Thursday, October 29, 2020

Technology and Surveillance

"To have an albatross around your neck."

According to Lexico.com, this is an idiom derived from “The Rime of the Ancient Mariner” (1798), in which English poet Samuel Taylor Coleridge writes of a misguided sailor who kills an albatross and wears it about his neck in a display of guilt and remorse. The albatross, after all, was considered a harbinger of good luck once upon a time, according to the World Bird Sanctuary

A surveillance story in the news recently caught my attention: The albatrosses who catch pirates on the high seas, on the British Broadcasting Corporation (BBC). Being watched is nothing new on this blog, see Assume Everyone is Watching (September 2015), Evolving Issues of Body Cameras (July 2018). More recently, there was Artificial Intelligence Surveillance (August 2020), discussing the use of micro-cameras mounted on beetles (the bug, not the car).

Not to be outdone by those who were thinking small, others have now made the news by utilizing the majestic albatross. For the uninitiated, the albatross is a very large sea bird (wingspans can exceed 10 feet). They have been documented to fly millions of miles during their lifetimes. The BBC notes that their flights may total as much as "5.2 million miles during their lifetimes." These birds have significant range and endurance. Admittedly, it is noted that much of their time aloft might be more aptly described as gliding than flying, but that may not really be a distinction. 

Researchers have recruited these noble seabirds to participate in their oceanographic explorations, particularly as regards the inappropriate overfishing that is alleged to persist in certain parts of the world. In an attempt to limit abuse of the sea populations, there have been policing efforts directed at the ships which fish illegally. It turns out that effort has led to legitimate boats being "registered and licensed," as well as limited as regards "where and when they fish."

In order for such restrictions to matter, similarly to operation of a motor vehicle, there must be some element of monitoring and enforcement. The speed limit on the interstate is not very meaningful to many without the presence of the occasional trooper or deputy to remind us of our safety. 

The challenge comes, in fishing, with the fact that there are ships equipped to put to sea for long periods, distant from "land masses" and the simplest of monitoring and enforcement. Thus, the authorities are challenged in the monitoring of these commercial vessels. They complain that both air and sea patrols in pursuit of that effort is "rarely effective."

Thus, the noble albatross is proposed as an unwitting (it perhaps knows not what service it performs) cop that habitually cover "10,000km each in a 30-day stretch." The albatross by nature patrols the sea in search of food and in pursuit of its own ends, like fish and fishing detritus. They wander, sporadically stop on various uninhabited islands, and are natives to the somewhat harsh environment of the Antarctic. 

To avoid or limit the need for human patrolling, researchers have attached monitoring equipment to these sea birds. The birds have some proclivity for attraction to fishing boats as there is apparently some level of fish discharge that serves as a ready food source. The Albatross are thus encouraged to both find and follow these floating factories. 

The equipment attached to the birds, called "loggers," receives a signal from the "radar of boats, collecting information on where boats are in real time." Admittedly, different birds have different habits, and some are better at this mission than others. But, these loggers collect the signals of fishing vessel safety radar (that "allows vessels to detect each other, preventing collisions"). Those fishing illicitly are thought to turn off these radars. 

The results of this effort helped researchers to identify that a significant "20% . . 35%" of ships are not turning on that radar. They contend that this results in degradation of safety, and that the only reason to forego such a safety device would be that "it’s likely that these vessels operating without it in international waters were doing so to avoid detection, and so could be fishing illegally." It is not a conclusion that they are, but that they might me. 

The researchers therefore concluded to have the loggers communicate to the authorities when a vessel was identified that was not operating its collision radar. Thus, facilitating the authorities' ability to follow-up and investigate further. The researchers suggest that the albatross' range and pathways render it inherently adept at this surveillance. However, there is no representation made as to whether any illegal vessels have been stopped as a result. 

What the article suggests, however, may be more troubling. In a world in which bugs can be fitted with cameras and birds (think pigeons or gulls) could be fit with radio surveillance, what level of privacy might any of us enjoy? Might similar systems be used to identify cars that are not utilizing their anti-collision functions? Is this further development of surveillance progress or "Big Brother?" Might monitoring be positive or just another albatross around our (collective) necks?

Tuesday, October 27, 2020

Apology as a Tool

There is a power in apology. This is discussed in Communication, Empathy, and Apology (September 2019). The influence of a sincere apology is also discussed in We Don't Need You (March 2020). In Rude Behavior Only Begets Regret (June 2020), I suggested that there is power in apologizing even when you are convinced you are in the right; like Train said in Drops of Jupiter, "Even when I know you're wrong?

This has been advocated by mediators for decades. Their job is to bring adversaries to compromise, which is often a matter of finding some acceptable amount of compensation, but is often a matter of rectifying hurt feelings and emotional damages. I have heard many suggest that a heartfelt apology can go a long way to smooth the ruffled feathers and enhance someone's willingness to listen and compromise.

These thoughts came back to me reading about an absent minded economist in Chicago and his anger with a ride-hailing app on his telephone. The story is from the British Broadcasting Corporation (BBC), and involves Uber, an absent-minded professor, academic research on our emotions, and apology. The point of it reaches beyond the previously mentioned "heartfelt" and explores how to make that apology effective.  

The situation arose when the professor hailed an Uber, provided his destination, and settled into the backseat absorbed in his thoughts. He was in route to deliver a presentation, and was apparently absorbed in preparation. To his credit, he could have been distractedly driving through Chicago and instead chose to distractedly ride. 

When he was jolted from his concentration, some 20 minutes later, he found himself almost back home. The Uber application "had instructed the driver to return to the professor's home," and the driver quietly obeyed as she was reluctant "to disturb him, as he was so engrossed in his work." That part of the story may take some energy to accept on its face, but we move on. 

The absorbed professor was angry. But, the article explained that "what made him more so, was that Uber never sent him an apology." That is likely a scenario that, in some form, has confronted each of us in the course of our life-journey. It is likely that there have been those who should have apologized, and their failure to do so may have affected us. I have known people to break off contact with friends and even family over some perceived slight, accompanied by an absent but desired apology. Leaving a vendor over a slight is reasonably easy by comparison.

This particular professor had a bit of an advantage. He happened to know the CEO of Uber. The probability of you being satisfied with the outcome of any dispute likely increases in proportion to your ability to bring the situation to someone in authority (speaking to a bot = zero chance, speaking to CEO = 100% chance, where will you fall on that spectrum?)

The call to the CEO friend elicited the apology for the experience. The article seems short on discussion of rectifying the human element: why not tell your passenger that something seems amiss? Why drive thirty minutes back to the point of origin without politely interrupting to inquire about what is seemingly a glaring error? Not being an Uber user, perhaps I am missing something there. Maybe one of you will write and explain to me that roundtrip Uber rides without apparent purpose are a normal occurrence?

