, and expeditious communication. While I am fearful that these best efforts and exemplary anecdotal experiences may not be unanimous, I am thoroughly impressed to hear the examples noted from various quarters.

Lawyers are finding a way to make the practice of law function. They are speaking with each other before filing motions. They are assisting each other with calendar complications, and they are striving to be efficient and effective in a Zoom-based world. But it’s not all roses today. There are other practice issues that bear discussion and highlight.

Several years ago I wrote a blog post about bringing evidence (If you are not Perry Mason, bring Evidence, May 2013). The point of that post is that you may in fact prevail with your Perry Mason skill set, merely by eroding the ground from beneath your opponents argument and case. It is possible to win without evidence, we saw Perry do it week after week and I have seen lawyers do it in real trials. That said, it is not the way to bet. Lawyers need to bring evidence, and to support it with argument. That is the epitome of the lawyers function.

Too often, judges are perceiving lawyers as having neglected to examine the statutory elements for a particular claim. You see, we need to remember that what is and is not workers compensation is defined by Florida statutes. Workers compensation is not a matter of common law, but a statutory abrogation of common law. What an injured worker may be entitled to, what she/he must prove, what defenses might be mounted, this is all in the statute.

Despite this, for some reason practitioners are struggling with laying out the elements that must be addressed to prove her/his case. Critical elements of evidence have been found lacking. Occasionally, to their professional credit, some have witnessed examples of opposing counsel providing polite reminders of such deficiency or omission. Such devotion to the principle of a decision on the merits is laudable, but cannot be expected. 

Each lawyer must strive to know her/his case's elements, provide the evidence thereon, and explain that relationship in argument. A lawyer needs to list those elements and be sure to address each with evidence. How many witnesses to call, how many questions to ask, how many documents to put in evidences; these are all matters of strategy and the art of persuasion. But, it will be rare that the perfect volume of evidence will be "none." Whether supporting a claim or defense, there must be "some" evidence in order to prevail.  

There is also a growing perception among lawyers and judges alike, regarding incomprehensible pleadings. It might surprise some to know that this blog is usually dictated rather than typed. Although I am a reasonably efficient typist, I grew up in the age of dictation and have struggled to forgo that habit. But, gone are the transcribers of yesteryear. Today, transcription is done by software as we speak. It is efficient, effective, and makes a lot of errors and mistakes. 

Knowing that, I personally proofread every blog post, order, notice, and letter that leaves my office. Despite that effort, I often find errors in those documents months and years later. That I make them is embarrassing, that I miss them in the proofing process is embarrassing, but after all I am human also. And, though the mistakes chagrin, they tend to be misplaced commas or awkward phrases. They are errors, but they are isolated mistakes that have survived a thorough review. 

Admittedly, we will each make mistakes. We all know this is a stressful time in the age of COVID. We are all under a great deal of stress and strain. We need to strive not to be too self-critical. But, the volume of mistakes, and incomprehensible documents has become a pandemic itself. It appears that documents are being dictated, but not proofread. Some of them are distracting and some are simply incomprehensible.

Some of these examples are quite simple. For one, it is important that you use each element of English, including objects and articles (like "the"). One judge related recently having to read an entire document which was missing many of these important directory words, which provide clarity and comprehension. Similarly, you must use punctuation. The absence of punctuation may be attributable to the dictation software. When dictating, to insert a comma, you must literally say that word “comma.“ Dictation software has come light years in the span of my professional experience, but it remains imperfect, literal, and sometimes frustrating.

Another example is hyperbole; it may not be your friend. Certainly, there is a need for an advocate to push the issue over the line. Litigation, like a race, it’s not over until the finish line is crossed. I am therefore not suggesting that advocacy be less vigorous. However, if the evidence is not uncontroverted the advocate gains nothing by misrepresenting that it is. And furthermore, the advocate has everything to lose in terms of credibility. 

Tell the story, highlight the facts, put your best foot forward, and then rest. Do not over state and exaggerate. Obviously litigation is a skill that requires practice. Everyone’s advocacy, organization, and skills are being tested in the Zoom world in which we live. But, focus on the basics. Perhaps ask a member of your staff to sit in on the Zoom hearing and check mark off the items that you have intended as they are put in evidence? Perhaps ask them to similarly check mark as each point is clarified in argument? Perhaps with the distraction of an impersonal, remote, technology-based proceedings it pays to have someone backing you up in that manner?

This is not to suggest that we become too self-critical in  an already stressful time. I make dozens of mistakes every week. I am as imperfect as any human being on this planet. I refuse to let that get me down, or to distract me from delivering my best effort in each instance. I accept that I will fail. You will fail also. Do not be defined by that. Decide instead to step up to your failures, and own the errors. 

Judges are interested in your explanation. Judges are obligated to make determinations of competing arguments, struggles, and dispute. But your potential to prevail is enhanced when you own the error, tell it like it is, and ask for accommodation. Admitting you have made an error or omission may be more likely to get that continuance than some constrained and contorted story contrived to cover the error. 

It is entirely probable that many of the errors that are occurring, the drafting that is not being proofread, results from the fact many are telecommuting. What used to be interpersonal office exchanges of information and feedback have become for many weekly Zoom meetings, telephone conferences, emails, and texts. Obviously it is easy to recognize that this social separation will be a challenge for us all initially. 

But, if you are to prevail in your legal practice, you must overcome these challenges. You must get the elemental evidentiary foundations in evidence. You must make sure your pleadings are coherent, cogent, and complete. You must make sure that the digital divide does not become a destructive distraction from the goal of this litigation (to demonstrate your point with competent evidence on each statutory element, which you explain in argument). 

You must admit to yourself that everyone is challenged, none of us is perfect, but each of us can grow. Through change in process, or pace, or focus, we all have to do better with our commitment to those critical statutory elements and effective written communication. If you fail to prove each element required, you are unlikely to prevail. If you fail to communicate effectively, you are unlikely to prevail. The point of legal practice is to prevail for your client. We have to commit to grow and do better. 

