Lex and Verum

It is hard to believe we are only a little over a month away from our 8th

Annual Judiciary College. Various

committees are putting the final touches on what should prove to be an outstanding educational opportunity. We

have a great line-up of speakers from across the country, and number of topics which should prove beneficial

for all of our attendees. If you have not yet made arrangements to attend, I ask that you do so at your earliest

convenience.

I wish to express thanks and gratitude for all

involved in the planning for the college, and for all of

the work necessary to ensure its success. I

particularly would like to thank Judges Jane Rice

Williams (Kentucky), David Langham (Florida) and

John Lazzara (Florida). I would also like to thank

Kathy Shelton, Shirley Kendall and Woody Douglas

for their assistance and leadership. The tireless effort

from these individuals ensures the ongoing success

of our association and our college. I would also like

to thank Jim McConnaughhay and Steve Rissman

whose support and leadership have been instrumental

in providing an opportunity for our association to

flourish.

Lex and Verum

The National Association of Workers’

Compensation Judiciary

Number LXXXII

July 2016

From the President

By Hon. Michael Alvey

July 2016 NAWCJ - Lex and Verum

Continued, Page 2.

Judges Alvey (R) and Langham (L) at the

Kentucky Centiennial celebration

The President’s Page, from Page 1.

That said, we are still in need of volunteers to participate as

judges for the annual E. Earle Zehmer Moot Court Competition.

If you would like to assist, please contact Judge Tom Sculco at

[email protected], or Barbara Wagner at

[email protected]. You can also contact me at

[email protected].

Thanks for all you do.

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

Past-President 2012-14 Pittsburgh, Pennsylvania

Pennsylvania Department of Labor

and Industry

Lex and Verum

Editorial Committee

Hon. LuAnn Haley, Chair Tucson, Arizona

Hon. Shannon Bishop Harahan, Louisiana

Hon. David Langham Pensacola, Florida

Hon. David Torrey Pittsburgh, Pennsylvania


Judiciary College 2016 Features

29th Annual E. Earle Zehmer

Moot Court Competition Preliminary Round Judges needed

Sunday, August 21, 2016

Contact Barbara Wagner for details

and to volunteer!

[email protected]

In This Issue

New AMA Book is Essential Reading 3

Kentucky’s Governor’s Reorganization 8

Hot Topics for New Judges Sizzle your Summer in Orlando 13

Venerable Researcher Recommends Workers’

Compensation be Eliminated 15

Orlando and Radicalization 19

Evidence for Adjudicators 21

Physical Therapy Cost-Effective for Low Back Pain 22

States Limiting First Time Opioid Prescriptions 23

Top Workers’ Compensation Judges Write on Their States’

Laws – Past and Present 27

A Simple Method for Expeditious Care 30

2016 Judiciary College Curriculum and Schedule 33

2016 Judiciary College Faculty 42

mailto:[email protected]



L. Kertay, Ph.D., M. Eskay-Auerbach, M.D., & M. Hyman, M.D., eds., AMA Guides to Navigating Disability

Benefit Systems: Essentials for the Healthcare Professional (American Medical Association 2016).

I.

Most members of the legal and medical communities recognize the AMA Guides as the manual, now in its 6th

edition, which establishes rules and percentage ratings attendant to an injured worker’s permanent impairment.

However, the AMA actually has other books in its Guides series. The association has now (2016), published the

AMA Guides to Navigating Disability Benefit Systems. It is written by three physicians (one of whom also has

the benefit of a law degree), a psychologist, and a workers’ compensation judge.

The book is intended to acquaint healthcare providers with workers’ compensation, Social Security Disability

Insurance (SSDI), the Family and Medical Leave Act (FMLA), and private disability insurance, and instructs

how to effectively interface with them. The authors proceed from a conviction that many physicians, and

particularly PCPs, are not well educated with regard to disability systems and could use a concise introduction.

This conviction seems merited. Twice since I have been a judge, notably, doctor friends working as PCPs

approached me and inquired why their patients’ lawyers were pursuing them for narrative reports. They were

irritated by the lawyers’ persistence because they did not appreciate their own role in the system and the

importance for the lawyers – and their patients – to obtain a supportive note or narrative. My one friend, who

was in his last year of an internal medicine residency, declared, “they didn’t teach us this stuff in medical

school!”

Throughout the book, the authors stress that doctors should recall how important they are to the system.

Addressing the same point, I have always utilized the verbal shorthand that the “physician is the gatekeeper” to

workers’ compensation benefits. I routinely make this assertion when self-represented claimants express

frustration that they must have a note from their doctor to try to prove work causation and disability. Physician

support in workers’ compensation, I advise them, is no different than support for an ill child needing an excuse

from gym or for a soldier requiring relief from rigorous training.

While the book is directed at physicians and other healthcare providers, it is helpful to all members of the

workers’ compensation community. Lawyers, judges, and insurance professionals are always enriched by

learning how doctors think. The book is well footnoted with authorities and features a valuable bibliography for

further reading.

II.

Navigating Disability Benefit Systems provides advice on an array of critical topics, including addressing

causation; communicating with adjusters; completing disability forms (including those required for a worker to

obtain time off under the FMLA); and the basics of workers’ compensation, SSDI, and private disability

insurance.

New American Medical Association

Book is Essential Reading For

Physicians … and all in the Workers’

Compensation Community

by David B. Torrey


Continued, Page 4.

American Medical Association, from Page 3.

Yet the authors’ most developed topic is perhaps their treatment

of “disabling,” or not disabling, a patient. The authors start with

the basics, explaining first the concepts of “limitations” and

“restrictions.” A limitation “means something the individual is

simply unable to do, regardless of motivation. To qualify as a

functional limitation, the patient must be unable to perform the

action no matter how hard she or he tries. Most often, a true

limitation is both specific and measurable.” In practice, the

concept of limitations becomes manifest in the entries of the

familiar “Physical Capacities” form.

A restriction, on the other hand, is a concept “tied to risk…. [A]

functional restriction is [an activity] that the individual should not

perform … because to do so risks causing actual harm to the

individual or others.” These considerations inform the

physician’s decision whether to certify the injured worker as

unfit, in whole or in part, to labor in a particular job or to take

part in some specified activity. Familiar “hard” restrictions are

those that apply to truck driving and participation in competitive

sports.

A third consideration, more complicated, exists in the analysis –

that is, the worker’s subjective “tolerance” for pain. Tolerance, in

this context, is “what remains of a person’s self-assessed inability

to work after restrictions and limitations are in place…. Tolerance

is a psychophysiologic concept that represents the ability to

tolerate sustained work or activity at a given level…. Symptoms

such as pain, fatigue outside of conditioning, and/or subjective

motivation are what defines an individual’s self-imposed limit on

the ability to do the task in question.” The authors posit,

“tolerance is not scientifically measurable or verifiable; it is an

inherently subjective experience expressed as a symptom.

Tolerance is frequently less than either capacity or current

ability.”

In light of these considerations, what is a physician to do when

a patient wants to be excused from work, but the physician cannot

ascertain any objective findings to justify such action? Surely

these are the hard cases. Here the authors provide a frank

discussion – typical of the book’s advice sections – of the

physician’s options.

The first choice is to “take dictation,” undertake no independent

judgment with regard to limitations, restrictions, and tolerance,

and in essence be manipulated. The authors do not think much of

this approach: “The [healthcare provider] in this case is not

conducting a professional evaluation of the patient.”

The second choice is more constructive, but flawed: “Try to

assess tolerance.” Here the authors are stern: “The practice of

medicine depends on clinical judgment, incorporating history,

examination, and testing in order to reach a level of substantial

medical evidence.

2016 NAWCJ Board of Directors

Hon. R. Karl Aumann, 2014-16 Maryland Workers’ Compensation

Commission

Hon. T. Scott Beck, 2014-16 South Carolina Workers’

Compensation Commission

Hon. Melodie Belcher, 2014-16 Georgia State Board of Workers’

Compensation

Hon. LuAnn Haley, 2015-17 Industrial Commission of Arizona

Hon. Sheral Kellar, 2014-16 Louisiana Workforce Commission

Hon. David Langham, 2015-17 Florida Office of Judges of

Compensation Claims

Hon. John J. Lazzara, 2014-16

Past-President 2008-10 Florida Office of Judges of

Compensation Claims

Hon. Ellen Lorenzen, 2014-16

Past-President, 2010-12 Florida Office of Judges of

Compensation Claims

Hon. Deneise Turner Lott, 2015-17 Mississippi Workers’ Compensation

Commission

Hon. Frank McKay 2015-17 Georgia State Board of Workers’

Compensation

Hon. Bruce Moore 2015-17 Kansas Department of Labor, Division

of Workers’ Compensation

Hon. Kenneth Switzer 2015-17 Tennessee Court of Compensation

Claims

Hon. Jane Rice Williams, 2015-17 Kentucky Department of Workers’

Claims


Continued, Page 5.


This is problematic when competing interests and money are involved, as they integrally are in disability

systems.” The authors conclude, “in the absence of demonstrable clinical findings, clinical judgment regarding

tolerance is an insufficient basis on which to base activity restrictions or functional limitations.”

Third, the authors essentially recommend what might be called a “tough love” strategy, counseling, “Call it

like it is.” That is, the physician simply explains that, without objective findings, he or she “cannot certify that

[the patient is] disabled for this job. ...” The physician may add something to the effect: “I can record on this

form what you feel to be your current activity tolerances, but not as ‘work restrictions’ or as ‘work limitations.’

These tolerances are not scientific, and they may change in the future.” The authors note, “this type of

discussion with the patient is an important opportunity to discuss the health benefits of working.”

III.

Amidst all the practical advice provided in this book, a robust common theme is unmistakable – and made

explicit in the final chapter. That theme is that doctors should consider themselves as having the responsibility

to their patients, and to society at large – as a matter of good professional citizenship – to prevent their patients’

needless disability. The authors frown on physicians needlessly keeping their patients out of work. In their

view, only when objectively-ascertainable impairment is present to keep somebody from work should the

employee be considered disabled and be given an off-work slip. In this spirit, the authors encourage physicians

to rely on evidence-based principles of work disability as found in the guidelines published by the Work Loss

Data Institute and ACOEM. Physicians can also be guided by another book in the AMA series, the Guides to

the Evaluation of Work Ability and Return to Work.1

Some may consider the authors’ fierce advocacy against keeping patients out of disability status to constitute

unsatisfactory opinion which is beyond the realm of medical advice. The authors, however, defend their

advocacy by asserting that physicians should be concerned about our country’s “disability epidemic,”2 about

which so much has been written throughout the last decade, if only because science shows that inappropriately

keeping patients out of work is actually injurious to their health. And, importantly, it is doctors like PCPs who

have “the opportunity to intervene early and to be the first line of defense in the disability epidemic.”

The authors further justify their advocacy by insisting that current science supports the “biopsychosocial”

approach to assessing the worker’s situation when he or she has an injury or illness, and a conflict develops over

whether work responsibilities can be handled. The scientific approach, the authors argue, obliges physicians,

operating in their gatekeeping role, to consider this critical aspect of the worker’s situation, and not merely to

default to the “biomedical” approach of assessing a patient’s ability or inability to work. In short, the physician

should account for patient motivation, recognizing that “biological, psychological, and social factors interact

and play a role in human health.”

The primacy of this advocacy in the book cannot be overstated. Not only is employment good for everyone,

but work, in the authors’ view, is a “health behavior.” The authors explain: “In addition to providing life

purpose and income, work has positive health benefits, while worklessness is associated with poor mental and

physical health and increased mortality. ... Work’s positive benefits are akin to other health behaviors such as

good diet and exercise, and unnecessary worklessness is a health risk similar to smoking and excessive alcohol

use.”

IV.

On occasion, of course, a physician will simply not feel comfortable engaging disability benefit systems and

their lay agents. “[I]f clinical objectivity will be compromised,” the authors posit, “your most appropriate option

is likely to remain in a treating role outside of the disability system, and the [healthcare provider] will need to

defer impairment evaluation to someone in a better position to evaluate the claim impartially.” However, this

situation gives rise to a common anxiety I have heard from doctors – If I don’t provide a disability slip (or write

a prescription), the patient will quit my practice and go to treat with someone else who will.


Continued, Page 6.


Perhaps such worries can be dispelled, or at least mollified,

by this book. The authors, with their coverage of the basics of

disability systems, the underlying concepts of disability

programs, and their resolute hard advice at the end of each

chapter, have indeed provided physicians with the essentials

needed to deal with the toughest disability cases.

V. Appendix: Contents of Navigating

Disability Benefit Systems

Chapter 1 Introduction

Chapter 2 The Healthcare Professional’s Role in Disability

Benefit Systems

Chapter 3 Work Ability and Return to Work

Chapter 4 Causation

Chapter 5 Communicating with Patients, Employers, and

Insurers

Chapter 6 Navigating Forms

Chapter 7 Physician Certification for Family Medical

Leave

Chapter 8 The Health Care Professional and Private

Disability Insurance Claims

Chapter 9 Social Security Disability

Chapter 10 The Workers’ Compensation System

Chapter 11 The Legal System: Attorneys, Judges, and

Expert Testimony

Chapter 12 Promoting Health by Promoting Work

_________

* David B. Torrey is a Workers’ Compensation Judge in

Pittsburgh, PA, and is Adjunct Professor of Law at the University

of Pittsburgh School of Law. Judge Torrey is a former President

of the National Association of Workers’ Compensation Judiciary,

and remains a member of the Association board.

**Disclosure: This writer was a lay reviewer of first-draft chapters

addressing causation, workers’ compensation, and dispute

resolution.

1 J.B. TALMAGE, J.M. MELHORN, & M. HYMAN, AMA

GUIDES TO THE EVALUATION OF WORK ABILITY AND

RETURN TO WORK (American Medical Association 2011).

2 According to the authors, “Since 1985 the number of individuals

receiving public disability benefits has nearly tripled, to almost

nine million. ... Put simply, there is an epidemic of worklessness

that contributes to enormous economic strain and severe negative

health impacts.” (Citing C. Joffe-Walt, Unfit for Work: The

Startling Rise of Disability in America (National Public Radio),

available at http://www.npr.org/series/196621208/unfit-for-

work-the-startling-rise-of-disability-in-america (last visited June

27, 2016). The subject of this story is SSDI, not workers’

compensation.


California Judge and

former Assistant

Director Passes

The Department of Industrial Relations

(DIR) and the Division of Workers’

Compensation (DWC) with great sadness

announce the passing of Workers’

Compensation Judge Rosa Moran, who died

unexpectedly in May.

Rosa Moran’s state career spanned 11

years. She joined DWC as a workers’

compensation judge in 2005, and led DWC

as Administrative Director from July 2011

to September 2012.

Prior to her state service, Moran was a

workers’ compensation attorney in private

practice from 1988 to 2005. She was an

active lecturer at attorney conferences and

risk management seminars, served as a

judge liaison member of the Bay Area

Bench and Bar Association and was the

author of many seminal decisions in the

workers’ compensation arena.

She received her undergraduate degree

from University of the Pacific in Stockton

and a law degree from the University of San

Francisco School of Law. DIR and DWC

offer condolences to her family and friends.

Judiciary College 2016 August 21-24, 2016

Marriott World Center, Orlando, Florida

NAWCJ Judiciary College Hotel

The Caribe Royale

$110.00 per night

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)

$187.00 per night single/double

Reservations must be made via website or call

(800) 621-0638 and ask to be transferred to

Passkey reservations – Mention WCI 2016.

Judiciary College 2016!

Tuition is only $225.00 (NAWCJ members) or $350.00 (non-members) if

paid by July 15 and $265 (members) or $360.00 (non-members) if paid after

July 15. On-line registration is NOW OPEN at www.NAWCJ.org.


http://resweb.passkey.com/go/WCI2014

http://www.nawcj.org/

Editor’s note. The situation with the Kentucky nominating commission is ongoing. A hearing was

held June 29, 2016 and some resolution may be forthcoming soon. Following the article is a

comment submitted to the Northern Kentucky Tribune website by J. Landon Overfield, former Chief

ALJ in Kentucky.

