Hello

October 2021 President’s Letter

Greetings from the President

 

By Shannon Bruno Bishop

 

For the first time in a very long time, I sat on the porch of a local restaurant and observed the beauty surrounding me.  It was the first day of fall and the day was sunny with a wonderful cool breeze.  In Louisiana, we usually have two seasons…HOT and COLD.  But on this day, as I enjoyed a pleasant fall day, I began to think about the change of seasons.  Moving from the warmer days of summer to the cooler days of fall and observing the leaves as the colors change and fall from the trees, I began to think of changes that occur in our lives.  As you move into a new season, I am asking you to think about changes you would like to make in your life as a judge, a parent, a spouse, or a friend.  What changes would you like to see in your courtroom?  What changes would you like to see in your administration?  How about changes in your community or your personal life?  Take a moment and think about something you can do to make a change as you enter into a new season of life.  I know you’re busy, but let’s take time to make a change.

If you get stuck and need a little help, how about making the change by becoming more active with the NAWCJ.  Feel free to e-mail me at sbruno@lwc.la.gov to learn more about our wonderful committees.  And don’t forget to mark your calendars for our upcoming programs.

  • NAWCJ Lunch & Learn, which is scheduled for October 6, 2021 at 12:30 Eastern Time. Additional information is contained in this month’s Lex & Verum.
  • NAWCJ Judicial College, which is scheduled for December 13-15, 2021. College information and registration can be found at https://www.nawcj.org/judiciary-college/

Thank you for your time.  And remember, we can all make changes big and small.

Man in the Mirror by Michael Jackson

I’m starting with the man in the mirror
I’m asking him to change his ways
And no message could have been any clearer
If you want to make the world a better place
Take a look at yourself, and then make a change

Please continue to be safe, wear your mask, social distance, and get vaccinated.

Shannon B. Bishop

 

Nuremburg Code

By Honorable David Langham
Deputy Chief Judge of Compensation Claims
Pensacola, FL

 

There is so much information circulating about the SARS-CoV02 vaccinations. We have been told we will all get a booster shot, then that an FDA committee recommends only those at higher risk get a booster shot, then that some of those at higher risk already got a booster shot, then that getting a booster is selfish in our world. Much of this is highlighted in a recent post, Show me the Science (September 2021). Many have been vaccinated, almost 6 billion doses administered worldwide and a daily rate over 30 million doses, and some of those want more. Others, are completely opposed to vaccination and would not accept it if was free (it is free, by the way).

Not everyone is happy about the idea of being vaccinated. I respect their choice. I am vaccinated to protect myself from the virus. I continue to practice social distancing when people will allow me to. I do not frequent high-volume venues such as concerts and shows. And, frankly speaking, I mostly enjoy outdoor activities such as walking and there is simply minimal risk in those. Regrettably, however, any of us may become infected and thus have potential to spread this virus. Vaccination diminishes the probability of that, but not to zero.

Why people object to the vaccine is interesting. There are reasons cited based upon science, religion, and more. In a legal sense, and this is a legal blog, there is an interesting argument being raised against mandated vaccination. The idea of mandates may have multiple societal and legal implications, and for the employer and employee in the workers’ compensation community it is worthy of discussion.

In September 2021, the United States announced that vaccination against SARS-CoV-2 would be mandatory for “federal workers, large employers(,) and health care staff.” The CNN characterized that as “a sweeping attempt to contain the latest surge of Covid-19.” It explained that this dictate “could apply to as many as 100 million Americans,” that is “close to two-thirds of the American workforce.” In announcing the new dictate, President Biden said “we’ve been patient, but our patience is wearing thin, and your refusal has cost all of us.” Clearly, there is blame being directed broadly at those who do not wish to, or cannot, be inoculated.

CNN also notes that the safety of the vaccines has been proven and there is “full approval of one.” Some of the workplace implications of this were recently addressed by Chitra Goel on WorkersCompensation.com. That is an interesting read. The Society of Human Resource Managers (SHRM) also has an interesting discussion of the potential liabilities from an employer-mandated vaccination program. Does the government mandate do anything to insulate an employer or alter the potentials for liability? Would legislation regarding liability for side effects of a vaccine be of use? Alabama is discussing that.

Mandates are not new. There have been hospitals imposing such mandates, some have fired workers for refusal. Some mandates have reached the courts, and have been affirmed. Other employers are backing away from mandates, perhaps because of the potential for resulting labor shortages. With a national mandate, some have questioned whether labor shortages will be exacerbated, particularly in the healthcare fields.

