Sunday, February 28, 2021

Pertinence in Discovery

Discovery can be a tricky subject, even for experienced attorneys. The conduct of discovery in Florida "court" proceedings is governed by various subject-matter-specific rules adopted by the Florida Supreme Court. The OJCC is not a "court" and the Supreme Court does not make rules for workers' compensation proceedings, see Discovery in Workers' Compensation (2019)

That can be confusing. There are the periodic questions about why discovery works the way it does (or more often why it does not work the way someone wants it to). A focus of Discovery in Workers' Compensation (2019) is why interrogatories are not allowed as a mode of discovery in those cases. The answer is reasonably simple to state: "because the rules don't allow them." The reason for this "because I'm the mom and I said so" answer is likely deeper, but it is the answer one needs.

When discovery is instigated, the parameters are in Rule 60Q6.114, Rules of Procedure for Workers' Compensation Adjudications. This rule defines timing ("prior to or after invoking the jurisdiction of the judge," 60Q6.114(1)), delineates the various available forms:

Interactive testimony under oath (a "deposition" - Rule 60Q6.114(2)(a))

A party is asked to send documents or things to another party (a "request to produce" - Rule 60Q6.114(2)).

A non-party is asked to send documents to a party (a "subpoena" - Rule 60Q6.114(2)).

Rule 60Q6.114 also includes authority for "responses and objections" regarding discovery (Rule 60Q6.114(4) as well as the authority of a judge to sort through both a party's effort to obtain discovery and any objections to discovery (Rule 60Q6.114(5)). And, the Rules of Procedure for Workers' Compensation Adjudications incorporates the Court rules in various specific instances: "as provided in the Florida Rules of Civil Procedure."

There are constraints on evidence that parties should consider. One is relevance; see Interesting Discovery Dispute in the News (2014); Relevance and Perspective (2018); The Opportunity to Be Heard (2017); and, How Do You Litigate (2013). Relevance is important.

Relevance returned to mind recently when I ran across on a Motion to Compel. The issue in that case regarded production of documents filed by one party. The opposing party failed (or declined) to file any response or objection to the motion. Thus, the Judge was presented with one side of a story and whatever contest that one side conveyed. In a motion hearing once, a party argued to me that the other side's "motion only tells their side of the story." That is what motions do, they tell one side. If the other party(ies) has a side, it is their obligation to file a response and tell it. 

I have seen many such instances in decades of litigation. Frequently, such a request for relief (essentially, a motion is a request by a party for some relief from the tribunal through the entry of an order, see Rule 60Q6.115(1)) results in the granting of whatever is requested. There is a school of thought that if there were some good reason not to grant the relief then the Judge should hear from the opposing party(ies) in the case as to what that reason is. Absent such objection, an order is entered granting relief.

That did not occur in the present instance. In this case, the Judge instead reviewed the request for production of documents, for which the motion had been filed to compel compliance. The Judge found the requests were not appropriate, noting:
"it is unfortunate that both claimants and E/Cs (employer/carriers) use preprogrammed in computers requests to produce."
The judge reminded of the importance of pertinence, not relevance. The rules allow the discovery of evidence that is not necessarily relevant itself, but which may reasonably lead to the discovery of admissible (relevant) evidence. But, as regards pertinence, the judge noted that standard ("lead to discoverable evidence").

The Judge concluded:
"these generic requests to produce, by both sides, lead to unnecessary litigation and judicial intervention, time consuming and leading to the resolution of the important issues in the case."
The Judge went on to describe the pending claims in the case, and he characterized them as "medical benefits only." He then described the request to produce as "extensive" and inclusive of items that "have absolutely no bearing on the (medical) issues being litigated." He concluded by denying the Motion to Compel, except as regarded the document requests notably related to the pending medical issues, that is the pertinent requests.

There is perhaps illustration here of repetition for repetition's sake. It is perhaps simpler in each case to send out the "form" requests than it is to sit down and think about the actual issues for a few minutes? In the 2007 Transformers, the protagonist is asked "is it fear or courage that compels you?" And, in that context, one might similarly ask is it efficiency or laziness that drives such discovery? Is the client benefitted because he/she/it is not charged for the request since it is merely a rote printing of a form document that takes only seconds? Or, is the client charged as if legal work were thoughtfully performed?

Certainly, it might be more efficient to send the same request for production in every case. That is, more efficient for the party sending the discovery. But, correspondingly, that might be far less efficient for the party responding in that case. In this, one might conclude that efficiency could be perceived as "zero sum gain." Those are instances in which the amount one loses is always equal to the amount someone else gains." That is, when one enjoys efficiency or convenience, it is at direct detriment to another. It may be easy for one side to merely print the same old exhaustive list of requested documents in each case, but that may create extensive and useless effort for the other party. 

The purpose of discovery is to enlighten the parties to litigation upon the pending issues, and various elements of evidence relevant to, or pertinent to, those issues. When it devolves into the rote and unthinking propounding of extensive and irrelevant inquiries, followed by objections, motions, responses, orders, and even hearings, it is neither efficient, effective, or appropriate. Is your discovery pertinent to the pending claims? Can you enunciate how your requests are "reasonably calculated to lead to the discovery of admissible evidence?" Or, are you or your staff just generating habitual form pleadings? 

Is there reason, logic, intellect involved or merely rote habit? Are you practicing law or clicking "print?" Is rote habit and repetition the practice of professionals? Would the potential for some manner of sanction decrease the perceived unthinking routine and return the focus to pertinence and relevance? Should it require some sanction for lawyers to sit down and actually perform the tasks for which they are billing their clients? Are you a professional or merely an automaton that unthinkingly follows a set routine or program acting, reacting, and acting again without consideration, intellect, and judgement?

If you are not a professional, is there a path back to that role?

Thursday, February 25, 2021

Collections Efforts for Medical Care

On February 12, 2021, the Eleventh Circuit Court of Appeals rendered an affirmance in Kottler v. Gulf Coast Collection Bureau, Inc., No. 20-12239; D.C. Docket No. 0:19-cv-61190-BB. The underlying case was filed in the U.S. District Court for the Southern District of Florida. That tribunal entered a summary judgement in favor of the plaintiff, and the collection bureau sought review.

The plaintiff, Ms. Kottler was injured when shelves fell upon her in February 2018, according to the initial petition filed in the workers' compensation case, 18-005010. As is typical in a work accident, medical care was provided to Ms. Kottler. The statutory framework for Florida workers' compensation medical care has changed various times over the last 86 years, but the general premise remains that medical care is the employer's responsibility. 

For whatever reason, some portion of the bills for Ms. Kottler's medical care were not timely paid. One of the medical care providers referred the balance due to Gulf Coast Collection Bureau, Inc. There was no dispute that Gulf Coast then sent Ms. Kottler a letter regarding the debt and its efforts to collect the money. According to the Court:
"Gulf Coast demanded that Kottler pay her medical bills, but in Florida an 'employee is not liable for payment for medical treatment or services provided,' Fla. Stat. § 440.13(13)(g), and '[a] health care provider may not collect or receive a fee from an injured employee,' id. § 440.13(13)(a). Instead, '[s]uch providers have recourse against the employer or carrier for payment for [medical] services rendered . . . .' Id."
This prohibition on collection actions against injured workers was not in the 1935 statute, but has been integral to the Florida Workers' Compensation Law for decades. 