In keeping with his campaign promises to “change Frankfort,” Kentucky Governor Matt Bevin has moved

quickly in his first few months in office to restructure several state boards and commissions, among them the

Kentucky Racing Commission, the Kentucky Horse Park Commission and the Kentucky Workers’

Compensation Nominating Commission.

He has even put a hold on the naming of new Kentucky Colonels, saying he wants to review the criteria for

awarding the state’s highest honorary recognition. Each restructuring has created some level of controversy, but

perhaps none so much as the Governor’s executive order abolishing the Workers’ Compensation Nominating

Commission and re-creating it with new members and new criteria.

This has landed in Franklin Circuit Court in the form of a lawsuit challenging the Governor’s actions. It was

filed by two labor unions, a former member of the Commission, and three individuals who say they are injured

workers.

Franklin Circuit Court Judge Phillip Shepherd has not yet ruled on the lawsuit — instead urging the opposing

parties to try to resolve their differences. He expressed concern about the time involved in working the case

through the system and the delays that could ensue regarding workers’ compensation claims. He did order the

nominating commission not to make any recommendations to the governor until after the lawsuit is resolved.

The nominating commission is charged with recommending the judges who decide if and how much

employers must pay workers hurt on the job. The governor has the authority to appoint the judges, but must

appoint only a judge recommended by the commission. Public documents obtained by the KyForward shed

some light on the issues that led to Gov. Bevin’s decision to reorganize the commission — and perhaps provide

some insight on how he intends to follow through on a consistent thread in his campaign: “Changing Frankfort .

. . giving Kentucky a fresh start.”

The documents reveal concern about “pay-to-play politics” (campaign contributions translating to

appointments), about unlimited terms that created “entrenched” positions for individuals and law firms, and

about the commission’s lack of collaboration — as required by statute — with the Chief Administrative Law

Judge and the chair of the Workers’ Compensation Board. Summaries of the affidavits are included below.

Chief of Staff for the Labor Cabinet J. Brooken Smith’s sworn affidavit reveals concerns about “entrenched”

members and law firms and lack of adherence to procedures clearly spelled out in the regulations. His statement

shows how the administration’s particular changes in the commission came about.

Veteran of several administrations as Deputy General Council in the Office of the Governor, Michael

Alexander points out in his sworn affidavit that restructuring of statutory agencies is nothing new. Critics of the

administration have argued that Bevin’s reorganization of the commission is an unprecedented use of executive

power. Alexander points out that four prior governors have used the same power 357 times: Brereton Jones, 58;

Paul Patton, 121; Ernie Fletcher, 75; and Steve Beshear, 103.

A Closer look at Kentucky’s Governor’s

Reorganization of the Workers

Compensation Nominating Commission

By: Judy Clabes*


Continued, Page 9.

Nominating Commission, from Page 8.

Chief Administrative Law Judge Robert Swisher describes how he has reshuffled caseloads in the face of vacancies and says that - despite regulatory requirements - he was only recently consulted about vacancies. These public records - three affidavits in particular - provide some insight into the issues that drove the Governor’s actions. J. Brooken Smith is the chief of staff for the Kentucky Labor Cabinet, hired by Labor Cabinet Secretary Derrick K. Ramsey. He says he advises the Secretary on public policy and personnel, including advice to nearly 20 boards, commissions or councils attached to the Cabinet. In reviewing the work and mission of the Workers’ Compensation Nominating Commission, he said he found “party politics inextricably intertwined” with the Commission’s membership — including political donations. He cites examples of large contributions to Democratic candidates by members of the commission. He also discovered that multiple members “had become entrenched” over many years; one had served more than 20 years and another for at least a decade without a break in service and that two others were serving at least a third term. He says he learned that one member was advertising his reappointment to the commission on his website while simultaneously promoting his success in the area of workers’ compensation. “Though not expressly stated,” Smith says in his affidavit, “this advertisement gave the impression that the member was somehow equating his membership on the Commission to his success in legal practice.” He goes on to describe subsequent meetings with the chair of the Commission, Grover Arnett, and administration officials. He says that Arnett offered to “carry” the administration’s “water” on appointments of ALJs, which is not what the commission is charged to do. Smith also describes an April meeting of the Commission to decide whether to recommend retention of four ALJs whose terms expire July 14. He says that without any detailed, in-depth discussion about the work performance of any of the ALJs up for reappointment or consultation with the Chief Administrative Law Judge Robert L. Swisher (as required by law), the commission recommended reappointment of all four. Gov. Bevin subsequently rejected three of them. He says that “Governor Bevin called for an end to the ‘pay-to-play’ method of governing” in Kentucky and signaled the “need for a shift in the culture and the way business is done in Frankfort.” “Given the information found in my review, coupled with Governor Bevin’s public statements,” Smith says, “I, along with the Cabinet’s General Counsel, recommended to the Secretary that he recommend to Governor Bevin the replacement of the Commission’s members.” Further discussions, he says, resulted in a recommendation that the Commission be completely revamped and “that the reorganization process permanently reduce the impact of party politics” on the Commission. That led to Bevin’s Executive Order (which is being challenged by the lawsuit) abolishing the old Commission and establishing a new one consisting of seven members appointed by the Governor — one from the state at-large, two attorneys experienced in workers’ compensation (one who customarily represents claimants and one who customarily represents employers), and two each from the two political parties having the largest and second largest number of registered voters. It also created four staggered classes and creates a two-term limit. It reaffirms the Commission’s obligation to consult with the Chief Administrative Law Judge, the Chairman of the Workers’ Compensation Board, and the Commissioner on appointments.

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Continued, Page 10.


Michael T. Alexander is Deputy General Council in

the Office of the Governor, a position he has held for

about 23 years. His affidavit addresses the precedents

for Governor’s Executive Orders to reorganize and/or

recreate statutory agencies. He says that his review of

records of the last four Governors shows a total of

357 Executive Reorganization Orders, including 34

orders that abolished and/or recreated agencies and

involving changes to statutory memberships. These

included such reorganizations as the Kentucky State

Fair Board, the Kentucky Horse Racing Commission,

the Kentucky Mining Board, the Justice and Public

Safety Cabinet, and the State Board of Agriculture.

He further says that several orders abolished and/or

recreated Executive Cabinets and reorganized the

whole Executive Branch of Government.

Swisher is chief administrative law judge for the

Kentucky Department of Workers’ Claims (DWC), a

position he has held since 2014; he was appointed by

Gov. Steve Beshear to the commission in 2010. He is

responsible for managing and supervising the other

administration law judges, making assignments of

cases and setting sites for the hearings. He says that in

April, the Senate confirmed five of the recommended

Administrative Law Judges, but did not confirm three

others which created immediate vacancies and

necessitated reassignment of their cases to the

remaining 14 judges.

“On the average,” he says in the affidavit, “this

meant each of the remaining 14 ALJs were assigned

four additional opinions, many of which were due

within a few weeks of Monday, April 18.” Swisher

describes other efforts made to assure that there were

no long-term delays or “lost” claims. He also

reassigned parts of the May and June dockets —

including taking on a regular docket assignments

himself on top of his administrative duties.

He also says he notified the Kentucky Workers’

Association and a list of defense attorneys and asked

them to spread the word about the problem related to

vacant seats — and to alert him to any particular

problems needing “immediate attention.” He also

started discussions about four other ALJs whose

terms were set to expire on July 14. The nominating

commission recommended all four for re-appointment

but Gov. Bevin rejected three, reappointing only Jane

Rice Williams.

THE NATIONAL ASSOCIATION OF

WORKERS’ COMPENSATION

JUDICIARY

APPLICATION FOR ASSOCIATE

MEMBERSHIP

THE NAWCJ ASSOCIATE MEMBERSHIP YEAR IS 12 MONTHS

FROM YOUR APPLICATION MONTH. ASSOCIATE MEMBERSHIP

DUES ARE $250 PER YEAR.

NAME:________________________________________

DATE: ____/____/____

FIRM OR BUSINESS:

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Mail your application and check to:

Kathy Shelton, P.O. Box 200, Tallahassee, FL 32302 850.425.8156; Email: [email protected]


Continued, Page 11.


This meant the reassignment of the dockets of the other three for June and July and making other adjustments to

schedules. “The Petitioners in the litigation filed against Governor Bevin related to the Workers’ Compensation

Nominating Commission have alleged that an “unprecedented” six ALJs have been removed this year. That is

not accurate. As of the date of this Affidavit (May 31), there are only three vacancies in the ALJ ranks; the

terms of the three non-reappointed ALJs do not expire until July 14, 2016, and I expect those ALJs will work

diligently to write and issue opinions right up to the date their terms expire.”

But he says, “The current reshuffling of work, however, is not sustainable in the long-term.” Swisher also

points out that on May 9th Governor Bevin issued an Executive Order reorganizing the nominating commission

that included the appointment of seven new individuals. He said he was asked to participate in discussions in

two meetings held by the commission since the reorganization and that he can’t recall another time he has been

asked to participate in such discussions.

(Comment by) J. Landon Overfield

June 6, 2016 at 5:22 pm

This should be on the opinion page as it gives only the Bevin Administration’s side of the issue. With the May

9, 2016 executive order, Gov. Bevin REWROTE a statute that was originally passed in 1994. The Workers’

Compensation Nominating Commission had existed and functioned in the form created by the Kentucky

General Assembly for over two decades. During that time, the commission had nominated and governors had

appointed as Workers’ Compensation Administrative Law Judges (ALJs) Republicans & Democrats, men &

women, defense & plaintiff’s attorneys, minority & non-minority individuals. Some ALJs were considered

“liberal” with their decisions, some were considered “conservative” and some were considered “middle-of-the-

roaders”. The process worked. Gov. Bevin could have, in due time as terms of the Nominating Commission

members expired, staffed the Commission with members he wanted to appoint. In his zeal to impose his own

will on the Commonwealth, he couldn’t wait for the statutory process to work. He, by executive fiat, abolished a

statutorily created and staffed commission, REWROTE the statute changing the membership criteria, and

appointed seven new Commission members. Does the governor have such power under the Kentucky

Constitution? THAT is the issue now before the Franklin Circuit Court, not whether the newly elected governor

liked how the Commission was staffed.

__________ * Judy Clabes grew up in Henderson, graduated from the University of Kentucky with majors in English, journalism and

education, got her MPA from Indiana State University, and has four honorary doctorates, the latest from the University

of Kentucky in 2010. She had a distinguished career in journalism and philanthropy. During 37 years with the E.W.

Scripps Company she served as Scripps’ first woman editor, beginning with the Sunday Courier & Press in Evansville

and then with The Kentucky Post. She was named president and CEO of Scripps Howard Foundation in 1996.

__________

The foregoing was originally published in the Northern Kentucky Tribune, http://www.kyforward.com/, and is reprinted

here with permission. The article attracted the attention of Former Kentucky Chief Administrative Law Judge J. Landon

Overfield, whose comments are reproduced as well, with his permission.


Only 44 days until Judiciary College 2016 – plan today, details on pages 32-56

http://www.kyforward.com/

THE NATIONAL ASSOCIATION

OF WORKERS’ COMPENSATION JUDICIARY

APPLICATION FOR MEMBERSHIP

THE NAWCJ MEMBERSHIP YEAR IS 12 MONTHS FROM YOUR APPLICATION MONTH. MEMBERSHIP DUES ARE $75 PER YEAR OR

$195 FOR 3 YEARS. IF 5 OR MORE APPLICANTS FROM THE SAME ORGANIZATION, AGENCY OR TRIBUNAL JOIN AT THE SAME TIME, ANNUAL DUES ARE REDUCED TO $60 PER YEAR PER APPLICANT.

NAME: ____________________________________________________________________ DATE: ____/____/____

OFFICIAL TITLE: _________________________________________________________________________________

ORGANIZATION: _________________________________________________________________________________

PROFESSIONAL ADDRESS: ______________________________________________________________________

______________________________________________________________________

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Whether you are transitioning to the bench from private practice or are an experienced adjudicator new to

workers’ compensation, the Judiciary College is offering a program for new judges that all judges cannot afford

to miss. This year’s three hour new judge’s track will be held on Monday, August 22nd

, and returns this summer

by popular demand. Although the program and discussions are geared for those who have been on the bench for

two years or less, all adjudicators who attend will benefit from the New Judge Track in this program.

The program kicks off with a sizzling session on judicial writing which will offer tips from the best on how to

write decisions that are informative as well as persuasive. The first session in the program will focus on judicial

writing for the new judge and the audience will have the benefit of hearing directly from a judge who currently

sits on the Florida Fourth District Court of Appeal, the Honorable Melanie G. May. Judge May has in past

sessions at the Judiciary College provided the audience with her wit and wisdom regarding writing effective

decisions for administrative judges working in the field of workers’ compensation. Although her comments will

be designed to assist the new judge, any adjudicator in attendance at this year’s College will benefit from this

session.

The second hot topic in the New Judge Track will address the thorny issue of ethics for the new judge. In

most cases, the new judge has been a practicing attorney for enough years to have a clear handle on what is and

is not acceptable behavior pursuant to the rules of ethics. Taking the bench brings with it new challenges most

of us never considered prior to becoming judges. In this highly successful portion of the new judge session,

scenarios will be presented for consideration and discussion on several topics affecting all judges. For example,

when is it necessary to recuse and what is the proper standard? The session will also cover “duty to sit” versus

“appearance of impropriety.” Are you on social media? If so, what is the proper ethical analysis for either

staying connected or exiting? Other topics include consideration for continued social interaction, accepting

gifts, interaction with attorneys and participation in fundraisers. The discussion is guaranteed to benefit not only

your transition to the bench but will help you with challenges for years to come.

The final session of the sizzling afternoon for new judges will focus

on and address common and frequent issues that arise so as to make

the transition from the bar to the workers’ compensation bench as

seamless as possible. An experienced and seasoned panel of

adjudicators will offer critical information along with advice and

mentoring for the Judicial College audience, sharing their experiences

and common problems workers’ compensation judges face every day,

and offer guidance in dealing with these issues. This distinguished

panel of adjudicators, with years of experience in adjudicating

workers’ compensation disputes, will address how adjudicators from

various state jurisdictions deal with matters of judicial ethics,

courtroom security, attorney misconduct, pro se litigants, due process,

and the rejection from decision reversals. The presentation will be

moderated by Judge David Imahara from Georgia and will include

seasoned judges from Georgia, South Carolina and Tennessee.

Hot Topics for New Judges will make

your Summer Sizzle in Orlando

By: Hon. LuAnn Haley**


Continued, Page 14.

Hot Topics, from Page 13.

An administrative law judge, new to the bench in Arizona, Judge

Gaetano Testini, attended the New Judge Track at last year’s Judiciary

College and this is what he had to say about his experience: “Even after

spending 15 years on both sides of the aisle in workers’ compensation,

the NAWCJ Judicial College served as a great transition to the bench.

The program was timely, well put together, and provided useful tools to

take back to work.”

After the session there will be two red hot receptions that will allow

those in attendance to continue to sizzle well into the night in Orlando.

Whether you are a new judge or an experienced adjudicator looking for a

fresh perspective, attending the New Judge Track on Monday afternoon

at the Judicial College promises to heat up your summer. Don’t delay,

make your reservation today!

__________

* Luann Haley is an Administrative Law Judge in Arizona and a Board

Member of the NAWCJ. Her full biography is on page 45.

Interesting

Workers’

Compensation

Blogs

DePaolo’s Work

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

Workers’ Compensation

Institute http://www.wci360.com/

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

Tennessee Court of

Compensation Claims http://tennesseecourtofwcclaims.blogsp

ot.com/

Workers’ Compensation http://workers-

compensation.blogspot.com/

From Bob’s Cluttered

Desk http://www.workerscompensation.com/

compnewsnetwork/from-bobs-

cluttered-desk/

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

Maryland Workers’

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


Moot Court 2016 Focused on

Presumption

Various states have adopted new paradigms for resolving medical

disputes. Judges long trusted to resolve conflicting testimony have

been deemed incompetent to resolve conflicting medical opinions.