One of the objections cited in refusing the vaccines has been religion-based. The fact is that all of the SARS-CoV-2 vaccines were tested using “cells grown in a laboratory based on aborted fetal cells collected generations ago,” according to the University of Nebraska. Generations ago, and yet still aborted. The questions surrounding abortion “divides Americans more than any other issue,” according to Fortune. There are avenues for religious exemption from government regulation and mandates. One hospital is responding to those seeking religious exemption from vaccination by insisting they also “swear off” other remedies that have connection to such cells. This seems like a litmus test, and is at best interesting.

Others refuse the vaccine as it is “experimental.” They contend that no “fully approved” vaccine is available in the U.S. They concede that Pfizer has been granted full FDA approval, but insist that approval is for a strain of vaccine produced by that company yet not available in the U.S. That allegation was published by The Defender. It contends that a designation of “experimental” is critical under both the Nuremberg Code and U.S. Federal law, in the context of any mandated vaccination.

The Washington Post refers generally to allegations regarding theories about the vaccine not being approved as a “false claim.” The USA Today has also provided a “fact check,” in which it disagrees with contentions of non-approval. The Food and Drug Administration (FDA) has published that is has approved the Pfizer vaccine. However, it is fair to note that full approval came only in August 2021. Many of us received vaccines under emergency use authorizations (EUA). While that made their use legal, they were not (some remain under that, so “are not”) FDA approved. Thus, there is at least one FDA approved vaccine. Recent research suggests that particular vaccine is not the best at retaining its efficacy, but it is FDA approved and the efficacy remains impressive.

As a premise for the remainder of this discussion, it is immoral to perform experiments on people without their knowledge. It is also illegal. Beyond that, there is the point that any consent to care or treatment must be voluntary and informed.

Coincidentally, I was in Nuremburg recently, visiting the Palace of Justice. This is where the famous Nuremberg trials occurred in the 1940s, following World War II. The importance of those proceedings is discussed in History in the Making (September 2021). Obviously, part of the concern they sought to address back in the wake of that war was the horrendous mistreatment of people by the National Socialist Workers (Nazis).

As noted by the National Holocaust Memorial Museum, there were various experiments conducted on prisoners: “without patient consent or any safeguards.” A recent visit to Buchenwald reminded me of the National Socialist Workers’ profound evil, of which such experiments were a part. I cherish so many moments of my recent time in Europe, but my days in Weimer (Buchenwald) and Nuremburg are so salient.

The United States Holocaust Museum notes that when the National Socialist’s experimentation was discovered, “the Nuremberg Code was created.” This specifically “included the principle of informed consent and required standards for research.” That Code was an outgrowth of one of the Nuremberg trials, a “case known as the ‘Doctors trial.'” In the midst of that trial, a memorandum of “six points that defined legitimate medical research” was prepared and proposed. That was later “revised . . . into ten” points which became known as The Nuremberg Code.” From violence and evil, through judicial process, came definition and protection.

The Nuremburg Code is now being cited by some who oppose the mandatory vaccination against SARS-CoV-2. Reuters reports that various propaganda on the social media platforms now assert that the International Criminal Court has “‘accepted’ a complaint that claims Israel’s COVID-19 vaccination program violates the Nuremberg Code.” Reuters points out that “anyone can submit information about alleged crimes to the ICC,” but the Court’s receipt or even acknowledgement of such a filing is not “a decision on the merits of the information.” Thus, the use of “accepted” may signal nothing other than delivery.

The article includes a link to the allegations purportedly signed by two representatives of various “attorneys, physicians, public and general advocates” who have elected to forego the SARS-CoV-2 vaccine. Their entreaty is dated in January, and thus its representations that the vaccine has not received “approval,” but only EUA was accurate at the time. These signatories contend that the government of Israel “signed an agreement with the Pfizer Company,” to obtain “millions of vaccine portions.” They contend that Israel was given “preference over other countries,” in exchange for which “(residents of Israel) will serve as experimenters” for the pharmaceutical company.” This seems to allege a defined quid pro quo that includes experimentation, but it is an allegation.

This, they contend, would be experimentation without consent if government mandated vaccination. And, the signatories contend that the agreement “was not published,” and was not “subject to total transparency towards the wide public.” The signatories take further issue with their contention that there are risks associated with the vaccine, and that a mandate removes an individual’s ability to personally assess and determine the various risk benefit factors and make an informed decision. It is impractical in this age to determine if something on the Internet is genuine, but this entreaty is interesting reading. Under the Nuremburg Code, can a population be forced to inoculate? If it can, what disclosure and consent considerations are pertinent? The Code requirements are restated at the conclusion of this post, and are available on the website of the Holocaust Memorial Museum.