In 1983, the legislature made its first effort regarding the protection of employees in this regard, adding to section 440.13(3):
"The healthcare provider or health care facility providing services pursuant to this section shall be paid for the services solely by the employer or its insurance carrier, except for payments from third parties who have been determined to be liable for such payment."
In 1990, the Legislature added clarifying language to this:
"Subject to the provisions of paragraph (2)(d), the employee is not liable for payment for treatment or services provided pursuant to this section."
Thus for at least thirty years (1990) and arguably longer (1983), the injured worker in a Florida workers' compensation case is not liable for the cost of medical care provided under the workers' compensation law. 

Despite this long-standing prohibition, it has not been uncommon for injured workers to receive such billing. There are a multitude of reasons. First, it must be remembered that human beings are imperfect and make errors. Second, there are likely many injured workers who neither (1) know of this prohibition, nor (2) are comfortable reacting to such a billing to inform a medical provider. Third, the collection efforts regarding such bills are more likely to be pursued by an agent of the medical practice than by the medical practice itself, and the agent's information may be less than ideal. 

The Court in Kottler explained that the Fair Debt Collections Practices Act (FDCPA) does not allow a "debt collector" to make “false representation(s) of the character, amount, or legal status of any debt.” The definition of "false," should one escape our collective agreement is "if an unsophisticated or naïve consumer would be deceived by the statement of the debt collector." The collector may be required to pay damages for improper or untoward collection efforts even if it can demonstrate its actions (the "violation(s)") "are not knowing or intentional.” 

As explained by the Court in Kottler, Gulf Coast sent Kottler "a validation notice" regarding charges for medical care related to her work accident. Gulf Coast thus sought to characterize this letter in an attempt to "verify, not to collect a debt." However, the Court noted that "undisputed evidence established" this was "a dunning letter." It stated the “account . . . had been listed for collection,” and that “[t]his is an attempt to collect a debt." The Court concluded that this "validation" unequivocally "conveyed that Kottler was responsible for and overdue in paying outstanding medical bills." The Court concluded:
"Any consumer in Florida unfamiliar with its worker’s compensation laws who received the letter Kottler received would be misled to think that she was obligated to remit payment for medical bills that were owed by her employer."
Second, Gulf Coast argued that the letter it sent was "attributable to a bona fide error," and thus should therefore be insufficient to render it liable (the lack of intent, a simple mistake). The Court explained this is "a bona fide error defense." To avoid liability on this basis, the debt collector must demonstrate the mistake “occurred despite the maintenance of procedures reasonably adapted to avoid any such error.” That is collector procedures, not the referring medical provider's procedures. 

The Court explained that a debt collector must 
“'actually employ[] or implement[] . . . procedures to avoid errors,' and then ensure those procedures were 'reasonably adapted to avoid the specific error at issue.'” 
It concluded that Gulf Coast's were not "reasonably tailored to identify a debt covered by the worker’s compensation law." Instead, the collector merely "relied on its clients to provide data that identified possible worker’s compensation coverage." The evidence supported that "Gulf Coast used no additional screening procedures to detect if a debt was subject to worker’s compensation." Thus, it inappropriately "relegated “its oversight task to its creditor[s]” and "was not entitled to avoid liability for a bona fide error."

Finally, Gulf Coast argued "that Kottler suffered no concrete injury to give her standing to sue." The Court explained that "injury in fact" is required for standing, consisting of four elements: (1) "the injury must invade a legally protected interest and be (2) concrete, (3) particularized, and (4) imminent." Thus, the allegations of false statements in the letter and phone calls, Ms. Kottler's testimony regarding her reactions to these communications, and her resulting fears, were collectively sufficient to afford her standing under the applicable requirements. Stated differently, "Kottler was entitled to avoid communication concerning (debt) collection . . . she expended time addressing unwarranted collection calls . . ., and those calls upset her."

As an aside, the Court addressed the process of summary judgment. The process for this tool is set forth in the various rules of court, and may differ from jurisdiction to jurisdiction. Recently, the Florida Supreme Court announced that the Florida process will soon (perhaps May or June) be interpreted more similarly to the process in federal courts. The Eleventh Circuit's explanation of summary judgement is therefore of pertinence to Floridians, as the state transitions to the analysis explained. 

The Kottler Court explained summary judgement:
"is appropriate when there exists no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)."
It affirmed the conclusion of the District Court granting summary judgement in favor of Ms. Kottler. The reader should take from this:
(1) injured workers should not be subject to collection efforts regarding treatment for workers' compensation injuries.
(2) whether such billing is or is not appropriate may depend upon whether a claimed injury is or is not deemed compensable.
(3) those who collect such debts should take independent steps to verify whether billed treatment was for such a compensable workers' compensation injury. 

Tuesday, February 23, 2021

Preposterous or Incoherent

An intriguing decision was rendered by the New Jersey Superior Court Appellate Decision in October 2020: Anesthesia Associates v. Weinstein Supply, A-5033-18T4 and A-5718-18T4. The case consolidates for appeal two decisions of New Jersey workers' compensation judges regarding jurisdiction over medical billing disputes. It is intriguing for its analysis of jurisdiction, its reliance upon secondary authority, and for its defense of workers' compensation judges.

A side element of intrigue in many workers' compensation opinions is the volume of abbreviation engaged by the court; this is a great example. Essentially, the Court said:

the WCA is interpreted as regards the jurisdiction over AAM and SJC MPCs. There is involvement of the PABWC, as well as the PDOLI in one case and WCBNY in the other. Each  MPC was instigated by an MPAP under the WCA.
The opinion explains each of these abbreviations (many do not). However, the use of abbreviations may nonetheless be confusing or even confounding. We are periodically reminded that there is a language of workers' compensation, which we should strive to avoid for the benefit of those who visit this topic area. 

In each of the two cases, an individual injured elsewhere (Pennsylvania and New York) received a minimal volume of medical service in New Jersey. The New Jersey medical providers (Anesthesia Associates - AAM and Surgicare of Jersey City - SJC) received reimbursement through those other jurisdictions: PDOLI (Pennsylvania Department of Labor and Industry) and WCBNY (Workers' Compensation Board of New York). Dissatisfied with the reimbursement, each filed a Medical Provider Claim (MPC) under the New Jersey Workers' Compensation Act (WCA) by submitting a Medical Provider Application for Payment (MPAP).

In neither instance had the injured worker invoked the jurisdiction of the New Jersey Division of Workers' Compensation by filing a claim. But, the medical providers contended that the Division nonetheless had subject matter jurisdiction independent of such a worker-filed claim. These medical providers essentially argued that the Medical Provider Claim is a "separate cause of action," which is "rooted in breach of contract" and subject to the jurisdiction of New Jersey's Division. 

In the Anesthesia Associates claim, the Court noted that payment had been made pursuant to the Pennsylvania fee schedule, and the provider was seeking greater reimbursement in New Jersey. Notably, states continue to engage various methods for constraining medical costs, the court noted that "New Jersey bases payment on the 'usual and customary charges'" rather than a fixed fee schedule. Thus, it is practical to conclude that these providers envisioned greater reimbursement under New Jersey law. 

A worthy discussion point as regards the Medical Provider Application for Payment (MPAP) forms is language pre-printed upon them. These forms state that: 

"the Employee sustained an injury by an accident arising out of and in the course of his/her employment with Respondent, [that was] compensable under [the WCA]."
Thus, the allegations include contention by the party seeking relief that there is, or could be, a New Jersey workers' compensation claim as regards that particular worker. One might wonder whether the filing of such a form in the absence of a worker-filed claim, or at least the opportunity for one, would amount to a misrepresentation of fact?