But, the real point is that this phone call to the CEO afforded the professor a chance to address the idea of apology. He was given access to large volumes of Uber user data, and performed economic research to document whether mistakes lead to economic impact. They do. In fact, he "discovered that riders who'd experienced such a bad ride would spend up to 10% less on Uber in the future." Therefore, the business has an interest in satisfied customers. Wo knew?

That is not an earth-shattering revelation. Everyone reading this post has had a bad customer service experience at a restaurant, car rental, airline, hotel, store, (you get the picture) that has resulted in a reluctance to return. Just recently, I received a card in the mail advertising a new local restaurant. It was appealing and attractive. 

Then I noticed its address is the same as another restaurant at which I once received lackluster service. I intend to still try the new offering, but that prior experience is lurking in my head (as they have the same address, are they the same owners, will the service be any better etc.?) Our experiences grant us perspective and expectation. It is natural for our economic decisions thereafter to be influenced by those. 

The economics professor then composed "a variety of apologies," and instigated an experiment to determine which of them was the most effective in assuaging the feelings and emotions of those who had been let down by the business. The conclusion is that "there's a sort of science of sorry," that has long been advocated by "social scientists - and psychologists in particular," but with the Uber data analysis, the actual impact was studied objectively. When experimenting on humans, it is perhaps best that the test subjects not know they are being studied? When we know we are being watched, we may be on our best behavior, a dorm of "observer bias." A strength of this analysis is that the customer's data was observed without their knowledge. 

What the professor concluded is that there are various apologies: the "basic" sorry, the "commitment" sorry (this won't happen again), and even the "let me make it right" apology (which in this instance came with a coupon for next time. The article does not mention the one I relied upon in the restaurant business, which was the "there's no charge for that since it didn't meet expectations" sorry. I found that one was almost always gratefully accepted. 

The professor concluded that "on their own, apologies in whatever form proved ineffective." Apparently saying you are sorry does not heal the wound and encourage a repeat engagement, even if there is a heartfelt commitment of preventing a repeat. However, when the apology was "coupled with the $5 coupon," there was a perceivable effect in keeping the off-put customer "loyal." The researchers concluded that "what consumers want, it turns out, is for a company to demonstrate its remorse by taking a material financial hit." Perhaps that is why my experience with the "no charge" offer was so consistently a success?

What is surprising, however, is that the professor's research supports that there are limits, apparently fairly low limits, to our capacity for forgiveness even with the coupon. The results supported that even the "coupon apology" "ceased to work if there was a second or third bad trip." In fact, his team perceived that such apologies following repeated failures became more of an aggravation than a balm for those customers. 

The BBC article suggests that this knowledge can be applied in a variety of business settings. Can it be applied in the setting of compromise in mediation? One might conclude not, on the basis of those negotiations inherently involving accompanying monetary elements (the "coupon"). There is perhaps merit in that primary conclusion. 

However, there may be value in the researchers conclusions that there is no apparent distinction between the "basic" sorry and the "commitment" sorry. When either is coupled with some monetary element, there is a probability of acceptance and success. This reinforces what mediators have been encouraging for years, the inclusion of a sincere apology to smooth the feelings and facilitate an agreement. As the mediation tends to have the monetary element built in, that may reinforce that apology can be a positive element. 

Does apology mean you are wrong? I would suggest not. Instead, it would seem that you are instead being the more engaged mediation participant, appreciating that the mediation is a human interaction that is subject to human emotions and feelings. I would suggest that by acknowledging someone else's feelings you are not admitting fault or even necessarily responsibility. You are merely acknowledging that party has an emotional hurdle that could hinder your progress. And, you are helping them over it. 

By sincerely apologizing to them for what they perceive, perhaps you can enhance the chances of your progress. As apology has been discussed over the years, I have heard the context repeatedly about an employer apologizing to the injured worker. However, in practice, I have also seen the effect of an employee apology. One sticks in my mind that involved a work accident of a severity that closed a production facility for a day. The employer suffered a serious financial loss from that closure, and then faced the cost of the injury, recovery, etc. 

Months later at the mediation, I recall the injured worker greeting the employer representative with a firm handshake, accompanied with a "I am sure sorry for all I've put y'all through." It affected and impressed the employer representative that day. It made that mediation smoother. It produced empathy and consideration. It facilitated the deal that was concluded that day. It was particularly powerful because the person with the pain, the lost personal income, and other real impacts from the accident (even if you are not wrong) was making the apology. 

Apology is powerful. It smooths emotion. It encourages empathy. It facilitates conversation. And, in many instances it supports compromise and commitment.  

The BBC article details a variety of other economic findings about Uber customers and drivers that may also be of interest. It is worth the time to read for a variety of reasons. But the focus just keeps returning to that apology and the power it possesses. 

Sunday, October 25, 2020

Physical Damage and Ambiguity in the News

Contracts are in the news recently. Specifically insurance contracts. The onset of COVID-19/SARS-CoV-2 has led to a great many interruptions of businesses in America. As the pandemic evolved in the spring of 2020, there were quarantines that constrained individual employee availability and then there were "closure orders" issued in each of the states. The duration and breath of these varied. Businesses were closed, essential employees were defined, and America strove to avoid the dire consequences that the scientists predicted (the "worst-case simulation came up with 2.2 million deaths" based upon scientific modelling from Europe). Thankfully, those numbers have not materialized.

There may come discussion of how and where the predictions went astray. It is a malady that continues to periodically surprise science.  Conclusions and advice have varied and evolved. There may also be implications of COVID-19/SARS-CoV-2 that are even yet to be appreciated or understood. See COVID in Comp - October Update (October 2020), and the discussion there of the "long COVID." There are perhaps many things as yet not medically clear about this virus, disease, and the effects. What is clear is that businesses were closed as a result. There were businesses that therefore did not generate revenue for some period of weeks or months. There are businesses that remain financially impacted yet today. 

In the marketplace, there are a variety of insurance products available to mitigate risks that are presented by the day-to-day. These can include coverage for damage to property (sometimes from specific causes, such as flood or wind; sometimes more general). There are potentials for liability from the injury to persons on a business' premises (which might be to the general public or to employees, the core of workers' compensation). And, as a fair number of businesses are learning, there is a risk that something will interrupt the operation of the business. 

The coverage for the latter of these comes most commonly from policies referred to as "business interruption insurance," which are designed to replace the stream of income when unexpected and untoward circumstances come to call. My first experience with that coverage was shortly after Hurricane Floyd meandered parallel to the Florida east coast. Sharing the helm of a reasonably recent law firm, we found ourselves ordered to evacuate from the beach in St. Johns County (Jacksonville essentially). My first cyclone experience, and a challenge on both personal and business levels. 

Fortune smiled on me then. The storm spared Florida and made a rather nasty impact on North Carolina instead. Within days, I was back to the beach, back in the office, and working to replace hundreds of paper files, books, and more that had been hastily packed and hauled out of harms way. Computers had to be repositioned, servers reconnected, and more. Many days of billable work were lost, and income was affected. Cash reserves were checked, and plans hastily made to regain normal footing. 