In the wake of the President’s mandate announcement, some Governors are threatening legal action from another perspective. It is described in the press as “another major clash between federal and state rule.” With little know as to the details of the dictate, some legal scholars have nonetheless weighed in with the conclusion that the rules “appear() to be on firm legal ground” because it is “in the name of protecting employee safety.” One law professor noted “the degree of risk that (unvaccinated individuals) pose, not only to themselves but also unto others” is pertinent in evaluating whether federal authority is appropriately asserted in this context.

Traditionally, the “health, safety, and welfare” of U.S. citizens lies with the states. This is discussed in an informative overview on the Cornell University School of Law website. Against the backdrop of state authority in these concerns is the undoubted power of the federal government to “tax and spend,” which has been repeatedly affirmed by the courts in topics like a national speed limit and drinking age mandates. Two of the President’s current mandates, regarding federal contractors and those who receive payments under Medicare, are seemingly squarely within that spending parameter.

In another vein, vaccination mandates are not new. An excellent overview published by the Center for Disease Control is in Malone, Kevin & Hinman, Alan; Vaccination Mandates: The Public Health Imperative and Individual Rights. There is discussion of the individual, risks to person and public, and more. In short, the mandatory process of inoculation is not new or novel to the SARS-CoV-2 pandemic or to America.

In the end, there are some certainties with the idea of a mandate. The first: some people do not want to be told what to do. The second, for now, is that although widespread (100 million Americans), the federal mandate is not absolute. Those who wish not to inoculate have some choice for now, such as changing employment. The third is that this issue will remain contentious. Regardless of one’s logic or conclusion for or against inoculation, it appears that opinions are entrenched and perhaps intractable. Finally, the situation for employees and employers will remain uncertain and litigation is a near certainty. How and when courts will sort out final conclusions on these objection questions remains to be seen. The process, however, is unlikely to be quick or inexpensive.

The Nuremburg Code:

1. The voluntary consent of the human subject is absolutely essential.

2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.

3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.

4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.

6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.

7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.

8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.

9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.

10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probably cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

Workers’ Compensation is a Data Driven Industry, Except When It Comes to Settlements


By Paul H. Sighinolfi
Senior Managing Director at Ametros
Bangor, Maine

Reprinted with permission from Ametros

In workers’ compensation, data is at the forefront of many professionals’ work. Lawyers focus on their individual practices and the matters they are managing, the number of cases in their personal work inventory, the time involved, and of course the finances associated with the practice. In an active private practice, lawyers should have all the important information needed to be economically successful at their fingertips. In addition, they should track among other things, case inventories, referral sources, filing deadlines, and client needs.

A workers’ compensation regulator’s view ranges from the ground level, overseeing file audits for timeliness and proper form filing, to a ten-thousand-foot vision developing meaningful policy- driven regulations, and consulting on legislation. A regulator has access to a vast array of information. Almost all that can be quantified in regulatory records and tracked is regularly monitored.

The work of a post-settlement administrator is focused on protecting a client’s medical settlement funds, ensuring reasonable and proper medical care, and complying with the Centers for Medicare & Medicaid Services (CMS) reporting obligations. The private vendors working in this space likewise monitor all aspects of their operations.

I have recently discovered there is a glaring shortcoming in this data-driven industry. The shortcoming is that few if any states or vendors track any data associated with full and final settlements.

The best and almost universal follow-up to my injuries was, “if you are successful would you share what you learn, that could be extremely useful information.”

In recent months my curiosity has focused on how much regulators and other industry leaders know about the specifics of claim settlements. I have made inquiries ranging from the number of cases settled annually, to what is the fiscal impact of these settlements. Focused on the economics, how much is intended to fund future indemnity and how much is intended for future medical? Are there states that track the number of Medicare Set Asides rolled into settlements? After speaking with a few industry insiders, a frequent comment in the form of a question would arise.  They would ask, “Does anyone track what happens with settlement proceeds after cases settle?”

The subtexts to the question raised several other concerns:

  • Is the settlement enough?
  • Is the settlement too much?
  • Are the medical proceeds properly spent post settlement?
  • What happens to the settling claimant and the funds once out from under the multiple watchful eyes of the system?
  • In short, did the settling parties get it right?  

