Lex and Verum - National Association of Workers ... · Lex and Verum The National ... (Winter...

In just a few short days we convene the 7th

annual NAWCJ Judicial College. We have a great line-up of

speakers and topics. Thanks to all of you who have worked so diligently in putting this together. This could not

happen without a lot of time, effort and energy. You are all greatly appreciated.

For those of you who have attended the college previously, you are fully aware of the excellence of the

program. For those of you who have yet to attend, I trust you will enjoy your time, and feel it was all

worthwhile. If you are unable to attend, I encourage you to do so in the future. You will not regret it.

The Agenda this year includes sessions on evidence, medical terminology, dealing with difficult litigants,

guardians, ethics, judicial writing, and avoiding remands, to highlight a few. Lunch is provided at no additional

cost on Monday and Tuesday. Entertainment is also provided on Monday evening (Joan Jett), and on Tuesday

(Smokey Bones BBQ). You will receive a letter soon providing general information and tips regarding the

conference. I look forward to seeing you in Orlando.

Finally, I would be remiss if I did not make one last plea for assistance with the Earle T. Zehmer Moot Court

Competition. We still have openings for judges for the event, and I encourage you to participate. If you are

willing to do so, please contact Barbara Wagner at [email protected], or Hon. Tom Sculco at

[email protected]. Your assistance is greatly appreciated.

Lex and Verum

The National Association of Workers’

Compensation Judiciary

Number LXXI

August 2015

President’s Page

By Hon. Michael Alvey*

August 2015 NAWCJ - Lex and Verum

Less than 30 days ‘til Judicial College 2015!

Over 100 registered – from 21 jurisdictions

mailto:[email protected]


I. A HISTORY LESSON

Despite having raised two boys, I find that the workings of the twenty-first century teenage male brain remain

largely a mystery. But in my day, popularity was everything.

An athletically challenged guy in high school some forty years ago whose name, when spoken with a southern

drawl, roughly rhymed with “squirrel,” had limited avenues for elevating his status on the popularity food

chain. An ability to talk automobile mechanics was a safe haven. Fixing the right girl’s broken-down vehicle

could grant one’s admission to the dizzying, ethereal realms of popularity. And so it was that one day I received

a call from the high school girl of my dreams who had become stranded when her car inexplicably stopped

running. Apparently, she had overheard me use a sufficient number of engine-related words to conclude that I

was just the person to come to her rescue and fix her problem.1

Of course, the truth is, my knowledge of automobile mechanics was limited to saying words like carburetor

and fuel pump without actually being able to identify, much less fix, them. That this bluff backfired (sorry) is

what we might call justice. Having traveled to the scene of my erstwhile damsel in distress my opportunity to

diagnose the mechanical problem was thwarted because of my inability to raise the hood. I would not have sunk

lower on the social status food chain if I had spontaneously sprouted a prehensile tail.

You can, no doubt, appreciate how this compelling human drama naturally leads into the topic of medical fee

schedules applicable to workers’ compensation claims. At the recent conference of the Southern Association of

Workers’ Compensation Administrators, fee schedules were a frequent topic of discussion. Casually tossed

about were references to conversion factors, relative value units, and a seemingly endless number of obscure

acronyms. Finding myself in such discussions, I assumed the same serious expression I have employed while

looking under the hood of a disabled car. I hoped that my colleagues would interpret the cricket noise

emanating from the space between my ears as appropriately profound fee schedule musings-at least until I could

retreat to my room or possibly the hotel bar.

Hard lessons can be the most valuable, and if nothing else, I am teachable. Having learned something from

my high school years, I have committed myself to developing a working knowledge of the fundamentals of fee

schedules. This won’t necessarily welcome me into the cool workers’ compensation crowd but will perhaps

allow me to avoid the classic, looking like a fool, sounding like a fool, paradox.

II. WHY DO I CARE ABOUT FEE SCHEDULES?

Virginia is currently one of a handful of states without a fee schedule governing charges for medical treatment

provided to workers’ compensation claimants. Whether Virginia will continue to buck this trend remains to be

seen. Certainly, insurance, employee, and medical lobbyists can envision the implications to their constituents

of standardizing payments for health care services. If medical providers believe they are being insufficiently

compensated for their services, they will discontinue treating injured workers. If the cost of workers’

compensation insurance rises too high, employers may layoff workers or devise ways of avoiding coverage.

Fee Schedules and the Art

of Automobile Maintenance

By R. Ferrell Newman*



Continued, Page 3.

This article originally appeared in the Journal of Civil Litigation (Winter 2014-2015), a

publication of the Virginia Association of Defense Attorneys. It appears here with permission.

Fee Schedules, from page 2

Any new legislation must balance these competing interests while

preserving the Act’s humanitarian goal: ensuring quality medical

care for those injured on the job. The debate is dynamic and will

continue into the foreseeable future. If the concept of a workers’

compensation medical fee schedule is but a passing fancy, then it is

passing slowly. There is, as we say, probable cause to suspect a fee

schedule is somewhere on Virginia’s horizon.

Disputes regarding the appropriate charge for a specific treatment

typically arise between the medical provider, on the one side, and the

employers and insurance carriers responsible for payment,2 on the

other. Applications seeking payment of outstanding medical bills are

being filed by medical providers with ever-increasing frequency; the

number received by the Commission in 2014 is approximately

double that of 2010.3 Adjudicating these disputes requires

consideration of historically unfamiliar evidentiary factors, such as

the customary charge for a service in the community where the

service was rendered and whether a provider is subject to a contract

dictating price.

Mercifully, finding a solution to the fee schedule debate is not the

job of the Commission, and proposing a solution is not the purpose

of this article. This article is for those members of the workers’

compensation community who, like the author, humbly desire a

fundamental understanding of fee schedules. For this, I offer a

remedial course.

III. THE MOTHER SHIP OF FEE SCHEDULES: MEDICARE

If you have been practicing workers’ compensation law for a

sufficient number of decades, you may recall a time when lawyers

and litigants were not expected to protect Medicare’s interests. In the

typical case, after a sufficient interval of mutual eye-gouging,

someone would call a truce and propose a settlement. Upon

agreement, documents would be drafted, signed, and filed with the

Commission. Once approved and paid, the case would be over. It

was a true Kumbaya experience with no one giving any thought to

the interests of Medicare.

Some lawyers did not realize that Medicare’s interests could be

affected by a settlement of a workers’ compensation case. However,

we learned that Medicare might voice a modest objection to the

settlement of a case if Medicare’s interests were not properly

protected. This information came to many on the defense side by the

way of “Medicare set-aside specialists.” From these specialists we

learned Medicare operated through its own personal death star called

the Center for Medicare and Medicaid Services, or CMS. If

Medicare’s interests were not protected, then CMS would file suit in

federal court against any interested parties including the lawyers and

pretty much anyone else including, in one case, the lawyer’s personal

dog, Skippy.4

2014-16

NAWCJ Officers

Hon. Michael Alvey

President Owensboro, Kentucky

Kentucky Workers’

Compensation Board

Hon. Jennifer Hopens

President-Elect Austin, Texas

Texas Department of Insurance,

Division of Workers’

Compensation

Hon. Jim Szablewicz

Secretary Richmond, Virginia

Virginia Workers’

Compensation Commission

Hon. Robert S. Cohen

Treasurer Tallahassee, Florida

Florida Division of

Administrative Hearings

Hon. David Torrey

Immediate Past-President

2012-14 Pittsburgh, Pennsylvania

Pennsylvania Department of

Labor and Industry

Lex and Verum

Editorial Committee

Hon. LuAnn Haley, Chair Tucson, Arizona

Hon. Melissa Lin Jones Washington, D.C.

Hon. David Langham Pensacola, Florida

Hon. David Torrey Pittsburgh, Pennsylvania


Continued, Page 4.


It is one of the more endearing qualities of lawyers that we can happily go about our day-to-day existence

suing other people, but we don’t really like being sued ourselves. In consequence, the formerly cathartic

experience of settlement quickly became most unsettling, and many lawyers concluded CMS existed solely to

establish a reign of terror over workers’ compensation attorneys. This, however, is not true, as CMS performed

a useful service: the development of the Medicare Physician Fee Schedule (“PFS”), which defines the amounts

paid to doctors for Medicare-covered services.

IV. THE RESOURCE-BASED RELATIVE VALUE SCALE

In 1992, Medicare established the resource-based relative value scale (“RBRVS”), a standardized schedule for

compensating physicians for services rendered to Medicare patients. The RBRVS is based upon the calculation

of the relative cost of providing each of the thousands of specific services represented by their Current

Procedural Terminology Codes.

V. CURRENT PROCEDURAL TERMINOLOGY CODES (CPT CODES)

Current Procedural Technology Codes, or CPT codes, are a numeric system established by the American

Medical Association to label the myriad services provided by physicians. Medicare’s PFS developed by CMS

employs CPT codes for determining the amount a physician will be paid for each service or CPT code provided.

CMS determines the payment for each service or CPT code by means of a formula taking into account the cost

to the physician necessary to perform the service. To comprehend how the formula works, it is first necessary to

understand the concept of the Conversion Factor.

VI. THE CONVERSION FACTOR

It is time for a test. Who knows the answer to the ultimate question of life, the universe and everything?

(Insert Jeopardy music here.) If you said “42” then you are correct. If you said “42” out loud then the members

of your firm now know your high school years were spent alone in your room reading Douglas Adams novels.

Prepare to be bullied out of your lunch money,

The Medicare equivalent to the answer to the ultimate question is the conversion factor. The conversion factor

for 2014 is the seemingly random figure of 35.8228.5 For our purposes, it is not necessary to understand how

the conversion factor is calculated. We need only understand that this figure is employed in the equation to

calculate the payments due for each of the CPT codes. The point is the conversion factor does not change. The

35.8228 figure is incorporated into the equation used to arrive at the charge for each CPT code regardless of

whether the service entails a brain transplant or a patient sticking out his tongue and saying, “Ahhhhhh.”

If the conversion factor remains the same regardless of the particular service, why are different CPT codes

reimbursed in different amounts? To comprehend this, it is necessary to understand Relative Value Units.

VII. RELATIVE VALUE UNITS

A relative value unit (“RVU”), like the conversion factor, is a number. Unlike the conversion factor, the RVU

changes per CPT code. This is where things must have gotten interesting because calculation of the RVU

requires consideration of both the mechanics and economics of each medical procedure represented by each of

the CPT codes, which as we already know, number in the thousands.6

To determine the specific RVU for each CPT code requires consideration of the following:

1. The physician’s time, effort, skill, and stress associated with the provision of a particular service (work

RVUs);

2. The expense the physician incurs in renting office space, buying supplies and equipment, and hiring

clinical and administrative staff (practice expense or PE RVUs); and

3. The cost of professional liability (medical malpracticee) insurance (malpractice expense or ME RVUs).


Continued, Page 5.


The sum of the work expense, practice expense, and

malpractice expense are then adjusted for geographic

variations in costs depending on where services are rendered.

By this process, CMS generates the RVU applicable to each

of the thousands of CPT codes. This number is then used to

calculate the most relevant figure for our purposes: the

Payment Rate.

VIII. THE PAYMENT RATE

The RVU applicable to a particular CPT code is multiplied

by the conversion factor to arrive at the payment rate, or the

amount the medical provider receives for each service

rendered. There can be further adjustments, up or down,

depending on whether the service is provided by a physician

or an assistant, whether the treatment is in a “health

professional shortage area” (“HPSA”) or if multiple procedure

rates apply. For our purposes, however, the basic formula is:

The RVU [(work expense + practice expense + malpractice

expense) x geographic factors] x Conversion Factor =

Payment.

IX. WHAT FEE SCHEDULES AND DENNIS RODMAN

HAVE IN COMMON

Some years ago, the author embarked on a disciplined

campaign of self-improvement by strictly limiting his

television watching to news, sports, and Xena: Warrior

Princess. One morning, upon turning on ESPN, the author

was confronted with images of Dennis Rodman in a wedding

gown. These images generated in the author profound feelings

of thermo-nuclear caliber creepiness; the same sorts of

feelings physicians appear to experience when contemplating

fee schedules based upon the Medicare Physician Fee

Schedule.7 Nonetheless, most states rely at least partially upon

the Medicare PFS, although they do not necessarily reimburse

at Medicare’s payment rate.

The amount in excess of the corresponding Medicare

payment is referred to as the “premium over Medicare.”

Establishing this premium is accomplished in various ways

including adjustments in the conversion factor, employing

multiple conversion factors for different specialty or

geographic areas, or by applying a standard multiple to

Medicare’s payment rates.8 Therefore, basing a fee schedule

on Medicare’s RBRVS does not mandate payments to

workers’ compensation physicians at the same Medicare rate.

Moreover, not all states that employ fee schedules rely upon

Medicare’s PFS as, for example, some use payments made by

commercial insurers.

NAWCJ Board of Directors

Hon. R. Karl Aumann, 2014-16 Baltimore, Maryland

Maryland Workers’ Compensation

Commission

Hon. T. Scott Beck, 2014-16 Columbia, South Carolina

South Carolina Workers’ Compensation

Commission

Hon. Melodie Belcher, 2014-16 Atlanta, Georgia

Georgia State Board of Workers’

Compensation

Hon. LuAnn Haley, 2014-15 Tucson, Arizona

Industrial Commission of Arizona

Hon. Melissa Lin Jones, 2014-15 Washington, D.C.

Compensation Review Board

Hon. Sheral Kellar, 2014-16 Baton Rouge, Louisiana

Louisiana Workforce Commission

Hon. David Langham, 2014-15 Pensacola, Florida

Florida Office of Judges of Compensation

Claims

Hon. John J. Lazzara, 2014-16

Past-President 2008-10 Tallahassee, Florida


Claims

Hon. Ellen Lorenzen, 2014-16

Past-President, 2010-12 Tampa, Florida


Claims

Hon. Deneise Turner Lott, 2014-15

Jackson, Mississippi Mississippi Workers’ Compensation

Commission

Hon. T. Kent Wetherell, II, 2014-15 Tallahassee, Florida

Florida First District Court of Appeal

Hon. Jane Rice Williams, 2014-15 Frankfort, Kentucky

Department of Workers’ Claims


Continued, Page 6.


X. CONCLUSION

With the information herein imparted and upon memorizing the payment rates for each of the thousands of

CPT codes you will be fully conversant on the subject of fee schedules. Of course, Virginia may not adopt such

a schedule, and it is again worth noting that this article takes no position on the matter either directly or by

implication. However, if Virginia eventually follows the national trend, by understanding the concepts

discussed in this article you may be moderately conversant on the issue, thereby potentially elevating your

status on the popularity food chain.9 You will likewise be fully prepared to understand the many plot

permutations of the movie version of this learned treatise. The author will, no doubt, be played by Keanu

Reeves because he is popular and cool and, when spoken with a southern drawl, his name sounds suspiciously

like “canoe.”

__________

Mr. Newman is a commissioner on the Virginia Workers’ Compensation Commission. He was elected to the

Commission in March 2013 by the Virginia legislature. Before his election, he practiced workers’ compensation law in

Richmond for 30 years primarily in representation of employers and their insurers, but occasionally handling

claimants’ cases. He is a 1983 graduate of the William & Mary law school. The title of this article is inspired by Robert

M. Pirsig’s 1974 classic, Zen and the Art of Motorcycle Maintenance: An Inquiry into Values (New York, Morrow,

1974). Other considered titles included, “An Idiot in Fee Schedule Land,” which insults the author, and “Fee Schedules

for Dummies,” which insults the reader. Endnotes are on page 51.

__________

The foregoing was originally published in the Journal of Civil Litigation, Vol. XXVI, No. 4 (Winter 2014-2015) and is

reprinted here with the author’s permission.


Thanks to our 2015 Moot Court

Judges!

