Tuesday, May 31, 2022

Metadata and Makeup

The world of litigation is an often challenging course through a maze of rules and regulations that constrain the admissibility of evidence (whether evidence will be considered). See To D or not to D? that it appears, is the Question (January 2016), Daubert, We Hardly Knew Ye, Or do We? (February 2017), Daubert's New Day (May 2019), and Documentary Evidence Objections (July 2014). The evidence code can be confusing, complex, and difficult to interpret. As an aside, many recently have criticized various law school's reliance on the LSAT (Law School Aptitude Test) as an admission criteria. But, it is all about solving puzzles and logic, which is reasonably similar to the challenges of the evidence code in many ways. But I digress.

The challenges of evidence are back in the news recently in yet another collision of the strictures of evidence and the potentially very malleable digital world in which we find ourselves living. It is a world in which we have learned to doubt our own eyes as we see things like Tom Hanks seemingly acting in a film with John Kennedy, who had been dead for about thirty years at that point (Forrest Gump, Paramount 1994).

For this reason, we need to be able to examine photographs, and other digital representations, and make determinations about their authenticity and reliability. Part of that examination will be about the "metadata" that is imbedded in and thus travels with such documents. For more on metadata, see Internet, Evidence, and Admissibility (December 2012). The fact is that almost anyone can try to manipulate the pixels in a digital photograph to add, enhance, detract, or obfuscate. The world of pictures and evidence has changed much in recent years. They used to be "worth a thousand words," and now may require hours of testimony, or as such perhaps that same "thousand words."

I have written recently about "a rather testy defamation action" that is currently in the news. The Stress of Testimony (May 2022). One of the issues that arose in that case involves some photographs submitted as evidence of bruising and injury by one of the parties. That led to the retention of expert witnesses (see posts above regarding Daubert, and the constraints on expert opinion). The experts addressed the photographs, the metadata, and rendered opinions.

The "metadata expert" in this instances "testified that he analyzed several . . . photos." He apparently did not testify that they have been manipulated or changed. However, he concluded that the evidence support the possibility that they have been, and therefore "claimed that he had no way of authenticating them." Newsweek reported the expert's testimony and conclusions. Of the most import, he testified that the photos include evidence that they have been, in some way, in contact with "an editing program."

The digital, metadata, foundation of the photographs includes evidence of software from a smartphone, which supports that the photos were created by a camera in such a device. However, the DNA of those photos (the metadata) is not exclusively from such a device. Woven into that metadata to some extent and degree, the experts believes there is also the DNA or metadata from "an editing program." That, however, does not necessarily mean that the photographs have been altered. The testimony is thus not conclusive, but is suggestive of some doubt and questions.

Thus, the conclusion (opinion, see Daubert) is not that the photos have been altered or are not genuine. It is specifically that there is "no way for any forensic expert to validate these photos." The expert then proceeded to cast doubt on the authenticity of at least "several photographs" specifically. The expert is not alone. Unfortunately, the Twittersphere also includes a fair number of self-anointed experts who took to the question of the picture's authenticity. That itself illustrates the challenges an adjudicator might face in enforcing the evidence code (jurors have to ignore the news, the social media, and focus upon the evidence that is admitted in any trial).

The manipulation of photography can only come as news if one has been in a coma for the last few decades. Accusations about photo manipulation have become commonplace on social media and beyond. Cosmopolitan published a montage of accusations involving well-known names like Kardashian, Rhianna, Gomez, Ramsay, Carey (no, not the comedian), and more. The article refers to discovered alleged manipulations as "photoshop fails," and intimates "celebrities are sometimes still inclined to reach for the Photoshop to give themselves a little Face Tune."

And, photographs themselves may be but part of the challenge of those "thousand words." One of the parties in that case excited the internet during the trial with references to the use of makeup. The party volunteered having a "theater makeup kit" that was referred to at one point as a "bruise kit," which elicited much conjecture in social media about whether the original smartphone pictures (before any non-smartphone DNA may have been introduced) were of genuine injury or of make-up. The same makeup was later referred to as "a color correction kit."

What is true, real, and reliable? That is for the judge to decide in either admitting or excluding evidence. The judge is challenged with the strictures of the evidence code, the authenticity of the photos, and their reliability. This may include questions of "authenticity" per se from an evidentiary standpoint as well as challenges of hearsay, see Better Understanding the Hearsay Rule (March 2016).

Having determined that the photos are otherwise worthy of admission into evidence, the adjudicator may nonetheless face questions of whether they are too prejudicial. See Limine and Workers' Compensation (January 2019). In that analysis, even the most authentic and genuine document or picture might nonetheless be excluded on the basis that they are more prejudicial than they are probative. In either event, it is the judge deciding what the jury will or will not see in deciding the case. 

Finally, the evidentiary process leads to the "weighing" of evidence. See Reweighing Evidence and Appellate Review (November 2017). That is, a consideration of the testimony and documents that the judge has allowed into evidence. This includes consideration of the manner in which such evidence contradicts or is consistent with other evidence. This includes consideration of the credibility of the witnesses, writ large. This includes intuition, introspection, and patience. And, as illustrated in this instance, it may include the testimony of an expert or two on topics that help with the questions of admitting the evidence, but perhaps also on assessing the persuasiveness of the evidence itself.

It is a nasty trial ongoing in this defamation matter. There is a great deal of media (social and traditional) coverage in this particular instance. But, there is the benefit to us all of providing concrete examples of the challenges of evidence that daily confront those who litigate; these challenges can perplex and confound lawyers who strive to both present admissible evidence and convince the finder of fact that evidence supports that her/his client should prevail in a particular trial. It is often a challenging puzzle, and a task for which lawyers must both prepare and practice.

What is to be believed? This process illustrates for us that the judge must make many decisions in that regard, deciding what will be admitted as evidence. After that threshold, the "finder of fact" (a jury in this instance, but in workers' compensation that same judge) must then decide how persuasive various pieces of evidence might be, deciding credibility, and drawing conclusions. In a world of metadata and photoshop and sophisticated make up, we perhaps will all struggle with what we see. As Chico Marx asked long ago, "who you gonna believe, me or your own eyes?" Duck Soup (Paramount 1933).

Sunday, May 29, 2022

A Day to Reflect

There is plenty in our national conscious at any moment. We pause however to remember that we have much because so many fell in protecting our freedom, our lives, and our world. 

The news headlines this morning are focused on much that is important. There was a tragic Texas shooting that is consuming much of American attention; there is ample attention on the response thereto and some amazing stories of survival. Much of the most important perspective is on remembering those lost. 

Addititionally, thousands of flights have been cancelled, a reminder of our COVID-19 challenges. People are seeing the world differently, as some predict college enrolment declines will persist, as perceptions change. Deliberations have begun in earnest in a much-watched defamation suit in Virginia. And we are reminded daily that a relatively small war rages on a world away. Perhaps a war so distant is easy to forget? Too easy to forget, despite the many suffering, dying, and mourning. 

It is no world war, but sabers are rattled and people are dying. Alleged side-effects of that conflict are directly impacting Americans, but more so the world. From a variety of perspectives, Ollie might aptly note "another fine mess," or for those who insist "another nice mess."