Sunday, September 27, 2020

Florida COVID-19 Litigation September Update

The latest trends in COVID-19 litigated claims in Florida are below. This data reflects Petitions for Benefits filed in Florida through September 22, 2020. This reflects that far fewer workers are filing petitions regarding COVID than are submitting notices of injury. This data is best considered in conjunction with the data published by the Florida Division of Workers' Compensation, and some comparisons are drawn. 

COVID-19 continues to dominate our news, both generally and in the world of workers' compensation. This is the 35th blog post I have written that has some relationship to this pandemic, in roughly six months. There is a periodically updated list of all of those in the announcement blog, and the list is repeated at the end of this post. 

In a more general news sense, Florida moved to Phase Three of re-opening with an announcement September 25, 2020. According to News4JAX that means that "all statewide restrictions on bars and restaurants will be removed" effective immediately. Furthermore, There is "a suspension of collecting fines or fees for restrictions like not wearing a mask." That does not mean business as usual, as any private establishment is allowed to "still operate with any self-imposed restrictions under the order."

This is not the only change in either our environment or policy. For example, WalMart is "scrapping one-way aisle" restrictions, which had generated some criticism in the past. Publix had similarly done away with the practice recently. Various retailers had also limited the volume of customers allowed in stores, with associates stationed at some designated specific entrance and exit to keep count. The "one way" in and out with doors so designated had also been in vogue. Recently, these efforts seem to be abating. 

The Florida Division of Workers' Compensation has done an exemplary job of isolating data regarding the filing of notices of injury for "lost time" claims related to COVID-19. The statistics it provides have been published now in four reports available on the Division website (https://www.myfloridacfo.com/division/wc/), under the "reports" tab. 

Thus, as we have seen since February, COVID-19 actions are evolutionary. There are concerns and fears, and both business and government have striven to adjust to the threat with cleaning, constraining, and re-directing. The fears are shared by customers, businesses, and their employees. And, it is those employees who are submitting notices of injury regarding workers' compensation and COVID, as detailed in the four Division reports. 

To summarize the September Division report, 17,653 employees have reported a "lost time" (meaning work was missed as a result) COVID-19 claims to the Division. Of the approximate 21.5 million Floridians, this is about .082% (less than one-tenth of one percent). More than half (56%) of those 17,653 claims have been accepted as compensable, and more than half (10,720) have already been closed. Of course, overall, only 3% (698,692/21,477,737) of Floridians have tested positive for COVID-19 since it was first detected. Many of those likely never noticed symptoms. Many of those are likely back to their normal activities, having since "recovered."

The Division's figures support that most (96%) of those claims have a total individual cost less than $5,000 each. However, there have been financially significant claims reported. A very small portion (<.10% - less than one-tenth of one percent) of the claims are associated with a notable portion (16%) of the total expenditures for COVID-19 workers' compensation claims. 

This leads to the discussion of litigation of workers' compensation claims. The 44% of reported claims "denied" in whole or part equals 7,760 (7,728 "total" denial and 32 "partial" denials), according to the Division's figures. When an injured worker in Florida reports or claims an injury and the compensability is denied by the employer, the path forward is through filing a petition for benefits seeking to prove the compensability of the complaint(s). In fiscal year 2019-20 the Florida OJCC system had 72,086 petitions filed. 

As of September 22, 2020 the Florida OJCC can identify approximately 150 total petitions for benefits filed that mention the term "COVID." Some employees have filed more than one petition, thus 121 total employees have been found with such petitions. Thus, three-tenths of one percent (.036%) of Floridians have had a COVID-19 claim denied. About one and one half percent (1.56%) of those have filed a petition for benefits (presuming that all petitions mentioning "COVID" are for that malady as opposed to orthopedic or other issues complicated by COVID, such as medical access, etc.) 

Those filing claims have been categorized by the Division: Airline, Health Care, Office Worker, Protective Services (including first-responders), and Service Industry. The following chart illustrates the share each of these occupational descriptions in the number of "claims" reported to the division, and the "cases" filed with the OJCC. This is an interesting comparison, but has no real relevance in the discussion of COVID, or its effects. 

For such figures to be of any assistance, one would have to consider the rates of denial by such category (in other words, what percentage of airline worker claims are denied, and included in that 7,760). If some segment's denial rate were known, then the rate of petition filing for that segment might become relevant when compared with others. 

The litigation volume conclusions are clear: (1) a small percentage of Floridians have tested positive for this virus (SARS-CoV-2); (2) the recovery rate has been significant; (3) there have been compensable claims from COVID-19 (the disease process resulting from the SARS-CoV-2 virus); (4) the vast majority of COVID-19 claims denied have not led to instigation of litigation as yet; (5) COVID-19/SARS-CoV-2 has not had a significant impact on the rate of litigation in Florida workers' compensation. 

As the state evolves into the next "new normal" for COVID, with the implementation of Phase Three, time will tell whether the rate of diagnosis changes. As businesses adjust their constraints and requirements on customers and employees, time will tell whether the rate of workers' compensation claims changes. And, finally, time will tell if the denial decisions regarding COVID-19 lead more employees to file petitions seeking judicial determination of the compensability of an occupational disease, an admittedly challenging undertaking

On September 29, 2020 I will participate in two panel discussions regarding COVID-19. RIMS will present The Expanding Use of Presumption in Workers Compensation: Grand Bargain at Risk? (with Twane Duckworth, Max Koonce, and Christopher Mandel), at 1:00 Eastern. WorkCompCentral will present The COVID-19 Effect, A Florida Update (With Rafael Gonzalez, Matthew Landon, and Ya'Sheaka Williams) at 3:00 Eastern. Registration for each is free, and the links above lead to registration pages. These are both excellent opportunities to better appreciate COVID impacts, and the legal processes that are evolving to meet those challenges.

Blog posts re COVID-19:

Thursday, September 24, 2020

The Burden, The Law, and Uncontroverted

An unheralded recent decision of the Florida First District Court was rendered in August 2020: Guerlande v. Delray Beach Fairfield Inn and Suites, Case No. 1D19-2104 (August 19, 2020). The decision was noted in the news, with the import being certain benefits were denied by the trial judge and the Court had upheld that outcome. This is interesting case beyond the denial of benefits for a "12 day period," but that point is worth revisiting also. 