Louisiana has adopted an alternative medical dispute process in

which the Division doctor makes decisions. Its constitutionality

remains a subject of debate. California has adopted the Independent

Medical Review, or IMR, as its solution. The effectiveness and

efficiency of that process is also being discussed.

Florida has adopted the Expert Medical Advisor (EMA). In a

curious legislative structure, the medical advisor credentialing and

appointment are left primarily to the Judge now. Not trusted to

resolve the medical conflict, the Florida judge is trusted to

unilaterally pick the doctor that will resolve the conflict.

The 2016 Moot Court problem revolves around a Florida judge’s

appointment of an EMA to resolve conflicting medical opinions in a

case. The judge’s discretion in this appointment is called into

question on appeal. Asked to resolve a conflict between a world-

renowned surgeon and a general practitioner new to the practice, the

fictional Florida judge sides with the general practitioner. There are

interesting and intriguing issues in this problem, which may implicate

judicial discretion in a broader context.

Join us for Moot Court 2016 as the NAWCJ members preside over

the preliminary and quarter-final rounds in Orlando!

http://daviddepaolo.blogspot.com/

http://www.wci360.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/

Frank Neuhauser, The Myth of Workplace Injuries: or Why We Should Eliminate Workers’ Compensation for

90% of Workers and Employers, p.16, IAIABC PERSPECTIVES (April 2016)

In college I took a course that treated economics from a libertarian point of view. It exposed me to all sorts of

counterintuitive ideas. The most memorable was that the interests and wants of workers and the labor

movement should be discounted in favor of those of entrepreneurs and capitalists. After all, were it not for the

initiatives of the latter groups, workers would not be provided with good jobs and lifestyles but would, instead,

still be engaged in primitive labor, dressed in animal skins and tilling the soil with sharp sticks.

Hearing this was a shock to my sensibilities. I had been raised by liberals who exposed me to Dorothy Day

and the Catholic Worker Movement; and to the encyclical of Pope Leo XIII, Rerum Novarum – which

emphasized the dignity of the poor and working classes. And my father was a vocal admirer of George Meany.

I guess you know which side I was on.

And now: a similarly provocative thesis, addressing labor, found in the pages of the new IAIABC magazine

Perspectives. Its counterintuitive logic goes like this: (1) accident statistics show that work is actually safer than

home and play, (2) thus, work actually protects us from injuries and disease; and (3) employers should not, at

least for most jobs in the present day, be obliged to insure their employees via workers’ compensation.

The author, Frank Neuhauser, is a distinguished member of the research faculty of University of California-

Berkeley and a renowned workers’ compensation expert. He cites statistics showing that the incurrence of

workplace injuries has fallen dramatically over the decades, and particularly over the last twenty years. Injuries

suffered outside of work, on the other hand, have not decreased. In the end, time-adjusted statistics show that

overall one is 10.3 times more likely to be fatally injured on one’s own time than at work.

Neuhauser further asserts that, as a result, workers’ compensation is unnecessary for the vast majority of

workers, to wit, those who labor in occupations that other statistics show are not hazardous. In his view,

workers’ compensation is a “relic of the early industrial age ….”

This hardly means that Neuhauser is in favor of allowing employers to opt out, as in Texas or under the

cunning new Oklahoma machination. To the contrary, he explicitly states that he is against opt out. Instead, he

would have those who do not labor in hazardous industry be covered by their health insurance, as now

mandated by the Affordable Care Act, and for wage-loss be satisfied with short-term and long-term disability

plans.

The thesis is thought-provoking, the vision humane (insurance for everybody!), but in the present day it’s a

proposition for academic use only.

First, while it may be that modern work gives rise, statistically, to fewer injuries and deaths, work

nevertheless constitutes a significant period of time in our daily lives when some other entity has control over

our circumstances. In an age where collective bargaining has declined, where only desultory enforcement of

workplace environmental regulations exist, and where the difficult-to-regulate contingent workforce is on the

rise, employers who enjoy control over workers should still be expected to maintain no-fault accident insurance

for all their employees.

Venerable California Researcher Recommends

that Workers’ Compensation be Eliminated …

But the Plan isn’t Ready for Rollout

by David B. Torrey*


Continued, Page 16.

Compensation be Eliminated, from Page 15

The work environment and the employer control it

implicates has legal and, indeed, constitutional

dimensions as well. Employers are usually conceived of

as having a duty of care to the workers who are under

their dominion. An employee who is injured, yet is

excluded from compensation, will likely have a tort cause

of action against his employer. An employer’s private

disability policy will not afford an employer tort

immunity. This is certainly so in Pennsylvania, where the

state constitution guarantees a right of action for personal

injury in some forum. Do employers really want to be

liable in personal injury civil actions, even those

occasional ones brought by employees who have

somehow sustained injuries in less dangerous jobs?

Beyond the rights and remedies issue, individuals are

supposed to enjoy equal protection under the law. And

while Neuhauser has found a rational basis for treating

individuals differently, it is still unfair to provide

generous benefits for one type of worker who has

sustained a serious injury, but to deny the same for

another with precisely the same injury.

Second, most employees do not, in fact, enjoy coverage

by STD or LTD plans. Neuhauser cites the Bureau of

Labor Statistics for the proposition that 40% of private

industry workers have access to STD and 35% have

access to LTD. That’s unimpressive in the first place, but

it’s surely lower in the class of workers who appear in

disputed workers’ compensation cases. The bulk of these

individuals are members of the working class or are the

working poor. Many, if not most, have been living

paycheck to paycheck even before their injury. It would

be facetious to inquire of most whether they can survive

on their LTD plan while the lawyers duke it out.

In an unsubstantiated assertion, Neuhauser declares that

STD and LTD programs “are much more practical and

efficient” than workers’ compensation. Perhaps this

perception exists because such plans are typically not

regulated by an agency. (If there is no agency for

oversite, there is necessarily less friction cost.) Hence,

among other things, disability plans do not feature

enforced protections like a 21-day accept or deny rule (as

in Pennsylvania) which is designed to prompt effective

delivery of benefits. Non-payment and other disputes

under such ERISA-governed plans are not subject to

quick resolution and can end in federal court litigation. Is

this where employers, employees, and society at large

want to go?

Louisiana Director

Appoints New Judge

Dianne Mayo was recently appointed Division

Judge in Lake Charles Workers’ Compensation.

Judge Mayo will adjudicate workers’

compensation claims and render decisions

appealable to Louisiana’s Third Circuit Court of

Appeal and thereafter to the Louisiana Supreme

Court. She is a native of Lake Charles,

Louisiana, and graduated from the University of

Southwestern Louisiana. She received her Juris

Doctor from the Southern University School of

Law.

Immediately prior to her appointment Judge

Mayo was a workers’ compensation mediator,

and served in the Lafayette Division for 4 years.

She also served as a contract mediator in Lake

Charles and Baton Rouge. Judge Mayo has

mediated thousands of workers’ compensation

claims and brings her considerable knowledge

of Louisiana’s workers’ compensation laws to

the workers’ compensation bench.

Judge Mayo has been a member of the

Louisiana State Bar Association, American Bar

Association, National Bar Association, St.

Landry Parish Bar Association, Southwest

Louisiana Bar Association, Calcasieu Parish

Bar Association Southwest Louisiana Public

Defender Board, Southwest Louisiana Legal

Service Board, Alpha Kappa Alpha Sorority,

Inc., Delta Theta Phi International Law

Fraternity, Washington Marion Booster Club

and the Southwest Louisiana Client Council

Board.


Continued, Page 17.

Compensation be Eliminated, from Page 16.

Third, while the welcome enactment of the Affordable Care Act has brought group health insurance to many

more workers, a significant portion of the population still has no health insurance coverage. Pennsylvania

workers tell this to workers’ compensation judges every day of the week. They may lose their coverage when

laid off and have no money to buy their own plan, they may have decided to “self-insure” and take a possible hit

at tax-time, or they may have simply ignored the law altogether.

Like many an offering intended to provoke, Neuhauser’s article features an alarming title which, in the end,

isn’t really borne out. Workplace injuries are certainly not a “myth” in historical perspective, and he doesn’t so

claim. His real point, beyond the rhetoric, is that, in the present day, when considered next to the risk of injury

outside the workplace, work injuries no longer constitute a grave crisis.

Yet his further conclusion that workers’ compensation can be eliminated for all but the hazardous

occupations, with everyone else safe in the promise of coverage by private disability and group health plans, is

unviable in the present day for the reasons set forth above.

Workers’ compensation could conceivably be so restricted only when our country has adopted a commitment

to social welfare and wrap-around social insurance programs such as are current in Europe. And, it is worth

remembering that in Europe workers’ compensation has endured as a program for all workers, not just those in

hazardous employments.

In any event, such an American commitment doesn’t exist today. Our society, rightly or wrongly, persists in

its refusal to afford all working citizens access to insurance. Indeed, as I write, one candidate for president is

promising to repeal the Affordable Care Act – and he enjoys significant popularity.

We can be pleased that work is now a safer place. That hardly means that, in the current environment, it is

either practical, legal, or just, to eliminate no-fault insurance for those injuries that persist.

I posited above that the author’s vision was humane. Indeed, he proposes new mandatory laws which are the

polar opposites of opt out “ripper” legislation. In this regard, we learn at the end of the article that his plan

actually constitutes not just an alteration of the present order, but overthrow of the current system and

replacement with a new one:

How will workers fare if workers’ compensation is eliminated for low to medium risk employers?

Overall, I’d say workers will potentially do much better! Most important, economic analysis

suggests that the cost of workers’ compensation is partially or entirely shifted to workers in the

form of lower wages …. Legislation, eliminating workers’ compensation could 1) require

employers to offer short-term disability insurance, 2) adopt a universal, state disability insurance

program, like California, or 3) allow workers to buy disability insurance with the higher wages

that would develop over time. Overall health costs would certainly be lower, disability insurance

would be cheaper and workers would be more broadly covered from wage loss related to

disability.

It is questionable whether these suggestions are either wise or legally and politically cognizable. They are

under-examined propositions for wholesale change that are plainly not ready for rollout. For now, workers’

compensation is the best way of comprehensively covering individuals while they are at work, under someone

else’s control, and sustain injury.

As for workers’ compensation being a “relic,” some relics are sacred.

_________

* David B. Torrey is a Workers’ Compensation Judge in Pittsburgh, PA, and is Adjunct Professor of Law at the

University of Pittsburgh School of Law. Judge Torrey is a former President of the National Association of Workers’

Compensation Judiciary, and remains a member of the Association board.


NAWCJ College 2016 Registration Form

________________________________________________________________________ ___________________

Name First Name for Badge

_________________________________________________________________________________________________

Agency Name (as you wish it to appear on name badge) Title

_________________________________________________________________________________________________

Business Mailing Address

_________________________________________________________________________________________________

City State ZIP

_________________________________________________________________________________________________

Telephone Number Fax Number Email Address

_________________________________________________________________________________________________

Continuing Legal Education License Number State/Association

Hotel Accommodations:

For your convenience a block of sleeping rooms has been reserved at the Caribe Royale at $110 per night.

Complimentary shuttle service will transport attendees to the Marriott World Center Convention Center.

Number of Rooms______ Arrival Date 08/_____/2016 Departure Date 08/_____/2016

Room Type: _____Double _____ King

College Registration Fee:

NAWCJ Members:

$225.00 (after July 15, 2016 rate is $265.00) Quantity ________________

Non-Members

$350.00 (after July 15, 2016 rate is $360.00) Quantity ________________

__________________________________ _______________ ______________ _____________________________

Credit Card Account Number Expiration Date CVV Signature

__________________________________

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Make Checks Payable To: The National Association of Workers’ Compensation Judiciary, Inc. FEIN # 26-4598530

Online Registration is available at www.nawcj.org. Or, mail the completed registration form, along with credit card

information (VISA/MC/AmX/Discover) or a check made payable to: The National Association of Workers’

Compensation Judiciary, Inc., P.O. Box 200, Tallahassee, Florida 32302-0200; fax form to (850)521-0222. Registration

for the Judiciary College will include electronic conference handout materials, access to the exhibit area, Monday night

reception, and participation in the Annual Workers’ Compensation Educational Conference. Onsite Registration is

$340.00 for NAWCJ members, or $360.00 for non-members. For more information, contact the National Association of

Workers’ Compensation Judiciary at (850) 425-8156 or 425-8155.

YOU MUST BE AN ADJUDICATOR OR STATE ADMINISTRATOR TO ATTEND.

Contributions, gifts, or dues to the NAWCJ are not deductible as charitable contributions for federal income tax purposes



Editor’s note. The events in Orlando in June resulting in the deaths of 49 people, two of which

were employees of the club, was certainly shocking to all, including the workers’ compensation

community. As our members in Florida may soon be called on to handle the aftermath of the mass

shooting, where the injuries and deaths involve club employees, it is hoped that the following

article will provide our readers with some insight and understanding if confronted with violence

resulting from radicalization or hate crimes that occur in the workplace.

Sean O’Callaghan, former member of the IRA, spoke on the concept of radicalization at the 6th Annual

International Cyber Conference on Dispute Resolution, hosted by CSU Dominguez Hills, and his comments on

the process of radicalization seem especially appropriate after the tragedy in Orlando. As a former member of

the IRA, and one who admits to violence, he has clearer insights into this concept than a lot of commentators

and psychologists who have not gone through this process and, more importantly, rejected it. His comments,

made after the violence in France, are equally applicable to Orlando.

O’Callaghan commented that every ideology has its own extremists, adherents to the ideology who do not

compromise. “Fanaticism is part of the human condition,” he said. Fanatics exist within all groups and do not

represent everyone from a country or religion or political party, but they get most of the attention, often by

violent means. “The people we have come to call radicals or fanatics don’t think they’re radicals or even

different,” said O’Callaghan. They are proud of their commitment to their ideology and think they are doing the

right thing. In a twisted logic, they explain their willingness to risk their own lives as caring more about you

than about themselves; the violence is a way to save you from evil.

“We live our lives through a series of small negotiations,” said O’Callaghan, but zealots “do not engage, they

do not negotiate.” They look for perfection and anything that spoils it, including the imperfect “you,” must be

eliminated to reach the ideal state as only they define it. “I’m capable of murder and love, sometimes in the

same heartbeat,” he admitted. Experts talk about how the sense of isolation can drive fanaticism. Radicals suffer

from a “poverty of aspiration,” and will cling to anything that offers self-esteem such as being heralded as a

martyr. One psychiatrist explained that sometimes people with murderous rage need to legitimize it, so they

identify with an extremist ideology and use it as an excuse.

O’Callaghan does not hold out much hope for peace processes as they are generally understood because they

attempt to deal with global problems while ignoring the local problem and rhythm of everyday life. Restorative

justice processes, he thinks, can bring out “unpalatable truths” that make peace more difficult to achieve. And

what works in one place will likely not work in another because the underlying issues and cultures are different.

The local population won’t believe in the process, doesn’t believe they’ll get the truth, and can’t really forgive

their neighbors. “Politicians arrive at a solution,” he said, “but we go on hating each other.”

Instead, O’Callaghan advocates peace processes that are simple, defined, and deal with the current reality

rather than getting “entangled with the past.” Fanatics, he said, decide to move on. They get worn down and

accept the current reality. Fanatics may not forgive or forget, but they get on with a new life.

Orlando and

Radicalization

By Maria Simpson


Continued, Page 20.

Radicalization, from Page 19.

To get radicals to move on, then, radicals need a good reason that

replaces the lack of aspiration, the sense of isolation, the sense that

martyrdom is the only source of self-esteem and that perfection is not

necessarily the criterion for ending another person’s life. The answer

may be with concepts called “therapeutic jurisprudence” and “positive

criminology” that were also discussed at the cyber conference.