Despite that, the real news this weekend should not be the currently-waging wars, or their human tragedy. We pause this weekend to remember those who have fallen. What began as Decoration Day, has become Memorial Day

There will be many travelling despite the cancelled flights. There will be many a burger, hotdog, and watermelon. I can hear the ice cream freezers grinding. The summer season kicks off and the school year likely has either concluded or at least wanes. Our collective focus may be on the fine weather, the abundant food, and the freedoms we enjoy largely to the envy of much of the world. We are indeed fortunate beyond belief.

But, we must pause. I am periodically drawn to those responsible for our ability to celebrate the arrival of summer. In Remembrance (September 2021), I reflected upon our amazing freedom and the exorbitant price that has been paid for it. I had previously reflected upon my opportunity to converse with a native in a small part of what remains of the Maginot Line, a tribute to the past conflicts between two superpowers of the European coterie. Lessons from History (December 2020). That the conflicts of central Europe twice pulled the majority of the world into bloody conflict has been persistently documented, studied, and lamented. The World Wars draw much attention still, but there have been so many more. 

The impacts of the more recent invasion of Ukraine has raised specters of similarity to World War: the dictatorial power of a national leader, propaganda, and disinformation; the actual and perhaps imagined involvement of other nations; the isolation of a people; the millions of refugees; the death and destruction; and the anxiety that comes to so many, likely with significantly increased anxiety that comes from proximity and immediacy.

In the midst of all of these thoughts, however, let us reflect that the United States has only "officially declared war" eleven times. Those do not include anything since World War II. There has been no such declaration as regarded Korea, Vietnam, Iraq, Afghanistan, and more. Some will also remember the Beirut bombing in 1983, Somalia, the USS Cole, and so many more. There are too many events and conflicts to remember them all.

Military.com notes that "Since the Revolutionary War ended, 646,596 American troops have died in battle and more than 539,000 died from other, non-combat related causes." Those figures are thankfully lower than I anticipated. But, those who "gave all" are only part of the story. As Howard Osterkamp so aptly reminded "All gave some; some gave all." While we celebrate all veterans each November, in May we remember those injured and killed.

I have paused in the midst of some of them on the beaches of Normandy, the fields of Luxembourg, the hills of Arlington, at Barrancas, at Gettysburg, and more. And, I have striven to remember their loss, to appreciate their sacrifice.

Courtesy, U.S. Air Force

In the midst of our world, and the distractions of day-to-day, we have an opportunity each May 30 to reflect upon and appreciate the many who defended our freedoms. Those who served remind us of the sacred trust by which we owe our remembrance. Thankfully, the young reassure us with their engagement and leadership in this regard. 

We have a separate Memorial Day for those who pass in their employment, and we likewise mourn their loss. See Happy Memorial Day (April 2022). All loss is important and their loss is no less tragic. 

However, May is different. Today we pause for those who suffered greatly for us, our freedom, our lives, and our world. In addition, we should be no less conscious of, thankful for, the loss of the multitude whose lives were impacted by such death and injury in war. Millions of families suffer today through the impacts of disability and loss, and millions more have done so over the course of our history. We must remember, and we must be quick with a "thank you."

Happy Memorial Day 2022! Take a moment to pause and reflect on the many whose sacrifices underlie our world, our present, and our future. 

Thursday, May 26, 2022

Your Chance to Speak is Now

I was honored in 2020 to be contacted by representatives of the American Medical Association. They introduced me to their plans for a new impairment guide paradigm which envisions transition to hosting the Guides online. In 2021, the first version of the "digital" guides became reality, and yet the work continued. The experience has been largely fascinating, but in one particular respect, quite disappointing. The disappointment is likely clear as the paragraph began with 2020, and so did the pandemic. 

The disappointing part of my AMA Guides experience has been the inability to meet in person. I have come to some familiarity with many exceptional intellects over the last two years, but in a Zoom environment. Zoom is perhaps "the next best thing," which is frankly just another way of saying "not the best thing." I have attended many meetings, gained much knowledge and perspective; come to appreciate some different perspectives. However, I do not really feel connected to the physicians on the Editorial Panel.

Additionally, the AMA headquarters is in Chicago, and from a purely selfish perspective I have been lamenting the absence of Lou Malnati's, Gino's, and Labriola (in the old days I would have mentioned Giordano's and Pizzeria Uno, but those are both now Orlando staples). Despite its failings (frigid winters, etc.), it is tough to beat the pizza in Chicago. Perhaps 2022 will bring a long awaited gastronomical opportunity? More importantly, the chance to meet face to face with some of the very best in our medical community?

Opportunity. That is the critical word. Moments come and go. Some see opportunity and others not so much.

William Arthur Ward is credited with saying “opportunities are like sunrises. If you wait too long, you miss them.” I like that one, and there is a plethora of quotes out there about opportunities. They are “disguised as hard work,” and “neglected,” and “expensive.” Perhaps all true. However, my favorite is that there is no such thing as a lost opportunity. Andy Rooney is credited with that one: “opportunities are never lost; someone will take the ones you miss.” See, there are impacts from opportunities.

And, today opportunity knocks. Not the opportunity to criticize impairment proxies generally, or the challenges of medicine in the world of workers' compensation. There are challenges in these systems, and we acknowledge and accept them. That workers' compensation is a human endeavor dictates that it will be replete in both design and execution with human failures. Despite that, we struggle on. Despite our admissions that there will always be challenges, a small minority of professionals from various disciplines persistently struggles to make workers' compensation better in various ways. We are an intrepid band to be sure. 

The entire effort of the AMA Guides Editorial Panel is in that spirit. My experience with them has been exceptional and overall (see above re pizza) positive. They are focused and dedicated, but I sense they harbor no illusions of Building the Perfect Beast (Don Henley, 1984). In that refrain, Henley notes:
"Ever since we crawled out of the ocean and stood upright on land
There are some things that we just don't understand"
Despite that, he notes that nonetheless
"We're shakin' up those building blocks
"Going deeper into that box- (Pandora wouldn't like it)"
Collectively we are, in short, striving to build a better beast. The AMA Guides Editorial Panel is a prime example of that effort. It is persistently questioning what is in the Guides, the foundations, the conclusions, the processes, and more. We are now in a moment of opportunity. Beginning June 1, 2022, the Panel is seeking your input, guidance, comment, and even criticism. This is your opportunity ("Never send to know for whom the bell tolls; it tolls for thee";  John Donne). That piece by Donne is also a great reminder that we bring great strength together.

On June 1, 2022 a public comment period opens for the proposed updates to the AMA Guides. The projected adoption of these amendments is January 1, 2023. There are changes currently proposed regarding the spine, upper extremity, and ear nose and throat. The time period will extend for about 45 days, and conclude July 15, 2022. It is an opportunity to speak your mind, which in itself is not that uncommon. 

However, this opportunity is uncommon in that you may speak your mind before the amendments are finalized. Rather than playing Monday-morning quarterback regarding these changes, you have the opportunity to participate in the changes, to help pick the play perhaps. You have the chance to speak your mind, engage the incredible collective intellect and capacity of the Editorial Panel, and possibly influence the direction and detail of this critical element of workers' compensation. 