I was happy to hear from my insurance broker with a reminder that I had purchased this "interruption" coverage. Thereafter, various forms were completed, and within a few weeks a check was received. The loss of billed hours due to the storm effected no financial loss because of this coverage. 

But, not every business purchases business interruption coverage. In fact, according to U.S. News, only about one-third of "small businesses carry business interruption coverage." Thus, there are a fair number of businesses that may worry about their survival through the closures, and slow-downs, that are a portion of the COVID-19/SARS-CoV-2 impacts and implications. Those small businesses are therefore interested in exploring other insurance coverages that might similarly provide recompense in their time of need. In some instances, their very survival could hinge on finding outside financial support from insurance, government, or loans. 

As a result, a fair few lawsuits have already been filed seeking coverage from other types of policies. The Insurance Journal reports 1,183 such lawsuits have been filed thus far. That has to be considered in context; the U.S. Small Business Administration says that there are about 30.2 million small businesses in America. While there is concern as to the volume of lawsuits as regards interruption, the volume thus far is perhaps not a significant population. 

Clearly, a significant number of small businesses have closed in 2020. There are various news stories on that point. The Guardian reports that over 100,000 restaurants have closed, but that others are opening. It suggests that reasons may include more than COVID-19. CNBC reports a similar 100,000 number as the total of all small businesses closed this year. The two totals are thus hard to reconcile; if restaurant closures alone are that high, the total would seemingly be higher. Time will likely bring better clarity to both the volume and reasons of closure. 

Returning to the court decisions on business interruption, Business Insurance reports that "all but a handful of decisions — most of them by state courts — have gone against plaintiffs in pandemic-related business interruption cases." That is, most courts have concluded that coverage for business interruption under broader property policies are dependent upon the interruption being a result of "physical damage" to the business' premise(s). The concept being that when a hurricane damages a building, then the resulting business interruption may well be covered by that broader property damage coverage. However, it seems that courts have largely been unconvinced by the arguments for these general damage policies' coverage in the context of a pandemic like COVID-19. 

However, according to ProgramBusiness.com, a North Carolina court concluded last week that coverage may in fact exist for the impact or COVID-19/SARS-CoV-2 on business closure. In North State Deli, LLC et al. v. The Cincinnati Insurance Co., et. al. The Court concluded that the policy, the insurance contract, was ambiguous in that some language was subject to multiple interpretations. It held that 
“[e]ven if Cincinnati’s (the carrier) proffered ordinary meaning is reasonable, the ordinary meaning set forth above is also reasonable, rendering the Policies at least ambiguous, and any ambiguity should be construed against the insurer."
Though the outcome of the case as regards the "physical damage" to premises is somewhat unique and novel in the COVID-19 context, it is perhaps not so novel in the judge's conclusion regarding "ambiguity." A fundamental premise of the law is to construe contract ambiguity against the person or entity that drafted it. A good general discussion of this premise is found in the Corporate Counsel Business Journal in 2004. The real question, perhaps, is whether the policy (contract) language is indeed ambiguous as the North Carolina court concluded.  

The defendant in North Carolina, The Cincinnati Insurance Co., has expressed an intention to appeal the decision. Whether the trial judge's interpretations and conclusion of ambiguity will be sustained remains to be seen. However, there are those who see the trial decision in North State Deli as a harbinger of potential relief for businesses impacted by the pandemic. Others see the decision as a suggestion that insurance companies may be held to compensate a class of risk, interruption as a physical loss rather than due to a physical loss, that they did not anticipate or collect premium for. 

There is discussion in various circles as to whether other cases will be decided as they have been in "most courts," or whether the decision from North Carolina will be viewed favorably and persuasive. As with many lawsuits, there will be risks and arguments for various interested parties including businesses, insurance companies, and more. Understanding risks and impacts is not a novel concern or challenge. Businesses large and small persistently strive to appreciate and manage risk. It is an integral part of doing business.

The Florida Chamber of Commerce will present its Insurance Summit on November 5 and 6, 2020 (virtually). Included is a fifty-minute topic COVID-19’s Impact on Insurance: Liability, Business Interruption and Workers’ Compensation. I am proud to be participating in presenting on this panel, obviously with my focus being workers' compensation. But, I am also looking forward to hearing the experts discuss the implications of these potential interpretations of more general policies and the business interruption challenges.

I will strive there to address what COVID-19/SARS-CoV-2 has implicated in Florida workers' compensation. This may include discussion of the methods by which some other states have expanded the scope of workers' compensation through executive orders, legislation, and rules. It will include discussion of the breadth and severity of related workers' compensation claims as demonstrated thus far in the various reports from the Florida Division (as discussed in a variety of serial posts accessible here). And, it is likely to include some discussion of the potentials in litigation as this pandemic evolves and continues its impact on our lives. 

COVID-19/SARS-CoV-2 is a tremendous challenge on personal and professional levels. It is impacting individuals, business, families, governments, and society. The implications seemingly know no boundaries or borders. Frustrating our personal efforts to adapt to the challenge is the seemingly constant evolution of its impacts and the advice of so many experts. In the end, there are few easy and direct answers, and the effects may take time to evolve through advocacy and adjudication. In that context there is academic interest. But in the mean time, there are lives impacted every day. 

What will the future bring in terms of court decisions? Where will legislative efforts be directed as that season returns? Will a vaccine mean a return to "normal," and if so will it be the "normal" we once new or some "new normal" to which we will have to adjust? Truly intriguing questions that challenge us all in a complex and evolving world. 

Thursday, October 22, 2020

COVID-19 in Comp - October Update

The Florida Division of Workers' Compensation has done an outstanding job documenting the impact of COVID-19 on the world of workers' compensation. In five reports published June, July, August, September and October, the Division brings data regarding the volume of claims for lost time, their financial impact thus far, and ancillary issues including the blossoming of telemedicine in the midst of this pandemic. 

As an aside, there are growing signs of optimism and renaissance. In October I attended my first in-person professional presentation since spring. I am grateful to the Florida Association of Self-Insureds for producing a live educational opportunity. More recently, I attended an in-person gathering of lawyers in Pensacola, the American Inns of Court local chapter. Both events highlighted for me the significance of in-person interaction. I am hopeful that other organizations will follow their lead, with appropriate precautions of course. 

The latest in the Division's series is the October Report, detailing what is known of the claims for lost time through September 30, 2020. At the end of August, the volume of claims was 17,653. By the end of September, that had increased only to 21,221 (+ 3,568). Certainly, a significant number but as certainly the figure could have been much higher. It is notable that the "curve" in Florida has been flattening overall in the same time period, with less reported positive tests than were seen last summer, as reported by Tallahassee Reports

The total workers' compensation lost-time claim count thus far in calendar 2020 is 66,718, of which the COVID-19/SARS-CoV-2 claims 21,221 are a part (31.8%). Thus, it cannot be said that COVID's impact is insignificant. Any singular factor representing such a portion of the whole is significant and worth of consideration and study. 