Therapeutic jurisprudence focuses on the legal process and suggests

incorporating elements of mediation such as allowing the defendant to

tell his or her story, listening respectfully, and bringing in family

members to develop a relapse prevention plan. The plan focuses on

the defendant’s humanity rather than criminality.

Positive criminology focuses on addressing the sense of social

isolation that drives fanatics to find self-esteem in fanaticism. It

requires that the social systems that exclude the fanatic change to

accept the fanatic on some level so that the need for affiliation with a

radical group is reduced. This process focuses on separating what the

person did in the past from his or her basic humanity and connecting

to society on that level. Processes focus on providing positive

experiences that demonstrate that there are rewards outside of

fanaticism, and working on social integration.

These same ideas were suggested after the tragedies in France: find

a way to include people in society so they have no emotional or

psychological need to find another, deadly route to self esteem.

Reciprocal violence and harsh penalties are not the answer, but as

O’Callaghan said, the solutions are local, not global, and they have to

address the current reality, not past issues. He also said we might have

to fight for democracy if our current approaches continue to fail.

O’Callaghan was a wonderful and insightful speaker. I truly wish

his comments hadn’t been so pertinent and that I had never had this

opportunity to write about their relevance.

__________

* Maria Simpson, Ph.D. is an executive coach, consultant, trainer and

mediator who has worked extensively with the corporate, non-profit

and conflict resolution communities to promote incorporating

conflict resolution into organizational systems and training people

in the skills and approaches of mediation.

Judge David Torrey

Honored by

Pennsylvania Bar

Association Award

for Extraordinary

Service

The PBA presented awards for

outstanding leadership in the legal

profession and extraordinary

service to and long-standing

membership in the association

during the PBA Annual Meeting

in Hershey on May 13.

PBA Special Achievement

Awards recognize those lawyers

and individuals who have

provided time and resources to

improve the association and the

legal profession.

Workers’ Compensation Judge

David B. Torrey, of Pittsburgh,

was presented a Special

Achievement Award for his PBA

Workers’ Compensation Law

Section Centennial Celebration

Steering Committee membership

and authoring the commemorative

book, “The Centennial of the

Pennsylvania Workers’

Compensation Act: A Narrative

and Pictorial Celebration.”


CWCL Contest Underway

The College of Workers’ Compensation Lawyers 2016 Student

Writing Contest is underway. It is open to all students currently

enrolled in accredited law schools in the United States and all

those recently graduating from them (graduation in 2016).

Deadline for submissions January 15, 2017.

You hear them during hearings and trials. Evidentiary objections are raised by litigants and the arguments are

often straight forward, but sometimes they can be creative and colorful. Well, you don’t want to miss the

“Evidence for Adjudicators” session at the Judiciary College in Orlando, Florida. The Honorable Jennifer

Hopens will moderate a panel discussion of evidentiary issues we face as adjudicators. She, along with

Honorable Melodie Belcher, Honorable Shannon Bishop, Honorable Robert Swisher, and Honorable David

Torrey, will present various real-life scenarios we face in our courtrooms.

Topics of discussion will include objections that have been raised due to the increasing use of social media

and electronic evidence. Facebook, Twitter, Snapchat, etc. have created an entirely new area of evidentiary

issues. Our panelists will also discuss surveillance evidence and problems that arise with investigators,

surveillance videos, or surveillance reports.

Panelists will discuss the admissibility of business records, medical/hospital records, and expert medical

opinions. Oftentimes, injured employees have applied for or received other benefits. Panelists will present

factual scenarios regarding the admissibility of unemployment or social security records.

And of course, how can we have an evidence session without discussing Hearsay Objections and Exceptions?

We can’t and we won’t! So, prepare yourselves for an interesting and informative discussion as our moderator

and panelists present:

“EVIDENCE FOR ADJUDICATORS”

Mark your calendars

Monday, August 22, 2016

Immediately following the Welcome by our NAWCJ President, Honorable Michael Alvey.

Evidence for Adjudicators By: Shannon Bruno Bishop


Judiciary College 2016!

Tuition is only $225.00 (NAWCJ members) or $350.00 (non-members) if

paid by July 15 and $265 (members) or $360.00 (non-members) if paid after

July 15. On-line registration is NOW OPEN at www.NAWCJ.org.


Study: Physical Therapy Cost-

Effective for Low Back Pain By Elaine Goodman

Tuesday, June 21, 2016

Patients who received physical therapy for low back pain in addition to back-pain advice had better outcomes

than patients who received the advice alone, according to a study from researchers in Australia.

The 10 sessions of physical therapy added just $27, measured in U.S. dollars, to the cost of care for the back-

pain patients compared to the advice-only group, according to the research published online last week in the

journal Spine.

That’s because patients in the advice-only group turned to other treatments that added to their cost of care,

such as medications, chiropractic visits or massage, said Andrew Hahne of La Trobe University in Melbourne,

Australia, who was the study’s lead author. While the patients weren’t injured workers, the findings have

relevance for workers’ compensation, where some say a short course of physical therapy often can be an

effective treatment for low back pain. “No clinician spends more time with a patient than a physical or

occupational therapist,” said Keith Rosenblum, senior strategist for workers’ compensation risk control for

Lockton Cos.

The one-on-one time allows the therapist to listen to the patients’ concerns and relieve their anxiety,

Rosenblum said.”It’s that personal attention that has more therapeutic effect than the actual therapy,” he said.

“It truly is the communication with the patient.”

In the Australian study, which took place from 2009 to 2013, 300 participants were recruited. Of those, 144

participated in two 30-minute sessions of guideline-based advice, which included an explanation of the

suspected source of the low back pain, reassurance that the patient was likely to recover, advice to remain active

and an explanation of proper lifting techniques.

The remaining 156 patients received 10 physical therapy sessions of 30 minutes each. Treatment was

individualized based on the nature of the back pain and the presence of psychosocial risk factors. The treatment

cost on average $379 per patient compared to $82 for the advice-only treatment. The 10 sessions of physical

therapy were significantly more effective at improving patients’ quality of life than the two sessions of advice,

and the physical-therapy patients on average missed 9.6 fewer days of work during the one-year follow-up

period, the researchers found.

The 9.6 work days represented about $1,996 of income per worker, “which more than makes up for the $27

extra per person in total medical costs that this group spent on treatment,” Hahne said. Because of the potential

benefits of physical therapy, Rosenblum at Lockton said he often advises payers to “err on the side of leniency.”

In the U.S., an initial physical therapy prescription for low back pain is typically for six sessions, he said. At

that point, the provider can assess whether the patient’s pain and function are improving. If little improvement

is noted, Rosenblum said, it’s a good time to administer a pain questionnaire that also looks for psychosocial

factors that might be impeding the patient’s recovery.


Continued, Page 23.

Physical Therapy, from Page 22.

Rosenblum said the Australian study might have some bias because it was conducted

by physiotherapists and used volunteers rather than patients who showed up unsolicited

for back pain treatment. But he didn’t think those factors were enough to undermine the

study’s conclusions. Healthesystems, a workers’ comp pharmacy and ancillary medical

manager, also makes a case for physical therapy. “In patients with low back pain, initial

referral for MRI (magnetic resonance imaging) instead of PT increased costs, as well as

odds of surgery, injections and specialist or emergency department visits,” the company

said in an article in its Rx Informer publication.

While physical therapy can be a cost driver early in claims, effectively managed

physical therapy services can speed recovery and reduce overall medical costs, the

article said. Healthesystems advised first identifying patients most likely to benefit from

physical therapy, evaluating its use using evidence-based medicine and regularly

monitoring the therapy’s impact.

On the other hand, physical therapy can unnecessarily add to claim costs if it’s not

used properly, according to a white paper from CorVel, a provider of workers’ comp

risk management services. Physical therapy is often ordered in a block of sessions, but

the patient might reach maximum medical improvement midway through the

treatments, for example at 16 out of 32 sessions, CorVel said.

And the physical therapist, who develops a close relationship with the patient, might

be tempted to treat other aches and pains unrelated to the workplace injury. “While this

may cause temporary relief for the injured worker, it results in additional fees for the

employer and more time away from work,” the CorVel white paper said.

More States Limiting First-

Time Opioid Prescriptions to

Curb Epidemic

By J. Todd Foster

Monday, June 20, 2016

New England, a nexus for the nation’s prescription drug abuse epidemic, increasingly

is turning to one-week limits on initial prescriptions of opioids to combat a continuing

rise in overdose deaths. Maine recently joined Massachusetts and Connecticut in

limiting first-time opioid prescriptions to seven days. New Hampshire is expected to

follow suit next year, along with New York to the south, an official said. The New

Jersey Senate Committee on Health, Human Services and Senior Citizens recently

voted for a one-week limit on initial opioid prescriptions; Senate Bill 2035 awaits a vote

by the full Senate.


Continued, Page 24.

Curb Epidemic, from Page 23.

Physician advocates say capping first-time opioid prescriptions to seven days is a good start but does not

address the underlying disease of addiction and has the unintended effect of pushing more patients to cheaper,

illegal heroin. In 2014, there were more drug overdoses than ever recorded. Sixty percent of them — more than

28,000 — were from opioids, including natural painkillers such as morphine, codeine, oxycodone and

hydrocodone; methadone and other synthetics such as tramadol and fentanyl; and heroin. (Fentanyl is blamed

for the death of pop artist Prince in April.)

Advocates say it’s much too early to know if patients will push back against the one-week limits. They noted

that opioids for acute pain should work within the first week and, if not, patients probably should see their

physicians again anyway. “Certainly there will be a backlash from patients,” conceded Gordon H. Smith,

executive vice president of the Maine Medical Association. “But these kinds of limits are way overdue.”

The genesis of the opioid epidemic began in the mid-1990s with the advent of extended-release Oxycontin,

Smith said, and then its overproduction and marketing by Purdue Pharma. After an explosion of overdose

deaths, particularly in Appalachia, where Oxycontin is known as “hillbilly heroin,” Purdue Pharma pleaded

guilty in 2007 to misleading the public about the drug’s risk of addiction and agreed to pay $600 million in

settlements.

The Property Casualty Insurers Association of America says marketing campaigns by the pharmaceutical

industry, and overprescribing physicians, have played a big role in the epidemic. PCIAA’s Trey Gillespie said

insurers support seven-day initial prescription limits and evidence-based treatment guidelines. The federal and

state governments have “done a good job” of educating prescribers and patients about the dangers of addiction,

and new and better techniques for managing pain have resulted in the use of less-dangerous drugs, said

Gillespie, PCIAA’s assistant vice president of workers’ compensation.

In workers’ compensation cases, workers can become addicted to opioids as a natural result of the on-the-job

injury, he said. In other cases, injured workers abuse prescriptions by taking more than the recommended

dosages or by supplementing opioids with inappropriate drugs, Gillespie said. “Employers and insurers have

resisted paying for expensive treatment when the addiction and dependence is the result of employees’ behavior

vs. addiction that occurs in the natural course of treatment,” he said.

The Centers for Disease Control and Prevention says nearly a half million Americans died from drug

overdoses from 2000 to 2014 — 78 a day. Opioid prescriptions quadrupled during that time frame even though

“there has not been an overall change in the amount of pain that Americans report,” the CDC says.

While prescription drug overdoses outnumber heroin deaths by almost 2 to 1,

medical advocates note that fatal heroin overdoses hit 10,574 in 2014 and have

tripled since 2010. “Some of the illicit drugs being used, heroin and black

market opioids, are just much stronger than those that have been out there

before,” said Ken Ferrucci, senior vice president of government affairs for the

Connecticut State Medical Society. “Part of the growing pains as a society is

that as we put more safeguards in place to prevent doctor shopping, heroin

becomes a much cheaper alternative.” “There are just not enough resources for

treatment,” he said. “We’re not treating the underlying disease. We’re only

stopping the symptom.”

He supports the “vibrant” use of patient monitoring programs — state-run electronic databases used to track

the prescribing and dispensing of controlled prescription drugs, and the patients who get them. Maine’s new

five-point plan recently passed by the Legislature to attack the opioid epidemic makes mandatory the

participation in the state’s monitoring program, said Smith, of the Maine Medical Association. In addition to

Maine limiting initial fills to seven days, daily doses will be capped at a morphine equivalent of 100 milligrams.

More than 16,000 Maine patients take more than 100 milligrams a day and must be tapered down within six

months as the state phases in new laws, he said.


Continued, Page 25.


There are exceptions to opioid caps popping up

nationwide, including cancer treatments and end-of-life care.

“We have five people a week dying of accidental overdoses,”

Smith said. “New Hampshire has one a day. All the New

England states have been hit hard by the opioid epidemic. That

doesn’t include the fact that last year, 1,013 births out of a total

of 13,000 in Maine — that’s one in 12 — were to mothers

hooked on street drugs or methadone to get them through their

pregnancies.” Smith said every legislator he’s spoken with has

an anecdote about someone they know undergoing a minor

dental or medical procedure and then arriving home with 90

Percocet or Vicodin pills. “Those days are over,” Smith said.

“This epidemic has caused great harm and suffering. We’re

really changing a culture of prescribing.”

Maine’s new laws, which will be phased in over 18 months

beginning July 29, also include a mandatory three hours of

continuing medical education every two years for prescribers;

electronic filling of prescriptions by July 1, 2017; and a

requirement that patients on opioids are not also prescribed

benzodiazepines, a class of psychoactive drugs.

The epidemic is so bad that New England’s six governors

convened June 7 at a Harvard Medical School roundtable and

promised to share data from their prescription monitoring

programs. Even so, Maine Gov. Paul LePage predicted that

90% of today’s opioid addicts will be dead before states can

pass enough protections, State House News Service reported.

“One physician told me recently that we’re going to lose a

generation,” LePage said.

Added Vermont Gov. Pete Shumlin: “The facts are we’re

passing out Oxycontin like candy,” State House News Service

quoted him as saying. The Massachusetts Medical Society

supports the seven-day prescription requirement and has

implemented several programs to attack the epidemic, said

Rick Gulla, the society’s media relations director. Among the

measures: issuing safe prescribing guidelines in May

2015; creating a website instructing patients on the need and

methods of safe storage and disposal of opioids; and creating a

public service advertising campaign broadcast during last

year’s New England Patriots games. “We have also worked

with the state’s four medical schools in developing core

curriculum on opioids and pain management for medical

students,” Gulla said. “We began offering free continuing

medical education courses for all prescribers in May of 2015,

and through June 1, nearly 14,000 courses have been taken by

nearly 5,000 prescribers. We have provided a practice guide

for physicians on the legislation and have published a number

of commentaries by MMS leadership.”

Louisiana Director

Appoints New

Judge

Linda L. Smith was recently appointed

by the Executive Director of the Louisiana

Workforce Commission, Ava Dejoie, to

the District Judge position in the

Shreveport Workers’ Compensation

Court. Judge Smith previously served as

the workers’ compensation judge in

Shreveport from 1992 to 1998.

She brings 34 years of experience as a

trial lawyer to the bench, recently having

been in private practice with her husband,

Eskridge “Sam” E. Smith, Jr. since 1998.

She is currently a member of the Bossier

Bar Association, District 1W (Shreveport)

Workers’ Compensation Bar, and the

Women’s Section of the Shreveport Bar

Association.

Judge Smith received both a Bachelor of

Science degree and Juris Doctor degree

from Louisiana State University. She has

completed training and certification as a

civil mediator, and Certified Public

Manager. Presently, Judge Smith serves

as President of the Minden Garden Club

and enjoys gardening at her home in

Heflin, Louisiana. She also enjoys

spending time with their six grandchildren

and seven children, along with her Border

Collie and running companion, Maggie

Mae.


Continued, Page 26.