The jurisdictional issue in these two cases was one of "connection between New Jersey and the injured employee(s)." Clearly, the medical care providers had ties to, were located in, New Jersey. However, that was not the critical question. Rather than relying upon analysis of the New Jersey law, the Court instead turned to a secondary authority known in the workers' compensation community: Larsons. It explained that this author's "proper jurisdictional analysis" had been adopted by the New Jersey Supreme Court in 2003. Rather than rely upon the Court, this opinion quotes the secondary authority, which is curious. The Court concluded that the trial judges had properly engaged that six-element test in their conclusions that New Jersey lacked jurisdiction.  

In the second claim, the medical provider alleged that, absent jurisdiction in New Jersey, it was "left without any forum to recover." Reaching back literally to the birth of our nation (the Constitution was ratified in June 1788), Surgicare asserted that Marbury v. Madison, 5 U.S. 137 (1803) compelled New Jersey to find jurisdiction to cure this alleged absence of any forum. That analysis does contain many references to jurisdiction, but is most famous for its holding regarding judicial review and the role of the U.S. Supreme Court. 

The New Jersey Court was unpersuaded by Marbury, however. It noted that New Jersey's declining jurisdiction did not leave Surgicenter without recourse entirely, but merely relegated it to the forum offered by the state of New York. Despite Surgicenter being dissatisfied by the outcome of proceeding in New York, that is application of the New York reimbursement constraints, the sound conclusion was that New York indeed offered a forum. 

The Superior Court Appellate Decision affirmed both trial judge's declining of jurisdiction regarding these reimbursement disputes. 

The Superior Court also noted that the disappointed medical providers' appellate statements were less than complimentary of the trial judges in these cases. One described the trial judge's decision as "an 'extraordinarily brazen, unsupportable misuse of authority.'" The other described the "decision in its case [w]as 'incoherent,' and 'preposterous.'"

The Court addressed these comments and accusations. It found those statements to be "pejorative attacks on the judges" and "to be totally unwarranted and disrespectful." The Court noted that 

"the  judges of the court of compensation, like other judges, are dedicated public servants who strive each day to properly assess the cases before them after giving due regard to the facts and the applicable law."
This judicial effort most often results, according to the Court, "legally correct decisions." It admitted that there are times when "lawyers and appellate courts might disagree with them, or they might have made a mistake." However, even such error "does not render their thoughtful consideration of the case to be in any manner an abuse of their power, preposterous(,) or incoherent." The Court admonished the medical providers warning "such characterizations do little to advance a client's position and unjustifiably undermines the public's confidence in the judiciary."

Litigants in all forums, regardless of the law being argued, might be well advised to remember that.

Sunday, February 21, 2021

Vaccination Tribulation

For whatever reason, there are a fair number of people that have little interest in a vaccine for SARS-CoV-2/COVID-19. I have spoken to some who are ambivalent, and others who are fearful. I heard from one who is beyond those, expressing downright opposition to vaccination, and not just personally. That individual feels that vaccines should be avoided societally. These conversations have reminded me that "people are different," as Florida Georgia Line reminded with their 2019 release. 

There are interesting observations about vaccines, their efficacy, and herd immunity in the recent post Vaccinations Implications (2021). That post also discusses the perceptions of some in the medical community regarding the SARS-CoV-2 vaccine. Suffice it to say that there is not 100% acceptance even among that population. Significant numbers of medical professionals have either declined the vaccination or are delaying their own inoculation for the time being. What do we lay-people conclude from their reticence or delay?

May we assume that everyone recognizes the benefits of vaccination? No, we may not. May we assume that everyone concedes that there are at least some benefit to vaccination? No, we may not. May we assume that on any topic in America today we can find both ardent proponents and violent opposition? Well, that seems reasonably likely lately. I had one person express surprise at my openness to vaccine, and was asked "don't you remember Thalidomide?" That seems a bit over-the-top. Perhaps there are some topics upon which we might unanimously agree as a society, but I am not sure what the topics would be. 

It is not just an American conflict, this vaccine. The British Broadcasting Corporation (BBC) reports that in Australia there are protests about the vaccine even before its distribution has begun. Pfizer's vaccine is set for immediate delivery, and the "Oxford" vaccine (AstraZeneca) is expected to be delivered within weeks. Protest participants chanted privacy-referenced slogans such as "my body, my choice." Their reticence is curious, as the Australian plan provides free inoculation, but is said to be entirely voluntary. One strives to understand how such a plan violates anyone's personal freedom or privacy.

So, there are some folks who are unwilling to accept the vaccine, at this time. 

But, there are various reports of others who are very eager to obtain an injection (or two). In Polk County Florida, the winner of "Paramedic of the Year" was arrested for stealing the vaccine. That story makes references to "falsified" documents, and others who may have been aware of, or involved in, diversion of vaccine. CBS News reports that a Fire Captain in Polk County was also arrested in that investigation.

CNN reported recently about a vehicle theft at the "Strawberry Festival Grounds in Plant City (Florida)." There were vials of the vaccine in the car (which was reportedly left unattended and running; side note, not a wise maneuver). The reports are not clear regarding whether the intended target was vaccine or merely the car. KTLA reported the vaccine was worth approximately $10,000.

The Tallahassee Democrat reported theft of the vaccine from Florida State Hospital in Chattahoochee. That theft was of two vials, also reportedly worth about $10,000.

There have been reports of people selling fake vaccine in Washington, Mexico, China, and even the otherwise pristine bastion of truth and integrity, social media. When we cannot trust Facebook, where are we as a society?

WLKY in Louisville reported recently on a "substantial lack of morality" as noted by the Clark County Health Department as Indiana transitioned to a new phase of vaccine eligibility based on age. The Health Department says "People are lying about their residence, about their job location or duties, and about their age as they hand us their driver’s license." It continues that "some have been turned away. Some have been caught only after sending their less-able-to-lie-convincingly co-workers to the site after they were successful."

Remember when people lied about their age for such mundane and banal reasons as obtaining alcohol?

In California, it was lying teachers. In Canada, it was "wealthy people." Elsewhere, it was allegedly "rich, white New Yorkers." National Public Radio suggests that the absence of immediate "universal access" to the vaccines places people "in the position where they are encountering moral dilemmas." NPR concludes that the whole process "can all seem pretty unfair." Why is it that only rich people get Ferraris and Lamborghinis? I have always wanted one, and that I don't have one seems "pretty unfair" sometimes. 

Back in third grade, I remember Mrs. Hutchinson telling us all that she perceived we generally live in circumstances that are less than fair. She suggested that we get used to it. Maybe it is a good thing that the world is finally now evolving to a place of undeniable human equity and egalitarianism? Perhaps all human suffering and injustice will fade to the annals of history as we enter the new age of utopia? Or, is Bill Gates correct (whether he said it or not) in echoing Mrs. Hutchinson: "get used to it?" An intriguing suggestion from Travis Bradberry is that perhaps recitations on fairness say more of the speaker than of the fairness.
"Everyone knows that life isn't fair. Saying it's not fair suggests that you think life is supposed to be fair, which makes you look immature and naïve."
However, my favorite news story on theft comes from Florida. NPR reports that two women in Florida posed as "grannies" in order to obtain the vaccine. They allegedly wore "the bonnets, the gloves, the glasses, the whole thing." Their actual ages were allegedly 34 and 44. One official quoted in the story lamented that this is not exceptional, with an official noting: "some people could squeeze in, so it's (deception) probably higher than we suspect."

Florida sometimes makes international news. This "grannies" story has. It has been featured in India, the United Kingdom, and Canada. Some outlets quoted claims that this disguise scheme was the same as having "stolen a vaccine."

Thus, we find ourselves in an intriguing dichotomy. A great many people who are entitled to the vaccine are not taking the opportunity for whatever reason. A fair few others who are not entitled to the vaccine are striving through imagination, obfuscation, and even criminality to obtain it. Seemingly, some stand on the deck of the Titanic denying and others are dressing as old ladies to sneak into the lifeboats. It is an interesting time, this utopia in which we live. 