The payments made on these claims, for both medical and indemnity benefits, is $30,793,827. That represents only 7.4% of the total $418,234,254 paid this year for such benefits in the entire population of lost-time claims. That is a somewhat stark contrast. The volume of COVID-19/SARS-CoV-2 lost-time cases is 31.8% of the state's total, but the payments therefore are only 7.4%. This supports the conclusion that these claims, as yet, are not financially similar to the average lost-time claim. 

Of the total 21,221, 13,901 (65.5%) are "closed" claims. That is a significant majority that is consistent with the financial reporting. It is axiomatic that the greater a time period that a claim remains open the more significant its financial expenditures are likely to be. Thus, only 7,320 (34.5%) of the overall total remains open as of the end of September. While that is noteworthy, it is important to remember that "closed" may represent a state of fallow rather than an outright conclusion. Absent the passage of sufficient time giving effect to the statute of limitations or a settlement, there remain potentials in any "closed" claim for rejuvenation. 

Of that total 21,221, 20,208 (95%) have reported payments of less than $5,000.00. That is reasonably consistent with the same comparison (96%) in the September report. It is this significant portion of the COVID-19 claims remaining in this lowest payment category ($0 - $4,999) that results in the marked disparity discussed above (31.8% of lost time claims, but 7.4% of lost time costs). There are much more serious claims also. 

There are 60 claims reported with expenditures in excess of $50,000. This includes 36 in the range of $50,000 to $99,999; 17 between $100,000 and $249,999; 4 between $250,000 and $4,999; and 3 with expenditures to date in excess of $500,000. The potential for COVID-19/SARS-CoV-2 to involve significant or catastrophic implications is clear. In May, I published COVID-19 Regressive Impact, and prognosticated on some categories of expenditure that were foreseeable.

There, I suggested that some volume of claims would involve only testing, quarantine, and basic medical care. With the impact of the CARES Act (federally mandated leave time) it is possible that some volume in this category would not even achieve the "lost-time" designation. Some volume of individuals that both test and miss work have anecdotally received negative test results, and thus are likely in the "denied" category. These instances may have minimal expenditure and certainly there is a potential for them to have no "lost time."

There are also those claims that may fall within the confines of a reasonably rapid return to work. Again, anecdotally, there are reported instances of individuals with positive test results being ordered home, despite an absence of significant (in some cases any) symptoms. That fortunate group is likely to return to work rapidly following the quarantine period of perhaps two to three weeks. These likewise represent some portion of that "less than $5,000" population discussed above. 

There are more serious implications though. There is some probability of hospitalization being required, and those costs can be significant. Still more serious are the patients that require intensive care and even ventilators or other assistive care. The implications for these patients is more significant in terms of both the medical care costs and the duration of disability. Some would suggest that the long-term implications of the disease is perhaps more potentially significant as well. 

It is possible that any COVID-19/SARS-CoV-2 exposure could remain a medical only, progress to lost-time, serious, or even catastrophic proportions. 

Thus, today we view the statistics and the patients through the lens of the present. But, there remains a great deal of unknown about this virus, its effects, and implications in the long term. As reported by CNBC, there is a term now being bantered, the "long COVID." This is being used to describe "people who recover from coronavirus but continue to suffer from a wide range of symptoms." That seems oxymoronic, as "recover" by definition means "back to normal" and normal cannot mean continued symptoms that are related to the disease. 

Perhaps in this regard it would be more apt to say that "long COVID" is "a wide range of symptoms" suffered by those who were infected but presently test negative for the virus? The scientists are documenting patients who are virus-free but who continue to report things such as "shortness of breath, migraines and chronic fatigue." They complain of symptoms that preclude us from saying they are "back to normal," or are "recovered." 

The British Broadcasting Corporation (BBC) reports that "long COVID" sufferers are not only those whose initial suffering was sufficient to justify hospitalization. It cites examples in which patients have suffered months of ongoing complaints and symptomatology. In other instances, BBC has reported on patients that "recovered" and were discharged from hospital, but who suffered "long COVID" and even passed away. The use of "back to normal" or "recovered" is perhaps too strong in some settings. 

There are implications for this "long-COVID," as various symptoms, complaints, treatments, and disability remain a part of the potential future of each of those 21,221 "lost-time" patients documented thus far in Florida workers' compensation. To a lesser extent perhaps, those potentials remain even for patients whose experience was less severe and as yet remain "medical only." In some regard, it may be too soon to predict the outcome of this pandemic generally, and the future health of various individuals specifically?

Of the 21,221, 9,365 are reported by the Division to be either total (9,322) or partial (43) denials. Those instances are not necessarily concluded, as litigation could ensue to prove compensability and entitlement to benefits at some point. The remaining population, that has not been denied, some suggest are worthy of noting the application of Florida's so-called "120 day rule" and the potential that future developments such as the "long-COVID" could represent a variety of claim potentials for which carrier denial might be foreclosed by the law. 

Most of the COVID-19 lost-time claims continue to be clustered in Florida's southeast. Dade county has 6,751; Broward is 1,803; and West Palm Beach is 1,258. These three counties account for 9,812 (46% of the 21,221). The only other population to exceed 1,000 is the 1280 lost-time cases for which no county has been indicated. 

Beyond the predominance of the southeast, which is also admittedly Florida's population center, other urban areas are significant. This includes Duval (834), Orange (778), Pinellas (741), Hillsborough (692), Lee (645), and Polk (508), which each exceed 500 lost-time cases. This is 4,198 (20%). Two-thirds (66%) of the lost-time cases noted by the Division report are in less than ten of Florida's 67 counties.

The Division report provides details on the demographics such as age and gender. Females are notably more represented than males in the population of lost-time claims. There are also details on the representation of various industry segments in the totals. As of the end of September, the main segments are Health Care (26.9%), Office Workers (10.6%), Protective Services (32.1%) and Service Industry (29.4%). Airline Workers are distinguished in the report, but now represent only 1% of these claims. 

The conclusions remain. COVID-19/SARS-CoV-2 has impacted the workers' compensation community in terms of direct effect (workers infected), and tangentially (the pivot to telecommuting, challenges with obtaining medical appointments, social isolation, etc.). The population of infections is continuing to grow and most claims are being accepted. The present exposure on those appears to be concentrated in the bracket below $5,000 total cost, but there are potentials of lurking long-term exposures that are being discussed. 

In all, the Division report is comprehensive and interesting. Those engaged in the workers' compensation community would be well served to review it in full and consider the implications that it may portend.