Finger-pointing at drug manufacturers

is convenient, said Ken Martino, chief

executive officer of the Injured

Workers Pharmacy, a national

pharmacy service based in

Massachusetts. “There are societal

issues on a broader scale they need to

focus on.” Prescribers, he said, are

being far more cautious and starting

patients on prescription-grade ibuprofen

and acetaminophen, and then moving to

lower dosages of opioids. “They know

people are watching,” Martino said.

Dr. David Kessler, who ran the Food

and Drug Administration from 1990 to

1997, says the opioid epidemic is “one

of the great mistakes of modern

medicine … FDA has responsibility,

the pharmaceutical companies have

responsibility, physicians have

responsibility,” Kessler told CBS

News last month. “We didn’t see these

drugs for what they truly are.”

Emails to the FDA, American

Association of State Compensation

Insurance Funds, and the Rhode Island,

Vermont and New Hampshire medical

societies were not answered. __________ The articles on pages 21-25, Study: Physical

Therapy Cost-Effective for Low Back Pain

and More States Limiting First-Time Opioid

Prescriptions to Curb Epidemic, were

originally published on

WorkCompCentral.com and are reprinted

here with permission. The NAWCJ gratefully

acknowledges the contributions of

WorkCompCentral to the success of this

publication and the NAWCJ.


More Judges Needed

for 2016 Moot Court

Competition in

Orlando

It is our biggest event of the year! The NAWCJ proudly co-

sponsors the E. Earle Zehmer Moot Court Competition. All of the

preliminary rounds are judged by NAWCJ members. We need 42

volunteer judges to produce this unique event for 20 teams,

travelling in from 6 states. Our current volunteers are listed

below, with our heartfelt THANKS! Add your name to the list

today by emailing Barbara Wagner: [email protected]

Volunteer Today! Email [email protected]

John Lazzara (FL)

Daniel Lewis (FL)

Dwight Lovan (KY)

Wesley Marshall (VA)

Johnny Mason (GA)

Bruce Moore (KS)

Neal Pitts (FL)

Dana Plunkett (VA)

Thomas Sculco (FL)

Margaret Sojourner (FL)

Bob Swisher (KY)

James Szablewicz (VA)

Jack Weiss (FL)

Jane Williams (KY)

Nolan Winn (FL)

Michael Alvey (KY)

Wilbur Anderson (FL)

Diane Beck (FL)

Scott Beck (SC)

Melodie Belcher (GA)

Shannon Bishop (LA)

Roland Case (KY)

Robert Dietz (FL)

Elizabeth Elwin (ME)

Iliana Forte (FL)

Angela Gibbs (VA)

LuAnn Haley (AZ)

William Holley (FL)

Ralph Humphries (FL)

Melody James (SC)

Hon. Kenneth M. Switzer & Jane Pribek Salem, Esq., A Primer: The New Tennessee Court of Workers’

Compensation Claims, 52 TENNESSEE BAR JOURNAL 25 (March 2016).

Hon. Christopher F. Baum, Uncovering the Roots: A Brief Discussion of the History, Policy and Purposes of

Delaware’s Workers’ Compensation Act, 16 DELAWARE LAW REVIEW 1 (2016).

Distinguished top judges in two states, Tennessee and Delaware, have recently authored notable articles about

their respective states’ laws. The first article is devoted to the present, treating the remarkable creation of a new

court. The second is addressed in large part to the past, recounting the genesis and evolution of a law as it

approaches a century of experience.

1. Tennessee and its New Court

The most dramatic recent development in the realm of workers’ compensation adjudication was the 2014

creation of an administrative tribunal to entertain disputes under the Tennessee Workers’ Compensation Act.

That entity, the Tennessee Court of Workers’ Compensation Claims, heralded a change to the state’s nearly

century-old law and practice of having disputes litigated via bench trials in local trial courts. Only Alabama still

undertakes that practice. Notably, the same law that created the new court enacted significant changes to benefit

entitlements.

Having observed the change as an outsider, I was optimistic for the success of the new court. In this regard,

the founders’ commitment to excellence, and their devotion to public service, was and is palpable. Indeed, the

agency’s administrative head and Chief Judge astonish you with their steely determination to make the new

system a success. Further, the new judges, both at the trial and appellate levels, are outstanding merit hires.

In A Primer: The New Tennessee Court of Workers’ Compensation Claims, the authors, the Chief Judge and

his assistant (a veteran lawyer), report on the system roughly eighteen months out, and offer direction on how

lawyers can best present their cases. While the system has had its challenges, it seems from this report that,

overall, the change to an administrative system has been a success. The authors are pleased, particularly, that

both the Court and the Appeal Board are meeting the extraordinary decision deadlines that have been imposed

on the two bodies, particularly with regard to “expedited hearings.” Such hearings are critical: under the

Tennessee system, they “typically culminate with interlocutory orders regarding medical and temporary

disability benefits,” on occasion in cases where the injury is only a couple weeks old. In this type of

adjudicatory environment, time is obviously of the essence.

As one might guess, lawyers accustomed to the old system were wary of the new program. On a practical

level, lawyers had to change the manner in which they approached litigation. The authors report, “lawyers on

both sides have expressed emotions ranging from mild uncertainty to major anxiety about how to proceed.

Almost daily, lawyers make statements to the court along the lines of, ‘Judge, this is my first hearing,’ ‘This is

uncharted territory,’, etc.”

Top Workers’ Compensation

Judges Write on Their States’

Laws – Present and Past

By: David B. Torrey


Continued, Page 28.

Compensation Judges Write, from Page 27.

To assist these struggling lawyers, the authors proceed to set forth numerous

practical items of advice. Among them: because the 2014 changes also dramatically

affected the substantive law, the rulings of the new Appeal Board have the force of

precedent, so lawyers should get to know them. Toward this end, the Board decisions

are available on Lexis, Westlaw, and on a free website of the University of Tennessee

College of Law Library. In addition, the authors point lawyers to the agency’s

website, where they will find templates for settlement agreements that the parties are

to utilize. An inspection of that website shows custom-tailored instruments for

various settlement situations.

As to these documents, the authors admonish: “Please stick to them, and do not

insert broadly worded release language. We will strike unnecessary language or we

will reject the settlement in its entirety.” This admonition resonates with me, as in

Pennsylvania we are in an unsatisfactory period where the inclusion of broad releases,

many likely unenforceable, is de rigueur.

Judge Pamela Johnson, of Knoxville, based on eighteen months of experience, has

developed a litigation best practices list, and the authors reproduce it as an appendix.

These are valuable common-sense items that will come as no surprise to veteran

judges. Still, a couple are remarkable. The first is a reminder to lawyers to dress

appropriately “for both evidentiary hearings and settlement approvals alike. Defense

counsel, while you don’t represent the self-represented employee, it’s a considerate

gesture to suggest [that] he or she dress appropriately as well.” And second, in

boldface type: “DON’T use first names.” 2. Delaware and its Imminent Centennial

The Delaware Workers’ Compensation Act will achieve its centennial in 2017. As if

in anticipation of that milestone, the state’s Chief Hearing Officer has, with

Uncovering the Roots: A Brief Discussion of the History, Policy and Purposes of

Delaware’s Workers’ Compensation Act, published a minor treatise on the genesis,

history, and present state of the law. The law is of interest to this writer (I work in the

Pennsylvania system), as Delaware is a contiguous state. Indeed, a review of Hearing

Officer Baum’s article shows that the Pennsylvania experience has been influential in

his state.

The author’s account of the Delaware law’s founding is a familiar one, as is his

description of the evolution of the law over the decades. The law grew out of the

same tort reform effort that prompted the enactment of the Pennsylvania Act two

years before, was at first nominally “elective” (made compulsory in 1941), and has

grown in terms of coverages over the years.

The law is considered a remedial act, and “reasonable doubts are to be resolved in

favor of the injured worker.” However, it is notable that this rule apparently applies

to interpretations of ambiguous statutes, and not to ambiguous factual situations. See

Lawhorn v. New Castle County, 2006 Del. Super. LEXIS 187 (Del. Super. 2006)

(“Any reasonable doubts as to construction [of a workers’ compensation provision]

should be resolved in favor of including the claimant within the coverage of the

statute.”) (bracketed material in original). In this regard, in an original claim, the

claimant “has the burden of proving her claim by a preponderance of the evidence.”

Gillette v. Amazon.com, 2016 Del. Super. LEXIS 168 (Del. Super. 2016).


Continued, Page 29.

Compensation Judges Write, from Page 28.

Recognizing an essential, but sometimes forgotten, tenet of our field, the author points out that, “Unlike a tort

recovery, benefits under workers’ compensation were never meant to make the injured party whole…. In short,

while the law is to be interpreted broadly in favor of the injured worker, the trade-off for this is that the

available benefits are deliberately limited in scope.”

The example of the original Pennsylvania legislation seems to have influenced the Delaware legislature. As in

Pennsylvania, at first occupational diseases were specifically excluded and “injury” required “violence to the

physical structure of the body ….” In 1937, as in my state, a list of occupational diseases was added, though to

be compensable the disease had to manifest itself within five months. This was a limitation, the author reports,

which was not removed until 1974.

Perhaps the most remarkable aspect of Delaware workers’ compensation history is the state’s persistent three-

day waiting period rule. As originally enacted, the law provided no medical expenses for the first three days,

unless hospitalization was required. Only in 1995 were the remnants of this restriction finally eliminated.

The Delaware courts have recognized the benefit of a jurisdiction administering a remedial law through an

administrative board (in Delaware’s case, the Industrial Accident Board) – the presumed sophistication of the

entity: “Administrative Boards have been developed to allow individuals who have expertise and knowledge in

the board’s unique area of jurisdiction to initially attempt to resolve disputes. The unique setting is different

than a courtroom where jurors, who are usually not trained in area, need to be educated on the basic grounds of

the litigation.” (Quoting Irish Hunt Farms, Inc. v. Stafford, 2000 WL 972656 (Del. Super. 2000)).

An aspect of this professionalization of dispute resolution, Baum asserts, is the presumed consistency of

opinions that will result: “Having such expertise and knowledge allows the Board to give more predictable

results than could be obtained from a less trained jury such as would be faced in tort actions. This leads to

greater certainty as to the application of the statutes of the Act and the regulations promulgated by the Board.

When the parties have greater certainty as to the consistent application of the provisions of the Act and the

regulations, it is easier for them to reach agreement as to the application of the law to their set of facts, thereby

avoiding the cost of unnecessary litigation.”

_________

* David B. Torrey is a Workers’ Compensation Judge in Pittsburgh, PA, and is Adjunct Professor of Law at the

University of Pittsburgh School of Law. Judge Torrey is a former President of the National Association of Workers’

Compensation Judiciary, and remains a member of the Association board.



Featuring Live Performance by Third Eye Blind

“I wish you would step back from that ledge my friend,

You could cut ties with all the lies, that you’ve been

living in,

And if you do not want to see me again, I would

understand.

I would understand.”

I ran across a workers’ compensation case years ago. The worker had developed a mass or cyst on the top of

her hand. She was fortunate to work for a company that provided benefits, and therefore she had access to a

generous health insurance plan. She was also fortunate (or not) to be covered by workers’ compensation.

She was not certain why that cyst had developed, and eventually went to a family physician with that

question. After an examination and some medication for symptom relief, she was referred to a specialist, and

the recommendation was surgical removal. The specialist also opined that the mass or cyst was related to this

worker’s employment. One of the “check-mark” boxes (section 10) on the standard HCFA-1500 medical billing

form asks the physician to check-mark if an injury is related to work or a motor vehicle accident. This is a cue

to the insurance company that some other insurance company may share the liability for treatment.

When the specialist’s bill was submitted to the health insurance company, the opinion of “work-related” was

noticed. The health insurer notified this worker that it would not pay for the recommended surgery. Worse, it

informed her that it would not pay for further care with the family physician. And, to add insult to injury, it

asked that she pay the health insurer back for the care it had already provided, since it was work-related and not

the health insurer’s responsibility.

The health insurance carrier was seeking reimbursement from the worker. It might also have sought payment

from the workers’ compensation employer or carrier, which is called “subrogation.” When an insurance

company thinks someone else is responsible for something, it can pursue legal action to collect the money it has

spent. In many instances, their investigations and demands for information are illogical, and in some cases

absurd. In many instances these subrogation disputes are battles fought between two or more large companies;

they should be sophisticated and able to make analytical and logical decisions about their liability and the

advisability of persisting in dispute. There is often no “little guy” in subrogation disputes.

The worker with a cyst therefore presented at her employer and informed them that she had a work-related

medical condition that needed surgery. By this time, the cyst had existed for months, treatment had been

ongoing, and it was the first notice the employer had. The employer

referred the matter to its workers’ compensation insurance company

(“carrier”), which sent the worker to a “workers’ compensation doctor.”

This doctor viewed the same mass/cyst, asked the same questions about

her work, and concluded that the condition was not related to her work.

The carrier then denied that the condition was compensable under

workers’ compensation, and refused to provide care. The employee thus

found herself in between a rock and a hard place.

Caught between the opinions of two expert physicians, and between

two large insurance companies (group health and workers’

compensation), this worker decided to consult a third expert, a workers’

compensation attorney. The attorney performed no physical

examination. He, like the majority of us attorneys, lacked formal

medical training and expertise. Granted, we know how to read records,

evaluate explanations and logic, form opinions. But we are not doctors. The attorney concluded that the first

doctor must be correct, and filed a claim for workers’ compensation benefits. It has never been explained why

the attorney did not believe the second doctor or file a claim against the health insurer.

A Simple Method for Expeditious Care

By David Langham*


Continued, Page 31

Expeditious, from Page 30.

After relating this story at a conference years ago, a risk

manager cynically reminded me that attorneys cannot obtain

attorney fees for a successful claim for care against a group

health carrier and so it would not pay to adopt that second

opinion and pursue care in that direction. I found that

explanation curious. It seems like the attorney has an

obligation to pursue the client’s best interest. I think most

attorneys appreciate that role and act accordingly. While it is

plausible that some might be driven by the fee outcome, is it

practical to presume that is the driving force?

That claim (or petition) should have been adjudicated

within 210 days; the Florida workers’ compensation law

says so. But it was not. For various reasons unrelated to the

merits of the claim, that claim did not get heard for years.

The worker, who ideally would like to have the mass/cyst

removed, but who also would appreciate some symptom

relief in the meantime, suffered for years. She was unable or

unwilling to pay for medical appointments, symptom relief,

and surgery herself, and neither group health nor workers’

compensation would pay for care during the long period of

finger-pointing.

The case was finally tried in the workers’ compensation

system. A variety of legal arguments were made, and the

ultimate decision was that this was not an injury/illness for

which workers’ compensation was responsible. Within days

of the worker/attorney submitting that final decision to the

group health carrier, surgery was authorized by group health

and was performed. When I ran into the worker’s attorney

months later, I was assured that the worker had undergone

the surgery successfully and was much better, effectively

“symptom free.”

A relatively minor condition was eventually corrected. No

condition you suffer personally is “minor,” and I do not

minimize this cyst condition and its symptoms. But the point

is it was not a herniated cervical disc, torn meniscus, or other

more serious condition with daily impact on mobility or

function. The worker returned to work symptom-free (or

much improved). In some respects a reasonable outcome.

What was unreasonable, however, is that it required years

to accomplish. Much has been done in Florida to assure that

no one waits years for a hearing anymore. Despite this, there

are cases that require a year to proceed to trial. Evidence and

due process are required, doctors’ calendars are congested,

depositions are sometimes hard to schedule. Time passes.

This can happen despite the due diligence and best efforts of

the parties. There are other cases that have simply fallen

through the cracks.

Thanks to our 2015

NAWCJ

Judiciary College

Sponsors:

Torrey-Greenberg Pennsylvania Workers’

Compensation treatise, as published by Thomson-

Reuters.


Continued, Page 32.

Expeditious, from Page 31.

There was a time when Florida had some judges who were simply less than diligent in managing a docket. I am

thankful that era has ended. Our current generation of judges, for the most part, are frankly exemplary in their

dedication, focus, and timeliness.