Where would you come down? If you are eligible, will you line up? If the random chance arises, as it reportedly did in early January for two in Washington, would you take the shot? Suddenly, the eligibility in Miami changed yesterday with the announcement of availability for those 55 years old (instead of 65), if the person suffers from one of thirteen medical diagnoses (with a note from your doctor). If you had such a condition, would you jump at this new chance?

If through some happenstance you have the opportunity, how will you react? These are interesting times. Many are pent-up, frustrated, and scared. But, taking a COVID-19 vaccine at this time necessarily means one of your neighbors may go without. How are we equipped for this moral dilemma? Can we individually, collectively, societally do what is "fair?" Or, will each of us act in our own best interest? As the song reminds us, "People are Different," maybe we just have to accept that in our new, utopian, even brave world? Things simply become curiouser and curiouser. 

Thursday, February 18, 2021

The Pet Peeves of Judges

The Inns of Court movement has been mentioned in these pages. Two of the more detailed posts are Critical Lessons from a Bar Seminar (2016) and Risks for Attorneys (2019). There are various other mentions of Inn events, the comradery, collegiality, and professionalism that are so endemic to the organizations. Inns have been called "the last, best, hope for this profession" (it was said at a meeting, but attribution escapes my best efforts; it sounds like something former Florida Bar President Henry Coxe would have said). 

On February 17, 2021 the Pensacola American Inn of Court met in a live setting. This Inn, under the leadership of Judge Elizabeth Timothy has defied odds in 2020-21 with live meetings (supplemented with Zoom alternatives for those who wish it), and fantastic social activities. Judge Timothy has been innovative (outdoor venues), inspirational (reminding of the virtues of practice, and the honor of Inn membership), and persistent. The member's attendance has been notable, and illustrates a desire to gather and interact. At this particular meeting, Circuit Judge Ross Goodman's pupilage group presented video vignettes on poor behavior of both lawyers and parties. It was enlightening. 

In preparation for the program, Judge Goodman surveyed judges around the state as regards their "pet peeves" ("frequent subject of complaint"). A lamentable side-note, Judge Goodman will soon retire from the Circuit bench, a huge loss to both bench and community. In the time I have known him, I have found him to be a jurist and educator, patient, scholarly, and cordial. This small corner of the state has been fortunate for his long service.  

The "peeves" list was complimented at the meeting by various Inn members. Some praised their personal practice areas, noting their own close-knit community of practitioners and infrequent experience with professionalism challenges. Judges rose to the podium to comment briefly upon their own "peeves." The conversation at the social that followed returned to the "peeves" and to the practice. The topic was timely, engaging, and productive. 

Indeed, it is encouraging to hear all of this. That there is practice of law without the described shortcomings is encouraging. That the shortcomings are similarly experienced and lamented by a variety of judges is encouraging. More encouraging was when the First Circuit's Florida Bar Board of Governors member was called to espouse the perceptions of the Bar regarding professionalism; there is seemingly a growing belief that the practice of law requires more scrutiny and that the Supreme Court is increasingly focused upon disciplining persistent poor behavior. 

There are a variety of perceptions as to the cause of unprofessional behavior. There is a near universal acceptance of the perception that professionalism in the law is diminished or diminishing. And, it is encouraging to hear from good lawyers that they lament that, strive against that, and promote professionalism in both community and court. But, the list of "peeves" would not be so long if the earnest effort was universal. It is fair to say that the legal profession (not "business"), has challenges, champions, and hope. 

With the permission of Judge Goodman, I reprint below the "peeves" list. I encourage two behaviors. First, for lawyers, ask yourself whether this describes you. No, not in your best light, on your best day, while rested, and unhurried. Does one of these describe you when harried, tired, short-noticed, or otherwise challenged? How do you react appropriately and adequately when challenged? Will you print this list and share with others in your firm, community, or practice area?

Second, for judges, ask yourself if this behavior is occurring in your tribunal. Are you addressing it? Or, do you perceive a tidal wave crashing over you and an inability to begin to confront the problem(s)? If you do nothing but accept unprofessional behavior can the profession ever improve? Is there any chance to confront the challenges without losing impartiality? Are you doing what you can to communicate with counsel and clients regarding appropriate practice and process? Will you print this list to share with attorneys who practice before you?

My thanks to Judge Goodman and his pupilage group, particularly Philip Bates. Also of particular note were the comments of Judge Elizabeth Timothy, Board of Governors Member Jeremy Branning, and attorney Brent Bradley. In the discussion, I perceive commiseration, professionalism, and hope. Perhaps there is room for a similar discussion in an Inn of Court, hearing room, or similar near you? Whether one agrees with any particular "peeve," might we nonetheless find value in discussing the perceptions?

(the following is all quoted verbatim from the provided list and is not the work of the author). 