Eduardo Almeda (FL)

Michael Alvey (KY)

Wilbur Anderson (FL)

Timothy Basquill (FL)

Diane Beck (FL)

Scott Beck (SC)

Melodie Belcher (GA)

Shannon Bishop (LA)

Roland Case (KY)

James Condry (FL)

Robert Dietz (FL)

Iliana Forte (FL)

David Imahara (GA)

Ingrid French (NJ)

William Holley (FL)

Ralph Humphries (FL)

David Imahara (GA)

Melody James (SC)

Melissa Jones (DC)

Margaret Kerr (FL)

Sheral Kellar

John Lazzara (FL)

Udell Levy (KY)

Daniel Lewis (FL)

Denise Lott (MS)

Dwight Lovan (KY)

Robert McAliley (FL)

Frank McKay (GA)

Sylvia Medina-Shore (FL)

Bruce Moore (KS)

Ferrell Newman (VA)

Neal Pitts (FL)

Dana Plunkett (VA)

David Reid (OK)

Thomas Sculco (FL)

Margaret Sojourner (FL)

Douglas Spangler (FL)

Susan Stevick (VA)

Tom Stine (NB)

Kathy Sturgis (FL)

Robert Swisher (KY)

Gaetano Testini (AZ)

Jack Weiss (FL)

Jane Rice Williams (KY)

Roger Williams (VA)

Nolan Winn (FL)

What a Difference a Word Makes

I find the world of workers’ compensation quite fascinating at times. It is a world that seemingly never

changes, yet is always in flux. It is a legalistic, actuarially driven universe awash in human drama, where there

is seemingly no end to conflict or the suspense of competition. A great example of this occurred last month,

when the New Mexico Court of Appeals ruled as unconstitutional an exception to the state’s workers’

compensation laws that did not require employers to provide coverage for farm and ranch workers.

Since 1975 the New Mexico statute has required workers' compensation coverage for all employees, except

for “private domestic servants and farm and ranch laborers.” The court’s decision effectively eliminates that

exception.

This is the same court that relatively recently declared that employers must pay for medical marijuana, so it is

a double win for these injured workers. Yee haw.

This decision actually hinges on an earlier one, made in 2009. In that case workers had successfully gained a

ruling on unconstitutionality of the law, but the appeal was denied for other reasons; the case had settled by the

time it reached the Court of Appeals. In this case, however, Rodriguez v. Brand West Dairy, two injured

agricultural workers cited the ruling in the earlier case, but workers’ compensation judges still denied their

claims. That was the basis for this appeal, which now seems to have firmly cemented the ruling as law (pending

further appeals, of course).

This ruling applies to all claims that were brought after, or pending on, March 30, 2012, the date of the

original ruling in the previously mentioned case.

The dichotomy here is that, while some entities seem to be fighting to get out of workers' comp, whether they

be court cases challenging exclusive remedy or the push to opt out altogether, others are fighting to get in. For

some the ship appears to be sinking, and they are looking to grab the nearest lifeboat they can find. For others

the sinking ship IS the lifeboat, and they are happy to have the opportunity to clamor aboard.

It is true that the examples I cited are borne of different goals and motivations. The court challenges brought

in Florida and elsewhere are being driven by injured workers claiming inclusion in the system violates their

rights, while the opt out drive is being pursued by employers looking to escape the complexities of comp (and in

some cases perhaps their responsibilities as well). Still, there is no denying this is a very hectic ship, and

tracking who wants on and who wants off is quite the challenge in itself.

Statistically the New Mexico Court of Appeals decision is likely not to have a huge impact. Almost 30 percent

of farm and ranch employers in the state already voluntarily provide workers’ compensation coverage for their

workers. Other states exemptions on agriculture are not affected by this, and there is no indication that this

particular case will result in a wider trend across the country. Also, New Mexico employers may still appeal to

the New Mexico Supreme Court to review the court’s decision. If the state Supremes choose to hear the case, it

could be a whole new ball game, or back to the benches.

That is the unending drama and intrigue that is the dichotomous world of workers' compensation. __________

* Bob Wilson is President and CEO of WorkersCompensation.com. His full bio is on page 48. He is a presenter at

Judicial College 2015.

New Mexico Exemption

Ruling Highlights

Dichotomy of Comp

By: Robert Wilson*


Judiciary College 2015 August 23-26, 2015

Marriott World Center, Orlando, Florida

NAWCJ Judiciary College Hotel

Buena Vista Suites

$105.00 per night; INCLUDES BREAKFAST!

One block away from Marriott World Center (convention site)

Continuous shuttle service to/from Marriott World Center.

To reserve, email arrival and departure dates to [email protected]

Alternative Accommodations:

. Marriott World Center (Host Hotel)

The Caribe Royale (one block away from

convention site)

$133.00 per might, single/double

call toll free (800) 823-8300, (407) 238-8000,

or make your reservations on-line

Judiciary College 2015!

Tuition is only $265 (NAWCJ members) or $360.00 (non-members)

On-line registration is NOW OPEN at www.NAWCJ.org.


https://resweb.passkey.com/Resweb.do?mode=welcome_ei_new&eventID=10627332

http://www.nawcj.org/

In a highly anticipated decision (No. 13SC394), the Supreme Court of Colorado unanimously held this week

that an employer may justifiably terminate an employee for his off-duty conduct, despite the employee’s

adherence to state law governing medical marijuana. Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).

The core issue before the Court was whether the use of medical marijuana, in compliance with Colorado’s

Medical Marijuana Amendment, but in violation of federal law, is considered a “lawful activity” under

Colorado’s Lawful Activities Statute.

Affirming the Court of Appeals’ decision by a vote of 6-0, the Court ruled against Brandon Coats, a

paraplegic man and former Dish Network employee. The Court arrived at its conclusion by reasoning that the

plain language of the term “lawful” within Colorado’s Lawful Activities Statute refers only to those activities

that are lawful under both state and federal law.

Background

Brandon Coats had worked as a telephone customer service representative for Dish from 2007 until 2010,

when a routine company drug test revealed the presence of THC (the major psychoactive ingredient in

marijuana). Because Dish had a “zero-tolerance” drug policy, it subsequently terminated Coats.

Coats filed suit for wrongful termination, arguing he should have been protected by Colorado’s “Lawful

Activities Statute,” which makes discharging an employee based on “lawful” off-duty conduct an unfair and

discriminatory labor practice. The THC detected in the drug test was the result of Coats’ consumption of

medical marijuana, which he had previously obtained a license to use in order to reduce the pain of his frequent

muscle spasms—a symptom not uncommon among paraplegic individuals. In other words, Coats was

terminated because of his “lawful” use of medical marijuana under Colorado’s Medical Marijuana Amendment.

What Does “Lawful” Mean?

The Court of Appeals reasoned that Dish’s actions did not violate the Lawful Activities Statute because

medical marijuana remains prohibited under federal law. The Court used the plain meaning of the word

“lawful”—“that which is permitted by law”—to reason that for purposes of the statue, “lawful” is used in regard

to activities that are governed by both state and federal law. Dissenting Judge Webb disagreed, contending that

the state’s Lawful Activities Statute should protect individuals like Coats, since the statute refers only to

Colorado law, which holds medical marijuana as “at least lawful.”

The Supreme Court adopted the Appeals Courts’ majority opinion, finding the term “lawful” to mean “not

contrary to, or forbidden by law,” without restrictions. The federal Controlled Substances Act (the “CSA”)

prohibits the use, possession, and manufacture of marijuana, makes the use of medical marijuana unlawful

under federal law. Thus, Coats’ behavior was not a “lawful activity” under Colorado’s Lawful Activities

Statute, and the court held Coats’ termination to be valid.

DOJ Not Heartless

In a footnote to its opinion, the Court recalled that the Department of Justice has announced that it will not

prosecute cancer patients or individuals with similarly debilitating illnesses who use medical marijuana in

accordance with Colorado law.

Colorado Supreme Court Upholds

Termination of

Medical Marijuana-Smoking

Dish Network Employee By Albert Randall, Jr.*



Continued, Page 10.

Marijuana, from page 9

It made clear, however, that marijuana is still listed as a schedule I substance

under the CSA, and thus using marijuana for medicinal purposes is prohibited under

federal law.

What Impact Will the Court’s Ruling Have?

The Court’s ruling portends that states with statutes protecting “lawful” off-duty

conduct will still be bound by federal law in its characterization of what constitutes

“lawful” conduct.

While the court’s ruling is binding in Colorado alone, the decision may serve as

persuasive authority in similar cases in other jurisdictions. Colorado is one of a few

states that already have policies protecting lawful off-duty conduct.

To licensed users of medical marijuana, the Court’s holding in Coats may come

as a blow. Although medical marijuana is legalized in the State of Colorado, cases

such as this illustrate the control that employers retain over employees’ on- and off-

duty conduct. Despite the Colorado Lawful Activities Statutes promise of protection

for lawful off-duty conduct, the Court’s holding allows for the termination of

individuals who have never been impaired at work nor demonstrated any sort of

unsatisfactory workplace performance.

In responding to the court’s ruling, Coats said, “Although I’m very disappointed

today, I hope that my case has brought the issue of use of medical marijuana and

employment to light. . . . Hopefully views on medical marijuana—like the ones in

my specific case—will change soon.”

That change, however, is likely not to come as soon as Coats and others similarly

situated would prefer. To date, courts that have adjudicated this and similar issues

have uniformly found in favor of employers’ abilities to discipline employees for

lawful use of medical marijuana, lawful at least under state law, given the illegality

of same under federal law. Had this case been decided in Coats’ favor, perhaps this

would have been a harbinger of change, but, for now at least, employers are likely

breathing a collective sigh of relief and are likely emboldened to continue to follow

their existing drug and alcohol policies regardless of state law changes involving

recreational and medical marijuana.

__________

* Bert Randall is President and a principal of the law firm of Franklin & Prokopik,

Baltimore, MD, where he concentrates his practice primarily in the areas of labor and

employment law, workers’ compensation and general civil litigation. He regularly

represents employers and insurers in state and federal courts, and before state and federal

administrative agencies. Bert is AV-rated by Martindale Hubbell. Bert is a past chair of

the Employment and Labor Law Practice Group of the USLAW Network and the

immediate past President of the National Workers’ Compensation Defense Network. He

also serves on the Larson’s Advisory Board. He has testified on behalf of the Maryland

Chamber of Commerce before the Maryland legislature on a host of employment-related

legislation and currently serves as General Counsel to the Maryland Motor Truck

Association and Restaurant Association of Maryland. He is a regular speaker before

legal and trade associations across the country and frequently contributes to a variety of

industry publications. He also served with distinction in the Maryland Army National

Guard.


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On July 1, 2015, while most of you were probably preparing to celebrate our nation’s birthday, in Tennessee,

some of us were commemorating the first-year anniversary of the Workers’ Compensation Appeals Board and

the Court of Workers’ Compensation Claims. Our Courts were born on July 1, 2014, when Tennessee joined 48

other states in their approach to workers’ compensation claims.

Our Courts were part of a historic change in the law. Going forward, state trial courts with general jurisdiction

will no longer decide cases, but rather, administrative courts devoted exclusively to workers’ compensation will

resolve them.

Setting the Course

Planning for our Courts began more than a year before they came into being, after lawmakers passed the

Workers’ Compensation Reform Act in April 2013.

Perhaps the most critical initial task was selecting jurists. An independent committee conducted an extended

application and interview process, which made recommendations to the Administrator of the Workers’

Compensation Bureau, Abbie Hudgens. She appointed eight judges to the Court of Workers’ Compensation

Claims, while Governor Bill Haslam appointed three judges to the Appeals Board.

Our training was intensive. In addition to agency-wide programming in June 2014, the trial court judges

participated in an internal, two-day “New Judges’ College.” As for the appellate judges, shortly after their

appointment, they met with their peers from other states having a long and successful tradition of resolving

workers’ compensation disputes outside the traditional state court system, including Kentucky, Georgia,

Florida, Virginia and Pennsylvania. The exchange of ideas was invaluable.

With regard to external training, early in our tenure, all eleven jurists attended the three-day annual

conference of the NAWCJ.

Before anyone authored a single opinion, we arranged for their online publication in multiple arenas. We

partnered with the University of Tennessee College of Law Library, which created a webpage for our decisions.

Our Courts additionally secured publication by LexisNexis, Westlaw (Thomson Reuters), and the state’s best-

known legal publisher, Tennessee Attorneys Memo.

We were keenly aware from the beginning that the new law brought significant change. Thus, we undertook a

multi-faceted effort to educate the practicing bar and the public about the new law.

Statewide public-speaking was, and remains, a central aspect of that. So far, our judges have addressed some

24 community, business and insurance groups, as well as bar associations. A conservative estimate of our

teaching time is 45 hours.

Further, inspired by the popularity of other states’ workers’ compensation judiciary blogs and recognizing that

social media generally reaches a different audience, the Court of Workers’ Compensation Claims launched its

own blog in March 2015.

Achieving Goals

At the trial court level, in the first year, because we adjudicate injuries occurring on or after July 1, 2014, the

overwhelming majority category of evidentiary proceedings was “Expedited Hearings,” which typically

culminate with interlocutory orders regarding medical and temporary disability benefits.

Happy birthday to us! One year after Tennessee creates a new

Workers’ Comp Judiciary, we’re already

achieving critical goals

By Chief Judge Kenneth M. Switzer*


Continued, Page 12.

Happy Birthday, from page 11

As of June 24, 2015, our Court conducted 86 Expedited Hearings where a judge issued an

order.

As the name implies, Expedited Hearings are frequently requested within weeks of an

injury. Parties may seek Appeals Board review of Expedited Hearing orders immediately.

We move cases. At the trial level, on average, 52 days pass from the time a mediator

certifies a dispute to our Court until a judge issues an order. Most of that time involves the

parties agreeing to a hearing date. The average time it takes for a judge to issue an order is 10

days from the Expedited Hearing. At the appellate level, the new law mandated just seven

days to issue an opinion. In the first year, every appeal met that benchmark. In fact, the

average time for a decision is 4.27 days - far less time than under prior law.

This dramatic shortening of the time required for a party to have his or her “day in court”

was one of the central goals of the Reform Act. It’s already being realized.

Another key goal for our new Courts, although it is, admittedly, subjective, was better

quality outcomes.

At the trial level, we’re completing this goal, too, looking at the Appeals Board’s treatment

of our decisions. In our first year, the Appeals Board upheld the overwhelming majority of

Expedited Hearing orders. Twenty-nine parties appealed an order, and in 27 of these matters,

the Appeals Board affirmed the order of the judge or the appellant withdrew the appeal. The

Appeals Board affirmed two appeals in part, reversed one order in full, and vacated just one

order.

Another indicator that our Courts perform high-quality work stems from the law itself: The

Reform Act mandated the application of the Rules of Evidence and Civil Procedure by the

new Courts. Under the former system, when parties sought relief administratively, these rules

didn’t apply.

Once an employee exhausted the administrative remedies, relief was available in the trial

courts, where these rules apply. Yet the results, overall, were less predictable, and the length

of time it took to reach a conclusion was measured in years, not days.

Further, regarding quality assurance, while we place a high value on judicial independence,

we simultaneously review each other’s orders, discuss and debate the application of the law

and seek to achieve consistent, well-reasoned outcomes.

Looking Ahead

Near the conclusion of the first year, Administrator Hudgens appointed four additional trial

judges.

During the upcoming, second year, our objectives include:

* Bringing these newly-appointed judges up to speed quickly;

* Continuing to improve the quality and consistency of written orders;

* Developing more formal courtrooms; and,

* Widening the opportunities for self-represented litigants to learn Court procedures in

advance of their hearings.

We’re proud of our accomplishments thus far, and anticipate attaining additional

benchmarks of success as time passes.

__________

* Kenneth M. Switzer is Chief Judge of the Tennessee Court of Workers’ Compensation

Claims. You can reach him at [email protected]. He is a speaker at the 2015 Judicial

College and his full bio is on page 45.