I recently made a concerted effort to gather settlement information from both jurisdictions and national data organizations. Those efforts were universally unsuccessful. They did result in interesting email exchanges and personal conversations. A few repeated refrains were, “we do not track the financial aspects of a settlement,” or “we track cases up to settlement, but not after” and “you might want to contact the carriers, they know the numbers.” The best and almost universal follow-up was, again, “if you are successful would you share what you learn, that could be extremely useful information.”

Maryland Exemplifies Strong Settlement Data Collection

I discovered Maryland stands out as a state that understands the value of gathering settlement information. They have a form used when cases are settled. The form is completed by the parties and presented to the Board for review and approval at settlement. The form summarizes all the critical settlement elements, including the financial details discussed above. Unfortunately, the state has an older computer system, a system in the process of being updated, that is incapable of aggregating the information provided on these forms. Aggregation of the individual settlements would be the logical next step. The industry would benefit from having access to the information gathered on this form. Having the data provides valuable insight into what happens with cases where injured workers leave the system and conclude their claims via a settlement.

The picture we can put together today is incomplete. The available data lets us see the beginning of a claim. In most cases we watch the claims mature. When a case settles, the end does not unfold naturally. It comes to an abrupt halt. The lack of settlement information leaves an incomplete picture with little appreciation for how many claims conclude.

The Maryland form fills in this important gap. See the form below and the essential data it gathers. Broad regulatory adoption would help the industry better understand the details on how many cases conclude and would fill-in an important knowledge gap the industry has presently.

https://www.wcc.state.md.us/PDF/PDF_Forms/Settle_work.pdf

Ten Minutes with Honorable Catrice Johnson-Reid

Honorable Catrice-Johnson Reid
District Judge in the New Orleans Workers’ Compensation Court
Louisiana Workforce Commission

 

L&V:   What is your formal title?

CJR:   I currently serve in the capacity as the District Judge for District 8. District 8 covers the Greater New Orleans area (Orleans Parish) for the Louisiana Workforce Commission – Office of Workers’ Compensation Administration.

L&V:   How long have you been at your current position?

CJR:   I started at the Agency in July, 2016, first as a Division Judge for District 8. I was then promoted to District Judge in January, 2018.

L&V:   Where is your office?

CJR:   The District 8 office is located in downtown New Orleans, next to the Caesars Superdome (home stadium of the New Orleans Saints), Smoothie King Arena (home stadium of the New Orleans Pelicans) and near some of the best restaurants in the city. I couldn’t wish for better surroundings.

L&V:   How many judges are in your office:

CJR:   District 8 is set up to accommodate two (2) judges. However, at the present time, I am the only judge in District 8.

L&V:   How many workers’ compensation judges are there in your state?

CJR:   The State of Louisiana is comprised of 10 districts around the State of Louisiana which has 15 judges and a Chief Judge.

L&V:   What is your caseload?

CJR:   Currently District 8 has 332 active matters.

L&V:   Are you required to apply the Rules of Evidence in your hearings and decisions?

CJR:   Yes, workers’ compensation courts in Louisiana operate as courts of original jurisdiction pursuant to the Louisiana Constitution, Article V, §16.A.(1) and we follow and are governed by the Louisiana Code of Evidence and Louisiana Code of Civil Procedure, except as otherwise provided for in Title 23 of the Louisiana Statutes or by the Hearing Rules under Title 40 of the Louisiana Administrative Code.

L&V:   Do you rule from the bench?

CJR:   Yes, I do rule from the bench but occasionally for complex hearings and most trials I take the matter under advisement.

L&V:   What did you do before you became a judge?

CJR:   Before becoming a judge, I was in private practice.

L&V:   What do you like the most about judging?

CJR:   I love being able to assist the parties in reaching a resolution.

L&V:   What do you do to relieve the stress of judging?

CJR:   To relieve the stress of judging, I love organizing.

L&V:   Are you active in the legal community?

CJR:   Yes, I participate in continuing legal education seminars.

L&V:   Are you active in your community?

CJR:   Yes, I participate in community events through my church, my son’s school, and my sorority.

L&V:   Tell us about your family?

CJR:   I have been married to my husband for 18 years. I am the mother of a fifteen-year old son and twenty-five-year-old stepson.

L&V:   What are your hobbies?

CJR:   I love anything and everything dealing with old movies and television. My dream job would be to host a television show on the AMC Channel.

L&V:   What do you see as the value of your association with NAWCJ?

CJR:   The NAWCJ is a great medium for adjudicators to hone their skills, tap into the wealth of knowledge, perspective, and experience of the seasoned NAWCJ membership.