Compiled by Hon. Ross M. Goodman
  1. Submission of multiple pages of the same document, especially medical records.
  2. Submission of unnecessary records.
  3. Incorrect case citations.
  4. Excessive objections especially on points that don't matter.
  5. Not reviewing depositions submitted into evidence to be able to withdraw objections that should be withdrawn either because they don't amount to anything or, if granted, would be detrimental to the client's position.
  6. Expecting the judge to clean up attorney mistakes by order when the attorney should have filed the proper documents.
  7. Not knowing where in the record is all the important evidence.
  8. Trying to hide the truth of what's really going on in a case.
  9. Exhibits e-filed with some pages upside down.
  10. Exhibits that are so poorly scanned they are illegible.
  11. Cell phones ringing during hearings: Attorneys should make sure their cell phones along with the cell phones of parties and witnesses are turned off.
  12. Attorneys testing the boundaries of professionalism. Nobody wants to lose their case as a trial lawyer. And in the zealousness to win, sometimes attorneys (and hopefully mostly unintentionally) want to "hide the ball."
  13. Failing to respond adequately to a request to produce.
  14. To delay any response to request to produce.
  15. Not coordinating discovery depositions between the attorneys' offices.
  16. Arguing with unfavorable witnesses in deposition or in live testimony.
  17. Failing to timely respond to the order of a tribunal.
  18. Showing "attitude" to opposing counsel or witnesses during a trial proceeding.
  19. Failure to timely file documentary evidence in trial briefs.
  20. Not notifying the Judge's office of resolution in a timely fashion so that other litigants can use the time.
  21. Failure to streamline evidence for trial, i.e., cumbersome and cumulative exhibits.
  22. Needless motions filed just for billing purposes.
  23. The filing of a Motion to Dismiss requesting Dismissal of the entire Petition when the body of the motion only identifies a problem with one of the benefits requested.
  24. Lawyers talking over one another to the judge.
  25. Lawyers directing their arguments to one another and not the bench.
  26. Lawyers not specifically stating what they are asking for in their motions.
  27. Lawyers not adequately proofreading pleadings for typos, bad case cites, etc., before uploading.
  28. We do so much by telephone these days, and attorneys frequently do not call in timely (or call in at all). It is ironic that when people have to travel and appear live, they are almost always on time; however, when all they have to do is call in from their office/home they just cannot seem to do it timely.
  29. Exaggeration in briefs and memos. Attorneys should understate and over deliver.
  30. Lawyers should always cite to the record or the appropriate authority.
  31. Younger lawyers, when dealing with older judges, should be respectful, but not patronizing.
  32. Attorneys who ignore the docket and show up to discuss cases that are not on the docket or cases that are scheduled at a later time. They say things like, "I know my case isn't on the docket but I wanted to discuss, or I know my case isn't scheduled until 1:30 but I need to go to Santa Rosa or my client is going to plea so I was hoping you would proceed now rather than the scheduled time." Attorneys should make it to court as scheduled and the docket, which is the Judge's schedule (particularly now that staggering is such a big issue), is equally if not more important.
  33. Even though social media, texts, and emails are now a critical part of society, lawyers need to understand that filing a motion is still the proper method to make a request of the Court.
  34. Lawyers who use the court's time to do things that they should have done before court. For example, one judge reports that he/she had a Zoom hearing where the lawyer had never spoken to the witness, a state trooper, and wanted the Judge to allow him to speak to the officer on Zoom during the hearing time prior to his testimony which would have tied up the judge's Zoom courtroom, left everyone else waiting, and made the court hearing run longer than scheduled putting the judge behind in other hearings.
  35. Defense counsel should avoid using court time to speak to their clients about plea offers. That is to be expected when there is a new offer relayed at the last minute, but it should not be the normal "MO" of an attorney to wait until court to discuss an offer than has been in hand. The judge reports that he/she has had lawyers call their case in court and then begin the discuss of the offer for the first time on the record.
  36. When an attorney has an objection to how something is being conducted, the attorney should also propose a SOLUTION to the problem of which they complain.
  37. Incoherent writings, which includes "stream of consciousness" motions obviously dictated to a voice recognition software and then filed without proofing or correction. They are often incomprehensible. The lawyer seeks relief, takes the time to bill their client for a motion, and accomplishes nothing in the process because of the failure to do a competent job.
  38. Failure or refusal of counsel to speak with each other. Many of our rules require that attorneys meet and confer in good faith regarding disputes before a motion is filed. Despite that, there are way too many motions in which such communication is not apparent or even represented to have occurred. One of the greatest threats to professionalism is the failure to simply speak to each other.
  39. Scoffing at a judge asking for legal authority on an issue, and justifying the disdain by referencing that "It has always been done this way." It implies that the attorney: (1) has a complete lack of respect for the judge, (2) is not confident in their position, or (3) the attorney is not proficient at legal research. All three implications undermine what might otherwise be a strong position.
  40. Objecting to a judge's ultimate ruling at the conclusion of a hearing. First, objections are evidentiary, and it shows that the attorney is inexperienced or not very bright. Second, even if the attorney states they "Oppose" instead of "Object" to the ultimate ruling, it is, at best, sophomoric grandstanding. If the attorney did a good job arguing their client's position, then the judge knows that the judge's ruling is opposed by the losing party. Furthermore, the record reflects that the attorney's client opposes the relief granted by the judge. A pointless "Objection" shows that the attorney is foolish, impish, or both.
  41. Attempting to unilaterally cancel a hearing that a judge sets by Court order without prior approval of the judge.
  42. Showing up an hour late to a hearing, with no advance notice, and expecting the judge to hear your client's case. Even worse, getting offended when the judge refuses to hear the matter, and instead sets a new hearing date and time.
  43. Arguing with a judge on a point of law when a judge does not rule in your client's favor.
  44. Overuse of the "Emergency" motion or petition to get something that is not an emergency brought before a judge sooner. Like the boy who cried wolf, it takes only a few misuses of "Emergency" before a Judge no longer takes the attorney seriously.
  45. Ex-parte communications with Judicial Assistants.
  46. Failing to call to the Court's attention that a misstatement is made. Attorneys do not realize that they gain credibility with a judge when they voluntarily correct themselves in a hearing if they have misstated a fact or a point of law. The attorneys gain even more credibility if the self-correction is on a dispositive issue. Why win the battle, when you can win the war? The judge will likely trust the candid attorney, as the judge knows the attorney will not lie to him/her.
  47. Cutting a judge off repeatedly. The occasional gaff is understood, but repeatedly cutting the judge off shows a lack of respect and a lack of common courtesy.
  48. Lack of humility. The best attorneys approach each hearing or trial as a job interview, and besides being overprepared, they will charm the judge or jury with a humble, but confident style. This separates the great attorneys from the good ones. Hard work, intelligence, and ethical practices will make an attorney successful. Humble charm in the courtroom turns successful attorneys into great attorneys.
  49. Acting impatient when a judge allows the opposing attorney or party to make a lengthy argument that is patently irrelevant to the matter before the court. Often, when a judge reaches the point in a hearing when he/she realizes that they are going to rule against a party, then they make sure to allow the losing attorney, and sometimes even the party, to make all the arguments they feel the Judge needs to hear. They will do this so the party can leave the hearing knowing that the judge heard everything they felt they needed to say.
  50. Ignoring a judge's question. If the Judge starts a hearing off by asking a pointed question on a very specific issue, the worst thing an attorney can do is try and tip toe around answering the question.
  51. Notice of Hearing with misspellings. My form notice I send to attorneys has for the title "Notice of Hearing on (title of motion and date filed)". Guess what the title of a recent notice read? I think attorneys are having their staff sign these through the portal. Definitely increased since the portal started.
  52. I will announce pretty much verbatim what I want my reports to include. If it's an all-day case, 1 usually schedule an announcement a few days later. I go from notes I prepare and may speak for 45 minutes. Because their staff will be doing the typing, I always tell the attorney they can record on their phone because they will not be able to keep up otherwise. Many say "I'll take notes" and their proposed reports are junk. The funniest thing that happens about once a year is I'll say, "The Wife has a gross monthly income of $3,500: Oh, go back up where I talked about the Husband's income, and put in that his 2019 bonus is not considered in his future income as future bonuses are speculative." The submitted report will have the exact language quoted above.
  53. Failure to state the basis for any objection after instructions to do so. An objection without a stated ground can be overruled and further review would likely be precluded.
  54. Charging $1500 for a contempt motion on $500 of unpaid child support. First, I know many attorneys won't open a file for less, but they need to know just because they charged their client that much even if fees are awarded it going to be for a couple of hours. Better practice would be to tell client they have the option to bring pro se.
  55. Having two attorneys on a complex legal issue and not getting any case law.
  56. If it's a case for sole parental responsibility and/or restricted timesharing, tee it up. I will have an all-day hearing with allegations of danger to a child and then the party advancing those facts will suggest every other weekend and half the school breaks to the bad actor.
  57. Attorney against a pro se. Attorney will make proper objections which are sustained. Attorney will then ask his or her witness, "What did your cousin tell you that the child told her boyfriend?" Bit of an exaggeration, but not much.
  58. Arguments between attorneys on some discovery or pretrial stipulation. If you don't trust the other attorney, put it in a letter or an email. I m not getting into it otherwise.
  59. Not knowing the rule that requires the client, the outgoing, and the incoming attorney to sign the motion for substitution of counsel.
  60. Not doing a certificate of service to the client on a motion to withdraw and/or not serving the client the notice of hearing to withdraw.
  61. Not knowing the answer to: "So counsel, what do I have to find to rule for you here today, what are the buzz words?"
  62. Setting too little time for a motion and then expecting to keep arguing past the scheduled time.
  63. Not working with opposing counsel in scheduling hearings. That is, the attorney is always available for matters the attorney wants to schedule, but rarely available for matters to be scheduled by opposing counsel.
  64. Staying in fantasyland by thinking that we do not notice that you have an open schedule when you want to schedule a hearing on your motion, but are booked up for months when you are the non-movant upon being requested to coordinate a hearing.
  65. Having copies of relevant cases or exhibits for the judge but not for opposing counsel, or worse, not having any copies.
  66. Failure to proofread pleadings and motions.
  67. Trying to argue a case from another DCA when there is a binding First DCA opinion directly on point.
  68. Unnecessary discovery disputes which could have been worked out if the attorneys were reasonable.
  69. Unnecessary litigiousness. Not everything has to be a fight. Get to the core issues of disagreement and don't fight over the extraneous stuff just to generate "billables."
  70. Asking for too many continuances because the attorney has taken on too much work to properly represent the particular client.
  71. Lawyers who do not practice Zoom with the clients before hearings, so that the first 10 minutes are wasted while we teach the mechanics of using the technology.
  72. Waiting until a few hours before the hearing to file a decent response that gives the judge no time to consider the response before the hearing.
  73. Not being prepared enough to know the exhibit you intend to use with the Witness, having some familiarity with the exhibits, and taking time to ensure opposing counsel has the same documents.
  74. Interruptions which are usually caused by listening with the intent to respond, rather than to understand.
  75. One judge remembered a hearing where he/she began going through plea colloquy with the defendant, the defendant's attorney went and sat down. The Judge felt bad for the defendant, standing there alone. It definitely caused consternation.
  76. Lack of candor with the tribunal.
  77. Not providing the Judge with pertinent case law when the legal issue involves public policy considerations.
  78. Not disclosing expert witnesses, for example, an IME physician, until the 30-day discovery deadline. Gamesmanship/Ambush.
Appellate Court
  1. Arguing too many issues. A typical appeal shouldn't have ten claims of error by the trial court. Pick your best claims, and remember the impact of the harmless error standard.
  2. Answer briefs unnecessarily restating the same facts as the initial brief, changing the order of argument from the initial brief, or not responding to argument.
  3. At oral argument, not responding to a question asked by a judge or saying you'll get to that later.
  4. At oral argument, not being familiar with the record or saying you didn't represent the party at trial.
  5. Not focusing on the standard of review and preservation of error.
  6. Being late without letting the court know (no one can find you instead of you calling us to let us know).
  7. Not being dressed professionally (attorneys in sweaters, tennis shoes, loose ties).
  8. Chewing gum.
  9. Not knowing your client's name.
  10. Answers like "yea."
  11. Blaming secretaries/paralegals for mistakes.