That "12 day period" is a reminder of the manner in which Florida workers' compensation benefit entitlement is often dependent upon the opinions of medical experts. When an accident results in an inability to work, disability may be "total." When, instead, the result is activity level or duration constraints, the disability may be "partial," and either category may be so on either a "temporary" or "permanent" basis. It is the medical expert that renders opinions as to both ability and duration. 

In Guerlande, the employee was treated the day after the work accident and "placed on work restrictions." About 6 weeks later she returned to the physician, who "recommended (a proposed) injection." At that appointment, "no work restrictions" were imposed and Guerlande was "free to report back" to the doctor "if her conditions worsened." She in fact returned 12 days later, "elected to get the injection," and "she was again placed on work restrictions." Thus a 12 day period was created for which there was no medical excuse from work (temporary total) or work restrictions (temporary partial).

The injured worker filed a petition for benefits and did not prevail. The trial judge concluded "that Guerlande failed to satisfy her burden to show that work restrictions for those 12 days either had, in fact, been imposed or, if not, would have been medically justified." The physician, instead, had "released her to full duty during the 12-day period." On appeal, the Court noted that "the JCC’s findings are fully supported by the record."

Thus far, the decision is therefore merely a reminder that physician's opinions are critical to the determination of benefit entitlement.

The decision has two nuances that provide critical reminders for counsel however. The Court noted the injured worker's attorney argued "that the 'uncontroverted facts' support her view." That is a strong statement in the realm of appellate challenge. The applicable standard by which an appellate court views facts is called "competent substantial evidence." The question for the court in this analysis is whether there is such evidence to support a trial judge's finding of fact. I explain this to my students as follows: 
"100 people witness an event. 99 of them testify the traffic signal was red and one testifies it was green. If the judge or jury concludes the light was green, the testimony of that one witness is competent substantial evidence."
The point for the appellate court is not that there were more witnesses that contradicted the finding. The point is whether any competent evidence supports the conclusion that was reached. Thus, since the Court's analysis is whether there is such competent evidence, a statement that any evidence is "uncontroverted" is in fact an assertion that no evidence supports an opposite conclusion. When representing to  a court that something is "uncontroverted," one should be sure that is true. 

The Court noted the contention in Guerlande "that the 'uncontroverted facts' support her view," as noted above, but corrected the assertion saying: "that is not accurate because the facts were disputed and resolved against her." That some party believes one fact or version of facts, does not make them "uncontroverted." That one version is supported by 99% of the evidence (in a party's view) does not make them "uncontroverted." 

There are often disputes between evidence, and determining which of those competing facts is accurate is the role of the finder of fact (in workers' compensation the trial judge, but in some proceedings the jury). Parties to a case should be reticent about making characterizations that are not true. Certainly, some speak in hyperbole and seek to make their best case. But, representing something to be "uncontroverted" when there is contrary evidence is perhaps not the best strategy and may even erode credibility.

The second reminder for which Guerlande is apropos of the burden that faces an injured worker seeking benefits. Statute section 440.09(1), Fla. Stat. (2018) requires “[D]isability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings . . . ,” as the Court noted. It also acknowledged that the injured worker denied being able to work, and stated as much to two physicians. However, "they (the physicians) were each unconvinced, which was their prerogative. See § 440.09(1), Fla. Stat. (2018)." 

This is important from either perspective, worker or defense, An employee or employer may have beliefs about whether an injury impairs the ability to work (ability level or duration), but the opinion that matters on that question is the medical opinion(s) and the "objective relevant medical findings" that support whatever that conclusion/opinion is. This last requirement has not always been part of the Florida workers' compensations statute, and that is the third nuance worth reminding. 

The Court noted that the "objective medical findings," requirement was added to the statute in 1994. Thus, it was that statute section that applied to the benefit entitlement in this case because the date of accident was after that law was enacted. The Court conceded that there are decisions regarding cases occurring prior to that change that suggest a different outcome. But, those decisions interpreting a different statute version do not control the outcome of this case and the the interpretation of this statute. 

The law of workers' compensation is thus significantly nuanced. There are many appellate decisions and trial decisions that interpret the statute. However, parties and attorneys must remain focused on what version of the statute a particular decision addresses. For this reason, it is also of significant importance for judicial decisions to include reference to the specific date of accident that is being litigated (or for statutory citations in such decisions to specify the year of the statute considered or relied upon). 

In the end, the primary reminders of Guerlande are (1) know the specific statute that controls a question, and address the elements of that particular statute in both evidence and argument; (2) medical testimony is critical on certain specific elements of proof, know when and obtain/present it; (3) hyperbole may not serve to move an issue forward, and should be carefully employed if at all; and, (4) even when evidence is contradicted, the trial judge or jury will decide which version is accepted, and the existence of that competent, substantial evidence may be the end of an appellate analysis. 

Tuesday, September 22, 2020

Mental Health News

Not breaking news, but COVID-19 is impacting us all.

Everyone is familiar with various intrusions of COVID-19/Sars-CoV-2. There are mask requirements, restaurant closures, videoconferences, social distancing, and more. Most recently, the news has been replete with debate regarding the mental effects of the Coronavirus shift to remote learning; there are concerns about students. Publications such as NBC, USAToday, the British Broadcasting Corporation (BBC), and National Public Radio (NPR) have discussed the challenges. 

An email I recently received is intriguing. Having just survived Hurricane Sally, a colleague said "Hope everyone is getting back to - I was going to say normal - but things were anything but normal before the hurricane!" It is a reminder, perhaps, of how we have become accustomed to the challenges that are COVID-19, a reminder of how we have each personally adapted and adjusted in 2020?. 

Last March, when this Sars-CoV-2 was starting, I penned Stress in the Time of COVID and suggested that we all tend to our mental health. I continue to advocate for people to get outside daily, see the sky, lay in some grass, play with a pet, etc. You can remain socially distant and yet enjoy some exercise and sunshine. That may become more difficult as seasons change, but for now it still seems solid advice. This pandemic is affecting us, see Desensitized to Death

But, more recently, there is some focus on the mental effects of COVID beyond the student. A New York Times article in September describes a dentist's reaction to COVID, and a closure of her practice in March. She continued to see emergencies, but the day-to-day care was minimized. Shortly, she realized an increase in dental fractures. She noted to a friend: “I’ve seen more tooth fractures in the last six weeks than in the previous six years.”