L&V:   Do you have any words of wisdom you would like to share?

CJR:   While I am not as seasoned and experienced an adjudicator as my fellow brethren, my words of wisdom are to ALWAYS be open to learning.

NAWCJ LUNCH & LEARN

October 6, 2021
Save The Date!

By Pamela B. Johnson
Tennessee Court of Workers’ Compensation Claims
Knoxville, TN

The NAWCJ was pleased to hold the inaugural Lunch & Learn program for its membership on July 13, 2021. The panel for the inaugural Lunch & Learn was moderated by Hon. Pamela B. Johnson (TN) and included Hon. David Langham (FL) and Hon. Michael W. Alvey (KY). The discussion involved the use of Guidelines in determining disability. Twenty-five members of the NAWCJ attended the presentation, and several attendees contributed to the conversation.

The NAWCJ launched this initiative as a benefit for our members, and to supplement discussions held at the “Boot Camp” and the annual Judicial College. We hope you join us for quarterly conversations on relevant and engaging workers’ compensation topics. The aim of this program is to gain knowledge, build collegiality, and develop professionally.

SAVE THE DATE: The next Lunch and Learn is October 6, 2021, at 12:30 p.m. Eastern Time. Zoom in to listen, ask a question, or contribute to the conversation.

TOPIC: Who to Believe? Witness Credibility.  Hon. Shannon Bruno (LA), Hon. Bruce Moore (KS), Hon. Jennifer Hopens (TX), Moderator Hon. Pamela B. Johnson (TN).

ZOOM LINK: In mid-September, the NAWCJ will send out an email blast to all members with a link to join the Zoom meeting on October 6.

https://us02web.zoom.us/j/89729173868?pwd=b2NvSllzVkRqQ1JHTkp0SEVsSmpNUT09

Meeting ID: 897 2917 3868
Passcode: nmp8L7
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Dial by your location

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Meeting ID: 897 2917 3868
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Find your local number: https://us02web.zoom.us/u/kqOgxxB4B

MARK YOUR CALENDARS: The first Lunch and Learn in 2022 will be on March 2, at 12:30 p.m. Eastern Time.

NAWCJ JUDICIAL COLLEGE

12th Annual
National Association of Workers’ Compensation Judiciary College
December 13-15, 2021
Orlando, Florida

 

By Honorable President Shannon Bruno Bishop
Chief Judge
Office of Workers’ Compensation
Louisiana Workforce Commission
Harahan, LA

 

 

The WCI Conference and NAWCJ Judicial College have been moved to December 12-15, 2021.  Save the date to enjoy the cooler temperatures of Florida, while enjoying the comradery of fellow workers’ compensation judges and participating in numerous workers’ compensation educational sessions.

Visit the www.nawcj.org for detailed program and registration information.

 

Moot Court Competition Volunteers Needed!

By Wesley G. Marshall
Commissioner
Virginia Workers’ Compensation Commission

 

The E. Earle Zehmer Moot Court Competition is on again in 2021; the 2020 competition was postponed due to COVID. The competition is held in conjunction with the Workers’ Compensation Institute and National Judiciary College, which will be held December 12-15, 2021! However, that is also in the prime final exam time, and unfortunately the Moot Court Final Rounds will be postponed until January 2022 in Tallahassee, Florida at the Florida First District Court of Appeal!

The preliminary rounds, sweet sixteen, quarter-finals and semi-finals will be held on November 13 – 14, 2021 VIRTUALLY! That is right, you can volunteer to judge from the comfort of your family room, from the beach, from the mountains, or wherever that Internet bandwidth might find you. There were 30 teams signed up for 2020, and we expect the volume to flourish with our return to normalcy. This is an exciting goal for the WCI and NAWCJ.

This will require patience and persistence. We all have experience with ZOOM and similar platforms. If we reach that goal of 40 teams, that means 100 judge positions to fill for the ZOOM portion! That means we need you. To volunteer, Submit

  1. Your commitment to participate (including date preference 13 or 14);
  2. Your name;
  3. Your jurisdiction (state);
  4. Your law school;
  5. Your preferred mailing address;
  6. Your email address.

We hope you will participate in 2021. You may send your information to the official judge list-keeper, Jessica Page, at: Jessica.page@workcomp.virginia.gov.