Or, as Andy Rooney suggests, you may forego the opportunity and let someone else have it. You can let your expertise and intellect idle on the sideline while someone else expresses perspective and preference. You can forego and forebear while others "dig deeper into that box" and build a better beast. They can and will express their opinions and make their choices. But, whether to express yours is entirely up to you alone. You alone can choose to sit on the bench or get into the game. 

The AMA is making an unprecedented effort at transparency. For example, each of those Zoom meetings I have attended has been open to the public, and is available for your review. The questions and comments of the public have been invited, encouraged, and considered. The process has been open, gracious, and welcoming. Now, in the next stage, the public can express thoughts. Will you?  

The details are on the AMA website:

You owe it to yourself to consider the proposals. You owe it to this community to express your thoughts. If nothing else, perhaps you could acknowledge and appreciate the extraordinary efforts at transparency and openness? 

Tuesday, May 24, 2022

Revisiting a Judicial Discipline

About a year ago, I wrote a post here about a judge who engaged in the practice of law. See Practice of Law (July 2021). The story is about a Judicial Qualifications Commission (JQC) report recommending discipline for a constitutional judge in Florida. The judge had been accused of practicing law on behalf of her son. I noted there that the story was rife with "reminders for judges."

Those included that judges have to remain aware of the actions and words of their staff; the Code of Judicial Conduct requires it. Furthermore, judges cannot practice law. There is an ever-present potential that some family member of a judge may fall into jeopardy and perhaps those are the times a judge must most forcefully remind her/himself of the Code. Those are times in which emotion may override judgement? In that instance, I suggested it would be interesting to see how the Supreme Court resolved the issue later in the fall. I was wrong about the timing. 

On May 19, 2022, the Florida Supreme Court issued its decision in SC-20-605, Inquiry Concerning a Judge Re Barbara Kaye Hobbs. The Court noted that following a hearing the judge was "found . . . guilty of the three charges for which she had conceded guilt and one additional charge." The Hearing Panel "recommended that she be publicly reprimanded, suspended from office without pay for sixty days, and compelled to attend an employee management program."

The JQC argued to the Court that the judge should have been found "guilty as to all of the charges and  that the seriousness of her misconduct warrants harsher discipline, up to removal from the bench." The Court agreed as to the additional finding of guilt and the insufficiency of the proposed punishment, but disagreed that removal from office would be appropriate.

The Court was specific and critical as to the actions of the judicial assistant, for which the hearing panel had determined the judge was guilty. However, it is worth reiterating. It noted that "Judge Hobbs knew of the serious ethical breach by her judicial assistant and took no steps to counsel her, even after being directed by her chief judge to do so." The Court concluded that the assistant's actions could have been avoided "if she had taken appropriate action." And, as the judge did not, the "rules appropriately hold Judge Hobbs responsible for all of the actions of her assistant that could have been avoided." 

Notably, those judicial assistant infractions occurred later. They are perhaps different than the judge's initial and immediate decision(s) to claim to represent her son following the alleged shooting. The judge's error in that emotional moment are perhaps more excusable or at least understandable than the failures to supervise staff and to correct behavior ("even after being directed by her chief judge to do so."). There is an expectation that we will strive to remediate mistakes or errors.  

As to one of those actions, the "judicial assistant’s actions regarding the security badge," the Court held the Hearing Panel was incorrect and the Court concluded that despite the conduct being “so beyond the mainstream and improbable as to be unforeseeable by anyone,” the judge was nonetheless guilty. It explained that the assistant overall lacked "perspective, sense of propriety, and professional judgment" in her behavior, and thus "it is appropriate to hold Judge Hobbs accountable for her own failure to supervise, even if the specific preference given to her son may have seemed improbable before it occurred." The import is that the judge's overall deference to this staff member was inappropriate. 

The Court reminded that it “gives the findings and recommendations of the JQC great weight.” However, that it not bound by those conclusions. It acknowledged the JQC recommendation that the judge's actions "demonstrate() unfitness to hold judicial office that warrants removal." However, the Court explained that "removal is the most severe form of discipline a judge may face, and it is typically reserved for when a judge" has committed intentional, “serious, and grievous wrongs of a clearly unredeeming nature.” 

The Court concluded that the record demonstrated "a failure of judgment and a lack of appropriate boundaries between her judicial office and her personal life that cannot be tolerated." Furthermore, it reminded that  “[A] ‘judge is a judge 7 days a week, 24 hours a day,’” an admonition that every judge might well bear in mind. The Court held that "Judge Hobbs’s misconduct goes to the heart of the public’s ability to trust Florida’s judges." Therefore, it elected to suspend the judge "for sixty days without pay" and to order that she "pay a fine of $30,000." The judge was further ordered "to attend an employee management program" in hopes of better staff management. 

In terms of impact, the salary of a Circuit judge is $165,509. Thus, sixty day's earnings is $27,207.00 ($165,509/365 = $453.45; x 60). The fine of $30,000 more than doubles that, a total of $57,207 in financial impact, almost 35% of the annual salary. Overall, the impact is significant. The Court's reminders and explanations provide guidance for all judges. It is imperative that judges govern themselves at all times with the Court's admonitions in mind, remembering the potential for public scrutiny and financial penalty for direct failures and more indirectly those of the staff we supervise (or fail to). 

Sunday, May 22, 2022

"It's coming around again"

Offices are consolidating, counties are moving, mediation is changing. "Lions, and Tigers, and Bears, Oh My!" (Wizard of Oz, MGM 1939).

I cannot get Carly Simon out of my mind this morning. For some reason, when I think of her, Brittany Murphy comes to mind. I enjoyed her version of Carly's Nobody Does it Better in Little Black Book (Columbia, 2004)(a movie featuring a cameo by Carly). But back to Carly in her Coming Around Again (Coming Around Again, Arista 1987):
I know nothing stays the same
But if you're willing to play the game
It's coming around again
So, we know nothing stays the same, and the fact is that those that read this blog tend to already be "playing the game," that is working in the Florida workers' compensation litigation system. So, buckle up, "it's coming around again." change that is, counties moving, offices consolidating, mediation evolving, paradigms shifting. In Florida workers' compensation, these are interesting times.

Change has been a persistence in the OJCC litigation system this century. In 2001, the Department of Labor ceased to exist and the OJCC moved to DOAH. In 2003 the first Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications were adopted (they have been changed and refined since). In 2005, the electronic filing paradigm came quietly to the scene, and in 2006 we began enthusiastically promoting it. In 2011, electronic filing became mandatory. Electronic service of documents through e-JCC came in 2013 for attorneys and evolved to carriers, and in 2019 to employers.

The first two decades of the twenty-first century have been largely about change. We have had some struggles with implementation, and we have all had to be flexible and patient. Who can forget those who swore they would never e-file? Or, all the e-JCC users that ignored our pleas to change their usernames and passwords? After the system transitioned in 2012 without them changing as told, there were hundreds of those users with password issues (our team worked tirelessly to get them back in the swing). In 2020 we were challenged with a pandemic, and this community pulled through that with flying colors. We have eliminated fax machines, adapted to Zoom, and professionally evolved in a multitude of ways. 