This dentist concluded that an "obvious answer" to the increase in fractures is simply stress. Whether from the anxiety of Sars-CoV-2 exposure, or contracting COVID-19, or a family member suffering, or the related impacts on family life, work, community gatherings, social interaction, and more. The specific source of our particular anxiety, the precipitating cause, or root, comes back to the Sars-CoV-2 and its potentials to impact us. The dentist postulates "that pandemic-related anxiety is affecting our collective mental health. That stress, in turn, leads to clenching and grinding, which can damage the teeth."

This summer, we saw some begin to question the impact of COVID-19 on relationships. In July, the Business Insider noted the potential for increased stress and pressure on marriage. The author reported concerns "that divorce rates will spike post-pandemic when courts are open." That hypothesis was demonstrated in September with reports that divorce in America was "34 percent higher from March through June compared to 2019." The headline of that article said "divorce rates skyrocket(ed)." 

The idea of COVID stress is not new. The Center for Disease Control includes information on its website. It notes that "pandemic may be stressful for people." The sources noted there are primarily fear and anxiety. but there is discussion worthy of consideration. QJM An International Journal of Medicine noted recently that "Multiple lines of evidence indicate that the coronavirus disease 2019 (COVID-19) pandemic has profound psychological and social effects." BioMedCentral recently suggested connections between stress and suicide risk. 

The Kaiser Foundation notes the negative effects of COVID, but also stresses how it "created new barriers for people already suffering from mental illness and substance use disorders." It focuses our attention on social isolation, job loss, and stress. This is expressed as a worry about those with existing issues and exacerbation, as well as for those who may develop new issues as a result of both virus and sequela. 

That is perhaps an important distinction to remember. There may be mental issues that are a direct result of COVID-19. NBC recently reported on a patient (who is also a front-line physician) and his mental health challenges related to infection. Or, it may be a more troublesome concern for those who have pre-existing challenges with stability, stress, and otherwise. 

Wired noted more recently that "mental health in the US is suffering." That restates the hypothesis. But, of concern, is the struggle to determine "whether this is a normal response to a difficult situation or actual pathology." The article cites various survey results that suggest more people are self-reporting symptoms and complaints related to mental health challenges. But, will that persist beyond the immediate stress of the pandemic? The authors seem to contend that it is too early to tell. 

It is possible that the topic is coming to the fore because September is National Suicide Awareness Month. News outlets are reporting on the mental health aspects, with some concluding "young people, minorities, essential workers and the elderly are at a greater risk of experiencing these symptoms." The QJM authors contend that the current situation is increasing "distress, anxiety, fear of contagion, depression and insomnia." They focus on the suicide threat and advocate for addressing these symptoms and specifically "loneliness" to strive against that. And, this is all without the potential for other events (wildfires, earthquakes, hurricanes, school event cancellations, and beyond) to further stress populations. 

Troubling issues all. Fox News reported recently that we are largely also in denial about the mental health impact of the pandemic. About half of survey respondents elected not to seek mental health care "due to cost or lack of access and time." Many are busier than ever recently with family, work, community, and more calling upon us. The virus alone is not singularly cited as a causing people anxiety, but it is an element among other issues. There is a longing for return to normal: "people want to feel good, they want to go back to their pre-pandemic lives." And, as noted above, we may be somewhat flexible in our personal definition of "normal."

As we spent the summer and fall watching the National Hurricane Center predictions and prognostications, there were those who suggested that storms "in the midst of a pandemic" could increase stress, struggle, and mental health. That threat has come to pass in Louisiana with Laura's landfall, in Alabama (and beyond) with Sally, and we watch Beta crossing the region now. A very active hurricane season was predicted and has delivered. Less expected, much of the west is burning. There are dead, displaced, dispossessed, and fearful. That some of those fires were potentially set by people intentionally has further elicited angry emotions and reactions. 

The impact may not be universal or uniform on each of us. It is entirely possible that some segments of society may be more at risk than others. The Chicago Tribune suggests there are specific populations at increased risk. And, the Milwaukee Journal Sentinel suggests that the impacts may persist beyond the pandemic. It is possible, they say that return to normal may be good, but not necessarily a cure for all that ails us. 

Is there more that we can each do beyond paying attention to our own mental status? Certainly, I stand by my advice to get outside, to engage in socially-distant activities, exercise, and interaction. But, psychologists have other suggestions. First, this one suggests that one does not simply have issues or not, but that issues and challenges are on a "spectrum" (we may each have a little or a lot). 

She suggests also that social media may exacerbate issues, and to remain aware of that potential. But, she encourages the sharing of feelings in an effort to commiserate, acknowledge pains or complaints, and engaging in mindfulness and self-forgiveness for any shortcomings. Finally, she supports your engagement of others, to check on their challenges and well being can be healthy for you. Your practice of compassion and concern may boost your well being while it reinforces and supports those around (or emotionally close to) you. 

When you get out to exercise, sun, and recharge, get someone to go with you. Call someone who is isolated (old, ill, scared, furloughed, etc.). Contact them by video if you can to share a smile and the laugh. Perhaps find some solace in discussing things that are unrelated to COVID-19. That is, discuss a recent sporting event, play, or outcome without discussing "the bubble," or demonstrations, or activisms/positions of leagues, players, or fans. Focus on the game itself and leave the pandemic out of it for now. 

That said, I am not a psychologist. If you are feeling out of sorts, down, or worse, I encourage you to seek help. Search "depression resources" online for a raft of ideas including hotline numbers. In fact, there are hotlines for about any word you want: "stress hotline," "anxiety hotline," "suicide hotline," you name it. The simple fact is that COVID-19 is a temporary situation (as is hurricane recovery). If you are finding yourself challenged by it, by its effects, by your perceptions, why not reach out to one of these and get some help? Seeking help does not mean you are weak, it means you are wise. 

Sunday, September 20, 2020

Judge Dawn Gentry

This blog occasionally departs from the workers' compensation specific and focuses upon the law. Other times, it narrows the focus to those we entrust with the law. Recent Examples are The New Miranda Warning and Conferences and Consequences. The long and short of it is simply that judges are entrusted with tremendous responsibility, but do not always live up to the calling. We must all remember the public's trust in us, embodied in the various Codes of Judicial Conduct: "A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities," Canon 2.