Tuesday, October 20, 2020

Point to the Authority

Early in my legal career a wise lawyer taught me to begin every prayer for relief by citing a rule, statute, or precedent. The instruction was simple, and it served me well through years of practice. The point is to afford the judge a viable reason to rule in your favor. Similarly, I applied the notion to my service on the bench. That is, I sought guidance from the parties when they pursued relief. If they did not cite authority, I would try to ask them for it. As the practice evolved away from live motion hearings, and into a more paper-intensive motion practice, that became more difficult. 

As a judge, I continue to believe that it is the parties obligations to frame their arguments, cite their authority, and provide their evidence. It should not be the judges responsibility to supplement arguments, to make assumptions about facts that have not been proven, or to research authority that might support someone’s deficient presentation. It should be the party's responsibility and burden to define the dispute and to describe to the judge both how that party should prevail and how it is practical. 

In this regard, Worker’s Compensation is perhaps better framed than other legal concepts. The American legal system is built upon the English premise of common law. The judicial branch has constitutional authorities which are inherent and broad. There is a generalized foundation often set forth in constitutional parameters regarding the overarching need that any wrong must be potentially grounds for recovery. Those in the constitutional court process  are frequently challenged with the presentation of some loss or wrong, and the absence of any clear relief therefore. It can be a struggle to fashion remedy(ies) in that setting. 

Workers compensation is not part of the common law. In fact, it surprises most audiences to learn that workers compensation as a theory and practice predates the common law, significantly. The concept of compensating someone for a work injury pursue it to some pre-defined or pre-characterized schedule of relief date back at least to Hammurabi and his code. That was about 1,795 years before Christ (B.C.). The Common Law by comparison is a product of the Middle Ages (between the 13th and 15th centuries). 

Modern workers compensation in America comes as a substitute for the common law. As it is said workers compensation statutes thus “abrogate the Common Law,“ and common law rights and responsibilities. Although it might be argued that the Common Law contradicted those previous codes, the statutory Worker’s Compensation benefits are a substitute for, an “instead of“ common law damages. Therefore, the benefits to which an injured worker is entitled, the defenses which employer may avail itself of, are in the Worker’s Compensation statute.

Returning to the conceptualization of the parties obligations set forth above, this means that any benefit that is sought an injured worker should be able to literally point to in the applicable Worker’s Compensation statute. The same is true for many defenses that the employer might raise to such responsibility. Of course, the potential remains for a defense that cannot be found in statute, literally that the statute does not contain or support a claim for such benefit. 

Both the benefits and the burdens are set forth in the code, for all to see. Over time, that construct has admittedly eroded. Constitutional courts and regulators have implied the entitlement to certain benefits not necessarily named, but ancillary to specific benefits or categories. Through interpretations and implications, these appellate decisions have recognized benefit entitlement that may not be clearly stated in the statute or regulation. But, the fact remains that anyone seeking a benefit should be able to identify what statute, rule, or precedent (those court decisions) that either identify the particular benefit or at least illustrate a foundation, a path, to award such benefit. 

There is the potential in such a statutory construct that some party might find a particular claim or defense to be too broad or too narrow for a specific set of presented circumstances. These are the “outliers,” that may be inevitable in a statutory construct. Unless a statute continues to grow with amendment after amendment, each focused upon “correcting” some outlier occurrence, there will likely always remain outcomes to which some party or group might point and lament. That is, instances in which benefits are due or not due under the statute, but in which some perspective perceives a lack of fairness or appropriateness. 

Another important element of this kind of discussion is that the statute in effect on the day a particular employee is injured is usually the statute that will control the quantum of benefits, and the defenses that apply. It is critical in many contexts that one know which version of a jurisdiction's Worker’s Compensation law is being applied. This has persistently been a challenge with appellate courts, and a variety of instances have been described in which a court decision reaches an outcome, generally cites a statutory authority, but fails to identify the year of the statute applied. Too often the question is raised “what statute was the court applying?” Before being too hard on appellate bodies, the fact is that trial judges, attorneys, and parties similarly fail to be specific periodically as well.

These are challenges for the parties. Just as it is their obligation to frame, plead, and prove their issues, it is also highly advisable that they identify and stress the year of the statute to which each points for authority. If one wishes to prevail in litigation, such preparation, specificity, and reiteration will be supportive of success. It is important to identify what supports the outcome sought, including the statute section and version. 

Specifically the word “supports“ is selected, because there are no guarantees of success. Doing a good job does not always equal prevailing. A funny illustration of this is the quote of Judge Chamberlain Haller in My Cousin Vinny (1992). The movie's hero has struggled throughout with protocol, procedure, and process. Eventually, he shines with an outstanding legal objection:
Judge Chamberlain Haller: That is a lucid, intelligent, well thought-out objection.
Vinny Gambini: Thank you, Your Honor.
Judge Chamberlain Haller: [firm tone] Overruled.
The point is, that citing authority is not a guarantee of success. However, doing a good job certainly enhances one’s chances, as it is effective in steering the judge toward the outcome for which you advocate. It might be said that while identifying the authority does not guarantee success, it most certainly enhances the chances of it. 

Despite that, a great many motions are filed and arguments made without any citation to authority. Many times, a lawyer has intoned the argument that "the courts have repeatedly held" or that "the decisions supporting this are numerous." But, when asked to provide one such decision, one statutory citation, or one regulation/rule, the party cannot. It is not impossible to prevail without such authority, but it may well be more difficult. The path to success will likely be more direct and more attainable if the party frames, pleads, and proves their issue(s). 

Sunday, October 18, 2020

The History of the Code and Free CLE

The Code of Judicial Conduct is a intriguing construct. The mere reference in singular terms belies reality. There is no such "the." Around the country, there are a variety of such codes enacted by courts, legislatures, and regulators. The concept of such parameters is not novel, and we are all generally aware of them. But, in America the concept of published ethical standards for judges is a fairly recent development. 

The idea started with attorneys. Just over 100 years ago, the American Bar Association (ABA) decided that lawyers, this profession, and the public would benefit from ethical guidance. It seems that some population of attorneys perhaps struggled with the challenges of distinguishing right from wrong. The ABA, a voluntary association of attorneys, stepped up in 1908 and proposed a Code of Professional Ethics. To put that into perspective, America's first 132 years there was no such constraint or guidance, over half of our national history. 

Perhaps that effort would have been an end, but it later became a foundation for the idea of a similar set of standards for the judiciary. The story is one of perceptions, potential conflicts, venerable names, fame, fortune, deceit, public relations, The Field of Dreams, Kevin Costner, Ray Liotta, and (you guessed it) baseball. Within just a few years of the Code of Professional Ethics, the ABA returned to the challenges of ethics, now focused upon the subject of judges through the efforts of none other than the only U.S. Supreme Court Justice to ever serve as U.S. President, William Howard Taft (1857-1930).  

That, in itself, makes for an interesting story. A former President of the United States, serving as Chief Justice of the U.S. Supreme Court, is called upon to work with a committee of private lawyers to draft something that addresses the ethical and professional challenges of the bench. Though some see this as a natural extension of the Code of Professional Ethics in 1908, the judicial effort came about several years later, following the World Series in 1919. 