I recently had an opportunity to speak at an Inn of Court (there are five workers' compensation Inns in Florida: Jacksonville, Orlando, Tampa, Miami, and Treasure Coast). As I told the Inn members, the success of this community through the SARS-CoV-2 pandemic is all on you. The judges, mediators, adjusters, doctors, risk managers, injured workers, and more that kept the litigation moving, adjusted to the challenges, shifted paradigms and persevered. As the world ground to a halt around us, Florida never faltered. As other litigation practices and adjudication systems stalled, locked up, or shut down, the Florida Comp litigation system never paused, faltered, or failed. I am immensely proud of everyone involved.

Yes, there has been change this century. As Carly says, "It's coming around again."

That is not to say that we know or can predict all that is going to change. We are in the process of consolidating offices and this will bring change. Part of that is in process and procedure, and change may persist as the impacts and effects of efforts require tweaks and adjustments. But, the remainder of this post is an attempt to forewarn you of what I do know as we near June, and the process begins in earnest.

New mediators are coming. On June 6, 2022, we welcome Charles Hill (former JCC in MIA) back to the OJCC as a mediator in South Florida (primarily attached to the FTL office). On June 10, 2022, we welcome Kate Marshman as a new mediator in Central Florida (she will be primarily attached to the TPA office). I use "attached" because the location of mediators is going to become less important very soon, read on.

We are offering all State mediators the opportunity to work remotely, and that is part of larger changes in the mediation process. This will mean that the case assignments will default to mediations being conducted by ZOOM. There has traditionally been one mediator per judge in a team process, each team responsible for largely the same case population. That will be ending as we transition. Mediators henceforth may be “in office,” “hybrid,” or “remote,” and that choice will be up to each mediator, not each judge. 

The OJCC database program has thus far been assigning mediations by looking at the calendar of the mediator linked to the judge to whom a particular petition is assigned. Soon, the mediator will instead be assigned randomly with each new case (not "petition") assigned to the next mediator in the statewide rotation. Once a "case" is assigned to a mediator, the system will strive to assign future filed petitions to that same mediator, when possible. Once the mediator is assigned, the system will seek a mediation date with the 130 days, as it does now. However, if none is available, the system will strive to find a mediator who is available within that time period. The mediation work will be more equitably distributed among the various state mediators in the process. Lawyers and others will have to adapt to a wider variety of mediators, styles, and practices.

All state mediators will use the same daily schedule paradigm:

All of these times are in Eastern Time. This is a big adjustment for the Florida Panhandle, all times in those offices will also be in Eastern Time. So, parties, attorneys, and adjusters should all get used to the "one time zone" approach of this new era and be prepared to adjust if their personal ("local") time is Central (or Pacific, Mountain, you get the picture). 

Each mediator will have an OJCC phone number that will reach her/him whether in the office or remote. This will assist with contact for the purpose of updating, rescheduling, and more. Mediations, however, will be by ZOOM. That platform has accommodation for attendees to merely dial in instead of using video. Whether a party or attorney is allowed to opt for audio-only (phone in) will remain in the discretion of the assigned mediator. Rule 60Q6.110.

If multiple case numbers are set for the same employee/employer, those should normally be set for one mediation instead of two or more. Practitioners and parties can help with this by being more attentive and consolidating cases whenever possible. When multiple cases are in litigation for the same injured worker, and the parties have not consolidated for convenience, the parties will have to attentive for the potential of multiple mediations scheduled with various mediators. There may be an increase in judges consolidating sua sponte.

Parties may continue to adjust their scheduling during the 40 days after petition filing (by contacting the assigned mediator to move an appointment prior to the notice being sent), Rule 60Q6.110(2)(a). It is important that they remember they ultimately can adjust their schedule early in the life of a PFB and avoid having to file continuance motions. Attorneys have had this option for years, and it is a woefully underutilized tool. You should try it. 

Parties may ask for an "in-person" mediation (by motion, 60Q6.115(1)). If such a motion is granted, efforts may be made to transfer that particular mediation to a mediator that is geographically close to the venue (district) to which the case is assigned for trial. If parties do so (ask for live), and it is granted, then all attorneys in that instance will be obligated to attend that mediation live (not telephonically or by Zoom), and the attendance mode of others (employer, employee, adjuster) will remain in the discretion of the mediator. Where a district office is available for such a live mediation, the process will be familiar and simple. If a request is made in an area without a local district office, we will work together on those situations to accommodate all interests.

Some counties are being relocated to new district assignments in the consolidation, and the process has been concise and smooth. The finalization of most of this consolidation will come in June. June 10, 2022 will be the day that District MEL is consolidated into Districts WPB and DAY (the counties involved and thus cases will move before this). June 17, 2022 will be the day that District PSL is consolidated into District WPB (again county/case moves will be before). And, June 17, 2022 will be the day District LKL consolidates into District TPA. 

As this occurs, there will no longer be staff in those (LKL, MEL, PSL) offices. There will be signage posted to alert customers to new locations, phone numbers, etc. There will be questions. There will be challenges. There will be opportunities. Direct your concerns and questions to me at david.langham@doah.state.fl.us and we will work through them (if your thought or questions is specific to a case, you must copy all parties appropriately to avoid ex parte communication). I will post in the announcement's post periodically as questions or issues are resolved and thus try to keep the public at large up-to-date on our progress and process. 

I am convinced that this community will weather this change, and will thrive. You will adjust, adapt, and persevere as you have through so much change. You will perhaps look back and remember challenges and anxieties, but these are going to rapidly fade into memory as we progress through these changes. I look forward to your thoughts, your criticisms, and your suggestions as we build a better OJCC for you today and tomorrow. 

Thursday, May 19, 2022

Allegations regarding Funds

In a May 2, 2022 press release, the Securities Exchange Commission (SEC) announced charges related to settlements, which may be of interest to the workers' compensation community. The SEC is charged with government oversight of investments and related regulation. At first glance, its connection to settlements is perhaps less than obvious. It is important to remember that accusations and even charges do not equate to guilt. While the SEC has alleged wrongdoing, that has yet to be accepted or proven.

According to the release, a company, its attorney Chief Executive Officer (CEO), and its president are accused of "defrauding individuals with disabilities." The allegations include that the accused misled these individuals "into believing that the (accused) were placing their funds in a pooled trust managed by a non-profit association." The SEC alleges that the "defendants instead used a non-profit trustee as a shell company to profit from disabled personal injury victims." Those who suffer injury or disability may face significant challenges, and likely could do without being misled. 

The SEC alleges that the accused company and the "executives took advantage of vulnerable victims with special needs, making unethical and illegal profits off of them.” This involved the SEC because it alleges that the accused thereby "violat(ed) the antifraud provisions of the federal securities laws, as well as some "registration provisions of the federal securities laws." The main thing I remember from securities in law school is that those laws were said to be complex and challenging; I was cautioned repeatedly about "dabbling" in them as a lawyer. 