 

 

OCTOBER 2021 MEMBER NEWS

  • Virginia Workers’ Compensation Commission Welcomes Two New Deputy Commissioners

[Richmond, VA]-  The Virginia Workers’ Compensation Commission welcomed two new Deputy Commissioners during a Swearing-In Ceremony on Tuesday, September 14th, 2021 at the Commission’s Headquarters. Honorable John T. Cornett will serve the Richmond area and Honorable Josh Wulf will serve the Fairfax region.

Honorable John T. Cornett, Jr. is a native of Petersburg, Virginia.  He was born into a blue-collar family and was the first in his family to attend college. He earned a Bachelor of Arts in Political Science from Virginia Polytechnic Institute and State University (Virginia Tech), and his law degree from the T. C. Williams School of Law at the University of Richmond.

For over twenty years John has represented clients regarding workers’ compensation issues.  He has represented injured workers, employers, insurance carriers and medical providers before the Virginia Workers’ Compensation Commission and the Court of Appeals of Virginia.

John has been a frequent lecturer at seminars and continuing legal education programs, discussing issues involved in workers’ compensation law as well as ethics.  At various times, John has been a member of the Virginia Trial Lawyers Association and the Virginia Association of Defense Attorneys.  He is currently a member of the Virginia Workers’ Compensation American Inns of Court.

 

 

Honorable Josh Wulf is a graduate of Duke University and William and Mary Law School. Prior to joining the Commission, he spent 24 years representing local businesses, global corporations, and insurance companies in workers’ compensation matters. During his time in private practice he opened, expanded, and led the Northern Virginia office of an established firm.

 

 

 

  • The IAIABC hosted a Judicial Educational Program on September 21st and 22nd and over 50 workers’ compensation judges attended. Judge Deborah Blevins (VA) was an organizer of the conference, which was a phenomenal program for all who were able to attend. The following NAWCJ judges were speakers on the program agenda: LuAnn Haley (AZ), Shannon Bruno Bishop (LA), Bruce Moore (KS), Kenneth Switzer, (TN), Meng Li Che (WA), and David Cicola (PA).

September 2021 President’s Letter

Greetings from the President

 

By Shannon Bruno Bishop

 

Greetings to my fellow NAWCJ members and thank you for the honor and pleasure of serving as your 2021-2022 President of this wonderful organization.  First, I would like to introduce myself to those who may not know me.  My name is Shannon Bruno Bishop and I serve as the Chief Judge of the Louisiana Office of Workers’ Compensation.  My tenure as Chief Judge has been nothing short of challenging, as I took on the position in May 2020, as we began addressing the challenges of the Covid-19 Pandemic in our personal and professional lives.  Throughout that time, I have witnessed the hard work and perseverance of adjudicators in Louisiana and across the country.  I have had the opportunity to participate in virtual conferences to share and gather information from fellow adjudicators regarding how you have maneuvered through these changes in our lives.

On a more personal note, I am a PROUD New Orleanian.  On the other side of this pandemic, you will receive requests and invitations to visit New Orleans to enjoy the music, culture, and food of the place I call home.  Fair warning, throughout my term as President, you may get a little tired of New Orleans references, but as I said, I am a PROUD New Orleanian.  Lastly, but certainly not least…of all of my jobs and titles, the most important is “Mommy.”  I am the proud mommy of two very loveable boys.  At ages 7 and 11, they keep my husband and me on our toes, but I would not change a thing about them.  They are mama’s boys and I love them to pieces.

Now that I have introduced myself, please give me the pleasure of getting to know you.  Be an active participant in NAWCJ.  Do not make the mistake of sitting on the sidelines in this wonderful organization.  As a member, you will receive rewards, but the NAWCJ has so much to offer if you are an active participant.  The benefits of being involved by serving on a committee or the board of directors is more than words can express.  My first year as a judge, I attended my first Judicial College.  After the college, I joined the Lex & Verum committee and began serving on various panels for the Judicial College.  I later joined the Curriculum and Conference committees, and then had the honor of serving on the Board of Directors.  These experiences have had a tremendous impact on my time as a workers’ compensation adjudicator.

So, please consider joining some of the wonderful and hard-working NAWCJ committees, such as the Curriculum Committee, Conference Committee, Collaboration Committee, Scholarship Committee, Recruitment Committee, Lex & Verum Newsletter Committee, Website and Social Media Committee, Moot Court Committee, and Long-range Planning Committee.  The committees will not take up a significant amount of your time and the more members, the merrier.  Please e-mail me at sbruno@lwc.la.gov and I will put you in contact with the Committee Chairperson.  We want you to be involved, so please reach out.