Tuesday, February 16, 2021

The "Shall" in Workers' Compensation Referral

In 2009, Martin Leibowitz and I composed an article that The Florida Bar Workers' Compensation Section was gracious to publish in its quarterly News and 440 Report. It is an overview of the complex challenges that can occur when an administrative judge finds her/himself with no further tools to deploy as regards the proceedings. Unfortunately, the Section website no longer includes that issue. A copy of "Enforcement of the Compensation Judge's Order, Certification of Contempt, and Rule Nisi, a Practitioner's Roadmap" does still persist elsewhere on the Internet however.

The article notes that "JCCs have no inherent judicial authority." Thus, the tools at a JCC's disposal are those afforded by statute. The Florida courts have been quick to remind judges of that over the decades, as noted in cases such as Millinger v. Broward County Mental Health & Risk Mgmt., 672 So. 2d 24 (Fla. 1996); Pace v. Miami-Dade County Sch. Bd., 868 So. 2d 1286, 1287 (Fla. 1st DCA 2004); Pruden v. Herbert Contrs., Inc., 988 So. 2d 135 (Fla. 1st DCA 2008). Judges of Compensation Claims have only the authority that the statute conveys. 

Perhaps the most discussed power that JCCs lack is contempt. Contempt is a frequent Hollywood trope in which a judge penalizes some participant in a proceeding. Across the country, I have heard many discussions about the enforcement of order in workers' compensation proceedings and the near universal absence of contempt powers. The article cited above provides an overview of "direct" and "indirect" contempt. Suffice it here to say that contempt proceedings do not generally proceed as we have all become accustomed to seeing on television. Each type requires notice to the party against whom contempt action is sought, and is more involved than Hollywood might have us believe. 

The article notes that in either instance occurring within a workers' compensation proceeding, the conclusions and memorialization of action or inaction leading to those conclusions should be written in a "Certification Order." This order describes "what is so." This is the description of what has or has not occurred, its relevance and/or implications. The purpose of the order is to inform the reader, including the Circuit Court, of the action or inaction. The article advises that "the assigned JCC should submit a copy of that 'Certification Order' to the Chief Judge of the Circuit in which the JCC's district office is located." 

This is a "should," in a journal article. That sentence has caused some consternation over the years. Of note, the Judge of Compensation Claims' authority to enforce order in proceedings comes from section 440.33(1). That says that the JCC "may preserve and enforce order during any such proceeding." It further empowers the issuance of subpoenas, administration of oaths, compelling attendance of witnesses, and more. The second paragraph of section 440.33 provides the "certification" authority discussed above.

That language is more compulsory, using "shall" not "may." This section says that when there is obstruction, neglect, failure to comply with an order or subpoena, or refusal to appear or testify, then "the judge of compensation claims shall certify the facts to the court having jurisdiction in the place in which it is sitting." (Emphasis added). There is no "or else" accompanying this "shall," and so it may be a more strong direction from the statute. But, it is similarly still perhaps discretionary with the Judge. What does certify mean? Is the issuance of the Order the end of that responsibility, or must it be transmitted by the judge to the Court?

For more on mandatory or directory use of "shall," see Allied Fid. Ins. Co. v. State, 415 So. 2d 109 (Fla. 3rd DCA 1982); Shands Teaching Hosp. & Clinics, Inc. v. Sidky, 936 So. 2d 715 (Fla. 4th DCA 2006). In workers' compensation, "shall" has been interpreted as both only "directory" and as "mandatory," depending on context. Izaguirre v. Beach Walk Resort/Travelers Ins., 272 So. 3d 819, 820 (Fla. 1st DCA 2019)("where the use of the word 'shall' is accompanied by a penalty for failure to comply, a reading of the statute 'leads inevitably to the conclusion that the provision is not amenable to an exercise of discretion.'"); but see Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150 (Fla. 1976)("hearing shall be conducted by a judge of industrial claims, who shall within thirty days, unless otherwise agreed to by the parties, after such hearing determine the dispute in a summary manner.").

The distinction appears clear as regards consequence or penalty, but it is more subtle perhaps. Without any such penalty, the Court has interpreted the provisions of section 440.13(9)(c), Fla. Stat. regarding appointment of an Expert Medical Advisor nonetheless mandatory. See Palm Springs General Hosp. v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997). It is the context of the "shall," and that may be subtle. Thus, to some, the "shall" in section 440.33(2) might seem "mandatory" in context and to others appear merely "directory." However, even if "mandatory" the question of whether that mandates entry of an order or something more remains a valid inquiry. 

Once a Judge enters the "Certification Order," what is the next step in the process? In the few years I have been in this system, I can recall only considering contempt once. As I remember it, I entered the "Certification Order" and served it on the parties. I am fairly certain that I also mailed a copy to the Circuit Court, though my recollection is that the Clerk was the addressee. However, it seemingly remains up to the party seeking relief to either convince the assigned JCC to send that copy to the courts, or to send it themselves. 

Is there obligation for this Office to proceed further, beyond issuance of the "Certification Order?" Some read section 440.33(2) as perhaps somehow making this Office prosecutor of that drive to "punish such person" in the Circuit Court. And yet, the statute does not necessarily explicitly say this. There is no suggestion that this Office would or should file an action in Circuit Court or otherwise pursue the charges of contempt beyond the plain directive "shall certify the facts to the court having jurisdiction in the place in which it is sitting." Thus, whether the "shall" refers merely to entry of the order or to its transmittal to the Court, the "shall" seems to stop there. 