The allegations of concealment extend beyond the "individuals with disabilities." The SEC further alleges that the accused "diverted at least $775,000 in trustee and joinder fees directly from the beneficiaries’ accounts to their for-profit business," and that this was "concealed from the beneficiaries, the Internal Revenue Service, and the Social Security Administration." Thus, it appears that there is perhaps the potential for other government agencies to take an interest in this situation. As complex as the securities regulations may be, in a moment of distraction, one might wonder whether they are as complex as the estimated 70,000 (or at least 2,600 pages) U.S. Tax Code

Some portion of the funds in this instance were allegedly "used . . . to reimburse themselves, sponsor events and parties, and promote . . . (a/the) for-profit business." The SEC is seeking "permanent injunctions" to preclude this activity as well as "disgorgement of ill-gotten gains plus prejudgment interest," seeking to recoup the monies it says were inappropriately used.

There are important considerations worth noting. First, and most obvious, is that compliance with registration and antifraud provisions is important in any respect. However, the challenges of "individuals with disabilities" may be more so. People who are facing physical and emotional injury may well suffer impairment related thereto, related to the stress of immediate impacts to their lives or livelihoods, or from the stress and anxiety of perceived or potential impacts. In a nutshell, as the SEC notes, these can be "vulnerable" persons to whom special care and attention may be appropriate or even necessary.

I was reminded, in reading the story, of the many rules of The Florida Bar regarding the concepts of candor, zealous representation, and effective trust accounting. I have seen far to many situations in which poor bookkeeping (misfeasance) and worse (malfeasance) resulted in settlement money not reaching the appropriate hands (the injured party). Though the sentiment of fair dealing and responsibility are evidenced in the Rules Governing The Florida Bar, the instances of misappropriation are simply too numerous. See Then Arrested (January 2021). 

Just examples from the May 2, 2022 Florida Bar Disciplinary actions are two unrelated but too familiar situations: "failed to timely notify the association that he had collected the funds and failed to timely distribute the funds to his client" (45-day suspension and two years of probation); "did not adequately involve the clients in the settlement process and did not apprise them of the total settlement amount or the amount . . . intended to take as the firm’s fee, which was substantially higher than the amount the clients would obtain" (suspended for 91 days). The monthly report of discipline matters seems to persistently return to such themes.

It is entirely possible that accounting issues may become complex following settlement of a workers' compensation case. There may be lingering issues with the settling attorney's fee or costs, the fees/costs of some former counsel, a Medicare issue, payment of medical bills, and more. Settlement documentations are often straightforward and mundane, but there are also a variety of potential complications. Attorneys are well advised to remain aware of such challenges. And critically, to remain aware of the requirement and benefits of a detailed and signed closing statement (Rules Regulating The Florida Bar, Rule Rule 4-1.5(f)(5):
"the lawyer shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating lawyer or law firm. A copy of the closing statement shall be executed by all participating lawyers, as well as the client."
Every client should be provided with such a closing statement. The distribution of funds among expenses, fees, and net recovery should be clear. And, the client's signature on the statement may bring peace of mind to all involved, particular as memory of the details may fade over time. 

The allegations of the SEC will be interesting to observe. Whether any wrongdoing is eventually accepted or proven remains to be seen, but the allegations are a foundation upon which many can be reminded of the potential for different people to have varied perceptions of transactions and the benefits to all of the closing statement.

Tuesday, May 17, 2022

The Stress of Testimony

At the outset, this is a blog about workers' compensation. Periodically, I get feedback from the mis- (or un-) informed asking "what does this (whatever it is) have to do with workers' compensation?" While it may be that I take things for granted, I have striven in recent years to be more direct with the reader in this regard. Unfortunately, the world of workers' compensation too often includes litigation. And in those trials and hearings, there is almost always testimony from the injured worker, the employer, and various physicians. Notably, these are all either personally or professionally interested in the case, the issue, and the trial. 

However, there are also a multitude of hearings in which there is/are a witness(es) that have no real interest in the case. She/he/they have been subpoenaed and brought to the hearing because of someone else's interest(s). Over decades of trying and hearing cases, I am familiar with their frustration, disappointment, and even anger at being reluctantly present. Much like being summoned to jury duty, such a subpoena can be unwelcome, feel like an intrusion or imposition, and lead to discomfort or worse. Without a doubt, the witness and the juror are indispensable to the justice system. Too often, the subpoenaed witness is unclear on her/his role, on the expectations of counsel, on the process and procedure(s), and on the duration of the commitment. There are additional challenges with being recompensed for one's time as well. 

I was reminded of that as the news feed came up with coverage recently of a fact witness in a rather testy defamation action that is being played out in a Fairfax County, Virginia courtroom. In some ways, that whole legal affair perhaps started in the Washington Post, where one of the parties wrote an opinion piece on domestic relationships. Of course, it is also possible to discern from the testimony reported that the two parties have had a long-contentious relationship the erosion of which merely culminated in that newspaper. As it has played out in the press, it remains at best unclear where and when the parties relationship troubles began. The other member of that relationship filed a defamation suit regarding the Post article and there have since been allegations galore. The case has been intriguing to monitor. 

It is not uncommon for allegations in claims and lawsuits to be viewed differently by the interested parties. Each has a distinct interest, there is disagreement, and hence a trial. Therefore, an independent witness that can corroborate or contradict either party may be of tremendous help to the judge or jury in making credibility decisions (deciding which party's story to believe). And, there are apparently some disagreement and credibility issues in this trial. 

The story that inspired this post, however, is more specifically about an independent witness who was the doorman (or more aptly, perhaps, a "portal person") at a residence in which the (formerly) happy couple resided. The testimony largely focused on the portal person's investigation of a possible intruder, which he ultimately concluded was merely a dog. However, the portal person also noted his frustration with the case, while providing his deposition testimony while driving and vaping. 

According to The Standard, the portal person "drove around during parts of his testimony, (and) became frustrated with the process." According to Huff Post, the portal person added "that he was 'so stressed out' and didn’t 'want to deal with this anymore.'" He is quoted as adding "I’m tired . . . I don’t want to deal with this court case . . . everybody’s got problems and I don’t want to deal with this no more.” Although there those who may not view him as the ideal witness in general terms, he is thus an ideal example of a fact witness pulled unwillingly and perhaps unwittingly into litigation in which he has no real interest.

When the testimony concluded, others involved in the case were heard to comment upon it in the courtroom. They were, in the perspectives of some, critical of the witness' behavior (vaping, driving, etc.). Their comments led to the news coverage that in turn led to this post. Their comments potentially trouble the witness who has already expressed discontent and frustration and perhaps instills trepidation and hesitance in readers who themselves are one day called as such independent witnesses. In short, the commentary in court regarding perceptions of the testimony were perhaps both unnecessary and unwise. 

The lessons from the case are many, including the challenges of disputed testimony among parties. There is reasonable chance of disagreement in trials, and that goes without saying. But, the challenges of acrimony, emotions, and interests are a persistent challenge. The presence of the independent witness can be critical and enlightening. However, it is as critical for the parties and judge to be respectful of their independence, disinterest, and time. 