I was reminded of that case as I sat in Dallas last month at the 2016 Workers’ Compensation Summit. A

similar anecdote was related by another attendee, and a solution soon followed. One state has regulated such

disputes

Maine has regulated the treatment of the “little guy,” the patient when there are disagreements like this.

Maine’s workers’ compensation law has § 222, titled “PROVISIONAL PAYMENT OF CERTAIN

DISABILITY BENEFITS.” This law provides simply that:

“Payment of benefits due a person under an insured disability plan or insured medical payments plan may not

be delayed or refused because that person has filed a workers’ compensation claim based on the same personal

injury or disease.”

So, in a dispute such as the one described above, the worker would have had the mass/cyst removed from her

hand years earlier, and been back to work. Group health would have provided this care and the required after-

care. The fact that she had a claim for workers’ compensation would not have allowed her group health insurer

to delay or refuse the surgery to remove that mass/cyst.

The law goes on to provide for repayment, or subrogation. It says that if the person later prevails on a claim

for workers’ compensation, the employer will not have to pay the worker for what group health provided. So

there will not be a “double recovery.” And, essentially, the group health insurance can still collect its money

back from the employer or workers’ compensation carrier after the condition is deemed to be workers’

compensation. So, eventually, the responsible party will ultimately be the one that pays the financial cost. I

stress “financial.”

This leaves the responsibility dispute where it is perhaps more appropriate, between the two insurance

companies. It leaves the injured worker, the “little guy,” out of the dispute, and perhaps expedites the provision

of care for the injury. History repeatedly demonstrates that patients who receive prompt care are more likely to

enjoy rapid and “full,” or approaching “full,” recovery. This Maine statutory provision facilitates that prompt

care, before the litigation has run its course.

The point, according to Maine, is “to ease the financial burden on injured employees whose workers’

compensation claims are controverted and who are awaiting board determinations on their claims.” That seems

to make a great deal of sense. In the world of personal injury it is perhaps inevitable that there would be

disputes about who is responsible for a given condition. Maine’s approach for keeping the employee out from

between the rock (group health) and the hard place (workers’ compensation) is admirable. Perhaps other states

will read this post and agree.

Adopting such an approach today is easy, just copy Maine. As a great attorney once told me “plagiarism is the

highest form of flattery.”

__________

* David Langham is the Florida Deputy Chief Judge of Compensation Claims. He is a member of the NAWCJ Board, and

serves multiple other workers’ compensation organizations.


Only 44 days until Judiciary College 2016 – plan today, details on pages 32-56

Eighth Annual NAWCJ

Judiciary College Orlando, Florida August 21-24, 2016

Sunday, August 21, 2016

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

1:40 – 5:00 E. EARLE ZEHMER MOOT COURT PRELIMINARY ROUNDS Celebrating 29 years in 2016, 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.


The annual moot court luncheon provides

collegiality and discussion as industry

experts help the judges prepare for the

preliminary rounds of competition.

Judges (left to right) Almeyda (FL), Alvey

(KY), and Stevick (VA) preside over oral

arguments in the preliminary round.

Monday, August 22, 2016

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 T. Scott Beck, Introduction of Moderator and Panel South Carolina Workers’ Compensation Commission Columbia, South Carolina

Honorable Jennifer Hopens, Moderator Texas Department of Insurance Division of Workers’ Compensation Austin, Texas

Panelists Honorable Melodie Belcher Honorable Shannon Bruno-Bishop Georgia State Board of Workers’ Compensation Louisiana Workforce Commission Atlanta, Georgia New Orleans, Louisiana Honorable Robert Swisher Hon. David Torrey

Kentucky Department of Workers’ Claims Pennsylvania Department of Labor Frankfort, Kentucky and Industry

Pittsburgh, Pennsylvania

One of the great challenges of the workers’ compensation adjudicator is the evidenaltiary

objection. The rules may apply, or may be persuasive, or may be irrelevant. Objections may

come clearly and concisely, or in a jumbled cascade of thoughts. The adjudicator’s role is to

understand the applicable standards, and make concise and effective rulings to keep the trial

on track and the parties on topic. This panel will bring decades of evidentiary objection

experience and address a variety of evidentiary challenges.

10:50 – 11:00 BREAK

11:00- 11:50 REPETITIVE USE INJURIES Honorable LuAnn Haley, Introduction of Speaker

Industrial Commission of Arizona

Tucson, Arizona

Dr. J. Mark Melhorn

The Hand Center

Wichita, Kansas

Repetitive trauma can be its own breed, depending on the jurisdiction, definitions,

regulations and more. These injuries are often times more difficult medically in terms of

diagnosis, causal relationship, and treatment. Dr. Melhorn is a nationally recognized expert in

the diagnosis and treatment of common repetitive trauma injuries. He will provide insight,

analysis and advice on the trials and tribulations of these injuries.


Monday, August 22, 2016, Continue

12:00 – 12:30 LUNCH (PROVIDED)

12:30 – 1:50 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 Ken Switzer, Moderator

Court of Workers’ Compensation Claims, Tennessee

Nashville, Tennessee

Panel

1:50 – 2:00 BREAK

2:00 – 5:00 THE AFTERNOON IS DIVIDED INTO TWO TRACKS, ONE FOR

THE NEWER ADJUDICATOR AND ONE FOR THE MORE SEASONED

ADJUDICATOR

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 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.

2:00-2:10 ANNOUNCEMENTS AND BUSINESS Honorable Michael Alvey, NAWCJ President Kentucky Workers’ Compensation Board

Frankfort, Kentucky

Honorable Elizabeth Crum

Pennsylvania Department of Labor and

Industry


Honorable Elizabeth Elwin

Maine Workers’ Compensation Board

Augusta, Maine

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

Honorable Deneise Lott

Mississippi Workers’ Compensation

Jackson, Mississippi


Monday, August 22, 2016, Continued

2:10 – 3:00 JUDICIAL WRITING FOR THE NEW JUDGE

Honorable Robert Cohen, Introduction of Speaker

Florida Division of Administrative Hearings

Tallahassee, Florida

Honorable Melanie G. May

Chief Judge, Florida Fourth District Court of Appeal

West Palm Beach, FL

Lawyers write, and the tenor and tone must be persuasive and informative. Taking the bench,

the new judge has to learn to transition from persuasion to adjudication, both in attitude and

in writing. Judge May will bring years of experience to the fore. She will provide wit and

wisdom regarding the transition from effective legal writing to the adjudicatory writing

required as judges.

3:00 – 3:10 BREAK

3:10 – 4:00 JUDICIAL ETHICS CONUNDRUMS AND HUMDRUMS? Honorable Jane Rice Williams

Kentucky Department of Workers’ Claims

Frankfort, Kentucky

Honorable Roland Case, Kentucky


Pikeville, Kentucky

Honorable Robert Himmel

Virginia Workers’ Compensation Commission

Roanoke, Virginia

Honorable Margret Kerr

Florida Office of Judges of Compensation Claims

Miami, Florida

Honorable Bruce Moore

Kansas Department of Labor, Division of Workers’ Compensation

Salina, Kansas

The new judge takes the bench with a volume of experience and knowledge. As good at that

foundation may be, there are new rules and processes that must now be mastered. The Code

of Judicial Conduct, state regulations, and more confront the new workers’ compensation

adjudicator. Moderator Jane Williams and panel of seasoned judges, commissioners, and

deputies will guide a discussion of some of the common ethical concerns of new judges.

Attendees will gain knowledge and confidence in the interpretation of judicial ethical

requirements.

4:00 – 4:10 BREAK


Monday, August 22, 2016, Continued

4:10 - 5:00 Transitioning to the Bench

Honorable John Lazzara, Introduction of Moderator and Panel


Tampa, Florida

The journey to the bench is long and hard. Having achieved it, the new judge faces a variety

of new challenges, questions and trials. This panel will work through some common issues

for those new to the bench, and with the help of the Judiciary College audience, provide

wisdom and suggestions.

Track Two

2:00 – 5:00 SAWCA REGULATOR ROUNDTABLETM

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

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

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

problems and solutions.

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 Aisha Taylor

South Carolina Workers’ Compensation

Commission

Columbia, South Carolina

Honorable Nicole Tifverman

Georgia State Board of Workers’

Compensation

Savannah, Georgia

Honorable David Imahara, Moderator


Compensation

Atlanta, Georgia

Honorable Allen Phillips

Tennessee Court of Workers’

Compensation Claims

Jackson, Tennessee


Tuesday, August 23, 2016

8:45 – 9:45 LIVE SURGERY (IN THE ADJUSTER BREAKOUT)

9:55-10:00 ANNOUNCEMENTS AND UPDATES Honorable Ellen Lorenzen, NAWCJ Past-President


Tampa, Florida

10:00 – 10:50 ETHICS JEOPARDY

Honorable Bruce Moore, Introduction of Speakers

Kansas Department of Labor, Division of Workers’ Compensation

Salina, Kansas

Deborah Hughes, Moderator

Office of the Disciplinary Administrator

Topeka, Kansas

Ethics can be a challenge and the judge may be called upon to both interpret and document

attorney actions and inactions. This game-show style presentation on the intricacies and

challenges of lawyer ethics will be an eye-opener for all.

10:50 – 11:00 BREAK

11:00- 11:50 THE OPT OUT, THE CONSTITUTION, AND THE GRAND BARGAIN Honorable Deneise Turner Lott, Introduction of Speakers

Mississippi Workers’ Compensation Commission

Jackson, Mississippi

Michael C. Duff, Moderator

University of Wyoming

Laramie, Wyoming

Honorable Ryan Brannan, Commissioner

Texas Department of Insurance, Division of Workers’ Compensation

Austin, Texas

Honorable Robert Gilliland, Chair

Oklahoma Workers’ Compensation Commission

Oklahoma City, Oklahoma

There are a great many constitutional challenges, benefits sufficiency challenges and more in

the current world of workers’ compensation. This panel of experts will bring analysis and

understanding of the nature of these challenges and the effects on the system as a whole.


Tuesday, August 23, 2016, Continued

12:00 – 12:30 LUNCH (PROVIDED)

NAWCJ ANNUAL BUSINESS MEETING Honorable Michael W. Alvey, NAWCJ President

Kentucky Workers’ Compensation Board

Frankfort, Kentucky

Honorable Jennifer Hopens, NAWCJ President-Elect


Austin, Texas

12:30 – 1:00 WORKERS’ COMP: WHAT IS HOT FROM A NATIONAL

PERSPECTIVE?

Honorable Jennifer Hopens, Introduction of Speaker


Austin, Texas

David DePaolo, CEO and Founder

WorkCompCentral.com

Camarillo, California

1:00 – 1:10 BREAK

1:10 – 4:00 ADVANCED JUDICIAL WRITING Honorable Melodie Belcher, Introduction of Speaker

Georgia State Board of Workers’ Compensation

Atlanta, Georgia

Professor Wayne C. Schiess University of Texas School of Law Director - The David J. Beck Center for Legal Research, Writing, and Appellate Advocacy Austin, Texas

Judicial writing is a skill, and challenges exist in writing effective orders. Professor Schiess will pick up where judicial writing for the new judge left off, and provide an advanced perspective on how judges can and should write more efficiently and effectively.

(There will be a ten minute break each hour, 2:00-2:10 and 3:00-3:10).

4:00 – 4:10 BREAK


Tuesday, August 23, 2016, Continued

4:10 – 5:00 THE MEDICAL EXAMINATION AND ASSIGNING RATINGS

Honorable Sheral Kellar, Introduction of Speaker

Louisiana Workforce Commission

Baton Rouge, Louisiana

Dr. Russell L. Travis

Neurosurgical Associates

Lexington, Kentucky

Workers’ compensation is in a state of transition regarding the adoption of various guides to

permanent impairment. Some states have adopted their own guides, while others have relied

upon the American Medical Association (AMA) Guides. The AMA Guides have been

through a series of updates and changes in the last 20 years. Various states are using the

Fourth, Fifth and Sixth Editions of the AMA Guides. What are the similarities and what are

the differences? Our medical expert will provide a bird’s eye view of the methodology and

logic of various impairment rating processes.

Wednesday, August 24, 2016

8:50 – 9:00 ANNOUNCEMENTS AND UPDATES Honorable David Torrey, NAWCJ Immediate Past-President

Pennsylvania Department of Labor and Industry


9:00 – 10:15 HEART, LUNGS AND OTHER PRESUMPTIONS Honorable Karl Aumann, Introduction of Moderator and Panel

Maryland Workers’ Compensation Commission

Baltimore, Maryland

Honorable Jim Szablewicz, Moderator

Virginia Workers’ Compensation Commission

Richmond, Virginia

Bonnie Hoskins, Esq. Glen Wieland, Esq.

Hoskins Law Offices Weiland, Hilado, and DeLattre

Lexington, Kentucky Orlando, Florida

Dr. Leonard Pianko

Aventura Cardiology

Aventura, Florida

Presumptions for various populations of workers and medical conditions are a persistent

challenge. Legal changes and the developments in medicine continue to refine our

adjudication of these presumptions. This blue-ribbon panel will address developing issues

and concerns with presumptions from both a medical and legal perspective.

10:15 – 10:30 BREAK


Wednesday, August 24, 2016, Continued

10:30 - 11:45 HOT TOPICS IN WORKERS’ COMPENSATION 2016

Hon. Frank McKay, Introduction of Speakers

Georgia State Board of Workers’ Compensation

Atlanta, Georgia

What is hot in workers’ compensation adjudication? This all-star panel from four very

diverse jurisdictions will bring the what and the wherefore to the table for a lively discussion

of what is changing the workers’ compensation laws, regulations and procedures in their

states and across the country.

Honorable Larry Karns

Kansas Department of Labor, Division of


Salina, Kansas

Honorable Dwight Lovan


Frankfort, Kentucky

Honorable David Threedy

Washington Board of Industrial Insurance

Appeals

Olympia, WA

Honorable Sheral Kellar

Louisiana Workforce Commission

Baton Rouge, Louisiana




NAWCJ Judiciary College Hotel - The Caribe Royale

$110.00 per night




NAWCJ Judiciary College 2016 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 R. Karl Aumann

Appointed Commissioner of the Workers’ Compensation Commission in February 2005,

R. Karl Aumann was subsequently named as Chairman in October 2005. Immediately

prior to this appointment, he served as Maryland’s Secretary of State. He earned a

Bachelor of Arts from Loyola University in Maryland in 1982. Chairman Aumann

received his J.D. in 1985 from the University of Baltimore, School of Law and was

admitted to the Maryland Bar in 1986. He was an associate with the Towson firm of

Power & Mosner and later with the Baltimore office of Miles& Stockbridge. In 1991,

President George H.W. Bush appointed him Counsel and Senior Policy Advisor to the

Appalachian Regional Commission. From 1994 until 2003, Chairman Aumann served as

Chief Administrator and District Director for Congressman Robert Ehrlich. Chairman Aumann served as

president of the Southern Association of Workers’ Compensation Administrators and is co-chair of the

Adjudication Committee of the International Association of Industrial Accident Boards and Commissions. He

has served since 2010 as a board member of the National Association of Workers’ Compensation Judiciary, and

since 2006 as a board member of the Maryland Workers’ Compensation Educational Association.

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 Melodie Belcher

After ten years as a flight attendant for Eastern Airlines, Melodie Belcher needed a new

career. She attended Georgia State University College of Law where she was an editor on

the law review, graduating cum laude in 1992. She then worked as an associate for Swift

Currie McGhee & Hiers, where she represented employers and insurers in workers’

compensation claims. In 1999, she joined the State Board of Workers’ Compensation as a

mediator in the Columbus office. She was appointed administrative law judge in 2002,

and in October of 2009, she became the chief judge, moving to the Atlanta office.