The story already involves venerable and recognizable names (William Howard Taft, Kevin Costner, etc.), but no name as memorable as the malefactor in this tale, the villain. The son of a Union soldier in the Civil War, Kennesaw Mountain Landis was born in 1866 (the Civil War ended in April 1865). His father's military service included the Battle of Kennesaw Mountain in Georgia. And thus, a young man was endowed with an unique and memorable name. Through a storied career, Kennesaw is the villain in our story. It may be peripherally of interest that The Landis family was thus clearly on the side of the Union in that conflict. 

But, neither the president nor Kennesaw (who was appointed federal district Judge in 1905 by Theodore Roosevelt), are necessarily the most famous players in the drama that leads eventually to the Code of Judicial Conduct. The most famous player instead was a baseball star by the name of Joseph Jefferson Jackson, who came to be known as "shoeless" Joe. The nickname purportedly came from once playing a game in stocking feet. And, for the film buff out there, Shoeless Joe was the ghost who convinced Ray Kinsela to plow under his corn and build a fateful venue in the midst of Iowa in The Field of Dreams, staring Kevin Costner (Ray Kinsela) and Ray Liotta (Shoeless Joe). 

See, baseball became a profession in the United States in the 1870s. It is likely that our villain, Kennesaw, grew up in Indiana exposed to the great American pastime of baseball. He achieved legally, ultimately being appointed to the federal bench. And, when Shoeless Joe and the 1919 Chicago White Sox were accused of taking bribes to throw the World Series, baseball had plans for Kennesaw. The league owners approached him to be the first Commissioner of Baseball, an offer that he accepted. 

Of course being the first brings him notoriety. His inception of service in the midst of the (later labelled "Black") Sox situation adds to his notoriety. But, for our story, his notoriety comes from his contemporaneous decision to accept that role and nonetheless remain on the federal bench. Yes, he accepted a new job being the face and governance of baseball and retained his position as federal judge. There were a fair few, apparently, that perceived that to be a conflict of interest or at least the potential for one. They thought he should elect one job or the other. 

But, there was no rule that said how a judge should behave. In fact, of the three branches of government established and empowered by the U.S. Constitution, the judicial is the least specific and explanatory. The Legislative Branch is delineated in Article I, which expounds on that branches responsibility and authority in 10 Sections, in excess of 2,200 words. Article II creates and empowers the Presidency in 4 sections, over 1,000 words. The Courts are created generally in Article III, but no description of jurisdiction is stated, It is fair to say that our Founding Fathers spent less time on the Courts than elsewhere. The whole of Article III is only about 375 words. 

Essentially, Article III says only that (1) we will have a Supreme Court, and federal courts to the extent they are created by the Legislative branch. The Constitution leaves even the details of how many and for what purpose to Congress; (2) that judges shall "hold their offices during good behavior," which some see as "lifetime" appointments; and their compensation "shall not be diminished during their continuance in office." So, although there is some perception in 1920 of an apparent conflict of interest, the legal profession was frustrated by the lack of standards and requirements. 

Thus, from one of the great scandals of American sports, a federal judge spurs the contemplation of a set of ethical standards for judges. The ABA adopts the Canons of Judicial Ethics in 1924. They are criticized and challenged. Despite those critical perceptions, they are adopted nonetheless by various jurisdictions in various forms. And, they stand as the judicial behavior standards for almost fifty years, until 1972. In 1972, the ABA adopts instead the Code of Judicial Conduct, to answer the criticisms and to modernize the standards. Many of the original parameters are continued into the Code era, with the organization of Codes still including the organizational tool of Canons (chapters). 

There are a variety of ideals set forth there. Included are appropriate behaviors (aspirations) and inappropriate (prohibitions). The definitions and delineations bring structure to the consideration of various judicial behavior and activity. They remain, now, an integral part of the American judicial process in the various jurisdictions.

This is all discussed in a YouTube video on the FLOJCC Channel, The History of the United States Judicial Ethics. This program is about 50 minutes long, and is approved by The Florida Bar for Continuing Legal Education (CLE) credit, course number 2006691N good through April 30, 2022. Of course, anyone could seek credit in their own state for this program as well. We hope you will watch this interesting history. 

As an aside, Kennesaw recently returned to the news. As mentioned above, his family was from the north, and his father served in the Union army. In addition to the impact Kennesaw effected on the lgal community through his concurrent employment, he impacted baseball as well. He is credited with preventing the 1919 White Sox members, including Shoeless Joe from entering the Baseball Hall of Fame, and more. He is credited with delegating (or at least supporting) the selection of baseball's Most Valuable Player (MVP) to the sports writers.  

The MVP award, to this day, includes the name of baseball's first commissioner Kennesaw Mountain Landis. According to USA Today, his involvement in baseball allegedly "includes 'documented racism.'” In researching and producing the CLE program, it was interesting to learn that "no Blacks played in the majors during his quarter-century tenure" as Commissioner. It was not until more than two years after he passed that "Jackie Robinson broke the barrier in April 1947." 

There are those who contend that he was at least complicit in inherent racism, and others who believe he is responsible for the long period of segregation and discrimination. There are those who believe therefore that the time has come to discuss the continued presence of his name on these awards, as reported by the Tampa Bay Times. Some players have even suggested that their awards bestowed in prior years should be re-crafted without his name included. 

Thus, for various reasons then, Kennesaw was controversial. The outcome of his influence on baseball will undoubtedly be discussed. At some stage, baseball may acknowledge his influence, or perceptions/allegations of his influence, and remove the reference to him on the MVP award. (Update) The decision was made in October 2020 to remove Kennsaw's name, according to CBSIt is unclear how history will treat the legacy of his service as baseball Commissioner. 

However, his decision regarding concurrent employment and the appearance of impropriety will remain an instigating influence in the ABA efforts to create judicial ethical standards. Regardless of the ultimate conclusions regarding his influence on baseball, his role as the malefactor instigating judicial standards will likely remain. 

As we approach the centennial of that effort, essentially the centennial of the Code (through its predecessor, the Canons), it is a worthy effort to look back and appreciate the guidance, standards, and definition that has been provided to the bench through the ABA and William Howard Taft; and, to appreciate the influence that Shoeless Joe and Kennesaw Mountain Landis contributed to the recognition that the adoption of standards would be beneficial.

Thursday, October 15, 2020

Disqualification and Recusal

One of the most confounding topics for attorneys and judges is the disqualification process. There are ambiguities, questions, and challenges regarding the foundation (why) and the process (how). It is admittedly not the simplest of subjects, but the fundamentals are reasonably straightforward. 

The foundation begins with the legislative decision that all Judges of Compensation Claims will be governed by the Code of Judicial Conduct. Section 440.442, Fla. Stat. That Code grew from a dissatisfaction with one federal judge's concurrent employment as Commissioner of Baseball back in the early 20th century. Conceived and recommended by the American Bar Association (a voluntary organization with lawyer members), the original effort evolved into the Model Code of Judicial Conduct.