Lawyers should discuss subpoenas with such witnesses, provide explanation of the need for them, and accommodate their lives in any way reasonably possible. A prime example is affording the opportunity to testify by video deposition at a set time and date, rather than the witness sitting indefinitely in a hearing waiting room, and hoping the process concludes sooner than later. Lawyers should be upfront with witnesses about the plans for trial, when the witness will be needed, and thereafter with updates ("because of ________, I will not be able to call you to the stand until after lunch").

Judges should remain aware of the potential for proceedings to interfere with the independent witness' life and livelihood. Everyone should remember the witness is likely to be missing work or time with family to be present for a deposition or a trial. When possible, such witnesses may be examined "out of order" or otherwise accommodated so that they are not waiting, and waiting, and waiting. Their presence is a benefit to the system of justice, the operation of the proceedings, and challenge of deciding the case. 

Those who would have them testify (parties and lawyers) should strive to make the litigation process as unobtrusive and as facilitative as practical for them. Judges should support those efforts by affording counsel breaks in trial to speak to waiting witnesses and to address their concerns. Judges should be grateful and acknowledge delays that occur ("thank you for your patience with this process"). Everyone in the trial should remember that such witnesses are pulled into such testimony involuntarily and that the witness is likely to see this service as an imposition or at least inconvenience. Courtesy, communication, and acknowledgement may each go a long way to assuage the witness' feelings and to facilitate an orderly conclusion of trial. 

Sunday, May 15, 2022

Another Long-COVID View

WCRI presented a Long COVID seminar on May 3, 2022. This provided an excellent overview of the challenges of the health effect of the recent pandemic and infections. The presentation in some specifics echoed the program presented recently by the American College of Occupational and Environmental Medicine (ACOEM). That is overviewed in Long COVID Seminar (April 2022). That post contains a link to view the ACOEM program. I recommend watching each of these.  

Francesca Beaudoin, a medical doctor with Brown School of Public Health presented an overview of symptoms and challenges that are alleged to be COVID related. In a very practical argument, she stressed that the best methodology for avoiding the "Long COVID" effects would be to avoid COVID period. The benefits of vaccination were thus stressed, and that answer is likely somewhat frustrating to those who have already suffered infection. 

Dr. Beaudoin stressed that many physicians are striving to treat "Long COVID." She mentioned that some are specializing with clinics that are dedicated with the challenges of long-term effects of the infection, while others are persevering in the midst of a broader clinical practice. There seems suggestion that the specialized focus may be of benefit to patients due to the complexity of the various impacts of this infection. 

She mentioned National Institute of Health (NIH) has invested heavily in the research on Long COVID and has published information. However, it is notable that the publication began in September 2021. There has been some tendency for this pandemic experience to seem like it has gone on forever. But, it has been just over two years. See Happy Anniversary (March 2022). Thus, it is notable that the NIH publication of data is dated September 2021, just over six months ago. There is research, but it is just beginning, details are scarce, and science (evidence) is as yet somewhat elusive.  

Dr. Beaudoin mentioned that there are burden of proof challenges in general, but that these are mentioned often in the workers' compensation context. The potential variety of patient subjective complaints is extensive. The CDC lists a panoply on its website (the entirety of this list is quoted verbatim from the CDC site):

"General symptoms
Tiredness or fatigue that interferes with daily life
Symptoms that get worse after physical or mental effort (also known as “post-exertional malaise”)

Respiratory and heart symptoms
Difficulty breathing or shortness of breath
Chest pain
Fast-beating or pounding heart (also known as heart palpitations)

Neurological symptoms
Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
Sleep problems
Dizziness when you stand up (lightheadedness)
Pins-and-needles feelings
Change in smell or taste
Depression or anxiety

Digestive symptoms
Stomach pain

Other symptoms
Joint or muscle pain
Changes in menstrual cycles"

The potential for multiple possible causes of many of these perhaps helps us all understand the physician's struggles. So many maladies might cause stomach pain, joint pain, headache, or fatigue (examples only, from the list above). A physician evaluating a patient might attribute such complaints to a vast array of underlying disease, malady, or pathology. Thus, there is challenge here for the scientist and the patient. As we focus on the workers' compensation, there is then challenge for the risk manager, and in a variety of contexts for the human resource manager. In all, many challenges, questions, and few definitive answers as yet. 

Dr. Beaudoin stressed that there are critical emotional health issues related to the complaints patients report. This is likewise similar to Dr. Kertay's comments and perceptions in the ACOEM program. Dr. Beaudoin explained that these complaints and symptoms are reasonably new, this pandemic is new. She explained that there are perceptions that patients are being extensively tested in regards to complaints and symptoms, and these pathways of testing are perceived by some patients as "being dismissed by the medical community." That is, essentially, that more testing is a way of doing something when there is frustration over not being able to provide definitive treatment.

There is a term in medicine "turfing," that can have a negative implication. Described in the Journal of General Internal Medicine, is the concept of an internal medicine physician referring patients for additional care. Such transfers are appropriate for gaining knowledge and expertise regarding complaints and challenges. The Journal notes, however:
"if the receiving physician cannot provide a more effective therapy than can the transferring physician, medical residents consider the transfer inappropriate, and call the patient a turf." J Gen Intern Med. 1999 Apr; 14(4): 243–248.
It is possible that patients who receive many referrals or who are evaluated by many specialists may come to feel they are being "turfed," and are not being taken seriously. See Can patients tell when they are unwanted? "Turfing" in residency training."

That is not new to workers' compensation. It is concordant with some perceived challenges of soft tissue injury, which are legend in the field of occupational medicine. Patients often present with complaints of pains and discomforts that are perceived as discordant with other medical signs and symptoms, exaggerated, or otherwise questionable. In some instances, there is an incomplete or inaccurate description of the mechanics of injury that can be of interest or distraction. 

It is not uncommon for a patient to be initially treated with conservative care and then receive referrals to a parade of specialists in search of anatomical and physiological explanation for symptom(s).  The root cause of symptoms and complaints in soft tissue and orthopedics can be elusive, and there are instances in which doctors may be perceived as disbelieving or dismissing a patient. In the long run, it is likewise not uncommon for some persistent physician to ultimately identify some pathology that is then addressed, often leading to symptom improvement. Some readily lament the delay that is at times seen in the process of reaching an ultimate diagnosis and instigating specific and focused medical care for it. 

Dr. Beaudoin stressed that patient groups are interested in being believed and receiving treatment beyond testing and investigation. At this moment, only two years into this pandemic, the science is just beginning and there is likely some academic curiosity about each and every symptom, constellation, and presentation. But, as worthy as the efforts at research and measurement are in terms of future patients, doctors must remember that each present patient is in need and is seeking relief or amelioration, not merely study and evaluation. 

Patients are said to be frustrated with the lack of definitive treatment specific to the "Long COVID-19" as opposed to more generic treatments and care usual for the spectrum of symptoms being reported such as respiratory challenges. They may benefit from generalized symptom amelioration, but want to be confident that the constellation of COVID-19, their perceived cause, is being addressed.