As I close out my first President’s Page, I want to remind you to take part in two very time worthy upcoming events:

  • NAWCJ Lunch & Learn, which is scheduled for October 6, 2021 at 12:30 Eastern Time. Additional information is contained in this month’s Lex & Verum.
  • NAWCJ Judicial College, which is scheduled for December 13-15, 2021. College information and registration can be found at https://www.nawcj.org/judiciary-college/

Thank you for your time and I look forward to meeting each and every one of you.

Please continue to be safe, wear your mask, social distance, and get vaccinated.

Shannon B. Bishop

 

Credibility Lessons

By Honorable David Langham
Deputy Chief Judge of Compensation Claims
Pensacola, FL

 

There is a great deal I don’t understand about medicine (engineering, accounting, the list goes on and on). The legal practice is full of people who strive to advocate for their clients, but who likewise perhaps do not have the best grasp on the intricacies and complexities of all these sciences, avocations, and pursuits. Thus, the law relies on experts. Those who channel their study, experience, and activity into a particular subject are allowed to provide a broader testimonial perspective than factual witnesses (was the light red or green). These experts are allowed to testify regarding facts and their opinions.

When I speak at conferences, I am often asked about credibility, which is a critical element of trial and testimony. Those questions do not tend to come from fact witnesses, but from experts. For whatever reason, it is primarily doctors that ask me “how are credibility determinations made?” I strive to answer that systemically. See Opioids and Credibility (“Florida Workers’ Comp Blog.” January 2020). I have also written on the topic for the benefit of physicians specifically

The topic returned to mind recently in preparing for a presentation. I reviewed a variety of trial orders that cited the Florida First District Court’s 2019 decision Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. 1st DCA 2019). See It’s not that the Wind is Blowin’ (“Florida Workers’ Comp Blog.” June 2021). The implications of that decision, the laudable effort of both majority and dissent to make sense of the oft-intertwined yet distinct conditional tests of “arising out of” and “course and scope of” have been foundational to a variety of trial decisions in the years since.

However, Rodgers v. Winn Dixie, Case No.: 20-010060KFO, resonated for the additional reason that the credibility of testimony played a significant role in the decision. I was reminded of interaction with a physician several years ago in which the inquiry was “how does a judge determine credibility.” I provided answer after answer, but this physician responded to each with some re-phrase of this inquiry. At one point, I jokingly objected “asked and answered,” which garnered a laugh. The doctor then asked, again, “seriously though, what makes testimony credible?” I was then reminded of Cool Hand Luke (1967)(“What we’ve got here is… failure to communicate. Some men you just can’t reach.”), but did not voice it.

Credibility, in truth, is much like beauty. It is, and will always remain, in the eye of the beholder. That is frustrating to those who testify often. That is more frustrating to the expert medical witness in a system and process (workers’ compensation) in which the law demands objective medical evidence, reasonable medical certainty, and other precise delineations. The witness is directed, constrained, and made to show her/his work. Is it so extraordinary that such an expert might expect as clear an expectation on the determination of credibility? Unlike medicine, which is part science and part art, the determination of credibility is mostly art, subjective, and difficult therefore to quantify, delineate, or explain.

In a perfect world (from some perspectives), issues such as causation, nature and extent of disfunction, recovery, advisability of treatment, and more would be scientific. Scientific in that empirical data and replicable experiment would render those decisions absolutes. But science cannot deliver that and so we have doctors consider such fact and science and then render opinions.

What is appealing in Rodgers, however, is the trial judge’s notable effort to explain particularities. These are anecdotal, and isolated to a particular case. However, they are also perhaps exemplars from which one might draw parallels and even formulate “best practices.” This litigation involved opinions from expert physicians. As is often the case in litigation, the experts disagreed, and therefore the judge had to make credibility determinations in both accepting and rejecting opinions.

The judge rejected on expert’s opinions, noting the “testimony was conclusory, inconsistent, evasive, and unnecessarily combative.” In a nutshell, perhaps this is a roadmap regarding how not to testify? The trial judge then proceeded to provide specific explanation of what was considered important.

The First Criticism:

The doctor “offered little explanation to give the undersigned any confidence in this conclusion.” Lesson one for expert witnesses (from my first algebra teacher’s admonitions): “show your work.” I recall vividly being reminded repeatedly that knowing the answer would not gain points on the math test. To succeed, I would have to show my work. Concluding what the answer is may be half the battle, but if you cannot describe and delineate your path to that answer is undermined by not showing the steps. You see, in a nutshell, if we judges had the medical expertise and training, there would be no need for experts. Experts are in litigation to aid the judge or jury. To do so, show you work.