Melodie is the Chair of the Administration and Procedures Committee for the Southern

Association of Workers’ Compensation Administrators and is the Secretary for the

National Association of Workers’ Compensation Judiciary. She speaks regularly on a variety of workers’

compensation issues. Melodie has two grown children (one lawyer and one in law school), and a cocker spaniel

and lives in LaGrange, Georgia with her husband, Bill (who is not a lawyer).

Honorable Ryan Brannan Ryan Brannan is the Texas Commissioner of Workers’ Compensation, overseeing the

Division of Workers’ Compensation for the Texas Department of Insurance. He was

appointed Commissioner in August 2014 and confirmed by the Texas Senate during the

84th Texas Legislative session. Commissioner Brannan has led efforts to improve

workplace safety and outreach to injured employees while streamlining processes and

reducing costs within the Division of Workers’ Compensation. He also has

strengthened fraud investigations and enforcement efforts to make sure insurance

carriers and health care providers comply with state regulations and provide accurate

data to the Division. One goal of this sharpened enforcement focus has been to obtain

better results for both employers and employees within the system. He served as a

policy advisor to former Governor Rick Perry, providing strategic and operational

advice on issues such as workers’ compensation, property and casualty insurance, life insurance, health

insurance, health care, and land use management districts. He also advised the Governor on legal issues

including tort reform, property rights, and eminent domain. Commissioner Brannan spent several years as a

policy analyst on issues including property and casualty insurance, health insurance, workers’ compensation,

health care, tort reform, eminent domain, energy, electricity, and telecommunications.

Honorable Shannon Bruno-Bishop

Shannon Bruno Bishop joined the Office of Workers’ Compensation (OWC) as the

District Judge in the Harahan, Louisiana office. As District Judge of the OWC, Shannon

conducts judicial hearings in the district office by presiding over workers’ compensation

claims in a judicial capacity rendering final appealable judgments in the claims. She has

full administrative responsibility in the district office. Judge Bishop is a native of New

Orleans and graduated from Tulane University with a B.A. in Sociology and The

University of Mississippi School of Law with a J.D. She is admitted in Mississippi and

Louisiana. Prior to becoming District Judge, Judge Bishop served as mediator, in

Harahan and New Orleans, where she mediated hundreds of workers’ compensation

cases each year. Judge Bishop is married to State Senator Wesley T. Bishop and they

have two sons, ages 6 and 2. Judge Bishop’s past and/or current professional and community involvements

include: Louisiana State Bar Association, The Mississippi Bar, American Bar Association, National Bar

Association, American Diabetes Association, Young Leadership Council, Martin Luther King Charter School,

Greater New Orleans Louis A. Martinet Legal Society, Mississippi Mock Trial Competition, Boy Scouts of

America, and Alpha Kappa Alpha Sorority, Incorporated.


Honorable Roland Case

Judge Roland Case is a Kentucky Administrative Law Judge in Pikeville. He was appointed by Gov. Beshear

He previously served as the assistant county attorney of Pikeville County.

Honorable Robert Cohen

A native of Orlando, Florida, Bob Cohen graduated from Brandeis University in 1979

with a B.A. degree in American Studies. He graduated in 1981 from the Florida State

University College of Law, where he served on the Law Review. After more than 20

years in private practice, concentrating in administrative and civil law representing large

companies, professional licensees and consumer associations, Bob was appointed by the

Governor and Cabinet in October, 2003, as the Director and Chief Administrative Law

Judge of the Florida Division of Administrative Hearings which includes under its

umbrella, the Office of Judges of Compensation Claims. Bob currently serves as President

of the National Association of Administrative Law Judiciary, as a Board Member of the

National Association of Workers’ Compensation Judiciary, on the Second Judicial Circuit

Bench/Bar Committee, as an alumni member of the William Stafford Inn of Court, as a Board Member of the

Legal Aid Foundation of the Tallahassee Bar Association, and has served as a consumer organization

representative on the Federal Alliance for Safe Homes Steering Committee, The Residential Community

Mitigation Program Advisory Committee, and the Department of Revenue Property Tax Administration Task

Force. He is active in the community, currently serving as Leadership Giving Co-Chair in the Florida State

Employees Charitable Campaign, having previously served as President of the Tallahassee Bar Association, the

Legal Aid Foundation (twice), and numerous community organizations. He is a Fellow of the Florida Bar

Foundation and a Charter Life Mentor of the National Administrative Law Judiciary Foundation. He is also a

past recipient of the Florida Bar’s Pro Bono Service Award for the Second Judicial Circuit. Bob is a frequent

speaker on topics related to administrative law at Bar events, regional and state organizations, and in the

classroom. He is Board Certified by the Florida Bar in State and Federal Government and Administrative

Practice.

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.


David DePaolo

After practicing workers’ compensation law for nearly 18 years, David DePaolo

founded and grew WorkCompCentral into the most respected news and education

service in the workers’ compensation industry. He is a regular public speaker on

workers’ compensation to industry trade shows, educational seminars, radio and

television, and has been quoted or cited in general media publications such as Fortune

Magazine, the LA Times and Wall Street Journal. He has been published in leading

industry journals and scholarly publications on topics ranging from the underlying

financial issues that led to an historic makeover of the California workers’

compensation system, to the new paradigm in work injury protection and national

trends in the workers’ compensation industry.

Professor Michael C. Duff

Professor Duff became the Centennial Distinguished Professor of Law in 2014. He

teaches the College of Law’s courses in Torts I, Labor Law, and Workers’ Compensation

Law. He also teaches a course on Alternative Dispute Resolution in the Workplace. He

has previously taught Administrative Law and Introduction to Law at the College of Law;

and has also taught Labor Law and Administrative Law as a visiting professor at the

University of Denver’s Sturm College of Law. Professor Duff founded the College of

Law’s Academic Support Program (now called the Academic Achievement Program) in

2006, and directed the program for seven years. A seasoned legal practitioner, Professor

Duff spent nearly a decade working as a trial attorney, adjudicative official, and

investigator in various National Labor Relations Board offices immediately prior to

joining the UW faculty. Before engaging in federal government law practice, Professor

Duff worked for two years as an associate attorney in a cutting-edge, progressive, private

sector law firm in Maine, where he represented injured workers and labor unions.

Honorable Elizabeth Elwin

Administrative Law Judge Elizabeth Elwin has been with the Maine Workers'

Compensation Board for 22 years. Prior working in state government, Ms. Elwin worked

for federal and municipal agencies as an assistant general counsel at EPA--Region I, and

before that at the NYC Department of Consumer Affairs. She began her career at a large

New York law firm, after graduating from Cornell University and Cornell Law School.

Honorable Robert Gilliland

Robert Gilliland is a veteran trial lawyer whose prior practice concentrated in the area

of business litigation in both state and federal courts. Following his admission to the

Oklahoma Bar, Robert served four years as a captain in the Judge Advocate General’s

Corps of the US Army in the United States and the Republic of Vietnam. Robert holds

the distinction of being one of only a handful of lawyers in the United States to be

selected for continuous inclusion in The Best Lawyers in America (bet-the-company

litigation; commercial litigation; energy law; environmental litigation; real estate

litigation; securities litigation) since the publication’s debut in 1983. He was also

perennially named to Oklahoma Super Lawyers. He was appointed Chair of the

Oklahoma Workers’ Compensation Commission effective June 1, 2015.


https://plus.google.com/110619936265508924412

Honorable LuAnn Haley

After earning her JD in 1981, Ms. Haley worked in the field of Workers’ Compensation

as a defense lawyer in Pennsylvania. After passing the bar in Arizona in 1999, she was

appointed an Administrative Law Judge for the Industrial Commission of Arizona. Ms.

Haley lectures for state bar CLE programs and also serves as a reviewer for AMA

publications. She is a member of the Board of Directors of the National Association of

Workers’ Compensation Judiciary and the Editor of the Lex and Verum newsletter.

Honorable Robert M. Himmel

Robert M. Himmel was appointed to serve as Deputy Commissioner to the Roanoke

Regional Office on September 25, 2013. Deputy Commissioner Himmel earned a

Bachelor of Arts degree from Mary Washington College and a Juris Doctor degree from

the University of Richmond T.C. Williams School of Law. For 17 years, Mr. Himmel

was engaged in the private practice of law, specializing in Virginia workers’

compensation cases. During the past seven years, Mr. Himmel focused primarily on

appellate litigation before the Virginia Workers’ Compensation Commission and the

Virginia Court of Appeals. While in private practice, Mr. Himmel lectured frequently

and was voted by his peers to the Best Lawyers® in America publication.

Honorable Jennifer Hopens

Jennifer Hopens received a bachelor’s degree from the University of Texas at Austin and

a law degree from the University of Texas School of Law. She joined the Texas

Department of Insurance, Division of Workers’ Compensation as a hearing officer in

2007, and traveled across the state presiding over numerous contested case hearings

involving a variety of workers’ compensation matters. She is currently the Director of

Hearings for the Northern & Western regions of the Division and is Board Certified in

Workers’ Compensation law by the Texas Board of Legal Specialization. She also

serves as president-elect of the National Association of Workers’ Compensation

Judiciary.

Bonnie Hoskins, Esq.

Bonnie Hoskins graduated from the University of Kentucky in 1978 with Honors and High

Distinction. She next studied at the Centre for Renaissance Studies in Oxford, England

before entering the University of Kentucky College Of Law in 1979. While attending the

University Of Kentucky College of Law, Ms. Hoskins served as a member of the National

Moot Court Team. She received her Juris Doctorate Degree in 1982. Since that time, she has

practiced primarily administrative law specializing in workers’ compensation defense. She

clerked with Kentucky’s Special Fund while in law school and then practiced with the

Special Fund for a short time after completing her law degree. In 2001, Ms. Hoskins

founded Hoskins Law Offices PLLC. She is a former Chair of the Workers’ Compensation

Committee of the Kentucky Bar and a regular speaker at Continuing Legal Education seminars. Ms. Hoskins

has published numerous outlines and articles in continuing education publications. She is also a contributing

author to the University of Kentucky Workers’ Compensation Desk Book.


Deborah Hughes

Ms. Hughes has been with the Disciplinary Administrator’s Office since 2013. She is a 1989

graduate of the University of Kansas School of Law. After law school, she worked in

private practice for 12 years. In 2001, she joined the Shawnee County District Attorney’s

Office, where she was responsible for the office’s appeals and post-conviction cases. From

2004 through 2012, she worked for the Kansas Supreme Court as the Court’s Special

Projects Attorney. Just prior to joining the Disciplinary Administrator’s Office, Ms. Hughes

worked as an appellate defender with the Kansas Appellate Defender Office. Ms. Hughes has

served on the Kansas Judicial Council Criminal Law Advisory Committee, and is a member

of the Kansas Bar, Topeka Bar, American Bar and the Kansas Women Attorney’s

Association. She serves as a Master in the Sam Crow American Inn of Court.

Honorable David Imahara

Judge David Imahara is the Chief Administrative Law Judge for the Georgia Board of

Workers’ Compensation. He previously served as Administrative Law Judge, Deputy Chief

Judge, and director of the Alternative Dispute Resolution unit of the State Board. He has

served on the Board of the National Association of Workers’ Compensation Judiciary.

Honorable Larry Karns

Larry Karns began his new career as the Director of the Kansas Department of Labor,

Division of Workers Compensation, in 2012 after practicing law with the Topeka,

Kansas, law firm of Glenn, Cornish, Hanson & Karns for 36 years and after a year with

McAnany, Van Cleave & Phillips, a Midwest regional law firm specializing in workers

compensation defense. He is a 1972 graduate of the University of Kansas School of

Business and a 1975 honors graduate from the Washburn University School of Law. In

addition to the practice of law, Larry served for several years as a hearing officer for

various state agencies and as a judge pro tem for the Topeka, Kansas, Municipal Court.

During his legal career Larry has served on the Board of Directors of a local bank, a

domestic insurance company and a regional agricultural lender. He currently serves as a

member of the Board of Directors of the International Association of Industrial Accident Boards and

Commission.


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. In January 2016, she was appointed Director of the Louisiana Office of Workers’ Compensation Administration. 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 Margret Kerr Judge Kerr is originally from England and Australia. She received her B.A. from the University of Kent at Canterbury, U.K. in 1980, and her J.D. from the University of Miami in 1993. She began her legal career at the law firm of Underwood, Karcher & Anderson where she worked as an associate for 3 years. In 1996, she joined Kubicki Draper, as an associate and then partner, for the next 12 years, limiting her practice to workers’ compensation cases. In 2008, she joined the law firm of Arrick, Peacock and Kerr where she continued to practice workers’ compensation defense, until her appointment as a Judge of Compensation Claims by Governor Scott in 2013.

Honorable John Lazzara

Judge Lazzara was initially appointed Judge of Compensation Claims (JCC) for the Tampa

District in 1990 by Governor Bob Martinez. In 1993 he requested reassignment to the

Tallahassee District following the retirement of the late Judge Gus Fontaine. Since then he

has been reappointed twice by Governors Lawton Chiles and Jeb Bush, and once by

Governor Charlie Crist. In 1998 and 2002, Judge Lazzara was nominated for appointment to

the First District Court of Appeal. In November 2005, Governor Bush was appointed him

Interim Deputy Chief Judge, and served in that capacity until May 2006. Prior to his

appointment to the tribunal, Judge Lazzara practiced law in Tampa for 23 years, and served

as a Hearing Officer for the Hillsborough County Environmental Commission and the Property Appraisal

Adjustment Board. He was also an Arbitrator with the Florida New Motor Vehicle Arbitration Board and the

American Arbitration Association. Judge Lazzara has been a Certified Circuit Civil Mediator since 1989, when

the Florida Supreme Court appointed him to its initial Special Committee for Mediation/Arbitration Rules.

Judge Lazzara was President, Florida Conference of Judges of Compensation Claims (1997-99); Chair, The

Florida Bar Workers’ Compensation Rules Committee (1994-95); and Chair, Division of Administrative

Hearings’ Workers’ Compensation Rules of Procedure Revision Committee (2005-06).


Continued, Page 49.

He was a member of the Florida Bar Appellate Court Rules Committee (2001-07) and chaired its Workers’

Compensation Practice Subcommittee (2002-03, 2005-07). He is a member of The Florida Bar’s Standing

Committee on Professionalism, and chairs the Scholarship Committee of the North Florida Chapter of Friends

of 440. In 2009, he was inducted as a Fellow of the College of Workers’ Compensation Lawyers, and is a

founding Director and the Inaugural President of the National Association of Workers’ Compensation Judiciary

(2008-10). Judge Lazzara received his B.A. and J.D. degrees from the University of Florida. In 1996, he

completed studies at the IAIABC International Workers’ Compensation College at Arizona State University. He

is a frequent lecturer on workers’ compensation trial, appellate and procedural topics, and has testified before

committees of the Florida Legislature on workers’ compensation legislation. Judge Lazzara has co-authored

chapters on “Workers’ Compensation Mediation” in the Florida Bar’s Alternative Dispute Resolution in

Florida, Vol. II, 1995, and in the Florida Workers’ Compensation Practice, 4th

& 5th

Editions and Supplements.

Honorable Ellen Lorenzen

Ellen Lorenzen was originally from Los Angeles, CA. but grew up in Baton Rouge, LA. She received her B.A.

from Emory University, Atlanta, GA in 1971 and moved to Florida. She began working as an all-lines adjuster

until she attended Stetson College of Law where she graduated in 1978. After admission to the Bar, she became

employed as staff counsel for Continental Insurance in Tampa, practicing primarily in the area of personal

injury defense with some workers’ compensation cases. In 1985 Ms. Lorenzen became employed with the firm

of Morris & Rosen where she represented injured employees. In 1986 she was hired by Travelers Insurance as a

staff attorney where she was responsible for a mix of workers’ compensation and personal injury cases until

1990. At that time she became the managing attorney for the Tampa staff counsel office of Travelers and

restricted her practice solely to workers’ compensation defense. In 1994 Ms. Lorenzen became associated with

the firm of Barr, Murman, Tonelli in Tampa and became a partner there in 1997. In 1998 Ms. Lorenzen and

John Dixon, Esq. formed a firm handling workers’ compensation defense statewide on behalf of several self-

insured employers. Ms. Lorenzen resigned her membership in that firm in 2004 when she was appointed a

Judge of Compensation Claims by Governor Bush. She has been Board Certified in Workers’ Compensation

since 1988 and has been a Board Certified Circuit Civil Mediator since 1994. Ms. Lorenzen serves on the board

of Tampa Jewish Family Services, a non-profit social services agency providing mental health counseling and

food bank assistance to those in need in the Tampa area irrespective of race or religion. She is also on the

Friends of 440.