Dr. Beaudoin added that the Americans With Disabilities Act (ADA) now contemplates Long COVID being "a disability," in that it may "substantially limit one or more major life activities." It is important to focus on the word "may." The ADA has published a guidance on this topic. Remember that diabetes is listed as potentially being an ADA disability, but that millions live with that disease and are not necessarily disabled. It is not the diagnosis of a condition that equates to disability, but the impact of that diagnosis or disease. The government has an extensive publication of COVID-19 considerations as regards disability. 

Dr. Beaudoin noted that the issues of disability are complicated by the lack of empirical data regarding whether a particular patient was or was not even infected (see above, the best way to avoid "Long COVID is to avoid infection). She opined that antibody testing is not yet of significant assistance in differentiating between a patient that has been affected by the disease/infection as opposed to one that has antibodies from vaccination efforts. She describes how the challenges of differentiation are further frustrated by the early periods of the pandemic when testing availability and reliability were challenging, a situation that may have even persisted during more recent pandemic times in certain areas and communities. Without a test to authenticate the initial infection, the proof of relationship of ongoing symptoms may be challenging. 

Employer groups have been concerned with disability, but also with issues around the legal constraints of vaccination requirements, the ADA, and more. There is a desire for clearer understandings of the potential legal exposures, the operational processes that are appropriate, and the determination of both diagnosis and impairment or disability. The mention of these challenges was an appropriate adjunct to this presentation, but in all sincerity the legal challenges are as broad and difficult as the medical and could easily overwhelm the full time of a separate seminar dedicated to them. 

Of interest, there are seemingly issues with the need for documentation and accommodation of the impacts of COVID. These are not necessarily different challenges than workers' compensation experiences in a variety of maladies and conditions, including even the most common orthopedic or soft-tissue issues. The differentiation of effects of current trauma from the potential pre-existing maladies, conditions, and effects has been part of the diagnosis and treatment challenge in various workers' compensation cases forever. There have long been forensic evaluation challenges to make such determinations in the context of "major contributing cause" and other similar statutory standards. That this is not different in "Long-COVID" is likely neither surprising or encouraging from any perspective. 

Teasing the cause of current symptoms from a spectrum of complaints that may relate to COVID or a variety of comorbidities and pre-existing conditions is seen as a medical challenge. Dr. Beaudoin opined that differentiating will be dependent upon critical analysis of prior medical history, various testing, and study. Her discussion seemed to make reference to a forensic approach to differentiating former symptoms, diagnoses, testing, and the current symptom universe in a particular patient. In that context, it is notable that the volume of patients appears significant and the population of available physicians really has no potential for expansion (the existing profession will perhaps have to divert attention to "Long-COVID" to the potential detriment of other maladies and conditions). 

The doctor noted there are "knowledge gaps today." There is more that remains unknown about COVID-19 than is known. This is frustrating for all involved, and is likely impacting the emotional function and recovery of the patient. The patient, at a minimum, believes her/himself to be suffering from the long-term impact of this viral assault. With all of the questions and unknowns, much remains to be studied, catalogued, documented, and analyzed. 

And, it is possible that medical progress may be years in addressing some issues related to COVID-19 just as there have been long challenges with a variety of human ailments including the previously mentioned diabetes, as well as cancers, lupus, Parkinson's, and the list goes on. To further frustrate matters, there are questions of the impact that various COVID variants may cause and how changes in the virus itself may impact the progress of individuals and the medical reactions to those symptoms and challenges. 

Dr. Beaudoin concludes that the situation overall is not under control, and that science and medicine are struggling with "Long-COVID." Her perspective and comments had parallels to the ACOEM conclusions, but bring a somewhat different perspective and focus. The presentation is well worth viewing. As the scientists bring more study and results, it is probable that future presentations will bring further edification and progress. However, for now, the information in such programming is a fundamental necessity for those in claims, employee relations, and more. 

Thursday, May 12, 2022

The Best of NCCI's Symposium

The 2022 Annual Issues Symposium presented by the National Council in Compensation Insurance was an enlightening experience. As per usual, there were a variety of statistics, measures, and data. Say what you want about this industry, but do not ever forget that it is data-driven and the volume of data seems to increase each year. However, perhaps the most valuable presentation was an interview by Bill Donnell, president and CEO of NCCI.

This was billed as "A Conversation with Roger Ferguson,"  on inclusion. He is a former CEO of TIAA, has worked with Swiss Re, and was Vice Chair of the Federal Reserve System. His experiences, leadership, and involvements speak for themselves. But, his views on leadership dovetailed into some of my recent writings. See The Time is Now (April 2022) regarding the up-and-coming generations, and and Consensus in the Absence of Proof (January 2021) and Science, Standards, and Government (April 2020) regarding the dangers of “groupthink.“

Mr. Ferguson is seemingly not a fan of groupthink. Groupthink occurs when there are no dissenting voices in discussions, and thereby "echo chambers" march forward without meaningful discussion or introspection. Mr. Ferguson introduced the importance of both diversity and inclusion. He likened diversity to being "invited to the dance.“ However, inclusion is “being asked to get out on the floor and dance." That is, to contribute, to provide input, criticism, and feedback. Mr. Ferguson stressed that such dissent is a prime methodology to combat groupthink.

Mr. Ferguson is a vocal fan of mentors. He had multiple encouraging comments regarding mentorship generally and offered some concrete examples and suggestions. He first encouraged recognition of mentors that we perhaps too often overlook. He explained how individuals in his past, beginning with his parents, provided him experiential and tutorial mentorship opportunities. His comments reinforced that mentorship and leadership can be demonstrative (by example and experience). Mr. Ferguson stressed how these experiences have instilled in him a spirit of academic interest, and valuing mentor ship. 

Diversity came into this discussion again as regards mentorship. He further described how individuals with very different world views managed to both foster his development, and assist with finding his voice. Mr. Ferguson described how he has striven to deliver the same kind of diverse approach as he mentors those who are following in (or perhaps parallel to) his footsteps. There is a commitment in his comments to mentoring people who are not necessarily like us in background, foundation, or experience. This is tied to the concept of gathering and providing different perspectives, and resisting the groupthink. 

One of the most intriguing comments that he voiced regarded "reverse mentoring.“ This seems perhaps a misnomer, as mentoring is mentoring. With that caveat, what he described comes from his leadership role(s) in corporate America. He explained how he expanded efforts beyond his mentoring the next generation of leadership by recruiting young employees to provide him mentorship from their expertise. He mentioned that as regards technology, and social media. Thus, he actively engaged young individuals in his organization, pulling them into discussions of their strengths, to teach and train him. This built rapport and community, as well as acknowledged that leaders are not all-knowing. Leaders can and should learn, and the perspective of the young is valuable and worthwhile.  

Finally, Mr. Ferguson's perspective was demonstrated outside of the presentation capacity. Through various events at the conference, he interacted with small groups at luncheons, receptions, and networking breaks. As I discussed this in a small group, it occurred to me that I am exceptionally poor at this. I go to conferences, and I tend to gravitate to those I already know and who are familiar to me. Why do I not gravitate to the unfamiliar? Why don't I take the time to engage younger, up-and-coming individuals when I see them at receptions, dinners (or even in the event hotel restaurant)? Why don't I (you) lead by following Mr. Ferguson's suggestion, example, and premise? 