In December 2019, a Kentucky judge was accused, leading to an investigation of that state's Judicial Conduct Commission, according to 13WBKO (ABC affiliate in Bowling Green). The headline was eye-catching: Kentucky judge accused of making sexual advances, favoritism. According to the report, nine charges were levied including "made inappropriate sexual advances, traded jobs for donations to her campaign, used a legal panel for campaign work, retaliated against employees and attorneys, kept false time sheets, allowed guitars to be played in the office, and her employees to consume alcohol." (Cincinatti.com, the Cincinnati Enquirer, offers further detail on the allegations). In fairness, the judge "denies the accusations." According to NBC News, she particularly denies the allegations about sexual congress in the courthouse.

The Courier Journal (likely in Louisville) suggested that the allegations might lead to "an extraordinarily rare occurrence," impeachment. It noted that the time required for an investigation by the Commission might instead lead the legislature to undertake that action. If it occurred, "she would be the first judge (in Kentucky) to be impeached in more than a century." This December 2019 article leaves the impression that an investigation was predicted to take as long as three months. Then came COVID-19 and the disruptions of process and proceedings that entails. 

Blue Lives Matter (www.defensemaven.io) reported in late January 2020 that the judge had been "suspended with pay pending a hearing on numerous accusations of professional and personal misconduct." A National Public Radio story earlier in January reportedly also noted that suspension. That was said to ban her from the "Courthouse until after her hearing on April 20." Ultimately, resolution required eight months instead. Based upon the approximately $135,000 annual salary, the Judge was on paid leave valued at about $90,000 over the eight months required for the proceedings of the Commission. 

The Northern Kentucky Tribune reported in February that a legislative committee had taken up impeachment proceedings. Cincinnati.com (the Cincinnati Enquirer) reported in mid-April that the impeachment proceedings had been discontinued as they ran out of time. The article describes that the committee charged with that investigation was unable to complete its work before the legislative session ended in mid-April. 

The judge expressed, through counsel, being "particularly disappointed that her opportunity to vindicate herself before the General Assembly was lost this year." Her counsel committed to doing that instead now before the Conduct Commission. The attorney expressed concern that the "complaints against her have created a significant public misimpression." Explaining the legislative result, an elected official said "The inquiry is another casualty of the COVID-19 restrictions." 

In late August, "The misconduct commission voted 5-0 to remove Gentry," according to the Enquirer. It concluded "her guilty on 10 of 12 charges," which supports that more charges were added to the nine initially reported by 13WBKO. Her lawyer was quoted indicating her intent to seek an appellate review of the outcome. He stated that "Gentry expected to be punished but that the commission went too far." He reportedly likened the removal from office to "the equivalent of the judicial death penalty."

There were allegations of retaliation in the workplace. The Enquirer reported "that attorney Katherine Schulz, resigned after she said Gentry retaliated against her." Ms. Schulz said that "she rebuffed sexual propositions from the judge" and faced the judge's "wrath." Ms. Schulz alleged that she witnessed the judge treat people differently because of their political support for the judge or because of their attendance at "performances by the judge’s band." 

The story recounts that the Judge filed a bar complaint against Ms. Shulz following her cooperation with the Judicial Commission, leading the Commission to file another charge against the judge. The Commission decision concludes that the bar complaint "was in retaliation" against someone the Judge knew was cooperating with the Commission. The decision notes that the Judge "further admitted and conceded that she should not have filed the Bar Complaint." Is it possible that complaint contributed to the "significant public misimpression."

The Commission's conclusions were published in a thirty-eight page decision. It concludes with "this case does not involve one or two isolated occurrences, but instead involves a pattern of misconduct and repeated exercise of extremely poor judgment – on and off the Bench." The Enquirer article notes specifically that not all of the original charges against the Judge were sufficiently proven. However, the cumulative effect of those that were proven  convinced the Commission. These included (material is quoted from the decision) 
  • coerced members of her GAL panel to donate to her campaign and use personal time to engage in campaigning on her behalf
  • utilized court staff to work on your campaign during work hours
  • approved a false timesheet for Meredith Smith
  • knowingly approved inaccurate timesheets for Mr. Penrose and Ms. Aubrey
  • When Ms. Blevins followed her employer’s instructions regarding how to file such cases, you retaliated against her
  • refused to recuse yourself from Ms. Blevins’ cases, despite having previously expressed personal animosity
  • engaged in inappropriate sexual advances toward Ms. Schulz
  • refused to recuse yourself from cases when Ms. Schulz represented one of the parties
  • engaged in Snapchat conversations with members of your GAL panel and Mr. Penrose, some of which were sexual in nature
  • hired Stephen Penrose not based on merit but because she was engaged in a personal relationship with him
  • Respondent denied actual sexual activity with staff occurring in Chambers during office hours but did admit to “simulated” sexual activity with staff.
  • failed to be candid and honest with the Commission in a previous inquiry
  • failed to cooperate and be candid and honest with the Commission during your testimony
It is a story with salacious overtones (including apparently revealing photographs "kept in a hidden folder on her cell phone, which was accessible through her child’s cellphone"), and allegations of self-interest, coercion, intimidation, and more. The long decision of the Commission is not the clearest reading, but conveys various conclusions about the specifics of alleged behavior. The Commission concluded ultimately that Judge Gentry should no longer serve. It is a cautionary tale that perhaps every judge should read. It will be interesting to read the outcome of her appellate challenge to its conclusions.  

Wednesday, September 16, 2020

Sally in September

I don't usually publish on Wednesdays. But today is a "hurricane" day (like our snow days as kids, a practice that may be forever over). So, I write this about Sally, and what has become a long week. 

This time of year is replete with hurricane threats. Over many years, I have become accustomed to the variety of emotions that surround these events. There may be corollary to the five stages of grief described by the mental health professionals: denial, anger, bargaining, depression, and acceptance. But the range of emotions are broader with hurricanes. Mostly, this is because we can see them coming. As much as I hate them, I am forced to admit that their notice may make for a better disaster than tornadoes, wildfires, and earthquakes (bargaining?).