Authority is important to some. It is therefore noteworthy that the "model" conceived by this voluntary organization has no force or authority. It is a recommendation or model drafted by thinkers and writers. However, the states have authority to regulate their judges and lawyers. Various states have adopted a Code, whether based on the ABA effort/template or not. Florida has. The Judiciary, an independent constitutional branch of Florida government has adopted the Florida Code of Judicial Conduct

For clarity, that adoption renders all members of the Florida Judiciary subject to the Code's requirements. Judges of Compensation Claims (JCC) are not "constitutional judges," that is not part of the Judiciary. The JCCs are part of the Executive Branch, and therefore not affected by the Court's adoption of the Code. Thus, the statutory mandate above adopts the Code and renders it law in this system. 

The Florida Code of Judicial Conduct begins with the premise that judges are supposed to hear cases. That may seem obvious, but the Code spells it out in Canon 3.B.(1):
"(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required."
The default is therefore to hear and decide the cases which are assigned. This is a duty that cannot be taken lightly. There will be cases in the life of every trial judge that may be not be wanted, whether because of subject matter, personalities, or otherwise. But, that a judge does not like a particular dispute is not an issue of disqualification. The default is for the judge to ("shall") hear the case. The exception is those instances "in which disqualification is required."

The Florida Courts have also adopted a variety of rules that govern the manner in which Courts function. These are the Rules of Judicial Administration, adopted by the Florida Supreme Court, and thus applicable to the Judiciary. In that the JCCs are not in that branch, the Rules of Judicial Administration (RJA) do not apply to workers' compensation disputes generally. At least once a year I have to explain that to some attorney who is striving to comprehend either that this Office is not a court or that these rules generally apply only to courts.  

It should not be difficult. Those rules clearly state they "shall apply to administrative matters in all courts to which the rules are applicable by their terms." The critical word there is, of course, "courts." A great many lawyers unfortunately insist on referring to the JCCs as a "court," even filing documents which refer to "this court." Some judges fail to correct that error, allowing or even encouraging the persistence of the mistaken assumption of the status of a "court." Of course, "the Office of the Judges of Compensation Claims (OJCC) is not a court." And furthermore, the Supreme "Court has no authority" or has "ever had" "authority to promulgate rules of practice and procedure for" the OJCC. Amendments to the Fla. Rules of Workers' Comp. Procedure, 891 So. 2d 474, 477-478 (Fla. 2004). The confusion of practitioners and the public is as lamentable as it is avoidable. 

The process for judicial disqualification is set forth in Rule 2.330 of the RJA. This rule is applicable to the JCCs, not because the Supreme Court adopted it, but because the Court's rule was adopted by reference by the OJCC in the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications, Rule 6.126. That rule effects the applicability of the RJA process of disqualification in the same manner that the legislative adoption of section 440.442 effects applicability of the Code. Two actions that incorporate Court procedure into this administrative agency process. 

Once this is outlined, the applicability of these two should be clear and understandable. What remains is a tradition of conflating two concepts related to the removal of a trial judge. One process is called "recusal" and refers to a judge electing upon her or his own judgement to remove oneself from a case. The second process is the "disqualification" which references such a removal at the request of some party. Some of the confusion between the two is the unfortunate and overbroad use of the word "disqualification" in the RJA. 

An unfortunate drafting in RJA 2.330(f) contributes to the confusion. It states:
"Nothing in this rule limits the judge's authority to enter an order of disqualification on the judge's own initiative."
Thus, the use of "disqualification" can be conflated with the more appropriate "recusal." It would therefore be improper to file a "Motion for Recusal," which is a voluntary act. It would be equally improper for a judge to "on my own motion disqualify myself," although that example is certainly enabled and perhaps perpetuated by the choice of that term in the RJA. 

The use of words can be meaningful. The unfortunate habit of referring to administrative judges as "court" causes confusion for lay-persons and lawyers. The mistaken assumptions and misconceptions that come from confusing this Office with a Court are one example. The lack of distinction in the RJA between "disqualification" and "recusal" is another. Words have meaning, and the use of the most appropriate term encourages and facilitates understanding and comprehension. 

Any party seeking relief in Florida workers' compensation proceedings proceeds by filing a motion, see Rule 60Q6.115(1). The disqualification of the trial JCC is no different, because Rule 2.330 of the RJA similarly requires that "any party . . . may move to disqualify the trial judge assigned." Thus, the appropriate vehicle is a motion. The grounds for such disqualification may be any "grounds provided by rule, by statute, or by the Code of Judicial Conduct."

The process is defined. There are required (shall) elements of any such motion. It must:
"(1) be in writing; 
(2) allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification;
(3) be sworn to by the party by signing the motion under oath or by a separate affidavit; and
(4) include the dates of all previously granted motions to disqualify filed under this rule in the case and the dates of the orders granting those motions."
Four elementary components for the motion are thus mandatory. In addition, if the party seeking disqualification is represented, then "the attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith." The motion is to be both "filed" and "immediately serve(d)" upon "the subject judge." The party seeking a disqualification must ("shall") show specific grounds set forth in Rule 2.330(d). The failure to comply with any of these would render the motion "legally insufficient," and subject to denial. 

The motion has to be ("shall") "filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion." There is an exception if the hearing or trial has begun, and when the motion is "made during a hearing or trial," then the grounds for the motion "must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly (thereafter) reduced to writing." In any case, the requirement of writing is clear. 

The judge's decision on such a motion is to be "immediate." In fact, "if not ruled on within 30 days of service, the motion shall be deemed granted." Rule 2.330(j). The Judge must decide this issue before proceeding with further decisions in the case. 

What the trial judge is to consider is often a subject for confusion and conflation. Many speak to the Rule's parameters in absolute terms, which is incorrect. Before considering the motion, it is incumbent upon the trial judge to determine whether the party seeking disqualification has previously sought disqualification of another judge. 

If not, then the motion is an "initial motion." The judge presented with an "initial motion" 
"shall determine only the legal sufficiency of the motion" and
"shall not pass on the truth of the facts alleged."
If the motion is both timely and "legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action." If the motion is denied, then the order shall likewise be "immediate" and shall merely state that the motion is "legally insufficient," "untimely," or both. It will provide no further explanation. Rule 2.330(f).

However, if a previous judge has been "disqualified on motion for alleged prejudice or partiality under subdivision (d)(1)," then the 
"successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case."
In the instance of such a subsequent motion, the "successor judge may rule on the truth of the facts alleged in support of the motion." The "initial" motion is thus taken as true on its face, and the determinations are only of legal sufficiency and timeliness. Any subsequent disqualification motion may be examined more analytically as to its foundation and substance. Thus, the distinction is critical. Whether the judge is considering an "initial" motion or a "subsequent" motion may require different analysis, and may effect the extent and nature of the order entered. 