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Melissa Lin Jones, Injecting Fault into a No-Fault System: The Aggressor Defense in Work-Related Fight

Cases, 32 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL 91 (2014).

The courts in my state (Pennsylvania) have not published an appellate “workplace fight” decision in several

years. Perhaps this is so because Pennsylvania law is fairly well-settled: injuries sustained in a workplace fight,

that is, via assaults, arise in the course of employment if the tensions which led to the fight have their basis in

issues surrounding work, as opposed to purely personal ones. Our leading case provides:

[W]hen an employee is injured on the work premises by the act of another employee, there is a

rebuttable presumption that the employee is covered by the Act…. An injured employee is not

covered by the Act … if his or her injury was caused by an act of a third person who intends to

injure for reasons personal to the assailant, and the burden of proving such intent rests with the

employer…. Otherwise, if it can be shown that the assault occurred as a result of employment, the

injury will be compensable…. [E]mployer’s burden to rebut the presumption that Claimant’s

injury is compensable under the Act is a heavy one.

Helm v. WCAB (U.S. Gypsum), 591 A.2d 8 (Pa. Commw. 1991) (emphasis added).

That this is the law in my state hardly changes the reality that many injury claims from workplace fights are

commonly subject to employer/carrier denials and are sometimes vigorously litigated. It may be that employers

often insist that injuries from fights be contested as a matter of principle. I also have the suspicion that many

workers who sustain injuries from fights never file a claim in the first place, because of embarrassment – or

because they cannot conceive that such injuries are compensable.

In any event, in the Claim of J.G. (4/29/2014), for example, I granted benefits to a worker, a server, who had

been assaulted by a fellow server after a tumultuous fight which developed over who was to bus the tables on a

busy Sunday morning. The worker (J.G.), was smashed over the head with a stack of ceramic plates by the co-

worker (K.P.), to the utter astonishment of the post-mass crowd.

I never could convince defense counsel that employee fighting in such circumstances was not a defense, and I

not only awarded the claim (a closed period and his hospital bill), but awarded counsel fees for an arbitrary

contest. In this regard, no evidence was ever presented of some personal matter having been imported into the

workplace.

In a new article (citation above), the author, a distinguished District of Columbia appellate workers’

compensation judge, parses one aspect of the fight and assault cases, to wit, the law surrounding compensability

when the claimant is the “aggressor” in the altercation which ultimately gives rise to his or her own injury.

It is notable at the outset that courts have sometimes drawn a distinction between (1) the individual who

“throws the first punch;” and (2) the aggressor. A worker who sufficiently acts as provocateur could

conceivably be classified as the aggressor – even if he or she is not the one who actually initiates the physical

assault.

Judge Jones cuts to the chase almost immediately, reporting that the majority rule among states is that the

injured worker who was the aggressor in a fight is barred from a compensable claim.

New Scholarly Article on

“Fight” Cases

Analyzes the Role of the Injured

“Aggressor”

By Hon. David Torrey*


Continued, Page 15.

Role of the Injured “Aggressor,” from page 14

In her comprehensive appendix at the conclusion

of her narrative, “The Aggressor Defense Across

the United States,” she also establishes that my

state is in the minority on this issue. The Superior

Court, in this regard, developed cases in the

1920’s and 1930’s, where the issue was squarely

addressed.

In Schueller v. Armour & Co., 176 A. 527 (Pa.

Super. 1935), for example, the aggressor deceased

worker struck a co-worker in the back after a

dispute over using the elevator developed. His co-

worker then returned a blow and a brief wrestle

unfolded. Later that night, the aggressor worker

died of a ruptured spleen. While the employer

denied the claim, the court awarded compensation

to the widow. The court, citing a Supreme Court

precedent, stated, “In the present case[,] the fact

that decedent struck first, (assuming it to be true)

was not such an assault under the circumstances

as would exclude him or his dependents from

compensation.” (Citing Meucci v. Gallatin Coal

Co., 123 A. 766 (Pa. 1924)).

Much of the focus of Judge Jones’ article is on

the D.C. workers’ compensation law. Her

jurisdiction does not have an appellate court

decision directly on point on the issue, but the

agency does have an influential decision, Bird v.

Advance Security (1985), which holds that an

injury sustained during a fight is only compensable

if it arose out of work tensions, and is not

sustained by a worker who was the aggressor in

the fight. Judge Jones criticizes this holding,

asserting that the aggressor defense is not to be

found in the D.C. statute, and that it has, hence,

been inappropriately engrafted onto the law by the

Bird decision. Such engrafting, Judge Jones

argues, is errant for a number of reasons,

including:

the basic fact that the operative principle of

the law is no-fault liability;

the Bird case, and other administrative

rulings, fail to recognize that under the

D.C. Act, an injury sustained in the course

of employment is presumed to have arisen

out of the same; and


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Continued, Page 16.

Role of the Injured “Aggressor,” from page 15

D.C. appellate authority broadly supports, in

general, the compensability of fight-sustained

injuries.

On this latter, critical point, Judge Jones identifies a

District of Columbia case, from 1940, that firmly

established the compensability of injuries sustained in

fights when no personal issues have been imported into

the workplace to prompt the same. That case, Hartford

Accident & Indemnity Co. v. Cardillo, 112 F.2d 11 (U.S.

Ct. Appeals D.C. 1940), is in fact famous for its

identifying why such fights arise out of the employment:

“In bringing men together work brings [their] qualities

together, causes frictions between them, creates occasions

for lapses into carelessness, and for fun making and

emotional flare-up. These expressions of human nature

are incidents inseparable from working together.” Judge

Jones is persuasive in arguing that with this underlying

fight-case philosophy, the role of the injured worker as

the aggressor should be irrelevant.

Judge Jones’ thorough treatment of the issue, coupled

with her tabulation of state approaches, makes her article

the definitive treatise on the aggressor defense in the

work-related fight cases.

__________ * Judge David Torrey is the Immediate Past-President of the

National Association of Workers’ Compensation Judiciary.

He is a Workers’ Compensation Judge in Pittsburgh, PA and

an Adjunct Professor of Law, University of Pittsburgh

School of Law.

__________

* Judge Melissa Jones is the author of Injecting Fault into

a No-Fault System; her biography is on page 42.


Thanks to our 2015

NAWCJ

Judiciary College

Sponsors:

Commissioners Dwight Lovan and Rod Bordelon (TX) at Judicial

College 2014

Torrey-Greenberg Pennsylvania Workers’

Compensation treatise, as published by Thomson-

Reuters.

Labor Dept: Most Workers Are Employees

By: Sherri Okamoto (Legal Editor)

A memorandum issued by the U.S. Department of Labor this week (July 15, 2015) put employers on alert that

they may have far more employees than they thought – although recent court and labor commission decisions

have foreshadowed increasing intolerance by the government for what some call “the gig economy.”

On Wednesday, Wage and Hour Division Administrator David Weil issued an “administrator’s

interpretation” of the Fair Labor Standard Act offering employers guidance on how to classify workers. The

bottom line, he said, is that “most workers are employees under the FLSA’s broad definitions.” The distinction

between employee and independent contractor is important, because independent contractors generally aren’t

covered by workers’ compensation and don’t get the same statutory protections as employees to prevent

discrimination, guarantee them a minimum hourly wage or entitle them to overtime pay.

Misclassification is particularly pervasive in the construction, real estate, home care, trucking, janitorial and

livery industries, according to the National Employment Law Project. Part of the reason the practice persists is

that it can save employers millions of dollars in payroll taxes and workers’ compensation insurance premiums.

For example, there is a misclassification case currently pending in a federal trial court in California against Uber

Technologies, a ride-on-demand service provider. If Uber loses, it has been reported that the reclassification of

the company’s drivers as employees could take away as much as 10% of Uber’s profits.

According to a study by the U.S. Department of Treasury in 2013, an employer can save $3,710 per worker

per year when they are classified as an independent contractor instead of an employee. With the Affordable

Care Act now in effect, the stakes are even higher for larger employers. Under the ACA, a company with at

least 50 employees who work at least 120 hours per month will be subject to penalties if it doesn’t provide

affordable health insurance to its workers – and the penalties depend on the company’s actual number of

employees, not just the people the company says are its employees.

The ACA borrows the definition of “employee” from the Employee Retirement Income Security Act of 1974,

however, the U.S. Supreme Court has said the ERISA definition is “completely circular and explains nothing,”

as it merely defines the term “employee” to mean “any individual employed by an employer.” Generally, courts

distinguish between an employee and independent contractor by evaluating how much control the employer has

over the worker.

But Weil, in his 15-page guidance memo, cautioned against giving too much weight to employer control of

workers. He suggested that the appropriate inquiry should focus on “economic realities of the relationship, and

not the label the employer gives it.” The ultimate inquiry under the FLSA is whether the worker is economically

dependent on the employer or truly in business for him or herself, Weil said. “If the worker is in business for

him or herself (i.e., economically independent from the employer), then the worker is an independent

contractor,” he opined, but “(i)f the worker is economically dependent on the employer, then the worker is an

employee.”

Weil said the FLSA definition of “employ” includes the term “suffer or permit to work,” a phrase commonly

used in state child labor laws designed to reach businesses that used middlemen to illegally hire and supervise

children.

According to the memo of guidance, employers must also consider:

▪ Whether a worker is in business for himself and whether there is a possibility for loss.


Continued, Page 18.

Most Workers are Employees, from page 17.

▪ How the worker’s investment compares to the employer’s investment. Weil

said independent contractors should make some investment and undertake at

least some risk.

▪ Whether the work performed requires some special skills and whether those

skills are “akin” to those of other independent contractors.

▪ Whether the relationship with the employer is permanent or indefinite. Weil

said a worker’s lack of a permanent and indefinite relationship should also be

evaluated to consider whether the contractor’s status derives from his own

business initiative.

▪ The degree and nature of the control an employer exerts over a worker. He said

an employer’s lack of control is “particularly telling” if the contractors work

from home or offsite.

Matt Capece, president of the United Brotherhood of Carpenters, said Wednesday that

he felt the Labor Department’s guidance memorandum represents a major development

in federal policy, and a positive change. “I haven’t seen anything like this in the 30

years I’ve been dealing with misclassification,” Capece said. “This demonstrates that

the Labor Department is serious about doing law enforcement, and they’re going to

show employers and employees that they can do it correctly.”

Richard Reibstein, who is codirector of the Independent Contractor Compliance

section of the national employer defense firm of Pepper Hamilton, said Weil’s

interpretation of the FLSA was likely to “cause reverberations in the business and legal

community and will be viewed as a ‘bold action’ by employee rights groups.” But he

said it doesn’t represent a major policy change. “A closer examination of the guidelines

reveals that there is nothing new, different, or dramatic in there,” Reibstein contended.

He said he thought “it simply sets forth the Labor Department’s position on the test

used by the courts in determining independent contractor status under the federal

overtime and minimum wage laws.”

Trey Gillespie, senior workers’ compensation director for the Property Casualty

Insurers Association of America, said he viewed the guidance memo as indicative of

the Labor Department’s “growing awareness that (misclassification) is not a problem

isolated to the construction industry, as people once thought,” and he observed that

“there’s certainly a growing interest” in the issue.

Indeed, the department has been attempting to rein in the misclassification problem

for several years by entering into agreements with state officials to share information

and coordinate enforcement efforts. Alabama, California, Colorado, Connecticut,

Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota,

Missouri, Montana, New Hampshire, New York, Rhode Island, Texas, Utah,

Washington, Wisconsin and Wyoming are already working with the department, and

Kentucky joined their ranks on Wednesday.

By all outward appearances, the DOL effort appears to be working. Last year,

it reported that it paid $79 million in back wages to more than 109,000 workers who

had been misclassified. Legislators have been stepping into the fray too. Just this week,

Gov. Jerry Brown signed into law a bill that requires athletic teams to treat their

cheerleaders as employees. Workers have also been fighting against misclassification,

with widespread success. Earlier this month, the U.S. 7th Circuit Court of Appeals ruled

that a group of 479 FedEx drivers were employees of the company under Kansas law.


Continued, Page 19.

Most Workers are Employees, from page 18.

The global shipping giant, which is widely credited with having

pioneered the independent contractor business model for the

package delivery industry, was also on the losing end of several

other large-scale misclassification suits in 2014.

Last August, the U.S. 9th Circuit Court of Appeals ruled that

FedEx had 2,600 more employees than it had claimed, finding a

class of 2,300 drivers from California and another 300

from Oregon were not independent contractors. This cleared the

way for them to pursue state law claims seeking reimbursement for

employment expenses and unpaid wages, as well as causes of action

under the federal Family and Medical Leave Act. FedEx agreed

to settle the California class action in June for $228 million.

The strip club industry has also been hit hard with

misclassification suits. In March of this year, the South Carolina

Supreme Court ruled that a stripper who was shot while performing

at a Columbia nightclub was entitled to workers’ compensation

benefits for her injuries because she was an employee of the Boom

Boom Room. A group of 6,600 dancers in Las Vegas also secured a

ruling from the Nevada Supreme Court last November saying they

were owed millions in back wages after being misclassified by the

Sapphire Gentleman’s Club.

Earlier this month, the U.S. 2nd Circuit Court of

Appeals provided guidance as to whether unpaid interns could be

classified as employees under the FLSA, laying out a “primary

beneficiary” test for a trial judge to apply in determining whether

the Fox Entertainment Group interns who worked on the film

“Black Swan” or in the company’s corporate office actually

functioned as “employees” and thereby became entitled to be paid

for their services.

Safety Council Calls for

Employers and Insurers to

Address Opioid Abuse

The National Safety Council is calling on employers to take an

active role in preventing opioid abuse by workers’ compensation

claimants, noting that courts across the nation have begun ruling

that deaths linked to opioid overdoses are compensable. In a report

titled “Prescription Pain Medications: A Fatal Cure for Injured

Workers,” the nonprofit safety group warned that judges have ruled

that employers and workers’ compensation carriers are responsible

for paying death benefits when workers die from an overdose of

medications prescribed for a work-related injury.

Interim Chief

Judge Appointed

by Rhode Island

Supreme Court

The workers’ compensation

adjudication process in Rhode Island

is conducted by a branch of the state

court system specifically established

for that jurisdiction.

The Supreme Court in July

appointed Workers’ Compensation

Court Judge Debra L. Olsson to serve

as the interim chief judge. At the end

of July, Chief Judge George E. Healy

Jr. will retire, creating the vacancy.

Judge Olsson will led the workers’

compensation court until a successor,

nominated by the Governor, is

confirmed by the Senate. It is

expected that the nomination process

will begin soon.

Judge Olsson is the senior workers’

compensation judge in Rhode Island,

and has served since 1991. She has

served in the appellate division since

2001. She earned her undergraduate

degree at Wellesley College and her

law degree from Suffolk University

Law School.

Judge Healy also began with the

Court in 1991. In announcing the

interim assignment, the Court noted

significant modernization of the

workers’ compensation practice over

Judge Healy’s tenure.


Continued, Page 20.

Safety Council, from page 19

The Safety Council analyzed 17 decisions issued by state appeals courts between Jan.

1, 2008, and March 31, 2015, but excluded two cases that involved personal injuries

and not workers’ compensation claims.

The council’s conclusions put the onus on employers and carriers to take an

aggressive role in preventing opioid abuse. The council said courts are more often

examining chains of causation to determine whether any harm came to workers after

their job-related injuries. “These cases demonstrate that this is not a regional issue but

a national problem meriting employer and workers’ compensation program action,” the

council concluded. “The widespread use of opioids in the general population, but more

specifically among injured workers, puts more injured workers at risk for addiction and

fatal overdose. Courts have ruled that in many circumstances addiction and death

arising from opioids prescribed to injured workers is compensable.”