Honorable Deneise Turner Lott

Deneise Turner Lott has served as an Administrative Judge with the Mississippi

Workers’ Compensation Commission since November 1988. She is currently senior

judge and is the first woman to hold that position. She was engaged in private law

practice with an emphasis on disability claims before joining the Commission as a staff

attorney. She served the Commission as senior staff attorney before becoming an

Administrative Judge. She graduated from the University of Mississippi cum

laude with a B. A. degree in English. She also received her law degree from the

University of Mississippi School of Law. She has served on several bar committees and

has twice served as chair of the Administrative Law and Workers’ Compensation

Section of the Mississippi Bar. She has also taught administrative law and workers’

compensation law as an adjunct professor at Mississippi College School of Law. She regularly provides

programs for continuing legal education credit on workers’ compensation topics. Judge Lott co-chaired the

Kids’ Chance Mediation Project which is designed to help fund the higher education of children of seriously

disabled or deceased workers and which is sponsored by the Workers’ Compensation Section of the Mississippi

Bar. She has twenty hours of mediation training and over 1000 hours of court-annexed settlement experience.


Honorable Dwight Lovan

Commissioner Dwight T. Lovan received his Bachelor’s degree from Baylor University

and J.D. from the University of Kentucky College of Law. Admitted to the Kentucky Bar

in 1977, Commissioner Lovan worked as a staff attorney for the Kentucky Court of

Appeals with responsibility for workers’ compensation appeals for 15 months. From 1979

to 1990 he practiced law in Owensboro, concentrating in the areas of workers’

compensation and civil litigation. In May of 1990, Commissioner Lovan was appointed

Administrative Law Judge and remained in that position until August of 1994 when he

was named to the Kentucky Workers’ Compensation Board. Between July 2000 and

January 2004, Commissioner Lovan served as Chairman of the Kentucky Workers’

Compensation Board before returning to private practice in the firm of Jones, Walters,

Turner and Shelton. By executive order signed on February 7, 2008, Commissioner Lovan was appointed to

serve as the Commissioner of the Department of Workers’ Claims.

Honorable Melanie G. May Judge May has served as Chief Judge of the Florida Fourth District Court of Appeal since 2011, and has served on that Court since 2002. Before her appellate tenure, she served as a trial judge on the 17

th Judicial Circuit Court for eleven years. Her initial legal experience

was clerking at the U.S. Eleventh Circuit Court of Appeal, after which she practiced for nine years before taking the bench. Judge May has served on an array of councils, boards, and committees. These include the Access to Courts Committee, the Unauthorized Practice of Law Committee, the National Association of Drug Court Professionals, and the Supreme Court Steering Committee on Treatment-Based Drug Courts. Judge May has been involved in leadership of many such committees. She was an instructor on Legal

Research and Writing at the Nova Law Center and an Instructor with the National Judicial College.

Honorable Frank McKay Frank R. McKay is the Chairman of the Georgia 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.

Dr. J. Mark Melhorn

Mark Melhorn MD FAAOS FAADEP FACOEM FACS is an occupational orthopaedic

physician who specializes in the hands and upper limbs. He received his BS from

McPherson College and his MD from the University of Kansas and is currently a Clinical

Associate Professor, Department of Orthopaedics, University of Kansas School of

Medicine - Wichita. He has been elected to national boards and educational committees

while authoring and lecturing on his research of workplace injuries and illnesses; return-

to-work options; impairment and disability; and prevention of musculoskeletal pain in the

workplace, including the text “AMA Guides(tm)

to the Evaluation of Work Ability and

Return to Work” 2nd edition AMA Press (2011), Guides to the Evaluation of Disease and

Injury Causation 2nd edition AMA Press (2014) and was the lead author for the Upper

Extremity Chapter in the 6th Edition of the AMA Guides to Impairment.


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 Allen Phillips Allen Phillips is a judge of the Tennessee Court of Workers’ Compensation Claims, presiding in Jackson, Tennessee. He previously was a partner with Waldrop & Hall where he had practiced since 1990. His varied practice included employment law, personal injury, insurance defense, family law and worker’s compensation. He served on the board of directors of the Jackson-Madison County Bar Association. He graduated from Lambuth College and earned his J.D. from the University of Tennessee College of Law in 1990. .

Dr. Leonard Pianko

Dr. Pianko practices in Aventura, Florida and specializes in cardiovascular disease and

internal medicine. He is the founder of the Aventura Cardiovascular Center. Dr. Pianko

is board certified in cardiology and internal medicine with special expertise in

cardiovascular disease, preventive cardiology, and non-invasive treatment options,

including echocardiogram and nuclear stress testing. He is a native of New York, born in

the Bronx, and earned an undergraduate degree from Yeshiva University in New York

before receiving his medical education at top-ranked Mount Sinai School of Medicine

and completing his training at the prestigious Robert Wood Johnson School of Medicine

in New Brunswick, New Jersey. Recognized as a “Top Doctor” by Castle Connolly, Dr.

Pianko is proud to call himself a “patient advocate,” working together with his patients

in order to educate on best practices and tailored treatment options—from lifestyle and

preventive to diagnostic and clinical. Central to his practice is an unwavering commitment to compassionate

and quality care, supporting patients and their families throughout their medical decision-making processes.


Professor Wayne C. Schiess

Professor Schiess joined the faculty at The University of Texas School of Law in 1992,

after three years of law practice in the Dallas office of Baker Botts, LLP. Professor

Schiess is the director of the legal-writing program and teaches legal writing, legal

drafting, and plain English. He is also a frequent seminar speaker on those subjects. He

has published more than a dozen articles on practical legal-writing skills, plus two

books: Writing for the Legal Audience and Better Legal Writing. He expects his third

and fourth books on legal writing to be published soon. He received his Juris Doctor

from Cornell Law School. In 2012 and 2015, he was chosen as the Law School’s legal-

writing teacher of the year. In 2011, the Texas Pattern Jury Charges Plain Language

Project, for which he was the drafting consultant, was named a finalist for a ClearMark

Award by the Center for Plain Language. He blogs on legal writing at LEGIBLE.

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.

Honorable James Szablewicz

Jim Szablewicz is the Chief Deputy Commissioner of the Virginia Workers’

Compensation Commission and has been in that position since April 2004. In this

capacity, he supervises the Judicial Division of the Commission, including the functions

of the Commission’s Clerk’s Office, six Regional Offices and all of the Deputy

Commissioners state-wide. Prior to becoming Chief Deputy Commissioner, Jim served

as a Deputy Commissioner for two years, and was engaged in the private practice of law

on Virginia’s Eastern Shore for eleven years, primarily representing injured workers. Jim

received his B.A. in Political Science from Yale University in 1984 and his J.D. from the

University of Virginia School of Law in 1987.


Honorable Aisha Taylor

Commissioner Aisha Taylor was appointed to the SC Workers’ Compensation

Commission on January 31, 2013. Before serving on the Commission, Commissioner

Taylor was a shareholder in the law firm Collins & Lacy, practicing primarily in workers’

compensation defense and employment law. Commissioner Taylor graduated from the

University of South Carolina where she was a team captain of the 2002 Women’s Track

& Field National Championship Team. Following her graduation from the University of

South Carolina School of Law, Commissioner Taylor clerked for the Honorable Brooks P.

Goldsmith of South Carolina’s Sixth Judicial Circuit. She and her husband, Henry, live in

Blythewood, South Carolina with their three children.

Honorable Dave Threedy

Dave Threedy is the Chief Judge at the Washington State Board of Industrial

Appeals. He is President Elect of the International Association of Accident Boards

and Commissions.

Honorable Nicole Tifverman

Nicole Tifverman is an Administrative Law Judge with the Georgia State Board of Workers’ Compensation in

Savannah. Prior to her appointment as an ALJ in 2011, she practiced workers’ compensation law for twenty-

four years, representing employees, employers, and insurers. She hears cases in Savannah, Claxton, and Millen,

and also mediates when her schedule permits. Judge Tifverman received her B.A., with highest distinction, from

the University of Rhode Island and her J.D. from Emory University School of Law.

Honorable David Torrey

David B. Torrey, a native of Alexandria, VA, has been a Workers’ Compensation Judge

with the Pennsylvania Department of Labor & Industry since 1993. He is Adjunct

Professor of Law, University of Pittsburgh School of Law (1996-present). He is also the

Editor of the Pennsylvania Bar Association Workers’ Compensation Newsletter (1988-

present). He received his A.B., 1982, from West Virginia University; and his J.D.,

1985, from Duquesne University School of Law. While in law school, he was Editor-in-

Chief of the Duquesne Law Review (Volume 23, 1984-85). In 2010 he was elected to

membership in the National Academy of Social Insurance. He is the Immediate Past

President of the National Association of Workers’ Compensation Judiciary; and a

Fellow and Secretary of the College of Workers’ Compensation Lawyers. In 2008, he

published the Third Edition of his treatise, Torrey & Greenberg, Pennsylvania Workers’

Compensation: Law & Practice (4 Volumes: Thomson-Reuters 3rd ed. 2008 & Supp. 2015). He also served in

the U.S. Army (1976-1979), and in the West Virginia Army National Guard (1979-1982).


Russell L. Travis, M.D.

Russell L. Travis is a neurological surgeon from Lexington, Kentucky. He is a former

president of the American Association of Neurological Surgeons. Dr. Travis attended

Centre College in Danville, and received his medical degree from the University of

Louisville. Following his residency at the Medical College Hospital of South Carolina,

Dr. Travis returned to Lexington to begin his practice as a neurological surgeon. One of

Dr. Travis’ most outstanding contributions has been his commitment to ensuring that all

Kentucky citizens have access to affordable, quality health care. As both an advocate for

change at a legislative level and as a volunteer in the field, his efforts are widely known

and appreciated. Almost every week for the past 25 years, Dr. Travis has traveled

hundreds of miles to see patients in places where you wouldn’t normally find a

neurosurgeon. He played a key role in the formation of Kentucky Physicians Care, a

group of physicians who volunteer their services to provide free medical care to the less fortunate in their

communities. This national recognized program was the first all-volunteer, nongovernment-sponsored statewide

program of its kind in the country. To ensure its success, Dr. Travis traveled to every part of the State at his own

expense, encouraging his colleagues to participate. Since 1985 more than 300,000 Kentucky citizens have

received needed medical attention from Dr. Travis’ physician volunteers.

Glen Wieland, Esq.

Born and raised in Orlando, Glen Wieland seemed destined to be a lawyer, his father as

well as his brothers were attorneys. “My father was a very big influence on all three of

us,” he says. “He was one of the original workers’ comp lawyers in town before he sat

as a judge for 23 years.” No surprise that Mr. Wieland, who has been practicing for

over 25 years himself, has been Board Certified in Workers’ Compensation since 1990.

The firm, Wieland Hilado & DeLattre, represents individuals injured or who have

suffered loses as a result of automobile accidents, premises accidents or job-related

accidents. Mr. Wieland has served as president of the Florida Workers’ Advocates, a

statewide organization of trial attorneys who specialize in workers’ compensation. His

other areas of practice include personal injury, automobile negligence, insurance

disputes, wrongful death, toxic torts and social security disability. Mr. Wieland

completed his undergraduate studies at Presbyterian College in South Carolina before receiving his law degree

from The Cumberland School of Law in Birmingham, Alabama. He returned to Orlando in 1982 and began

practicing law at Walker & Buckmaster, where he stayed for five years. He left to partner with another attorney

for more than 10 years before forming Wieland Hilado & DeLattre. As one of three attorneys, Mr. Wieland

prefers the personal interaction between attorneys that can be found only at a smaller firm. He is admitted to

practice before the Middle Court of Florida, the Eleventh Circuit Court of Appeals and the U.S. Supreme Court.

He has been selected by his peers to be included as a member of The Best Lawyers in America. He has spoken

on behalf of injured workers at national meetings of the National Council of Insurance Legislators. He has also

been recognized by Orlando Magazine as one of Orlando’s Best Attorneys. Martindale Hubbell rates attorneys

worldwide and has awarded Wieland its highest rating, AV. He belongs to the Million Dollar Advocates Forum

devoted only to trial lawyers who have achieved a settlement or verdict of a million dollars or more. Mr.

Wieland’s parents inspired him with the idea of giving back to the community. His mother was personally

recognized by President George W. Bush for having spent over 50 years in continuous volunteer work for the

community. He is a past-chairman and trustee for the Orlando Area Trust for the Homeless, Chancellor of

Anglican Diocese of the East and Anglican Province of America. He is married to Kennie Wieland and has two

children, Billy and David.


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.




NAWCJ Judiciary College Hotel - The Caribe Royale

$110.00 per night




6th

Annual National

Regulators Roundtable This year celebrates the 6

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 6h 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.

Arizona Honorable Luann Haley

Judge

Industrial Commission of Arizona

Tucson, AZ

Colorado Paul Tauriello

Director

Division of Workers’

Compensation

Denver, CO

Florida Tanner Holloman

Director

Division of Workers’

Compensation

Tallahassee, FL

Kansas Larry G. Karns

Director


Topeka, KS

Kentucky Honorable Dwight T. Lovan

Commissioner

Department of Workers’ Claims

Frankfort, KY

Louisiana Sheral Kellar

Louisiana Office of


Administration

Baton Rouge, LA

Florida Honorable David Langham

Deputy Chief Judge

Florida Office of Judges of

Compensation Claims

Pensacola, FL

Florida Andrew Sabolic

Assistant Director


Tallahassee, FL

Georgia Honorable Frank McKay

Chairman


Compensation

Atlanta, GA

Welcome: Gary Davis

Secretary / Treasurer

SAWCA Lexington, KY

Moderator: Honorable Melodie L. Belcher

SAWCA Past-President

Administrative Law Judge


Compensation

Columbus, GA


Maine Honorable Paul H. Sighinolfi,

Executive Director/Chair

Workers’ Compensation Board

Augusta, ME

Maryland Honorable R. Karl Aumann

Chairman

Maryland Workers’ Compensation

Commission

Baltimore, MD

Maryland Scott Curtis

Assistant Attorney General

Maryland Workers’ Compensation

Commission

Baltimore, MD

Mississippi Honorable Deneise Lott

Administrative Law Judge

Mississippi Workers’

Compensation Commission

Jackson, MS

Nebraska Hon. Tom Stine

Judge

Workers’ Compensation Court

Lincoln, NE

New Mexico Darin Childers

Director

New Mexico Workers’

Compensation Administration

Albuquerque, NM

Oklahoma Honorable Bob Gilliland

Commissioner

Oklahoma Workers’ Compensation

Commission

Oklahoma City, OK

Pennsylvania Honorable Elizabeth Crum

Director of Adjudication

Pennsylvania Department of Labor

& Industry

Harrisburg, PA

South Carolina Gary M. Cannon

Executive Director

South Carolina Workers’ Compensation

Commission

Columbia, SC

Tennessee Hon. Kenneth Switzer

Chief Judge

Tennessee Court of Workers’

Compensation Claims

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 Dave Threedy

Chief Judge

Board of Industrial Insurance Appeals

Olympia, Washington

Wisconsin Joe Moreth

Director, Bureau of Insurance

Programs

Wisconsin Worker’s Compensation

Division


NAWCJ 2016

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.

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.

*Denotes Charter Associate Member.


Lex and Verum

Documents

Transcript of Lex and Verum