As a side note, any party can seek appellate court action to require the performance of a ministerial act. The process for such a request is the extraordinary writ of mandamus. This is described City of Coral Gables v. State ex. rel. Worley, 44 So. 2d 298 (Fla. 1950). But, that appellate process would perhaps be a time-consuming and expensive methodology to seek to require the trial judge to send a copy of the "Certification Order" to the Circuit Court (this presumes the appellate court would agree that the "shall" extends beyond the entry of the order itself; a good argument can be made that "shall" only means an order will be entered). A party might find it far less burdensome to transmit or file that order with the Court, rather than seek such an extraordinary requirement. 

Who ultimately decides what process or procedure is employed in effectuating section 440.33(2)? The answer is the same as with all other decisions. The parties to a case, or an objecting non-party perhaps, have the duty to bring their dispute or request before the assigned judge. The burden lies upon the party or parties to persuade the judge to action that it/he/she/they seek(s). Whether to take such action, be it mailing the order to the Circuit Court or more, is up to the assigned judge. It is her/his function to hear the arguments, consider the facts and law, and render a decision as to how to proceed. 

Ultimately, when one is dissatisfied with the Judge's decision, the only paths to changing it are through a motion for rehearing or clarification, Rule 60Q6.122, or through seeking relief in the appellate court. That does not mean there are not other paths to the enforcement of the trial judge's "Certification Order." In the event that the trial judge will not send such order to the Circuit Court, the party seeking contempt may certainly transmit that order to the Court, or even file a civil action in Circuit Court to seek enforcement. The subject is challenging, as are many in the law. The path may be different in various circumstances, and with various judges. 

Sunday, February 14, 2021

The 2021 High School Mock Trial Competition

These pages have included references before to mock trial competitions. See Argo Mock Trial 2018 and The FLREA and a Great Week (February 2019),  

I have been involved with the Florida High School Mock Trial effort for a few years. My interest began long ago in a far away galaxy called Jacksonville Beach. A member of the Jacksonville Bar Board of Governors put me in touch with a fellow named Ed Lange who taught at the high school there. He was teaching debate and trial skills to teenagers, and had constructed a courtroom in his classroom to facilitate it. I was privileged to get the nickel tour and was inspired by what he was doing. The Florida Law Related Education Association (FLREA) had just begun in 1991. 

Time passed, and geography changed. In 2011, I was recruited to judge a round of the High School Mock Trial Competition in Pensacola, and I was hooked yet again. Since then, I have judged for seven years, helped coach a team one year, and spent the last three being the Circuit Coordinator for the First Circuit competition. It is invigorating and motivating. The participants, one and all, are enthusiastic, prepared, polished, practiced, enthusiastic, and inspiring. It is common to hear critiques from local judges and lawyers praising these students as "better prepared than many lawyers." It is a privilege to work with them. 

The process involves a variety of "Circuit Competitions." In some parts of the state there is enough interest that county competitions are held to see who will be allowed to compete in that Circuit. And, in the end, each Circuit may send a team to the state competition in Orlando. Well, until 2020. See last  year we had all just finished that "Circuit" component when the Great COVID Adventure of 2020 began. Lockdowns were implemented, schools were interrupted, and travel was discouraged. There was no state competition in 2020.

Well, the state's courts have since responded to the pandemic. The Florida OJCC has responded to the pandemic. Hearings are proceeding, albeit it on Internet platforms, in "virtual mode," and many lament that things are "not the same." Certainly, but things are moving forward. I was pleased to learn that the High School Mock Trial Competition would similarly proceed in 2021. 

Onward we move. The problem, or "case," is distributed and the students are practicing. The format will be different. Gone for 2021 are the courtrooms, jury boxes; gone is some of the pomp and circumstance. The whole "eye contact," and "stand here, not there" and more are going to be replaced by "look at the camera not the screen," and "remember to turn your microphone off when not speaking." Courtesy and polish will remain at the fore, but the methodology will be different. 

But, on we go. I have only just begun to recruit judges to preside and lawyers to score the rounds in the First Circuit. We still need more presiding judges, but have a month to find them. We are blessed in the First Circuit with a university whose students persistently volunteer to help us with tasks like time keeping. We are moving forward. Despite our being blessed with volunteers and fantastic students, there are Circuits around Florida with struggles. Some because of volunteer turnover, others because of the new "virtual" paradigm, others for various reasons. 

If you are interested in being involved, check out the details on the competition website (hosted by Florida Southern University). There you can find the beginning  of the list of competitions and the email addresses to reach out to coordinators. You can likely volunteer from anywhere due to the virtual format. This is your year to become involved without any burden of travel or formality (you could likely help from the comfort of your own den, patio, or even kitchen. 

The FLREA Mock Trial is a rewarding opportunity to see the next generation in action. It is your chance to provide feedback to young people who are striving for their future. You may see a little of a former you in their efforts, struggles, and triumphs. These students are phenomenally talented, dedicated, and focused. They will undoubtedly impress and inspire you, and you will support their dreams and aspirations. 

In the years I have been involved, unequivocally, I have gained far more from their inspiration that they have ever gained from me. They are amazing. Won't you support them, their effort, and their dreams? Give them a couple hours of your time, and contribute to the next generation. It makes you feel really great! Remember what Elizabeth Andrews said: "volunteers do not necessarily have the time, they just have the heart." Will you take the time? You are welcome to email me if you need help finding a program near you to help. 


Thursday, February 11, 2021

Vaccinations Implications

The Workers' Compensation Hot Seat on February 11, 2021 features the challenges with vaccinations. 

The subject of SARS-CoV-2 virus and the resulting manifestation/disease COVID-19 is not news. And, the topic has been addressed in this blog many times in the last year. It seems inconceivable ("You keep using that word. I do not think it means what you think it means" - The Princess Bride, 1987) that we rapidly approach the one year anniversary of the World Health Organization declaring the disease a "pandemic" (March 11, 2020). It seems like yesterday in many ways, and yet in others we seem to have been under this thing's heel for a decade.

The news is filled with coverage of the manifestation. Why just yesterday, the Center for Disease Control made the news for the revelation that "Two Masks are Better than One vs. COVID-19." At some point, we may learn that three masks are better than two, or even that four masks are better than three. The analysis may be that as masks (m) approaches infinity (∞), the probability of contracting the disease approaches 0%? But, eventually my face may begin to look like the Michelin man and neck strain from the weight could become a factor.

Most will remember when we lived through the early days of COVID-19 and there was advice about precautions. We were told not to wear masks at all. The experts evolved from that posture through ambivalence toward mask mandates. The science was uncertain, and we experienced some uncertainty in the science itself. A year into the adventure of COVID-19, we remain unsure of its origin. There has been rumor, conjecture, and innuendo over the last fourteen months. 

However, this week the World Health Organization concluded the virus (SARS-CoV-2) "most likely originated" in animals and then somehow facilitated a jump to humans. Of course some believed this early. An article in February 2020 labelled what we have come to know as COVID-19 as "A pneumonia outbreak associated with a new coronavirus of probable bat origin." There was also early discussion of pangolins. Some may feel the "animal" news this week is not really news at all. And, while the WHO is pronouncing that it is "extremely unlikely" COVID came from a lab in China, that potential has seemingly not been eliminated from discussion. 

What has been news for the last 60 days has been the deployment of vaccines against SARS-CoV-2 and COVID-19. In The Future's so Bright, there is a beginning of an overview of the fantastic speed with which vaccines have been developed, tested, and deployed. In that we are notable fortunate. Some caution us to remember that the development was more rapid than we thought. The New York Inteligencer explains that we have had a vaccine since January 2020. It cautions us that the time that has passed was for the testing and the trial, not for the development itself.