According to the Washington State Department of Labor and Industries, workers

given more than a one-week supply of opioids soon after an injury are twice likely to

be disabled a year after the injury. In 2013, more than 43,900 people in the United

States died of drug overdoses. Of those, 16,235 deaths were tied to prescription opioids

or opioids taken in combination with other medications or alcohol. The council

reported the number of emergency-room visits related to the misuse of prescription

medicine have increased by 114% – to 1.4 million since 2004.

The Council reported that obesity, heart failure, chronic obstructive pulmonary

disease (COPD) and chronic respiratory conditions increase the risk of opioid

overdoses, especially among high-risk workers. Taking multiple forms of opioids and

mixing them with alcohol also increases the risk. According to one study, workers are

nearly twice as likely to be depressed one year after an injury as workers who have not

suffered injuries.

The report notes the Oct. 3, 2004, death of one Texas worker who overdosed on

hydrocodone. Claimant Bruce Mason Stewart failed to comply with his doctors’

instructions, a finding confirmed by the Texas Division of Workers’ Compensation.

Nevertheless, in 2012 the Texas Supreme Court awarded Stewart’s widow death

benefits on appeal, finding that her husband had unintentionally overdosed on the

painkiller because of its side effects.

Brian Shirley, a Washington State worker, was taking oxycodone in 2007 and died

after drinking alcohol, the Council reported. The Washington Department of Labor and

Industries appealed a state Superior Court order that awarded benefits to Shirley’s

widow, because his use of the medications did not break the chain of causation and was

the proximate cause of his death. The state Court of Appeals affirmed the decision and

awarded her survivor benefits.

But the council noted state court decisions aren’t always predictable. In Ohio, injured

worker John Parker began using OxyContin in March 1999 and sought treatment for

drug dependency in 2004. He died in March 2006. The Ohio Court of Appeals ruled in

Parker’s case that the state workers’ compensation law specifically prohibits the

payment of benefits if a worker dies as a result of self-inflicted injuries. “State laws

vary, and their workers’ compensation laws as well as their rules of evidence... can

lead to varying decisions,” the council concluded. “In the majority of these cases, the

courts agreed that when injured workers fatally overdose on medications prescribed to

treat pain related to a compensable workplace injury, these deaths are compensable

even in situations when the medication is not taken as prescribed, taken with alcohol or

inappropriately prescribed.”


Continued, Page 21.

Safety Council, from page 20

The Council recommends that employers require providers to follow

guidelines published by the American College of Occupational and

Environmental Medicine, which call on doctors to:

▪ Obtain informed consent through an agreement with the patient.

The agreement would require urine tests to monitor drug use.

▪ Use state prescription drug monitoring programs to check

whether patients are doctor-shopping to circumvent limits on

prescriptions.

▪ Avoid prescribing benzodiazepines with opioid pain

medications.

▪ Discontinue opioid treatment when patients reach meaningful

functional recovery.

Dr. Maury Guzick, branch manager for Physician Review Services for

managed care company Genex, said the National Safety Council report

underscores a growing concern over opioid abuse among employers.

He said opioids account for 45% of drug costs among injured workers

whose claims are more than three years old. He said some workers in

some cases are taking a combination of painkillers, such as Oxycontin

and hydrocodone. “That’s a scary cocktail,” Guzick said. He said

Genex supports the use of patient contracts and urine tests to detect

opioid abuse.

But he said the council’s report needs to focus more on the

responsibility of medical providers. “This is geared toward making

workers’ compensation carriers and employers more aware of the

problems,” Guzick said. “It needs to be geared toward making

providers aware they have a big stake in this along with carriers and

employers.”

Joe Paduda, author of the blog Managed Care Matters and the

president of CompPharma, a prescription benefit management

consortium, said the report properly stresses the need for employers to

play an aggressive role in combatting opioid addiction. But he said the

report needs call for the use of screenings to check patients’ drug-use

histories and to determine whether patients are tobacco-users. “There

also needs to be monitoring of pain and increased function early

during the use of opioids, and you’ve got to screen for past drug use,”

Paduda said.

Mark Pew, senior vice president of Prium, has warned in blog posts

that employers need to pay attention to long-term addiction to

prescription medications among workers and be ready to be held

accountable for deaths from drug overdoses. “Employers and payers in

general are going to need to get on top of their workers’ drug

regimen,” Pew said. __________ The foregoing articles on pages 17-21 Labor Dept: Most Workers Are

Employees and Safety Council Calls for Employers and Insurers to Address

Opioid Abuse were originally published on WorkCompCentral.com and are

reprinted here with permission. No republication is permitted without the

express permission of WorkCompCentral.com.

Interesting

Workers’

Compensation

Blogs

DePaolo’s Work

Comp World http://daviddepaolo.blogspot.com/

Workers’ Compensation

Institute http://www.wci360.com/

Florida Workers’

Compensation

Adjudication http://flojcc.blogspot.com/

Managed Care Matters http://www.joepaduda.com/

Tennessee Court of

Compensation Claims http://tennesseecourtofwcclaims.blogspot.

com/

Workers’ Compensation http://workers-

compensation.blogspot.com/

From Bob’s Cluttered

Desk http://www.workerscompensation.com/co

mpnewsnetwork/from-bobs-cluttered-

desk/

Workers’ Comp Insider http://www.workerscompinsider.com/

Maryland Workers’

Compensation Blog http://www.coseklaw.com/blog/


http://daviddepaolo.blogspot.com/

http://www.wci360.com/

http://flojcc.blogspot.com/

http://www.joepaduda.com/

http://tennesseecourtofwcclaims.blogspot.com/

http://tennesseecourtofwcclaims.blogspot.com/

http://workers-compensation.blogspot.com/

http://workers-compensation.blogspot.com/

http://www.workerscompensation.com/compnewsnetwork/from-bobs-cluttered-desk/



http://www.workerscompinsider.com/

http://www.coseklaw.com/blog/

Do You Love Rock and Roll?

2015 NAWCJ

JUDICIARY COLLEGE

At a Glance

Must See at the 2015 Judiciary College in Orlando:

Headlining the entertainment: Rock and Roll Hall of

Famer Joan Jett and the Blackhearts!

Judicial Writing “Rock Star” Professor Timothy Terrell,

Emory, on Advanced Judicial Writing!

Evidence “Rock Star” Professor Charles Ehrhardt,

Florida State, with Evidence scenarios and commentary

from multiple states!

WorkersCompensation.com Blogging “Rock Star” Bob

Wilson!

A New Judge’s Program!

Head Adjudicators from at least 9 jurisdictions!

Appellate adjudicators from at least 5 jurisdictions!

An Unparalleled opportunity to:

Meet and hear from exceptional speakers

Meet and network with adjudicators from across the

continent – Over 100 registered from 21 jurisdictions!

Become you own workers’ compensation “Rock Star!”


Joan Jett

Professor Timothy

Terrel

Professor Charles

Ehrhardt

In Kline v. JRD Management Corp., 2015 Fla. App. LEXIS 8364 (1st DCA, June 2, 2015), a Florida appellate

court recently held that a judge of compensation claims (“JCC”) erred in denying a claimant’s motion to

disqualify himself because of statements and findings the judge had made in an unrelated case concerning the

claimant’s attorney. In that earlier case, the JCC entered an order imposing sanctions against the claimant’s

attorney for his conduct in pursuit of a claimant-paid attorney’s fee. In the JCC’s order, the judge found that the

attorney had made “false and misleading written statements” and indicated the attorney had a “willful and

conscious intent” to overcharge for legal services. The JCC also expressly stated that he believed the attorney

had conducted himself similarly in other cases, though the claimant alleged no such case was actually before the

JCC. Based on these findings, the JCC had referred claimant’s attorney to The Florida Bar for joinder in an

existing ethics complaint and to the fraud division at DFS for further investigation for what was, in the JCC’s

opinion, a violation of § 440.105(3)(c), Fla. Stat.—a misdemeanor of the first degree.

The appellate court acknowledged that based on the authority found in 5-H Corp. v. Padovano, 708 So. 2d

244, 248 (Fla. 1997), a judge’s report of an attorney’s unprofessionalism to the Florida Bar was legally

insufficient to support disqualification in a case, but the court said much more was present in the instant case.

Not only had the JCC found that the claimant’s attorney had intentionally made false statements in an effort to

maximize his attorney’s fees in the prior case and had likely done so in other cases, the “connotations of the

language chosen by the JCC” to express himself showed potential bias. For example, rather than indicate the

attorney’s testimony was not credible, the JCC had indicated the attorney himself was not trustworthy. Instead

of limiting the JCC’s findings to the case at hand, the JCC had speculated about the attorney’s actions in other

cases.

The court held that given the total sum of all of the claimant’s allegations, a reasonably prudent person,

represented by claimant’s attorney, would have a well-founded fear that he or she would not receive a fair and

impartial trial or hearing before this JCC. For those reasons, claimant’s allegations were legally sufficient to

disqualify the JCC. __________

Thomas A. Robinson is co-author, along with Lex K. Larson, of Larson’s Workers’ Compensation Law (LexisNexis)

and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). A contributing writer for Dubreuil’s Florida Workers’

Compensation Handbook (LexisNexis), Robinson is also Editor-in-Chief of Workers’ Compensation Emerging Issues

Analysis (LexisNexis) and is a contributing writer/editor for eight other ongoing workers’ compensation law LexisNexis

publications. From 1976 to 1986, Mr. Robinson was in private practice, where he focused on workers’ compensation

defense work. From 1987 to 1993, he was Senior Research and Writing Assistant to Arthur Larson, emeritus professor of

law, Duke University Law School. Author of hundreds of short pieces on workers’ compensation and employment law,

Mr. Robinson has lectured widely on workers’ compensation issues. His annual “Bizarre Comp Cases” article, published

each January by LexisNexis, has been featured on National Public Radio. Robinson is also a member of the Larson’s

National Workers’ Compensation Advisory Board.

Florida Court Says Judge

Should Have Disqualified

Himself for Bias By Thomas A. Robinson, J.D.

*


23

NAWCJ Annual

Business Meeting

Tuesday, August 25, 2015

Marriott World Center, Grand Ballroom 6

12:00 p.m.

The Annual Business meeting will be held pursuant to the bylaws (visit www.nawcj.org and click on “organization” and the “bylaws”) on Tuesday, August 25, 2015 at noon. Pursuant to Article VII, any amendments to the bylaws must be transmitted to the membership thirty days prior to the annual meeting. The deadline for the submissions to the Nominations and Bylaws Committees was June 30, 2015. The following are nominated for two year terms on the NAWCJ Board of Directors: Hon. LuAnn Haley (AZ), Hon. Deneise Turner Lott (MS), Hon,. Frank R. McKay (GA), Hon. Bruce Moore (KS), Hon. Kenneth M. Switzer (TN), and Hon. Jane Rice Williams (KY). Biographies and pictures of each nominee are available in the July 2015 Lex and Verum, at www.NAWCJ.org.

The Bylaws Committee has also proposed amendments to the Bylaws. These will be considered by the

members at the annual meeting. The proposed changes are also outlined in the July Lex and Verum.


NAWCJ Officers, (L-R) Jim Szablewicz (VA), Michael Alvey (KY), Jennifer Hopens (TX), Robert Cohen (FL)

and David Torrey (PA).

http://www.nawcj.org/

What is Hot in Workers’

Compensation? At SAWCA 2015 By: David Langham

The 67th Annual Convention of the Southern Association of Workers’ Compensation Administrators

(SAWCA) kicked-off Tuesday, July 21, 2015 with its signature Regulator’s Roundtable(TM)

. This annual

conversation highlights the issues that are perceived as topical and critical by state regulators.

There are 18 SAWCA jurisdictions; 13 had representative present on July 21. Regulators and/or judges from

Colorado, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, New Mexico, Oklahoma, Tennessee,

Texas, Virginia, and West Virginia conversed for almost three hours in an open exchange of ideas. SAWCA

President Roger Williams led the conversation in his inimitable style. The hot topics of the day included

constitutionality of workers’ compensation laws, misclassification issues, presumptions, recent developments

with Medicaid, cyber-security, opiods, physician dispensing, mental claims, changes in the carrier marketplace,

and more.

Since we gathered last, there are new commissioners. It was great to meet Bob Gilliland of Oklahoma, Ryan

Brannan of Texas, and Patrick Robinson of Louisiana. There were lots of familiar faces around the table also.

On the constitutional front, an overview of the Padgett case from Florida led into a discussion of

constitutional challenges throughout the country. Louisiana has recently had a portion of its statute held

unconstitutional in a civil case in Baton Rouge. Louisiana has a medical review process to make decisions about

entitlement to care and treatment, highlighted recently in a post Another Unconstitutional Statute - And it is not

Florida. (http://flojcc.blogspot.com/). The Louisiana Comp Blog also has an excellent summary of that

situation. The agency there awaits an actual judgement, but it seems likely that dispute resolution for injured

workers may slow as this decision is considered on appeal or the process is re-worked.

New Mexico has also had a recent constitutional ruling. The workers’ compensation statute there provided

coverage for many workers, but excluded agricultural workers. In June, the state’s appellate court held that

there was no basis for that distinction. As reported by In These Times, the court found the distinction “absurd.”

A market concern with this decision is that the decision currently has retroactive effect. And it could create

liabilities for employers, for which they cannot now retroactively purchase insurance. Claims may bankrupt or

damage some business with no coverage for certain claims. The state’s uninsured employer fund has joined in

seeking further review, because claims could become its responsibility.

Tennessee has recently had a portion of its act declared unconstitutional also. A distinction existed regarding

benefits available to workers who are in the country illegally. The Tennessee court concluded that this

distinction is an attempt to legislate immigration policy, and therefore precluded by the fact that this is an

enumerated power of the federal government.

Oklahoma has seen constitutional challenges regarding the statutory amendments enacted in 2013. The

change there has been profound. Oklahoma had a Court of Compensation Claims, which regulated workers’

compensation, a mandatory system much like Florida’s. In 2013, the state established a Workers’ Compensation

Commission with three commissioners to oversee a new administrative process more similar to other states’,

with administrative law judges. Simultaneously, Oklahoma made workers’ compensation participation

voluntary, at the discretion of employers. They can now “opt out.”

Oklahoma discussed all that is changing and being challenged there. One of the interesting cases is Duck v.

Morgan. There, the injured worker sought a path out of workers’ compensation, seeking to sue in tort like

Padgett did in Florida.


Continued, Page 26.

What is Hot, from page 25.

At the same time, there are workers who are seeking to have the

Oklahoma courts declare the statute unconstitutional on various

grounds. A major focus according to Business Insurance is their

contention that the new employer opt-out denies due process.

Kentucky described a three year old decision by its supreme

court determining that a statutory scheme for adjudicating black

lung claims. The court concluded that treating those claims

differently than other lung exposure cases created an improper

equal protection distinction. Apparently, the language used by

the court in that decision is being urged in other circumstances

in which the Kentucky law treats claims differently.

It is an interesting time for the constitution and workers’

compensation.

The issue of classification and therefore misclassification

continues to occupy the forefront of workers’ compensation.

Disruptive technology like Uber is changing the way people get

around. WorkCompCentral succinctly summarized the current

trend towards “Most Workers are Employees” recently (page

17), highlighting a series of cases in which the classification of

employee was found appropriate in various industries like truck

driving, entertainment, construction, real estate and more.

Some of those businesses are reacting with further legal

challenges. Others are moving to adjust their business model.

An Internet based delivery service, Instacart, has elected to

respond to recent rulings by offering some portion of their

drivers part-time employee status, according

to WorkCompCentral. It is a partial solution, called the

“employee option,” currently offered in about half of the cities

in which Instacart does business. It will be interesting to

observe how these modern era “disruptive technology”

companies adapt or react.

The discussion on Tuesday included much regarding

classification and the federal Fair Labor Standards Act (FLSA).

That law defines who is considered an employee for wage

purposes. There was discussion of Virginia establishing a task

force to work on misclassification. One complication expressed

was the fact that various state agencies have various definitions

of “independent contractor.” These may or may not correspond

with the FLSA definition. It may be that one is an employee for

some legal purposes and a contractor for others.