Sally formed very close to Florida's southern end, just off Miami. On September 11, 2020 I became worried about its' potential when the probability of cyclone formation became high. 

By then, it had been a long season already. We know instinctively in the tropics by the alphabet. The storms are given human names, with the first cyclone being an "A" (2020 was Arthur), and so on. Admittedly, the later in the list we get, the more subconscious expectation there is that the season is nearing an end. 

Among hurricane survivors, we each have some storm or storms that define us. These become personal because of their impact upon us. Mine will hopefully forever remain Floyd (from which I first evacuated), Ivan (which was devastating on me and my community), Katrina (which was too soon after and too close for comfort). There have been others that wrenched the heart, raised the blood pressure, and grayed the hair, but these are forever impressed upon my mind. 

With the iteration of each "X" on the National Hurricane Center (www.NHC.noaa.gov) there is some level of anxiety in the southeast. We persistently wonder if that "X" will mature, and if it is coming for dinner. I will forever remember a particular minister's sermon shortly after Ivan destroyed Pensacola in 2004. The gentleman questioned his own Christianity as he described praying for some new storm to please strike someone else. We do that (all of us do that). That may be the "denial" stage of grief from some perspectives, but it may also just be the "NIMBY" (not in my back yard) to which we all seem naturally prone.

See, before there can be stages of grief, there is usually time for hope. With some disasters, there is no time for hope as they arise without warning. I am persistently emotional when I see such events impact others. This year it has been wildfires that are most memorable, but tornadoes, and earthquakes are in this category for me.

Predictable. Hurricanes are somewhat predictable. For example, when the NHC says that one of those yellow "X" is likely to develop, they are almost always right. So, we look at those probabilities and we find both hope and solace sometimes (low probabilities). The little yellow "X" in the figure above was never predicted to evolve and never did. It just moved along to the west ("nothing to see here folks").

But that red "X" was high probability. We wondered whether it would be Sally or Teddy (there were two "high probabilties" on the same map simultaneously). But that one next to Miami evolved more rapidly, and Sally was born. Professionally, I am concerned about the expanse of Florida's coastline (1,350 miles, greater than any state's except Alaska). See, the Florida OJCC has offices, but more importantly family, spread all up and down that expanse of coast. There is very little potential for a storm to strike Florida and not affect our staff, our attorneys, our adjusters, our customers. Each potential "X" brings anxiety, and hope that the storm will go somewhere else. 

I spent a few hours hoping Sally would be a non-event. An upside of formation so close to Florida was that it had little time to build and strengthen. Thus, it crossed down Miami way with rain and wind, but was over reasonably rapidly. It then began a track across the Gulf and prayers were answered with the NHC prediction of a Louisiana strike. We get our hopes from "spaghetti" models that provide potential path descriptions. We celebrate when they do not include us personally. Sally's looked like this:

All those potentials, and they seem to suggest somewhere else but here. The official prediction on September 11 (last Friday) was a tropical storm Sally would land in Lake Pontchartrain on Tuesday. That was good news for everyone (storm not hurricane), and great news for everyone except southern Louisiana (which was hit two weeks prior by Laura) and southern Mississippi. 

Like I said, the NHC has gotten very good at predicting which storms will or will not develop. And, they are pretty good at predicting where storms will strike. But, there are many instances of missed calls. Hurricane Michael was predicted to make landfall as a minor (category one or two) storm in 2018. It built just off shore and came roaring in as a major Category Five. That one was right next door, unexpected, devastating, and will likewise be one of "my" storms forever. 

Well, as you may have guessed, the NHC was wrong about our friend Sally. She slowed in recent days. At some points, her forward progress was only two miles per hour, her pace glacial, and our hopes diminished. As her predicted track shifted from Lake Pontchartrain to the east, little by little, we saw potential for impact in Florida. At first, we saw there could be significant rain, then we saw the prediction that post-landfall she would loop to the east, north of us filling rivers and streams. 

By Monday, they thought this would be a Mobile, Alabama problem. Pensacola remained "in the cone," that is the large white outline that represents possibilities as opposed to the dark line that represents probability. Note that nothing in the predictions represents actuality, it is all prediction.

But by Tuesday, we were aware that those little eastward adjustments in the predicted track had put Pensacola right in the path once again. And all day Tuesday, a little voice in my head kept reminding me of Winnie the Pooh. See Pooh too was once in a great flood: "the rain, rain, rain, came down, down, down, in rushing, rising rivulets, Pooh too was caught and so he though, I must rescue my supper." Yes, I recall that without looking it up. Not sure why.

So, in the last moments, there was little time to prepare. The OJCC closed its offices in Pensacola and Panama City for Tuesday (following the decisions of the local courts). And still we waited for Sally to get on with it. She creeped, she crawled, and she dawdled. And. we waited. The path shifted and Pensacola was too close to the prediction for comfort. We tried to order out on Tuesday evening and found almost everything (including fast food closed). You know you may be in trouble when fast food closes. 

As an aside, there is a new bridge under construction in Pensacola. They have been working on it for years now. The bay is persistently festooned with barges and cranes as they drive piles, mount "trophy" pieces, lay steel, and pour concrete. Each time weather has threatened, those cranes/barges all get accumulated and consolidated and tied down for the duration. On Tuesday morning as I drove to work (yes, I know we were closed), one of those barges broke free and struck the bridge. The bridge is now closed and will remain so until inspected (at least Thursday). Access from my little suburb to Pensacola is now (temporarily) a 45-50 minute commute. 

It is now 02:00 Wednesday. The NHC shows Sally as a Hurricane about 40 miles to the east and still traveling to the north east at a mere two miles per hour. They predict it will make it to Alabama (about 40 miles north of Pensacola) by around 7:00 tonight. As she creeps across us, that "rain, rain, rain" (cannot get Pooh out of my head) will remain a concern. Throughout my drafting of these thoughts, the rain has swirled outside and the wind has howled. And, remember I am miles away from the real event. 