However, the development of SARS-CoV-2 vaccines has been nothing short of astounding. The trip from last April Fool's day when experts opined that we faced at least 18 months of development to the December deployment was outstanding. The New Yorker told us last spring that it might be the "fastest ever," and in retrospect they were right. The effort, cooperation, and focus has been nothing short of astounding. The doubting Thomases were simply wrong with their April Fools 2020 projections. 

We now face a growing number of variants. It is interesting that many found it inappropriate to refer to SARS-CoV-2 with geographic shorthand as has been our history (the "Spanish flu," and others). A great many found such references in the Spring of 2020 as offensive. But, publications like The Washington Post ("U.K. Coronovirus Variant"), the British Broadcasting Corporation (BBC) ("South African Variant"), and National Public Radio (NPR)("the variant from Brazil") are seemingly more comfortable with geographic identifiers for "variants" of the disease. The distinction is palpable, but difficult to understand. 

Publications like the New York Times and the Center for Disease Control have been more academically focused upon using the actual names of these variants: B.1.1.7.; B.1.351.; and P1. A few in the news world, such as STAT, have stressed the theme of avoiding geographic names. STAT takes issue with the geographic shorthand referencing for disease, and seems to suggest some hypocrisy in the practice with variants. 

Part of our inclinations, however, may be in the underlying human psyche. It is easier to remember familiar terms than new terms, and "B.1.1.7" just does not roll off the tongue any easier than "SARS-CoV-2." That is likely why the majority of the world ignores the name of this virus and short-hands with its effect: "COVID-19." Perhaps the variants could be likewise shorthanded with some easier-to-remember shorthand like "COVID-19-1" and COVID-19-2?" STAT has a point, hypocrisy may undermine credibility and confidence.

And now, we turn to the next problem. What if you build it and they don't come? There is an outcome that Ray Kinsella perhaps never feared (Field of Dreams, 1989). But, on the February 2021 edition of the Workers' Compensation Hot Seat, there was a spirited discussions of vaccines and their deployment (this was pre-recorded, and there remains time to register for the February 11, 2021 broadcast).

This discussion includes Dr. Hong Cheung and attorney Bert Randall. Dr. Cheung explains the concept of vaccine efficacy. Of note, he is impressed with how effective these SARS-CoV-2 vaccines are. He noted that the efficacy of the flu vaccine has consistently been lower. That is consistent with WebMD's report that flu vaccines have been about 40%. The Pfizer COVID-19 vaccine is 95% effective. The Moderna is 94% effective. Johnson and Johnson claims to be "85% effective overall." All of these numbers far exceed that 40% from decades of flu vaccine research and testing. Imagine decades of development for 40% efficacy, and millions enthusiastically inoculated annually in the U.S. each year, according to USA Facts. Is it anachronistic that so many accept and embrace a 40% effective vaccine against a seemingly less-lethal infection, but there is seeming resistance to a far more effective vaccine against this more recent threat?

Dr. Cheung helps with some challenging discussions. First, the "vaccine" may be effective and yet you may still get COVID-19. The point of this vaccine includes prevention of infection, but it is also of use in preventing the more troublesome and life-threatening symptoms and effects. Thus, some percentage of those who are inoculated will nonetheless become infected. It seems fair to say that the vaccines are not a cure in every case, but that they are a positive protection in every case. There may be room to debate how much benefit any particular person will enjoy, and what each person's actual risk is without the vaccine, but it seems probable that however  prepared your body is to fight this disease, it will be more prepared with the vaccine. 

Frustratingly, after you get the vaccine, you must still wear the mask, socially distance, and keep washing your hands. This was Dr. Cheung's advice and it mirrors what medical webpages are publishing. The fact is that many people get this virus and never know it. They suffer no symptoms and thus are merely carrying the disease, spreading the disease. As the inoculation becomes widespread, it is possible that greater populations of people will become infected and yet not know due to an absence of symptoms. There is danger in this of greater virus spread if the distancing and masking, and other precautions are simply abandoned.

Dr. Cheung stresses that many people need to be vaccinated. He reiterated the "herd immunity" that has been so discussed on sites like WebMD. He stresses that vaccines have the potential to prevent us from contracting COVID-19 (prevention). There is the high probability that the vaccines will reduce or eliminate the serious effects of COVID-19 (mitigation), with the benefits of fewer hospitalizations, less economic impact (personally and societally). There is the expected effect that either or both of these will impede the virus' ability to spread and mutate. And, unfortunately, there is the potential that prophylactic efforts like vaccine, distancing, and masks may be with us for some time to come.

Mr. Randall addresses the reactions of business. He mentioned that there was discussion early in the vaccine rollout of mandating employee vaccination. That has tempered in recent weeks from his perspective. There are various legal issues he mentions as perhaps influencing employer decisions. There is the potential for vaccine-related complications to themselves be workers' compensation issues. Beyond this, however, there are potentials for such mandates to cause friction with religious liberty and the requirements for disability accommodation under both federal and state law.

He perceives a resulting alternative tendency of employers encouraging vaccination for employees, or even incentivizing, but not mandating. His discussion of the nature of incentives is intriguing, as is the potential challenge employers might face from the standpoint of employees being treated equally, that is some way to participate in the incentive without accepting the vaccination. He mentioned the potential that employees might earn that inoculation incentive by instead participating in training regarding either infection avoidance or mitigation strategies.

Mr. Randall concedes that businesses face competing challenges. An inoculated workforce might mean safer employees, but forcing it could lead to employee claims or lawsuits. Similarly, a workforce making its own choices about inoculation may be less able to assure the customer a safe environment and businesses may face liability claims from that customer. In some perspectives, the mandate of inoculation question may present a Hobson's choice

This February 11, 2021 Hot Seat production is a "must watch" for those struggling to understand the vaccines and various employment issues surrounding them (and it is available for replay after that date). As the U.S. is fortunately in the vaccine stage of SARS-CoV-2/COVID-19, these issues will be potentially (or eventually) on each of our horizons both personally and professionally. Admittedly, some are disinclined to vaccines. 

A recent survey revealed 15% of healthcare workers surveyed had refused the vaccine for various reasons. Among Emergency Medical Service employees in some communities, the refusal rate has been reported as high as 60% in Akron, Ohio, 50% in Miami, Florida, and 50% in Riverside, California. Some might ask "what do they know that we don't know?" They may be anti-vaccine generally, uncertain of safety testing, skeptical of the rapid development of this vaccine, or suffer from a variety of other unstated questions or doubts. 

Their reasoning is not clear. According to Stat, tens of thousands participated in the clinical trials of these vaccines. There were side effects and complications for small percentages of those. But, as important, there have been "43.3 million doses administered" in the U.S. according to National Public Radio (NPR). That is almost 10% of the population. Progress continues at greater than one million doses daily. Worldwide, the volume is 152 million total with over 5.5 million injections occurring daily, according to Bloomberg. Dr. Cheung notes there are tools being used to track complications, side-effects, and more. He was encouraged by the speed of this effort and the vast amount of data now being generated as increasing portions of society join the inoculated. It seems that with each passing day we can be more confident in the vaccines and less worried about complications. 

Is vaccination a simple subject? Is the decision to accept/reject it simple? Is the management of a business in this pandemic any simpler? The answers are likely "no," "no," and (sorry) "no." Well "I Never Promised you a Rose Garden." You owe it to yourself to tune in today to the Hot Seat and learn more about the personal and professional implications of this stage of the SARS-CoV-2 pandemic. And, remember the Hot Seat is available for playback if you run across this post in the future.