Presumptions are a topic for discussion in multiple

jurisdictions. The presumptions for first responders began with

firefighters and police officers. Various states have seen the

financial exposure of these presumptions expand as other state

employees are included in the first responder definition.

Curiously, some states have interesting variations of both

workers’ compensation and presumptions.

Florida Governor

Scott Makes

Appointments

Jack Weiss

Governor Scott appointed Jack Weiss to

serve as Judge of Compensation Claims in

Ft. Myers. Judge Weiss will take office in

August. He has previously practiced with

Conroy Simberg, Stiles, Taylor & Grace,

and Fowler White Boggs Banker. Judge

Weiss received his bachelor’s, master’s

and law degrees from the University of

Florida.

Governor Scott also reappointed Judges

of Workers’ Compensation Claims

Margaret Sojourner, Sylvia Medina-Shore

and Geraldine Hogan.

Judge Sojourner serves in Lakeland and

was first appointed in 2010. She received

her bachelor’s degree from the University

of Florida and her law degree from

Stetson University.

Judge Medina-Shore serves in Miami and

was first appointed in 2000. She received

her bachelor’s degree from Florida

International University and her law

degree from Stetson University.

Judge Hogan was first appointed in 2006

and serves in Ft. Lauderdale. She received

her bachelor’s degree from Johnson C.

Smith University and her master’s and law

degrees from the University of Florida.


Continued, Page 27.


Tennessee noted that municipalities there can decide whether to participate in workers’ compensation or not; an

interesting twist on the opt-out discussion. Another twist to consider is the relationship possible between opt-

outs in a broad sense and the so-called “carve-out” in a more constrained sense.

Kentucky noted that there have been changes in the workforce recently. The Affordable Care Act has

expanded the scope of Medicaid in some jurisdictions. More Medicaid recipients, despite their entitlement to

Medicaid, are nevertheless in the workforce. Just as the federal government has begun to seek reimbursement

when work injury costs are paid by Medicare, states like Kentucky have begun to seek such reimbursement

when Medicaid provides care following a work injury. This will be a development that bears monitoring.

Cyber security is a concern that seems universal. The news is full of hacks and breaches at various companies

and agencies. States report that millions of “attacks” are being repulsed. NCCI noted that about 1,000 attacks or

attempts to breach data occur daily, regarding its proof of coverage database. The consensus discussion was that

states are doing a tremendous job of keeping data secure and safe in the face of these challenges.

Opiods continue to be a challenge. Texas noted that its implementation of a pharmaceutical formulary has

helped with control of narcotics. Some discussion revolved around the contention that WC has become an

“addiction source,” by introducing people to these drugs. When opiods are withdrawn, will there be assistance

for those who have become dependent over time? Another perception is that as people decrease opiod use and

their access thereto is limited, they may turn to illicit drugs like heroin; however, Texas denies that their

experience has demonstrated the turn to illicit drugs. There is concern about dependence, and overdose and

various deleterious effects of these drugs.

Georgia is considering a formulary. California is working towards a formulary. In a post last summer I tried to

make some sense of formularies. I still wonder how prevalent they will become in the world of workers’

compensation. Every time I hear these discussions, I wonder if Florida will move that direction and whether it

would be a positive for injured workers and employers.

Physician dispensing continues to be a curiosity. Various drugs were discussed Tuesday, and the prices that

are related to them. Some prices are constrained by an established average wholesale prices (AWP); a

medication may have been traditionally marketed in a 5 mg dose and 10 mg dose. Those dosages have AWP

established by the manufacturers and at that price have been marketed to pharmacies across the country.

Some prescribers are apparently forsaking these dosages in some instances and turning to new strengths like a

7.5 mg dose that has not been traditionally sold. There is no existing AWP for these new dosages and an AWP

has to be established. Since this new dosage is not distributed widely, the AWP can be more carefully set, and

in some cases is markedly higher for these new dosages. In some instances, it may even be many times higher

than the stronger, already common, 10 mg dose.

A WCRI study was mentioned, which found that these new dosages were prescribed primarily when the

physician was dispensing, not when the physician was prescribing for filling at a pharmacy. The discussion

suggested that some believe this raises questions about whether these new doses are prescribed because of their

efficacy, compared with existing alternatives, or because of profit associated with them based on the newly

established AWP. It is an interesting question and the discussion may continue.

States are considering compensability of post-traumatic stress disorder. Connecticut was recently in the news

regarding its consideration of this after complaints by first responders who worked at the Sandy Hook disaster.

Various states have different views on mental injury claims, the relationship to physical injuries, and

compensability. This was a lively discussion wherein multiple jurisdiction representatives noted their state’s

distinctions and similarities regarding “mental” injury and requirements for relationship to physical injury, the

so-called “impact rule.”

What causes most work accidents? A significant volume occurs in automobiles. The discussion revealed that

many such accidents occur, and then evolved into a discussion of distracted driving. We learned that cell phone

use may be the equivalent of a .08 alcohol level. Voice texting may be just as distracting as typing while

driving. It is apparently all more distracting than talking to someone in the seat next to you.


Continued, Page 28.


Another disturbing concern with auto accidents is a perception that many employees who

suffer these are not wearing seat belts. One state related an incident in which a coroner was

called out to an accident scene, and in the process of returning to the office was killed in a

vehicle accident while not wearing a seat belt. Commissioner Williams asked for a show of

hands regarding who at the meeting wears seat belts regularly and the response was not

unanimous. There apparently remains more to do in educating and encouraging the use of

safety equipment.

Finally, there was discussion of changes in the insurance market. Recently, Liberty Mutual

announced its intention to withdraw from workers’ compensation. Purportedly this is to seek

greater return on investment in other market segments. This decision was compared with other

carriers that are seeking to expand their participation in the workers’ compensation market.

Questions were raised as to why one company sees the market as one to leave while others see

it as one in which to expand their involvement. The group reached no real conclusions on

these seemingly incongruous decisions.

In April I attended the NCCI meeting in Orlando. Salim Ismail discussed disruptive

technologies. He contends that Tesla built the first electric car because it could, as a new

company with a stated vision supporting that course. He explains that when new ideas come

up in a long-established company, with entrenched and existing products, the internal

resistance to change can and often does kill the new idea. He contends that this is why GM

and Ford did not produce the equivalent of the Tesla; and that a new entity, without the

established corporate culture favoring some other paradigm, was required to bring this new

idea to market.

It is possible that this is true to some degree in the present insurance paradigm; that is, some

new thoughts and ideas are perhaps more palatable or acceptable in newer or smaller carriers

than they might be in an established entity with strong long-standing company cultures.

Regardless of cause, it appears that change will continue in the carrier community.

The regulator roundtable was an enlightening afternoon at SAWCA 2015. The next

SAWCA roundtable will be on Monday, August 24, 2015 at the WCI in Orlando. Currently,

there are 29 jurisdictions committed to participate in this roundtable, which will be moderated

by SAWCA’s own Judge Melodie Belcher of Georgia; for more information, visit

www.wci360.com or www.sawca.com.

__________

* The foregoing originally appeared on Florida Workers’ Compensation Blog and is republished here

with permission.


Congratulations

Judge David W.

Langham! By Hon. Luann Haley

Judge David Langham, member of the

Board of the NAWCJ, was elected President

of the Southern Association of Workers’

Compensation Administrators (SAWCA) at

the 67th

Annual Convention held in July,

2015. Judge Langham will be taking over the

leadership of this important group of

workers’ compensation regulators from

SAWCA’s Immediate Past President, Roger

Williams. There are 18 states that are

members of SAWCA and regulators and

judges from each of these states were present

at the convention to welcome Judge

Langham to his new post as President.

Judge Langham was admitted to the

Florida Bar in 1991, after graduating with

distinction from the Mississippi College

School of Law that year. Prior to Law

School, he graduated from Ball State

University in Muncie, Indiana. Judge

Langham was in private practice before

being appointed to the position of Judge of

Compensation Claims in Pensacola by

Governor Bush. In 2005, he was reappointed

by Governor Bush as the Pensacola JCC and

thereafter in May 2006 appointed as the

Deputy Chief Judge of Compensation

Claims. Judge Langham is a frequent lecturer

at workers’ compensation seminars and the

unofficial Dean of the annual NAWCJ

College in Orlando, Florida.

Judge Langham has written articles

regarding workers’ compensation for a

number of publications, including the Florida

Bar Journal, the News and Four-Forty

Report, and the Florida Trial Advocate

Quarterly. Judge Langham has also written

extensively for the NAWCJ Newsletter and

our Newsletter Committee extends hearty

congratulations to our fearless leader for this

most recent accomplishment.


Wesley G. Marshall

Named Chairman of the

Virginia Workers’

Compensation

Commission

Commissioner Wesley G. Marshall has been elected to a

three-year term as Chairman of the Virginia Workers’

Compensation Commission (VWC), effective July 1, 2015.

He succeeds Commissioner Roger L. Williams, whose term

ended June 30, 2015. The VWC’s three Commissioners –

Marshall, Williams and R. Ferrell Newman -- serve as

appellate-level judges at the agency and direct its

operations and staff of 270.

Chairman Marshall, of Fredericksburg, was appointed to

the VWC in May 2012. From 1988 to 2012 he was an

attorney in private practice, primarily representing

plaintiffs in workers’ compensation, employment and other

civil litigation. He was educated at the University of

Virginia where he earned his B.A. with distinction in 1985

and his J.D. in 1988. Commissioner Marshall serves on the

Executive Committee of the Southern Association of

Workers’ Compensation Administrators, the Dispute

Resolution Committee of the International Association of

Industrial Accident Boards and Commissions and was a

founding member of the Virginia Workers’ Compensation

American Inn of Court. In 2015 he was inducted as a

Fellow in the College of Workers’ Compensation Lawyers.

NAWCJ 2014

Associate Members

James M. Anderson*

Anderson, Crawley & Burke

Robert Barrett* Rissman, Barrett, Hurt, Donahue & McLain

Douglass Bennett* Swift, Currie, McGhee & Hiers

Sharkey Burke* Anderson, Crawley & Burke

Regan Cobb* McAngus, Goudelock & Courie

R. Stephen Coonrod* McConnaughhay, Duffy, Coonrod, Pope & Weaver

Mark Davis* McAngus, Goudelock & Courie

Charlie Domer Domer Law

Robert Donahue* Rissman, Barrett, Hurt, Donahue & McLain

Terry Germany* Anderson, Crawley & Burke

J. Russell Goudelock* McAngus, Goudelock & Courie

Molly Lawyer Latham, Wagner, Steele & Lehman

Laurence Leavy* Laurence Leavy & Associates, P.A.

*Denotes Charter Associate Member.

Hugh McAngus* McAngus, Goudelock & Courie

James McConnaughhay* McConnaughhay, Duffy, Coonrod, Pope & Weaver

John E. McLain* Rissman, Barrett, Hurt, Donahue & McLain

R. Briggs Peery* Swift, Currie, McGhee & Hiers

William E. Pipkin Austill, Lewis & Pipkin

John F. Power Power & Cronin

Steven A. Rissman* Rissman, Barrett, Hurt, Donahue & McLain

Gerald A. Rosenthal* Rosenthal, Levy, Simon & Ryles

Michael Ryder* Swift, Currie, McGhee & Hiers

E. Louis Stern* McConnaughhay, Duffy, Coonrod, Pope & Weaver

Richard A. Watts* Swift, Currie, McGhee & Hiers

Patrick E. Weaver* McConnaughhay, Duffy, Coonrod, Pope & Weaver

Glen D. Wieland* Wieland, Hilado & Delaitre, P.A.


Seventh Annual NAWCJ

Judiciary College

Orlando, Florida August 23-26, 2015

Sunday, August 23, 2015

12:00 - 1:30 MOOT COURT JUDGES’ LUNCHEON

1:40 – 5:00 E. EARLE ZEHMER MOOT COURT PRELIMINARY ROUNDS Celebrating 28 years in 2015, the E. Earle Zehmer Competition will include twenty-two

teams. The competition is co-sponsored by the NAWCJ and the preliminary rounds are

judged by members of the NAWCJ. The final rounds on Monday are judged by a panel of the

Florida First District Court of Appeal. The competition is outstanding, the participants are

exceptional, and this opportunity to contribute to the law students’ development is both

exciting and gratifying.

Monday, August 24, 2015

8:00 – 8:30 REGISTRATION AND INFORMATION

8:30 – 9:00 WELCOME

Michael Alvey, NAWCJ President

Kentucky Workers’ Compensation Board

Frankfort, Kentucky

9:00 – 10:50 EVIDENCE FOR ADJUDICATORS

Honorable Deneise Turner Lott, Introduction of Speaker

Mississippi Workers’ Compensation Commission

Jackson, Mississippi

Professor Charles W. Ehrhardt

Florida State University School of Law

Tallahassee, Florida

Evidence is always a challenge for adjudicators. Various states have chosen to apply strict

evidence codes in Workers’ Compensation adjudications to varying degrees. But many

adjudicators are called upon to make evidentiary rulings on a variety of subjects during a trial

without strict adherence to a code. In 2015, we will present evidence in an interactive setting.

Adjudicators from various jurisdictions will try their hand at difficult evidentiary objections,

we will see if their rulings are correct, and Professor Ehrhardt will provide the expert

commentary to explain why or why not.


Monday, August 24, 2015, Continued

11:00- 11:50 MEDICAL TERMINOLOGY FOR JUDGES

Honorable Melodie Belcher, Introduction of Speaker

Georgia State Board of Workers’ Compensation

Atlanta, Georgia

Honorable Ken Switzer

Tennessee Department of Labor

Nashville, Tennessee

It has been said that medical drives the claim. It is a rare case that does not involve review of

medical records and testimony. Medical terminology is a challenge for all involved. What do

the medical providers mean with their phrases, descriptions, and those many abbreviations?

This discussion will be an enlightening and entertaining look at the challenges of interpreting

and applying medical terminology and acronyms.

12:00 – 12:30 LUNCH (PROVIDED)

12:30 – 2:00 COMPARATIVE WORKERS’ COMPENSATION LAW PANEL

This panel discussion will bring perspective on how our statutes are different, and how they

are similar. Dealing with statutory interpretation is part of our daily routine. Despite the

diversity of our particular statutes, we share a multitude of concordant issues and challenges,

which this program illuminates. Each year brings different states to the panel, and therefore

differing viewpoints to the conversation. This program is consistently among the highest

rated of the judiciary college.

Honorable Melissa Lin Jones, Introduction of Moderator


Washington, D.C.

Honorable Bruce Moore, Moderator

Kansas Department of Labor

Salina, Kansas

Panel

2:00 – 5:00 The Afternoon is divided into two Tracks, one for the newer adjudicator and one for

the more seasoned adjudicator

Honorable Ken Switzer



Honorable Brian Watkins

Washington Board of Industrial

Insurance Appeals

Olympia, Washington

Honorable Scott Beck South Carolina Workers’ Compensation Commission Columbia, South Carolina

Honorable Glen Goodnough

Maine Workers’ Compensation Board

Augusta, Maine



Track One - The NAWCJ NEW JUDGE PROGRAM Back by popular demand, the NAWCJ presents education specifically for the new

adjudicator. Transitioning to the bench from private practice can involve various challenges.

Much of the three hour “New Judge” program Monday afternoon is intended to foster frank

discussions in small groups. This series of discussions is focused on those who have been on

the bench for two years or less, but all adjudicators are encouraged to attend.

2:00 – 2:50 DEALING WITH THE DIFFICULT LITIGANT OR PARTY

Honorable Jim Szablewicz, Introduction of Panel

Virginia Workers’ Compensation Commission

Richmond, Virginia

Courtroom decorum is a must. Maintaining order is challenging. Much may be going on,

sometimes with multiple cases, parties, attorneys and witnesses participating, and waiting

their turns. Unfortunately, there are occasionally unruly people that may be involved in the

process on a given day. They can present a unique challenge. The perspective may be

different based on the situation, trial or procedural hearing, the timing, the causes, and the

personalities. These adept and experienced adjudicators will provide insight on spotting the

problems before they become irreversible, calming difficult situations, and maintaining the

order and decorum that the parties deserve.