What is also clear, but too frequently misapprehended, is that once disqualified a judge may not thereafter have any involvement in that case. Thus, an order of disqualification is not amenable to a motion for rehearing or reconsideration (as that judge lacks jurisdiction immediately upon entry of such an order). Later changes to the litigation (a party retaining new counsel, a new party being substituted, etc.) which may remove the conflict or perception thereof will not result in that case being reverted to that judge who has been disqualified. The disqualification may be ameliorated, but that will not shift the case, absent some motion granted regarding the successor judge's disqualification. 

In short, the Code applies to JCCs because the Legislature made it so; the RJA applies to JCCs because the DOAH made it so. A voluntary removal is by "recusal" and a party seeking removal moves for "disqualification." The judge's default obligation is to preside unless removal is necessary, and the analysis of removal is dependent upon whether the request is or is not an "initial" request. Despite the persistent struggles some exhibit with the topic, it is reasonably straightforward. 

Tuesday, October 13, 2020

Different or not?

Is COVID-19/SARS-CoV-2 special? Is it different? Certainly, there has been recognition that some people see it as unique and unprecedented. Others see it as a virus that has similarities to other viruses, though admittedly with significant mortality and transmission risks. The question is not whether the virus presents risks to people and  business enterprises, but how it is treated by workers' compensation systems. 

In that regard, if you have not read the Sedgwick paper on Expanded use of Presumptions by Max Koonce, you should. He addresses how markets and individuals have reacted to the onset of this pandemic. This paper is the second in a series, and I am proud to have participated in the first: A Study on the Expanded use of Presumption. There is discussion in each perspective regarding the manner in which legal standards have been applied in various specific settings and employments. 

Should the allegations of illness from SARS-CoV-2 be treated differently from other allegations of illness or injury? In May, the Industrial Commission of Arizona issued a statement regarding the investigation of COVID-19 claims, described in STRENOUSLY Encouraged. There, the Commission noted that 
"Like all workers’ compensation claims, a denial of a COVID-19 claim must be based upon a reasonable investigation and must be based on facts and evidence relevant to the claim"
Critical in that statement is the "like all" preface. The language thus, in part, supports that an infection claim should be treated as any other claim. More recently, Oregon published a draft rule on COVID claims, as reported by WorkCompCentral. The September 28, 2020 draft sought comments from the public, but provided a fairly short deadline (by the end of the next day according to WorkCompCentral). The proposed rule segregates claims related to SARS-CoV-2 and delineates specific claims handling processes for those allegations. The employer must conduct "a reasonable investigation" for all such allegations. That must include:
  • (a) Determining whether or not the nature of the worker’s employment resulted in a likely exposure to COVID-19 or SARS-CoV-2; 
  • (b) Determining whether the worker did not work for a period of quarantine or isolation at the direction of a medical service provider, or" others (including the employer). 
  • (c) Obtaining a medical or other expert opinion if, before a compensability denial is issued, the worker tests positive for COVID-19 or has a presumptive diagnosis of COVID-19, the insurer is aware of the test results or presumptive diagnosis, and the source of the exposure is unclear; and 
  • (d) Determining whether medical services were required as a result of potential workplace exposure to COVID-19 or SARS-CoV-2, even if the worker ultimately did not test positive for COVID-19.
The specifics of the investigation are thus delineated and distinct for one type of exposure, SARS-CoV-2. Each carrier that has reported "five or more claims for COVID-19 or exposure to SARS-CoV-2" is to be audited. Even if all of those claims have been accepted, the carrier will be audited. This will be an examination of "all denied claims for COVID-19 or exposure to SARS-CoV-2, for which the denial has become final by operation of law by the date of audit." 

So, seemingly an audit will be required "regardless of whether those claims have been accepted or denied," but only the denied claims will be audited. Thus, if a carrier has reported 5 or more claims, there will be an audit. However, if all of those claims were accepted it will be a presumably brief audit as only denied cases are to be examined? 

According to WorkCompCentral, the rule was then adopted on September 30, 2020 and will be effective from October 1, 2020 through March 2021. The state explained that "the need to promote appropriate claims processing is 'immediate and emergent.'" There is an "emergent" need, meaning "arising unexpectedly; calling for prompt action." There is thus recognized an important need for appropriate claims processing in allegations of SARS-CoV-2, but not in allegations of other workplace injuries?

Why are COVID claims different? Is there a reason that, absent such a temporary rule, such claims would not be investigated by the claims professionals just like every other workers' compensation claim? When an injured worker reports an injury or occupational illness of any description, would it make sense that a carrier would be expected to determine if there is a likely occupational cause, to obtain medical insight, to determine if medical care was necessary?

New York also made the news recently regarding COVID. In Asking Insurers to Help Workers on COVID Claims Raises Eyebrows, WorkCompCentral reported the Chair of the New York Board "urged insurance carriers to bird-dog injured workers' medical documentation in COVID-19 claims." The writer says that this "struck some as odd."

According to the Board, "the letter is one way in which the agency is trying to move COVID claims along." Lawyers quoted in the article complain instead that the Board is not scheduling hearings on COVID-19 claims "without additional work from the injured worker." One commented that the "Board does not appear to be enforcing rules . . and the administrative closures (of claims) seem to be happening without proper notice to the injured worker." 

It is possible that COVID-19 claims are being treated differently in Oregon, New York, and elsewhere. It remains interesting why they would be however. If a jurisdiction has rules in place for the investigation of claims and for the processing of them, why would the process of investigation or determination be different for one malady versus any others? 

I have spoken at a variety of programs since the COVID-19 and SARS-CoV-2 immigrated to the U.S. last spring. The best advice I have mustered for claims professionals is to perform the same thorough investigation regarding every injury claim received. That includes contact with the worker, the employer, and in appropriate cases witnesses. That includes obtaining and considering medical documentation and statements. That includes consulting the law, regulations, and contractual obligations. 

In the process, it is important to remember that workers' compensation was contrived for the benefit of two people: the worker and the employer. These are the parties to the "grand bargain," and each has renunciated certain common law rights and obligations in exchange for the substitute workers' compensation substance and process. Each deserves the due process afforded by law. 

In the various systems that comprise American workers' compensation, the methodology may be a general requirement to investigate all claims, or rules and regulations may require some special process. COVID-19 care may be presumptive for some and not for others, either through legislative amendment or executive action. Regulations may be specific and COVID-centric or may be uniform for all injured workers. In short, there are a variety of state reactions. Whether COVID is different or not, there are states that are apparently treating it differently. 

For the claims handler, the appropriate course is to understand and comply with whatever process a system instigates. Whether different or not, the best course is compliance with the state's mandates. In the absence of specific special mandates, it seems appropriate in a nation of equal protection to afford every allegation of work injury or illness the same intense, efficient investigation and process. Each injured worker deserves nothing less.