As dawn comes, we will each assess the outcome. Some will lose much (perhaps everything) and many will lose at least some (I have one tree down at this point). But, we will all come to the end of the five stages, and gain acceptance. We will all return to the ease and tranquility that was a mere pandemic (sarcasm). We will return to work and our other normal activities. But, in the meantime, I am heading out now to get in my steps for the day. Sure, it's a hurricane, but that does not mean sitting around on the couch. 

Wherever you are today, be well and safe. However slowly, Sally too shall pass. 

Updated 091720 03:30 - 

Sally brought significant impact toe Pensacola. It has been heartwarming to hear from so many of you in the last 20 hours. Wednesday we awoke to hear that a construction crane had fallen during the storm and destroyed a section of the bridge that connects Pensacola and Gulf Breeze. They estimate a 30-60 day repair time. Most area bridges are closed Thursday for inspections (and likely to keep traffic flow down as officials struggle to maintain public safety in an environment of downed trees, powerlines, and spirits. 

The flooding was a major focus of national news and prognosticators. They were not disappointed as waters were very high for hours. There was significant flooding in various areas, including the downtown where the Pensacola OJCC office is located. That facility is closed through Friday. We will do our best to get your hearings and other matters back to the fore as soon as practical. Reports are support that the Office in Panama City should re-open Friday. There was significant flooding even there, approximately 90 miles east of the storm center. 

In all, as with any hurricane, there will be a long road home for many. The destruction that these bring is difficult to image. Capturing the human element on film is also elusive. Know that it is devastating to be hit by any such cyclone, regardless of name or strength. The human spirit prevails however. Pride and humility swell when we experience the spirit of community and cooperation that follows. 

Tuesday, September 15, 2020

Florida COVID September

It is hard to believe that it has been a month, but the Division of Workers' Compensation released its September COVID-19 report on Monday, covering the data available through August 31, 2020. As noted in past posts, the Florida Division seems to lead the pack in terms of keeping information flowing. I have previously posted regarding the developing data on such claims in COVID Florida Filing Update August, Florida COVID Claims June 2020, and COVID-19 in Florida Claims. The latest report includes information on COVID and other factors are impacting insurance premiums as well.

As of August 31, 2020, the Division has information on 17,653 COVID-related workers' compensation indemnity claims. Any "medical only" claims are not included in the figures. Those might be significant in terms of volume (many claims potentially for testing perhaps), but are less likely to be significant in terms of costs expended. The 17,653 are divided into "open" (6,933) and "closed" (10,720). A total of $22.5 million has been paid on these claims (in indemnity and medical benefits), which is 6.8% of the Florida overall claims cost.

The report likewise divides the 17,653 COVID-19 claims into the categories of "compensable" (9,893/56%), "full denied" (7,728/44%), and "partially denied" (32). The preponderance of payments ($22,186,002/98%) is attributable to the "compensable" category, as would be expected. That payments are attributed to the other categories may reflect payments made in error or payments made during investigation of the compensability determination. 

Beginning with COVID Florida Filing Update August, the Division provided information regarding the severity of claims in terms of financial cost. That information is also presented in the September report. September demonstrates now two claims in the "over $500,000" category, with a total paid on two claims of 1.47 million. Two important points: (1) the potential exists for very severe claims from the Sars/CoV-2 infection that causes COVID-19, and (2) thankfully, the most severe cases are not frequent.

Note that the preponderance (96%) of claims are in the range from $0 to $4,999, and that the average is about $718.54 ($12,203,641/16,984). This expense average may be of interest in studying the probable severity of such claims overall. See Regressive Impact. The claims of a much more serious nature ($100,000 or over) account for less than one-tenth of one percent of the volume, but 16% of the total expenditures ($3,651,784/$22,527,620). This illustrates that as the volume of medical care necessary increases, the financial significance of such claims can become notable. 

If all of the compensable claims cost is divided it is an average (mean) of about $2,243 ($22,186,002/9,893) per compensable claim. That is significantly less than the average (mean) cost of all compensable indemnity claims $5,816 (331,385,115/56,977).

As noted regarding the prior reports, the preponderance of the volume (55%) and dollar expenditures (67%) are in the Miami, Ft. Lauderdale, "not indicated," and West Palm Beach areas. However, the data suggests that some significant claims have occurred in Leon County as monetary expenditures there are over $1.2 million, though only 142 total claims. While multiple counties (Taylor, Dixie, Bradford, Franklin, Hendry, and Lafayette) reflect payments under $2,000 total, only Hendry County reports $0.00 in benefits paid. 

The report notes that those three counties similarly accounted for the largest volumes of COVID-19 positive tests in Florida: Miami/Dade (159,059/25%), Ft. Lauderdale/Broward (72,245//11%), and West Palm Beach/Palm Beach (43,387/7%). Those three counties account for 43% of the Florida Diagnoses overall, but 55% of the COVID-19 claims and 67% of the claim expenditures. 

The distribution of indemnity claims has been illustrated in each of the four reports thus far. There have been fluctuations noted in the data, likely due to increasing volumes of information and clarification. But, notably the predominant portion being attributable to health care workers at the end of May (57%) has diminished, though the volume of claims for such workers has continued to increase. The volume in protective services has been more marked in the months since June, leading to a reasonably similar portion for these two occupational groups (29%/34%) in the September report.

The volume in the service industry reported through May accounted for less than 4% overall at that time. By the end of June, that segment had increased to approximately 23%. However, the volume continues to rise, and at the end of August, service industry was 27%. Three segments, health care, protective services, and service industry by the end of August still account for 90% of COVID-19 claims. However the share among these three is becoming increasingly consistent. 

Notably, the September report memorializes there have been 24 COVID-19 compensable death claims to date. This represents a very small portion of the compensable claims overall. This rate is below the overall mortality rate for COVID-19 in the U.S., as reported by Johns Hopkins. Despite this, it is troubling to see this volume of deaths reported. Overall, despite significant safety focus and progress, on-the-job death continues to occur in significant numbers according to the National Safety Council

The data supports that overall women (9,553/54%) are more likely than men (7,918/45%) to report a work-related COVID-19 diagnosis. 

Overall, the September report is another solid effort to illustrate and describe the ongoing impact of COVID-19 and Sars/CoV-2 on the Florida workforce and workers' compensation. It is worthy of review and attention to any who study this system or are responsible for claims decisions within it. 