3:00 – 3:50 WHEN IS A GUARDIAN NEEDED FOR AN INJURED WORKER?

Honorable Jennifer Hopens, Introduction of Speaker

Texas Department of Insurance, Division of Workers’ Compensation

Austin, Texas

Alex Cuello, Esq.

Law Office of Alex Cuello, Esq.

Miami, Florida

Adjudicators deal with a vast assortment of people. They come to the litigation process with

various concerns and may or may not have the ability to comprehend what is occurring

around them. Adjudicators may have concerns about whether an injured worker needs the

assistance of a guardian for the purposes of the litigation specifically or for the broader

concerns of caring for her or his financial stability during and beyond litigation. There are a

variety of codes and statutes across the country. Mr. Cuello will share his expertise in the

field of elder law and his experiences with injured individuals who needed the protection of a

guardian.


Honorable Robert Swisher, Moderator

Kentucky Department of Workers’

Claims

Frankfort, Kentucky

Honorable Diane Beck

Florida Office of Judges of

Compensation Claims

Sarasota, Florida

Honorable Sheral Kellar


Baton Rouge, Louisiana

Cynthia Miraglia


Commission

Baltimore, Maryland


4:00 - 4:50 JUDICIAL ETHICS FOR THE NEW JUDGE

Honorable Sheral Kellar, Introduction of Panel


Baton Rouge, Louisiana

This session will be a small-group exercise. Hypothetical problems under the Code of

Judicial Conduct will be provided to groups comprised of new judges and seasoned veterans.

Teams will discuss appropriate outcomes and responses to the situations under the Code, and

then participate in a large-group discussion of conclusions and suggestions. The program will

be hosted and moderated by a senior judge with experience in leading agencies through such

challenges.

Track Two

2:00 – 5:00 SAWCA REGULATOR ROUNDTABLE™

For the more seasoned adjudicators, Monday afternoon offers the opportunity for a doctorate-

level exposure to comparative law in workers’ compensation. The Southern Association of

Workers’ Compensation Administrators (SAWCA) will present their 5th Annual Regulator’s

Roundtable™. Regulators and Administrators from across the country will discuss hot topics

challenging workers’ compensation systems. Attendees will hear perspectives, initiatives,

problems and solutions. Details are on pages 49-50.

Monday Evening:

5:00 – 6:00 NAWCJ and SAWCA RECEPTION

The perfect closure for the first day of our NAWCJ program is the official welcoming

reception for adjudicator attendees, regulators and associate members. Following a full day

of edification and instruction, this is the chance to mingle and unwind with old friends and

new acquaintances from across the continent.

7:00 – 11:00 WCI® Reception and Entertainment Casual attire, drinks and heavy hors d’oeuvres. This is a rocking closure to the first day of the

WCI conference. All registered NAWCJ Judiciary College attendees are invited to the

reception and entertainment. There will be live entertainment, lighthearted conversation, and

more opportunity to renew and form friendships.


Honorable Ferrell Newman

Virginia Workers’ Compensation

Commission

Richmond, Virginia

Honorable Margaret Sojourner


Claims

Lakeland, Florida

Honorable Jerry Stenger

Georgia State Board of Workers’

Compensation

Savannah, Georgia

Honorable Jane Rice Williams

Kentucky Department of Workers’ Claims

Frankfort, Kentucky

Tuesday, August 25, 2015

9:00 – 11:50 ADVANCED JUDICIAL WRITING

Honorable David Torrey, Introduction of Speaker

Pennsylvania Department of Labor and Industry

Pittsburgh, Pennsylvania

Professor Timothy Terrell

Emory University School of Law

Atlanta, Georgia

The ability to write well, with clarity, is critical in the legal profession. Judicial writing is

unique though. Adjudicator clarity is critical to the lawyers’ and parties’ clear understanding

of both the trial outcome and the reasons for it. Effective judicial writing is a service to the

parties, and facilitates an effective appellate review process. Professor Terrel is a nationally-

recognized expert in judicial writing, and brings his wealth of knowledge back to the

NAWCJ in 2015.

12:00 – 12:30 LUNCH (PROVIDED)

NAWCJ ANNUAL BUSINESS MEETING

12:30 – 1:00 WORKERS’ COMP: ITS TRIALS AND TRIBULATIONS

Honorable John J. Lazzara, Introduction of Speaker

Florida Office of Judges of Compensation Claims


Robert H. Wilson, President and CEO

WorkersCompensation.com

Sarasota, Florida

If it is in the news, if it is workers’ compensation, Bob Wilson is blogging about it on “From

Bob’s Cluttered Desk.” He is funny, irreverent, sarcastic, and opinionated, but he brings a

unique and fresh perspective to workers’ compensation issues across the nation. Bob will

present an overview of workers’ compensation’s hot topics.


Tuesday, August 25, 2015, Continued

1:00 – 2:50 How to Diagnose and Assess Patients; Impairment v. Workability – Mutually

Exclusive?

Honorable LuAnn Haley, Introduction of Speaker Industrial Commission of Arizona Tucson, Arizona

James B. Talmadge, M.D. Orthopedic Surgeon Cookeville, Tennessee

There are a myriad of signs and symptoms, complaints and descriptions, and the physician is

challenged to rule out the irrelevant, identify the problem, and treat the cause. It can be a

daunting task. Every human has distinctions, in the symptoms, the expression of symptoms,

and reactions to treatment. Dr. Talmadge will bring decades of experience to bear on the

challenges of treating orthopedic injuries. The physical examination will be a specific focus,

with descriptions of the physician’s actions, the results that are common, and the

interpretation that follows.

3:00 – 3:50 JUDICIAL ETHICS

Honorable R. Karl Aumann, Introduction of Speaker Maryland Workers’ Compensation Commission Baltimore, Maryland

Honorable Elizabeth Crum Director of Adjudication Pennsylvania Workers’ Compensation Office of Adjudication Pittsburgh, Pennsylvania

The challenges of the Code of Judicial Conduct surround us, on the bench, in our drafting, and even in our private lives. We are constrained, restricted, encouraged, and defined. The effective adjudicator can use the Code as a guide to navigate through conundrums and challenges that must be faced. Judge Crum will outline some of those challenges and provide guidance regarding our successful navigation of the treacherous waters.

4:00 – 4:50 MEDICAL MARIJUANA: HIGH TIME IN WORKERS’ COMPENSATION?

Honorable Ellen Lorenzen, Introduction of Speaker Florida Office of Judges of Compensation Claims

Tampa, Florida

Sanford M. Silverman, M.D. Comprehensive Pain Medicine Pompano Beach, Florida

It’s in the news. It’s in the case law. Medical marijuana is coming soon to a case near you. How does marijuana work? What does it do to and for the body? How do the effects compare to other pain medications with which we may be more familiar? Our board-certified pain management physician will discuss the pharmacology, side-effects, benefits and detriments of marijuana. The focus will be on better understanding of what it is, what it does, and where we may expect to see it.


Wednesday, August 26, 2015

9:00 – 10:15 DEALING WITH THE PRO SE LITIGANT

Honorable Jane Rice Williams, Introduction of Speaker

Kentucky Department of Workers’ Claims

Frankfort, Kentucky

Roger Williams, Chair

Virginia Workers’ Compensation Commission

Richmond, Virginia

Attorneys are involved in many cases, but there remain instances of unrepresented parties.

Injured workers and uninsured employers may appear on their own behalf. They bring with

them an added challenge for the adjudicator. Judges cannot provide legal advice, and yet

have some degree of responsibility for assuring the due process of all involved. How can the

adjudicator foresee such complications? How does the adjudicator balance the obligation of

impartiality with the responsibility of assuring fairness in the adjudication of meritorious

claims and defenses. Where do the demarcation lines fall between educating the uninitiated

and becoming an advocate for one party or the other?

10:30 - 11:45 HOW TO AVOID A REMAND?

Honorable Robert Cohen, Introduction of Panel

Florida Division of Administrative Hearings


Honorable Melissa Lin Jones


Washington, D.C.

Honorable Michael W. Alvey

Kentucky Workers’ Compensation Board

Frankfort, Kentucky

Honorable Marshall L. Davidson, III



Honorable Frank McKay

Georgia State Board of Workers’ Compensation

Atlanta, Georgia

The record is closed, the order is entered and appealed. It is too late to avoid a remand. What

can the trial judge do before all of this in order avoid a remand? This amazing panel of

appellate judges will provide tips and advice on how to manage the docket, the motions, the

trial and the order to prevent having to hear the case again on remand.


Wednesday, August 26, 2014, Alternative Programming

8:30 – 4:30 The Professional Mediation Institute

This is a full day program with a variety of nationally recognized speakers providing insight

into the challenges of mediation within the specific context of workers’ compensation and in

the broader context of mediation generally.

8:30 – 3:30 The Workers’ Compensation Institute Multistate Program Sponsored by the Workers’ Compensation Defense Institute, this program provides insight

and edification about the inner workings of Alabama, Florida, Georgia, Kentucky, Louisiana,

Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia. This program

features prominent attorneys and state administrators discussing the significant developments

and distinctions of their respective jurisdictions.

9:00 – 4:10 Medicare Secondary Payer Compliance: A Discussion on

National Issues and Solutions This program presents an intermediate level presentation on the operations of the Medicare

system, its implications and influences regarding workers’ compensation claims, their

management, and settlement. A world-class faculty provides useful information, insight, and

advice.

9:00 – 12:30 The Center for Excellence - The Study of Medical Cost Drivers

In Workers’ Compensation National experts on the management of workers’ compensation claims present a variety of

topics related to the cost of the industry, and the market and human forces that drive costs.


NAWCJ Judiciary College 2015 Faculty

Honorable Michael Alvey

Chairman Michael W. Alvey received his Bachelor’s degree from Western

Kentucky University, and his J.D. from the University of Kentucky College of Law.

Admitted to the Kentucky Bar in 1988, Chairman Alvey practiced primarily defending

workers’ compensation, federal black lung and personal injury claims. On November

13, 2009 Chairman Alvey was appointed to serve as Chairman of the Kentucky

Workers’ Compensation Board effective January 5, 2010. Chair Alvey has served on

the board of directors of the National Association of Workers’ Compensation Judiciary,

Inc., and is the President. Chairman Alvey retired from the Kentucky Army National

Guard in 2000 where he served nearly 21 years as an armor officer and is a graduate of

the Armor Officer Basic Course and Armor Office Advanced Course. Chairman Alvey

resides in Owensboro, Kentucky where he has been involved in various church and civic activities as well as

working with youth sports including both coaching and officiating.

Honorable Diane Beck

Judge Beck was admitted to the Florida Bar in 1983. She is also licensed to practice law

(now inactive) in South Dakota and Virginia. In April 1995 she was appointed Judge of

Compensation Claims in Sarasota by Governor Chiles, who re-appointed her to that

position in 1997. In 2001 and 2005 she was re-appointed to the Sarasota position by

Governor Bush. She previously practiced as an associate in a small law firm in Bradenton,

Florida, then as a sole practitioner in Aberdeen, South Dakota, in most areas of law,

including criminal defense, wills, estates, and trusts, personal injury, and divorce and

family law. She was an adjunct professor of business law at Northern State University in

Aberdeen, South Dakota. She served as assistant attorney general in Richmond, Virginia,

representing various state agencies and funds in workers’ compensation and social

services matters, and represented the Department of HRS in child abuse and neglect litigation in Sarasota,

Florida. She has lectured and served on panels at numerous seminars regarding workers’ compensation issues.

She has served in past years as the Secretary of the Conference of Judges of Compensation Claims, and as

President for the 2006/2007 term.

Honorable Scott Beck

Commissioner Beck was appointed to the South Carolina Workers’ Compensation

Commission on June 30, 2008. In 2010, he was elected by the Commission as Interim

Chairman and in December 2012, Governor Haley nominated Commissioner Beck for

reappointment as Chairman. He graduated with a BS degree from Penn State in 1981

and from the USC School of Law in 1999. Prior to joining the Commission, he served

in various positions in Law Enforcement from 1979-1996 and most recently as an

Assistant Attorney General from 2000-2008 prosecuting healthcare fraud cases.

Commissioner Beck served as a city councilman in North Augusta, South Carolina

from 1993-1996, and was elected to the South Carolina House of Representatives,

serving from 1996-2000.


Honorable Elizabeth Crum

Judge Crum is Director of the Workers’ Compensation Office of Adjudication with

management responsibilities for Pennsylvania’s workers’ compensation judges, judge

managers and staff in 23 offices located throughout the Commonwealth of

Pennsylvania. Prior to her present position, she was Deputy Secretary for Compensation

and Insurance with the Pennsylvania Department of Labor and Industry. Judge Crum

also served as Judge Manager for the Eastern District of Pennsylvania and as a Judge in

Philadelphia. Prior to her appointment as Judge, she served as an attorney and Chief of

the Compliance Division with the Bureau of Workers’ Compensation. She began her

legal career as an attorney/advisor with the U.S. Department of Labor in Pittsburgh.

Judge Crum is a 1987 graduate of the University of Pittsburgh School of Law.

Alex Cuello, Esq.

Alex Cuello, Esquire, the principal shareholder of the Law Office of Alex Cuello, P.A.

in Miami, has been admitted to practice law in Florida since 1996. He received his B.A.

from Florida International University, law degree from St. Thomas University and

Master of Laws degree in Elder Law from Stetson University. Mr. Cuello's practice

focuses on Elder Law with an emphasis in the areas of Probate Administration and

Litigation, Guardianship Administration and Litigation, Estate Planning, Medicaid

Planning, and Social Security Disability claims. He is one of a handful of lawyers in

the state of Florida that has been licensed by the Office of Foreign Assets Control of the

U.S. Department of the Treasury to travel to the island of Cuba on legal matters

involving Cuban heirs’ inheritance in probate cases, wrongful death and benefits claims.

Mr. Cuello is Board Certified by The Florida Bar as a specialist in Elder Law, serves on

the Executive Counsel of the Elder Law Section of The Florida Bar, taught the court approved Professional

Guardian and Family Guardianship Courses, and is rated by Martindale-Hubbell.

Honorable Marshall Davidson After graduating with honors from the University of Tennessee College of Law where he served as an articles editor for the Law Review, Judge Davidson worked as a judicial law clerk for Judge Houston Goddard on the Tennessee Court of Appeals and then Chief Justice Frank Drowota on the Tennessee Supreme Court. He then worked in private practice handling both civil and criminal cases before serving as a Staff Attorney for the Tennessee Supreme Court for twenty-two years focusing on civil appeals. Under the supervision of the Chief Justice, Judge Davidson implemented and managed the Supreme Court’s system for handling appeals of workers’ compensation cases. Judge Davidson has also served as a Judge Advocate General Officer in the United States Army Reserves, taught as an adjunct professor at Middle Tennessee State University, and has been on the faculty of the Nashville School of Law teaching torts and advanced legal writing since 1992. His published writings include “Twenty Lessons From Twenty Years at the Tennessee Supreme Court,” __ Tennessee Bar Journal __ (2015); “The Retirement of Chief Justice Drowota: A Tribute to a Legal Legend and All Around Nice Guy,” 5 Nashville Bar Journal 6 (2005) and 3:1 Tennessee Journal of Law and Policy 95 (2006); “Drowota Contributed Greatly to the State’s Substantive Law,” 41 Tennessee Bar Journal 17 (2005); “Workers’ Compensation Review Panels,” Appellate Advocacy: A Handbook on Appellate Practice in Tennessee (1995); “Seeking Justice on Appeal,” 27 Tennessee Bar Journal 28 (1991); “Causation and Proximate Cause: The Potential Pitfalls of Tort Litigation in Tennessee,” 11 Tennessee Trial Lawyer 6 (1991); “Stealing Love in Tennessee: The Thief Goes Free,” 56 Tennessee Law Review 629 (1989); and “Torts-Wrongful Pregnancy-Ordinary Costs of Raising Healthy Child Not Recoverable,” 55 Tennessee Law Review 153 (1987). In 2014, Davidson was appointed by Governor Bill Haslam to the Workers’ Compensation Appeals Board where he serves as presiding judge.