Let's get out there and engage in a meaningful way. Let's approach the next generation and absorb their perspectives, energy, and intellect. Let's challenge ourselves to ditch groupthink for good and actively seek and engage those who are not like us, do not share our professional foundations, and who bring diverse ideas, perspectives, and even emotions to the world of workers' compensation. I am committing to do this, despite it being out of my personal comfort zone. I hope you will do so also and that you will call foul if you catch me not living up to the idea. 

Tuesday, May 10, 2022

Immunity, Coworkers, Clarity

The Kansas City Star reported a workplace fatality in a community close to Detroit, Michigan. Certainly, such an event is newsworthy in a general sense, but is perhaps of additional interest to those in the workers' compensation community. We strive for workplace safety, and at times struggle. Despite the ongoing threat of workplace death, safety has improved markedly in that regard. See Happy Memorial Day (April 2022). In this particular instance, a lawsuit is garnering more general national attention because the owner of the car is being sued instead of the car dealership.

This story illustrates aspects of the concept of workers' compensation immunity, the potential for co-workers to be impacted, and the clarity challenges that sometimes confront the efforts to understand these complex laws. The story begins with a "42-year old" mechanic at a "Michigan car dealership." He was changing the oil and rotating the tires on a vehicle with a manual transmission (one which requires the operator to physically engage a clutch in order to change gears). 

These are becoming quite rare, and CarMax says they represent less than 3% of vehicles sold in this country. Despite such a small percentage of the total, Motor Trend says there are a surprising number of models for which the manual remains an option. As a result, perhaps the population of those experienced with such vehicles is likewise diminishing. 

There is some lack of clarity in the story, both factually and legally. The "court records say the vehicle 'lurched forward' and "crushed mechanic Jeffrey Hawkins against a cabinet." Careful attention to the story reveals that Mr. Hawkins was not operating the vehicle at the time; He was in front of the vehicle with his back turned when another technician attempted to start the vehicle. The technician was "19-year-old . . . Daniel Thompson." And, the estate of Mr. Hawkins is seeking damages from the owner of the vehicle, who had entrusted it to the dealership for service. 

As it turns out, the "19-year-old technician" did not know how to drive a manual-transmission vehicle. He reportedly "did not have a driver’s license," had "never taken a driver education class," and was not "taught how to use stick shift vehicles." Thus, perhaps it is more apt to say he did not know how to drive at all? The legal implications of the accident are significant. The dealership is immune from a civil lawsuit because of workers' compensation. The employee's sole recovery from the dealership is to be from that social safety net. 

What many tend to forget is that the same immunity also usually applies to co-workers whose negligence causes injury, in this case the technician that attempted to start the car. The lawyer's job is to search for some manner to recover for the client (Mr. Hawkins' estate). It is unlikely that the 19-year-old technician has the means to pay significant damages. Having no drivers' license, it is as unlikely that he has automobile liability insurance, which perhaps would be responsible for his operation of a "borrowed" automobile. 

The lawsuit in this instance therefore alleges that the "vehicle owner . . . is 'vicariously liable for the negligent acts' of (the) technician." The attorney that filed the lawsuit contends that the liability of the auto owner is no different from "when you lend your car to somebody so they can pick up lunch." He contends that if that borrower then acted in a negligent manner with your car, you would be liable. The vehicle's owner has apparently agreed that he “is liable for damages under the owner’s liability statute,” Michigan statute section 257.401, and has tendered his insurance coverage of about $100,000, despite admitting “no active negligence.”

That statute states that 
"The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law"
Thus, there is a liability created by statute so that someone is responsible in the event of an accident. Florida has a similar law, called the "dangerous instrumentality doctrine." This protects "members of the public who are injured by the negligent operation of a motor vehicle. It "impos(es) strict vicarious liability on those with an identifiable property ownership interest in the vehicle." Christensen v. Bowen, 140 So. 3d 498 (Fla 2014). Essentially, if your name is on the vehicle title, you are responsible for the acts of whomever you lend the vehicle.

Despite the statutory liability described in Michigan, the attorney representing the vehicle owner reportedly intends to defend the allegations in court. He is quoted by Yahoo News describing this as a challenging situation for any vehicle owner who allows a valet or vehicle servicer or others to operate a vehicle. How the dispute is resolved of course depends on intricacies of Michigan law. In Florida, it is possible that the same immunity that protects the employer, section 440.11, might well protect those who lease or lend (the vehicle owner) to the employer, if "the leased or borrowed equipment was in the exclusive control of the employer." See Clements v. Wildlife Conservation Soc., 750 So. 2d 715, 716 (Fla. 5th DCA 2000). Thus, perhaps the outcome of such a case may depend on the law of the state in which the tragedy occurs. 

The lawyer for the Michigan plaintiff (Mr. Hawkins' estate) is seeking $15 million, and claims there is no damage or injury to the car's owner because the "dealership where the incident occurred has been ordered by the court to indemnify" the vehicle owner. As the lawyer explains it, "in reality, the (vehicle) owner is going to be held responsible, but the dealership’s insurance company is paying.” There is, therefore, no similar "exclusive control" workers' compensation immunity extension to the vehicle owner who allows some business' employee to operate it.

Thus, in a somewhat circular fashion, the immunity of Michigan workers' compensation is perhaps being circumvented. See Section 418.131, Mich. Statutes. The technician is (or was) also reportedly a defendant in the lawsuit, according to Yahoo. There is a decided lack of clarity in the news stories regarding whether the coworker technician remains a defendant, or has been afforded the coworker immunity described in section 418.827, Mich. Statutes. If the coworker is liable for operating the vehicle as alleged “in a careless, reckless and wanton manner in total disregard of the rights and safety of others,” that may be merely a foundation for the plaintiff to seek damages from the vehicle owner. In other words, the technician's presence as a defendant may be essentially to set the stage for establishing the vehicle owner's responsibility. 

Interestingly, however, will be whether the "dangerous instrumentality" law in Michigan is successfully employed by Mr. Hawkins' estate to reach tort recovery from the employer despite the purported shield of workers' compensation immunity that an employer might anticipate would prevent such lawsuits. The posture of the case in the trial courts is currently trending in the news. However, the case remains in litigation and any outcome in the trial court may be subject to review in an appellate court. The story, however, illustrates much.

State laws regarding workers' compensation may differ from those of other states. Employers would be well served to consider the exceptional (manual transmissions) that can confront their employees. Co-workers may or may not be immune to tort liability, depending upon state law. Seemingly, and similarly, those who own dangerous instrumentalities could potentially face liability in the event of injury (beyond a car in this example, consider cranes, drilling rigs, and other tools of various trades). There can be much time invested in litigation, and many legal intricacies to sort.  

It is an interesting story that brings much about which to think. How the Michigan courts, or the parties there, sort out these various questions may be interesting to watch.