Sunday, September 13, 2020

When its Over

Over is a challenging term to some. There may be a reluctance to accept it. Over has been the topic of a few lyricists over the years. Sugar Ray (2001) asked "When it's over, Is it really over?" Loverboy (1981) simply intoned "It's over, it's over, it's over." Both songs had the same title When its Over, and each addresses the end of a relationship as songs are wont to do. 

The lyrics recently came back to me regarding the potential for a "nothing's over" posture as to claims. There are a variety of paths to "over" in workers' compensation litigation. A party can resolve her/his claims for benefits. This is referred to as "all issues resolved," and means merely that the pending petition issues have been resolved. The resolution of "all issues" does not mean "it is really over." That merely means that these issues, at this time, are concluded. 

Or a party can resolve the current issues and all future potential benefit issues, referred to as "settled." A settlement, by comparison will mean that "It's over, it's over, it's over," unless some class of benefits is specifically excluded from the settlement, such as when only indemnity (monetary wage replacement) or only medical benefits are settled. 

But, compromise is not the only path to resolution of a claim. A party may instead proceed to trial. A party has the opportunity to present her or his evidence to the Judge of Compensation Claims, from which a final order will follow. That order may award or deny specific benefits. In the event such an order denies benefits, it may be, again, that merely the present claims are over, but that the employee's case remains open and subject to future claims of entitlement to other benefits. 

It is also possible that the employer will deny that any compensable injury or accident occurred, or other broad defenses. The employer might allege that misrepresentations were made. If such a broad defense is accepted, it is possible that this particular final compensation order may mean that not only are those present claims denied, but that the case itself is concluded. That is, that no future petition filings can re-open the case to further consideration. 

Thus, through resolution or adjudication, an employee's litigation may at various times be over for now, and at some time may instead be permanently over. 

When a decision is rendered by a Judge of Compensation Claims, it is never the final word. Any party may seek appellate review of a judge's decision, see section 440.271 Fla. Stat. Before doing so, the party should generally point out any alleged mistake or error to the trial judge through a motion for rehearing, see Rule 60Q6.122. This allows the trial judge to correct flaws in the trial order. The time to seek rehearing is limited to 10 days, a reasonably short deadline. 

The time within which to seek review by the appellate court is also limited. The party seeking review must file her/his/its notice of appeal within 30 days of the date the challenged order is "rendered." The date of rendition is the day the order is sent to the parties. And, if the notice is not filed within this time, then the appellate court does not have jurisdiction to review the order. See, Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685, 686 (Fla. 1st DCA 2007). The failure to file timely may be fatal to the request for review. 

While the appellate court has jurisdiction over the case, while the case is pending before the court, the trial judge's authority over certain issues may be limited. The authority over the specific issues decided and appealed shift from the trial judge to the appellate court until it concludes its review. But, other issues may also be beyond the trial judge until such time as the Court rules. This is dependent, in part, upon the manner in which those tried issues were decided, the nature of the defenses, and more. It can be difficult at times to discern what does and does not remain in the trial judge's authority while the appeal is pending. 

If a timely notice of appeal is filed, the appellate court may instruct the one seeking review (called the "appellant") to do particular things, by issuing orders. There may be actions required instead by the Rules of Appellate Procedure. The appellate court may conclude, for a variety of reasons, that an appeal should be dismissed (meaning it will not address the specifics). 

The court may consider the allegations in the appeal, and remain unpersuaded. The Court may conclude the appeal based upon the allegations in the challenger's (appellant's) initial brief. In that instance, it may instruct the other parties not to even file a brief. It may make its decision based upon that brief and the "answer" brief of the party that did not seek court review (appellee). And, in some instances, the court instead will consider all the briefs, and still invite the parties to provide oral argument regarding the issues. 

The court may fully consider the challenges and then either affirm the trial judge (meaning the appellant does not prevail and the trial decision stands). This "affirmance" may be expressed in a written opinion that provides explanation and edification as to the outcome (affirmed) and the reasons or precedent relied upon by the court in reaching its conclusion. Or, the court may "affirm" in a brief opinion that provides no explanation for its decision. 

The court might instead reverse the trial judge's decision. Often, in that instance, the court will tell the trial judge to reconsider specific evidence in light of its opinion, or perhaps even conduct a new trial. This process of returning the case to the trial judge is called a "remand." When the Court reverses, it is common for it to instruct the trial judge to revisit the topic, correct the mistake, and issue a new order either with or without further trial proceedings. It is also possible that the appellate court may instead reverse the trial judge's conclusions and simply state the outcome of the case. In those cases, no "remand" of the decided issues is necessary, the appellate court decision summarily concludes the issue. 

Those appellate decisions are generally rendered by a panel of three judges. It is also possible that a party may be unsatisfied by the appellate court ruling. A dissatisfied party may ask the same three-judge panel to reconsider the decision, in a similar motion for rehearing. The party could ask the entire court to consider the outcome of the appellate challenge, an "en banc" consideration. The court might or might not agree to such a rehearing. 

The unsatisfied party may also seek review of another court, such as the Florida Supreme Court. She/he/it may express dissatisfaction with the conclusions of the appellate court, and/or continuing dissatisfaction with the trial judge. Whether the Supreme Court will undertake review is generally a decision within its discretion, though there are a small category of appellate outcomes that the Supreme Court must hear. 

When this appellate process has concluded, or after the 30 days a party has to instigate the appellate process, the case may in fact be over. If the decision of the trial judge did not address the case, but only specific issues, it is possible that merely those issues will be over following the appellate process or the 30 days. In either instance, one might conclude that understanding and traversing this process is somewhat complex and even confusing. 

But, in either instance, "over" may be the ultimate outcome. Once an issue is litigated and decided, a party may not be able to pursue that issue ever again. It may be that the issue or the entire case is over. Really over, as in "It's over, it's over, it's over." That may be difficult for a party to accept. There may be an inclination to feel that some path forward always exists. But, the reality is that eventually the litigation will come to an end and the case or issue will be over, whether for good or ill. 

However difficult that conclusion is to accept, "when its over" it may truly be over. The issues in any litigation may be highly personal and important. It may be emotional for any party. But, it may nonetheless be simply over.