Professor Charles W. Ehrhardt

Author of Florida Evidence (West 2011), the leading treatise on the topic, and Florida

Trial Objections (West 4th ed. 2007), Professor Ehrhardt has been cited as an authority

by appellate courts more than 500 times. He taught Torts, Evidence, Trial Practice and

Trial Evidence Seminar, and was named Outstanding Professor seven times. After

serving as the Ladd Professor of Evidence for 35 years, he earned emeritus status in

2007. He continues to teach Evidence at the law school.

Professor Ehrhardt served as a commissioner to the National Conference of

Commissioners on Uniform State Laws from 1996-2005. He was a member of the

faculties of both the National Judicial College in Reno, Nevada, and the Federal

Judicial Center in Washington, D.C. He has been a visiting professor at University of

Georgia and Wake Forest. Professor Ehrhardt received the Selig I. Goldin Award from the Criminal Law

Section of The Florida Bar and the President's Award from the Florida Board of Trial Advocates. He clerked for

the Honorable M.D. Oosterhout of the U.S. Court of Appeals for the Eighth Circuit and joined Florida State

University College of Law’s faculty in 1967.

For almost 20 years, he served as the university’s representative to the NCAA and the ACC. In 2007, he was

inducted into the Florida State Sports Hall of Fame. Education: J.D., University of Iowa, 1964; B.S., Iowa State

University, 1962.

Honorable Glen Goodnough

Glen Goodnough has been a Hearing Officer with the Maine Workers’

Compensation Board since his initial appointment in 1994. He adjudicates workers’

compensation cases at the trial level and also serves on panels of the Board’s Appellate

Division. Prior to working for the Board, Hearing Officer Goodnough was a trial

attorney and hearing examiner with the Maine Public Utilities Commission. Hearing

Officer Goodnough has been a member of the Maine Bar since 1986 and is an active

member of the Maine Bar Association. He obtained his B.A. Degree (Legal Studies)

from the University of Massachusetts, Amherst (1979) and his J.D. from the University

of Maine School of Law (1986) where he served as a writing instructor and managing

editor of the Maine Law Review. Following law school, Hearing Officer Goodnough

was appointed to a one-year term with the Maine Supreme Judicial Court as Law Clerk

for the late- Justice David Roberts.


Honorable Melissa Lin Jones Judge Melissa Lin Jones is a member of the New York, District of Columbia, Maryland, and Virginia bars. For ten years after moving to the D.C. area from New York, Judge Jones litigated workers’ compensation cases in Maryland, Virginia, and the District of Columbia. In 2006, she was appointed administrative law judge with the D.C. Department of Employment Services, Office of Hearings and Adjudication, Administrative Hearings Division presiding over workers’ compensation hearings. Since 2010, she has adjudicated workers’ compensation appeals as an administrative appeals judge for the D.C. Department of Employment Services, Compensation Review Board. A frequent speaker and author on workers’ compensation and adjudication, Judge Jones wrote “Injecting Fault into a No-Fault System: The Aggressor Defense in District of Columbia, Work-Related Fight Cases” in volume 32 of the Hofstra Labor and Employment Law Journal, “Why Did You Do That? Confessions of a Master of Judicial Studies Graduate” in the 2014/2015 edition of Case In Point, and “Success in the Practice of Administrative Adjudication” in the July/August 2010 edition of The Washington Lawyer. In addition to reviewing and improving several textbooks, she also is a contributor to Black’s Law Dictionary, Dictionary of Legal Usage, Modern American Usage, and Reading the Law: The Interpretation of Legal Texts (about statutory construction by co-authors Bryan A. Garner and Justice Antonin Scalia.) She taught evidence and pre-hearing techniques at the National Judicial College, and facilitated breakout sessions as a National Judicial College Group Discussion Leader for Decision Making, Best Practices in Handling Cases with Self-Represented Litigants, and Dispute Resolution Skills. She earned her National Judicial College Administrative Law Adjudication Skills Certificate in 2010, her Dispute Resolution Skills Certificate in 2012, and her General Jurisdiction Certificate in 2013. Judge Jones earned her Bachelor of Arts (summa cum laude) in the honors program at St. Bonaventure University; her major was English literature. Her Juris Doctorate was conferred by the State University of New York at Buffalo School of Law. In May 2014, she earned her Master’s Degree in Judicial Studies at the University of Nevada, Reno, and she currently is pursuing her Doctorate Degree in Judicial Studies at the University of Nevada, Reno. In 2009, Judge Jones helped incorporate the D.C. Association of Administrative Law Judiciary, an affiliate of the National Association of Administrative Law Judiciary. Now, she sits on the Board of the National Association of Workers’ Compensation Judiciary.

Honorable Sheral Kellar

Sheral C. Kellar has served at the Louisiana Workforce Commission (formerly the Louisiana Department of Labor) as a Workers’ Compensation Judge since 1991 and as Workers’ Compensation Chief Judge since May 1999. Judge Kellar was appointed co-chair of the Louisiana State Bar Association Access to Justice Committee and served from June 2004 to June 2008. In June 2007 she received its President’s Award for her many contributions to the Bar Association and her exceptional service as Co-Chair of the Access to Justice Committee. She is a member of Baton Rouge Bar Association, Louisiana Association of Administrative Law Judges, Louisiana State Bar Association Medical Legal Inter-professional Committee and the National Association of Workers’ Compensation Judges. In 2009 she was elected the recording secretary for the Louisiana Center for Civil Justice, a state-wide call center that facilitates the provision of pro-bono and low-fee civil legal assistance to Louisiana’s poorest citizens. Also, in 2009 Judge Kellar was appointed Chair of the Access to Justice’s Gap Assessment Sub-Committee, where she spearheaded an Economic Impact Study detailing the tremendous positive financial impact Louisiana’s legal services programs have on the state economy. She is a former member of the American Bar Association, the National Legal Aid & Defender Association, board member of the Louisiana Bar Foundation and at-large member of the Louisiana State Bar Association Board of Governors having been appointed in 2002 to a three year term. She is also a Court Appointed Special Advocate (CASA volunteer) and in June 2005 she was selected the CASA-Baton Rouge volunteer of the month. Judge Kellar speaks frequently on issues of workers’ compensation and professionalism. She received her Bachelor of Science and Juris Doctorate degrees from Louisiana State University.


Honorable Frank McKay

Frank R. McKay is the Chairman of the State Board of Workers’ Compensation,

appointed by Governor Nathan Deal. He came to the Board from private practice

where he was a partner in the Stewart, Melvin & Frost law firm in Gainesville,

Georgia. His practice was concentrated in workers’ compensation, and he tried and

presented many cases before the Administrative Law Courts and the Georgia Court of

Appeals. He is a former Special Assistant Attorney General handling workers’

compensation claims for the State of Georgia. He obtained his law degree (J.D.) from

Walter F. George School of Law, Mercer University, and his undergraduate degree

(B.A. Economics) from Clemson University. He was on the State Board’s Advisory

Council prior to being appointed the Chairman.

Honorable Cynthia Miraglia

Commissioner Miraglia has been a member of the Maryland Workers’ Compensation

Commission since her January 11, 1999 appointment by Governor Parris N.

Glendening. In 1983, she graduated cum laude from the University of Baltimore

School of Law (J.D.). Commissioner Miraglia received her Bachelor’s Degree in

Political Science from Goucher College in 1979. She was employed by Allstate

Insurance Company as a Senior Casualty Claims Adjuster from 1979 until May, 1980.

From November 1983 until December, 1999 she was engaged in the private practice

of law, serving as a civil trial attorney for Ashcraft and Gerel, LLP where she

concentrated on workers’ compensation, personal injury, medical malpractice and

products liability. Commissioner Miraglia is a Past President of the Women’s Bar

Association of Maryland, Inc. and serves on the Board of the Maryland Chapter of the National Association of

Women Law Judges.

Honorable Bruce Moore

Judge Bruce Moore has served as an administrative law judge for the Kansas

Department of Labor, Division of Workers’ Compensation, since 1995 where he

presides over workers’ compensation cases. He also serves as a municipal court judge

pro tempore for the City of Salina, Kansas. Before joining the Department of Labor,

Judge Moore served as municipal court judge pro tempore for the City of Prairie

Village, Kansas, and as a district judge pro tempore for Kansas’ 10th Judicial District.

He practiced law in Kansas for 15 years, concentrating his practice on criminal

prosecution and defense and the prosecution and defense of personal injury and

workers’ compensation claims. Judge Moore received his bachelor’s degree from

Kansas State University and Juris Doctor from Kansas University. He is the author of

“Litigating a Defense of Alcohol or Drug Impairment Under the Workers’

Compensation Act,” published by the Journal of Kansas Trial Lawyers Association, and

Chapter 25, “Causation: A Judge’s Perspective,” for the American Medical Association’s Guides to the

Evaluation of Disease and Injury Causation,” Second Edition (2013). He has served as President of two Rotary

Clubs, and as an Assistant District Governor of Rotary International; he served two terms as President of the

Board of Directors of the Salina Community Theatre, and as a Disaster Response team member for the

American Red Cross. Judge Moore was awarded a Professional Certificate of Judicial Development in

Administrative Law Adjudication Skills in 2008 and a Professional Certificate of Judicial Development in

Dispute Resolution Skills in 2009 by the National Judicial College. Judge Moore is an alumnus of The National

Judicial College and joined its faculty in 2009.


Honorable R. Ferrell Newman

Ferrell Newman is one of three Commissioners of the Virginia Workers’ Compensation

Commission. Commissioner Newman was appointed to the Virginia Workers’

Compensation Commission by the Virginia General Assembly during the 2013 session. Mr.

Newman is a 1983 graduate from the Marshall Wythe School of Law and a 1979 graduate

from the University of Richmond. His appointment followed a 30-year practice of law with

a heavy concentration in workers’ compensation.

Sanford Silverman, MD

Sanford M. Silverman, MD, is in private practice as the medical director and CEO of

Comprehensive Pain Medicine in Pompano Beach, FL. He is board certified in

anesthesiology with added qualifications in pain management from the American

Board of Anesthesiology and a Diplomate in Pain Medicine from the American Board

of Pain Medicine. Dr. Silverman is also a Diplomate in Addiction Medicine from the

American Board of Addiction Medicine. His practice consists of interventional and

medical treatment of chronic pain and opioid addiction, and his current interest

includes treating complex chronic pain with hyperalgesia. After receiving his bachelor

and master degrees from Tufts University in Medford, MA, Dr. Silverman earned his

medical degree from New York Medical College. He then entered active duty military

service with the US Army and completed a transitional internship at Letterman Army

Medical Center in San Francisco, CA. Dr. Silverman then completed a residency in

anesthesiology at Brooke Army Medical Center in San Antonio, TX. Following the completion of his training,

he served as a major in the US Army and chief of the Anesthesia and Operative Service at William Beaumont

Army Medical Center in El Paso, TX, where he was also the director of the pain clinic and an Assistant Clinical

Professor of Anesthesiology at Texas Tech University Health Sciences Center in El Paso, TX. He is the

immediate past-president of the Florida Society of Interventional Pain Physicians (FSIPP) and is president of

the Broward County Medical Association. The author of articles and letters in publications such as

Anesthesiology, the Journal of Cardiothoracic and Vascular Anesthesia, the Canadian Journal of

Anesthesiology and Pain Physician, Dr. Silverman has also lectured nationally on topics including

interventional pain management, controlled substance management and addiction issues, prescription drug

abuse, and in the area of forensic medicine.

Honorable Jerry Stenger

Jerry Stenger is an administrative law judge in the Savannah office of the Georgia

State Board of Worker’s Compensation. He was graduated with a B.A. from West

Georgia College (now the University of West Georgia) in 1983. He was graduated

from Mercer University School of Law in Macon, Georgia in 1986. He was admitted

to the practice of law that same year, after which he started his legal career as law

clerk to Judge David Elmore and then to Judge Frank Cheatham, two of Savannah’s

trial judges. He began practicing some workers’ compensation law in Savannah in

1989 before moving to Atlanta in from 1990, after which he made workers’

compensation his specialty. Since 1995, he has been in his present position at the

Georgia Workers’ Compensation Board’s Savannah office.


Honorable Margaret Sojourner

Judge Margaret E. Sojourner received a Bachelor of Arts with Honors from the

University of Florida and a Juris Doctorate from Stetson University College of Law.

After admission to the bar, she was employed as a Research Assistant to Judge

Winifred Sharp at the Fifth District Court of Appeal. In 1981 she began employment

with the firm of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., where she represented

employers and insurance carriers. In 1984 she became a partner in the firm of Daze &

Sojourner, P.A., a general practice firm, including representation of injured workers. In

1987 she was employed with the staff counsel office of Travelers Insurance where she

limited her practice to workers’ compensation matters and the appeals of those matters.

In 1998 she joined the firm of Langston, Hess, Bolton, Znosko & Helm, P. A. where

she continued to represent employers and carriers in workers’ compensation matters

and in the appeals of these matters. Ultimately she became a partner in the firm, which at the time of her

appointment as Judge of Compensation Claims was known as Langston, Hess, Augustine, Sojourner & Moyles,

P.A. She has been Board Certified in Workers’ Compensation since 1992. Judge Sojourner served as a

Guardian Ad Litem through the Orange County Bar Association and as a tutor to at risk children through

Outreach Love.

Honorable Robert Swisher

Robert Swisher is the Chief Judge of the Kentucky Department of Workers’ Claims.

Appointed to the bench in 2009 by Governor Beshear, Judge Swisher became the Chief

Judge in 2014. Prior to his appointment, Judge Swisher was a partner with the Northern

Kentucky based workers’ compensation defense firm of Jones, Dietz & Swisher. He is a

graduate of the University of Notre Dame and the University of Kentucky College of

Law. He has been licensed to practice law since 1979.

Honorable Kenneth Switzer

Kenneth M. Switzer is the Chief Judge of the Tennessee Court of Compensation Claims.

He graduated from David Lipscomb College and earned his law degree from the

University of Louisville. Judge Switzer has been practicing law almost forty years, since

1977. He has been a litigator and a mediator in workers’ compensation personal injury

and medical malpractice. Judge Switzer is certified by the National Board of Trial

Advocacy. During his practice, he has been a frequent speaker at educational seminars

on the subjects of civil trial and workers’ compensation practice.


James B. Talmadge, M.D.

Dr. Talmadge is a graduate of the Ohio State University for both undergraduate school

(1968) and medical school (1972). His orthopedic surgery training was in the United

States Army. He is Board Certified in Orthopaedic Surgery and in Emergency Medicine.

He no longer operates, but now has an Occupational Medicine and non-operative

orthopaedic practice in Cookeville, TN. Since 2005 he has served on the Meharry

Medical College Occupational Medicine Residency Review Committee, and he is an

Adjunct Associate Professor in the Division of Occupational Medicine, Department of

Family and Community Medicine. He is a Fellow in, and Past President of, the

American Academy of Disability Evaluating Physicians. He was one of the original

Examination Committee members for the American Board of Independent Medical

Examiners. He is a frequent contributor to, and the Associate Editor of The Guides Newsletter, which the

American Medical Association publishes to update and to help explain the AMA Guides to the Evaluation of

Permanent Impairment. He was a reviewer for the 5th Edition of the AMA Guides to the Evaluation of

Permanent Impairment. He was an author/contributor to the 6th Edition, and a member of the Errata Committee.

He has written and/or edited for the AMA a number of companion texts to the AMA impairment Guides. He is

co-editor and a chapter author for A Physician’s Guide to Return to (2005), and Guides to the Evaluation of

Work Ability and Return to Work (2008), and Guides to the Evaluation of Disease and Injury Causation, 2nd

Edition (2013) published by the American Medical Association. He served on the ACOEM Practice Guidelines

and Return to Work committees. He chaired the Spine Committee that wrote the 2007 update to the Low Back

chapter in ACOEM’s Occupational Medicine Practice Guidelines, and the 2008 update to the Neck chapter. He

served on the Chronic Pain Panel and Opioid Panel. He has chaired the Musculoskeletal Advisory Board for the

Medical Disability Advisor, Third, Fourth, Fifth Editions, and chaired the entire Medical Advisory Board for

the Sixth Edition published by the Reed Group, Limited. He wrote 2 chapters in the monograph Independent

Medical Evaluations, published by the American Academy of Orthopaedic Surgeons in 2001. He co-wrote a

chapter in the AAOS Orthopaedic Knowledge Update, 10th Edition. He has written multiple other text book

chapters. Since 2001 he has served on the Editorial Board of Tennessee Medicine, the journal of the Tennessee

Medical Association. Since 2010 he has served on the Editorial Advisory Board for The Spine Journal,

published by the North American Spine Society. He is a peer reviewer for Archives of Physical Medicine and

Rehabilitation, The Spine Journal, and American Family Physician. He is a consultant to the Federal Motor

Carrier Safety Administration, serving on the Medical Exam Work Group (2009) and the Test Development

Panel (2012-2014). In 2013 he was Acting Medical Director for the State of Tennessee Division of Workers’

Compensation. In 2014 he became a permanent Assistant Medical Director for the Division. He helped design

and implement the Tennessee Medical Impairment Rating Registry that solves disputes over impairment ratings

in Tennessee Workers’ Compensation cases, and he is now helping to implement the medical aspects of the

2013 Tennessee workers’ compensation law reforms. Since 1992 he has given almost 700 lectures to physician

audiences on workers’ compensation, impairment, disability, and other orthopaedic/occupational medicine

issues.


Professor Timothy Terrell

Timothy P. Terrell, a former Fulbright Scholar, received another Fulbright grant-in-aid

for scholarly research and teaching in England. Before coming to Emory, he practiced

with the Atlanta law firm of Kilpatrick & Cody. His works include “Rethinking

Professionalism” and “When Duty Calls” both published in the Emory Law Journal

(1992); Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing

(Clark Boardman Company, 1992); “Transsovereignty: Separating Human Rights from

Traditional Sovereignty and the Implications for the Ethics of International Law

Practice,” Fordham International Law Journal (1994); “A Tour of the Whine Country:

The Challenge of Extending the Tenets of Lawyer Professionalism to Law Professors

and Law Students,” Washburn Law Journal (1994); “Ethics with an Attitude,” Law and Contemporary

Problems (1996); “Professionalism as Trust: The Unique Internal Legal Role of the Corporate General

Counsel,” Emory Law Journal (1997) and several articles on legal writing and editing for West Publishing

Company’s Perspective periodical. Professor Terrell has organized conferences on topics such as “Rethinking

Liberalism” and “Human Rights and Human Wrongs: Investigating the Jurisprudential Foundations for a Right

to Violence.” He is director of the Hugh M. Dorsey Jr. Fund for Professionalism and also has been active in

continuing legal education for practicing lawyers, presenting programs around the country for the American

Law Institute and the National Practice Institute on legal writing and legal ethics. He served part-time as the

director of professional development for the Atlanta law firm of King & Spalding, assisting that firm in

developing its associate training program. He also helped produce two videotape-based educational programs

on legal ethics, one for prosecutors and criminal defense lawyers, the other involving representation of clients in

the healthcare industry. Education: BA, University of Maryland, 1971; JD, Yale University, 1974; Diploma in

Law, Oxford University, 1980.

Honorable Brian Watkins

Brian is an Assistant Chief Industrial Appeals Judge with the Washington State Board of Industrial Insurance

Appeals. Before coming to the Board, he served for six years as an Administrative Law Judge and Senior

Administrative Law Judge with the Washington State Office of Administrative Hearings, worked as a legal aid

attorney with the Northwest Justice Project in Seattle, clerked for an insurance defense firm in Texas, and

worked as a legal editor for Texas Lawyer Newspaper. He is a graduate of Texas Wesleyan University School

of Law (now Texas A&M School of Law) and the University of Texas at Arlington. He is a former board

member of the National Association of Administrative Law Judges, and a former president of the Washington

Administrative Law Judges Association. Brian served for many years as a volunteer hearing officer for the

Housing Authority of Thurston County, formerly co-chaired the Pro Se Committee of the Washington State

Access to Justice Board. He plays and teaches guitar, and loves backpacking, baseball, and raising three athletic

and brainy boys in Olympia, Washington.

Honorable Jane Williams

Jane Rice Williams is an Administrative Law Judge with the Kentucky Department of

Workers’ Claims. Judge Williams received her Bachelor of Arts from the University

of Kentucky and Juris Doctorate from Salmon P. Chase College of Law. She was

admitted to the practice of law in the Commonwealth of Kentucky in October of 1995

and is a member of the Kentucky and Laurel County Bar Associations.

Judge Williams is a native of Harlan, Kentucky. She was in private practice in

Lexington and then London from 1995 until July 2012 handling a variety of civil

matters with a concentration on workers’ compensation law representing both plaintiffs

and defendants. Judge Williams was appointed as an Administrative Law Judge and

has served in that position since July 15, 2012.


Honorable Roger Williams

Roger L. Williams, with the Virginia Workers’ Compensation Commission in Richmond,

was appointed by the 2008 Virginia General Assembly and began his position on May 1,

2008. Along with two other Commissioners, he oversees the administration of the

Commission’s processing of Virginia workers’ compensation claims; they hear appeals

from decisions of deputy commissioners; and they formulate Commission policy. For

twenty-eight years, Commissioner Williams was engaged in the private practice of law

almost exclusively in the area of insurance defense litigation with emphasis on workers’

compensation. He represented employers and insurers in thousands of cases before the

Virginia Workers’ Compensation Commission. Commissioner Williams taught AIC34,

the Insurance Institute of America’s Workers’ Compensation course for insurance

adjusters, lectured on the law of workers’ compensation at various programs presented by

the Virginia Workers’ Compensation Commission and Virginia CLE, and conducted workers’ compensation

seminars for various insurance carriers and self-insured groups. He is a member of the Virginia State Bar and

licensed in all state and federal courts in Virginia. Commissioner Williams earned his B.S. at Washington and

Lee University and his J.D. at the University of Richmond.

Robert H. Wilson

Bob Wilson has served as President & CEO of WorkersCompensation.com, LLC since

co-founding the company in 1999. He has almost 20 years’ experience in the technology

arena, including Internet business solutions and website architecture and development.

Bob’s broad experience also includes turn around and area management, as well as

human resources management and technical recruiting. An accomplished speaker for the

workers’ compensation industry, Bob has presented at seminars and conferences on a

variety of topics related to both technology within the workers’ compensation industry,

and bettering the workers’ comp system through improved employee/employer relations

and claims management techniques. He is the author of “From Bob’s Cluttered Desk”, a

blog repeatedly selected as a top workers’ compensation blog by LexisNexis. With his

extensive business management and human resources background, Bob brings a strong employer and corporate

voice to the workers’ compensation arena. Known for an extraordinary sense of humor, his presentations reflect

both entertaining and practical advice for both people managing claims and the people “picking up the tab”. He

was raised in Durango, Colorado and has a Bachelor’s degree in Business Administration from Fort Lewis

College. He resides with his wife in Sarasota.


Judiciary College

2015 August 23-26, 2015

Marriott World Center, Orlando,

Florida

Will you be in the crowd at

NAWCJ Judiciary College

2015?

2015 SAWCA National

Regulators RoundtableTM This year celebrates the 5

th Annual National Regulators Roundtable, sponsored by the Southern Association

of Workers’ Compensation Administrators (SAWCA). This session brings together regulators from throughout

the country to discuss challenges, concerns and issues facing individual jurisdictions in the oversight of the

ever-changing workers’ compensation industry. Problems may have already been successfully addressed by

other jurisdictions; developing issues of concern in one state may be an omen for future developments in

another and, legislative issues know no boundaries. The National Regulators Roundtable® is a forum where

regulators share lessons learned and seek timely answers to their most pressing issues.

Topics may include: Emerging Medical Treatments; Employer Compliance; Adjudication of Benefits;

Managing the Legislative Environment; Technology, and ending with an open forum providing the audience the

opportunity to raise their own issues and concerns for the regulators to address.

The 5th

Annual National Regulators Roundtable remains open to all WCI attendees representing a unique

opportunity for participants and audience alike. Be sure to join us as the regulatory leadership from across the

nation gathers in Orlando addressing those topics that shape our industry.

Alabama

Gerald Stringer Ombudsman


Division, Department of Labor

Montgomery, AL

Arizona

Honorable Luann Haley Judge

Industrial Commission of

Arizona

Tucson, AZ

Arkansas

Honorable Karen McKinney Commissioner

Arkansas Workers’


Little Rock, AR

Florida

Tanner Holloman Director


Compensation

Tallahassee, FL

Florida

Honorable David Langham Deputy Chief Judge

Florida Office of Judges of

Compensation Claims

Pensacola, FL

Florida

Andrew Sabolic Assistant Director


Compensation

Tallahassee, FL

Colorado

Dan Sung

Manager of Medical Policy


Compensation

Denver, CO

Delaware

Stephanie Parker Administrator

Delaware Department of Labor

Dover, DE

District of Columbia

Honorable Melissa Lin Jones Administrative Appeals Judge


Washington, D.C.

Welcome:

Gary Davis

Secretary / Treasurer

SAWCA Lexington, KY

Moderator:

Honorable Melodie L. Belcher

SAWCA Past-President

Administrative Law Judge

Georgia State Board of


Columbus, GA


Georgia

Honorable Frank McKay Chairman

Georgia State Board of


Atlanta, GA

Idaho

Honorable RD Maynard Commissioner

The Idaho Industrial

Commission

Boise, ID

Indiana

Honorable Linda Hamilton Chairman

Workers’ Compensation Board

of Indiana

Indianapolis, IN

Kansas

Honorable Bruce Moore Judge


Compensation

Topeka, KS

Kentucky

Honorable Dwight T. Lovan Commissioner

Department of Workers’ Claims

Frankfort, KY

Louisiana

Larry White Deputy Director

Louisiana Office of


Administration

Baton Rouge, LA

Maine

Honorable Paul H. Sighinolfi, Executive Director/Chair

Workers’ Compensation Board

Augusta, ME

Maryland

Honorable R. Karl Aumann Chairman

Maryland Workers’


Baltimore, MD

Oregon

Sally Coen Oregon Workers’ Compensation

Commission

Salem, OR

Pennsylvania

Honorable Elizabeth Crum Director of Adjudication

Pennsylvania Department of

Labor & Industry

Harrisburg, PA

South Carolina

Gary M. Cannon Executive Director

South Carolina Workers’


Columbia, SC

Tennessee

Honorable Kenneth Switzer Chief Judge

Tennessee Department of Labor &

Workforce Development

Nashville, TN

Texas

Honorable Ryan Brannan Commissioner

Texas Division of Workers’

Compensation

Austin, TX

Virginia

Honorable Roger Williams Commissioner

Virginia Workers’ Compensation

Commission

Richmond, VA

Washington

Honorable Brian Watkins Judge

Board of Industrial Insurance

Appeals

Olympia, WA

Maryland

Scott Curtis Assistant Attorney General


Commission

Baltimore, MD

Mississippi

Honorable Deneise Lott Administrative Law Judge

Mississippi Workers’ Compensation

Commission

Jackson, MS

Nebraska

Honorable Tom Stine Judge

Nebraska Workers’ Compensation

Court

Lincoln, NE

New Jersey

Honorable Ingrid French Judge

New Jersey Dept. of Labor and

Workforce Development

Trenton, NJ

New Mexico

Darin Childers Director

New Mexico Workers’

Compensation Administration

Albuquerque, NM

North Carolina

Ryan Boyce Deputy Counsel

North Carolina Industrial Comm.

Raleigh, NC

Oklahoma

Honorable David P. Reid Judge

Court of Existing Claims

Oklahoma City, OK

Oklahoma

Honorable Bob Gilliland Commissioner

Oklahoma Workers’ Compensation

Commission

Oklahoma City, OK


Endnotes for Fee Schedules and the Art of Automobile Maintenance, from pages 2-6.

Endnotes

1 It should be pointed out that being

called was no small matter. In those

days people did not carry cell phones

for the simple reason that such phones

did not exist. Either the stranded

person had the good fortune of

breaking down near a phone booth, or,

more likely, they were required to

knock on doors until some trusting

soul would let them in their house to

use the family phone. Even in that

kinder, gentler time, this was

uncomfortable for all parties involved.

Much like the classic post-arrest, one

free call, one did not jeopardize this

limited resource by using the phone

imprudently. 2 For the purposes of this article, it will

be presumed that the interests of

employers and their workers’

compensation carriers are aligned.

Therefore, and unless stated otherwise,

the reference to one is intended to

include the other. 3 Through May 14, 2014, 988 claims

had been filed by medical providers

compared to 1464 for all of 2010. 4 Commission lawyer Betty Cabell

Brogan, who has been kind enough to

assist in the writing of this paper,

insisted I delete reference to CMS

suing Skippy the dog because, she

posited, it is both juvenile and a lie. To

this I say it is not a lie but poetic

license, a sophisticated literary

convention allowing serious writers to

emphasize a point by lying. In this

case the point is CMS is powerful. In

deference to Ms. Brogan, however, all

further references to Skippy the dog

have been removed. 5 Suggesting the conversion factor is a

random number would send the good

people at CMS into such violent

spasms of laughter as to dislodge their

pocket pencil protectors. They would

then point out the conversion factor is

adjusted annually “using (a) the

productivity-adjusted increase in the

Medicare Economic Index (MEl) and

(b) the Update Adjustment Factor

(UAF), which is calculated by taking

into account the Medicare Sustainable

Growth Rate (SGR), an annual

growth rate intended to control

growth in aggregate Medicare

expenditures for physicians’ services,

and the allowed and actual

expenditures for physicians’

services.” Medicare Program;

Revisions to Payment Policies Under

the Physician Fee Schedule, Clinical

Laboratory Fee Schedule & Other

Revisions to Part B for CY 2014, 78

Fed. Reg. 74230, 74334 (Dec. 10,

2013) (to be codified at 42 C.F.R. pts.

405, 410, 411, 414, 423, 425).

Performing that analysis requires both

a slide rule and a pocket pencil

protector. 6 The Harvard School of Public Health

employed panels of health care

providers and conducted the research

necessary to quantify the RVU for

each CPT code. 7 Allow me to say here in a most

sincerely legal way that Dennis

Rodman was a great basketball player

but perhaps not the best model for

women’s bridal wear. The referenced

images are of course, available on the

Internet. Peruse at your leisure, and

you are invited to let me know should

you disagree with my assessment. 8 An excellent article addressing the

different permutations of fee

schedules is “Designing Workers’

Compensation Medical Fee

Schedules,” Olesya Fomenko & Te-

Chun Liu, Workers’ Compensation

Research Institute, 2012. 9 I wish to thank Commission lawyer,

Betty Cabell Brogan, for her

assistance in the writing of this article

by systematically deleting all the

portions thought by the author to be

funny. Also, Commission secretary

Nancy Sears for assisting in my

education by finding relevant articles

written in terms I can understand.

Last but not least I wish to thank my

personal Commission staff lawyer

and spiritual guide, Patricia “I’'m

Nobody’s Favorite” Sherron who

reassured the author, reinserted all the

funny parts, and simultaneously asked

for a raise.

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