Second Criticism:

The judge found conclusion “is somewhat inconsistent with his testimony that many people slip and fall and do not have huge lacerations and a loss of consciousness.” Lesson two is that inconsistency is challenging for many people. If there is inconsistency, it is largely the lawyer’s role to point that out (cross-examination) and thus prompt an explanation. But when the lawyers do not drive that, explanation and edification remain critical. If there is an 800-pound gorilla in the room, introduce it to everyone and explain why it does or does not matter.

Third Criticism:

The “limited, conclusory statements in support of compensability offered little to no substance to convince the undersigned.” Lesson three is that conclusions are based upon foundations every bit as much as houses are. But, driving by, we see the house. We have to assume there is something holding the house up. But is it upon a slab, pilings, basement, or soft earth? Before you buy, you would want to know. What is the foundation of the opinion? What is the substance to your conclusion on the ultimate issue (it is or it is not)?

Fourth Criticism:

The judge found the doctor’s “testimony was also inconsistent.” There was testimony as to the history (a foundation element) provided by the injured worker. However, the expert later conceded regarding a particular point “the claimant made no such statement.” Thus, one element of the foundation was demonstrated to rest upon a faulty premise (unstable ground). If one pillar of a house’s foundation sinks into the earth, what happens to the structure? The house may not collapse, but there will be some effect. The more pillars that are demonstrated to be inconsistent or otherwise flawed, the more unmarketable the house may become.

Fifth Criticism:

The judge noted that, in light of the damaged pillar (the patient did not say such and such), the doctor’s “testimony offered little to no explanation from a medical standpoint as to why be believed the claimant slipped and fell.” This could arguably be a return to the First and Third. Show your work and explain the foundation. However, it is is broader. If your contention is that “_____ has the best chicken sandwich on the market, because of those outstanding pickles,” it may be damaging to learn that company does not include or even offer pickles. When confronted with that, can you make the case it is still the best sandwich? What of the breading, the bun, the flavor? What is the explanation for the conclusion (“it is the best”)?

Sixth Criticism:

The judge found the doctor “was evasive.” The lesson, when asked a question, answer the question. This is a challenge exacerbated by the knowledge divide. What seems congruous and responsive to the expert may not seem so to the lawyer or layperson. It is possible for evasiveness to be a misconception. However, it is also possible for evasiveness to be evasiveness. Evasive and defensive is not a path to credibility. If explanation or equivocation is necessary, say so. When presented with a question provide the answer first and then explain or at least ask permission to. E.g. “Is _______ the best chicken sandwich?” – “well, if it were all the online feedback would be positive . . .” Instead try: “yes, it is, because of this, or the absence of that, and consider the feedback on the Internet that says . . ..”

Seventh Criticism:

The judge found the doctor’s “credibility was undermined by his unnecessarily combative responses.” When a lawyer explained she did not have a particular record, the doctor retorted “Well, you should.” When asked about faith in testing, the doctor deferred answering and said “Well, I think that you should actually read about it before you ask me the questions about this.” When asked about foundation, the doctor responded “From my testing, counselor. Testing T-E-S-T-I –.” Finally, the expert assured one of the lawyers “Counselor, trust me, I know what I’m talking about and you don’t.” The judge found that the doctor was more interested in “arguing and belittling the questioning attorney than answering questions.”

Side Note:

Expert testimony in workers’ compensation is rarely live or auditory. Doctors are usually deposed and the testimony is presented in a cold, typewritten manner. There is no voice tenor, tone, facial expression, or other cues. The words written are only more important because those other contexts are missing. Thus, something said in jest to the amusement of all present may nonetheless come off as condescending or demeaning in the cold record. On one episode of House, an administrator is presented with a question about hallucinogens and agrees. When Dr. House walks away, she follows and says “I was being sarcastic!” Dr. House presciently replies “Wouldn’t look that way in the court transcript.” And, that is the point. There is no font for sarcasm, humor, or innuendo. The record will read on its words. Choose them carefully.

Are these criticisms conclusive? Is this list exhaustive? Is the determination objective? No, no, and no. See the primary point above, credibility determinations are subjective and not scientific. Another judge reviewing the testimony in this case might as easily have reached other conclusions. However, the lessons are pure gold. However, this order illustrates a number of considerations that are worthy of study. The expert’s role is to aid the finder of fact (judge or jury). The path to that is clarity, brevity, accuracy, and explanation. If you find yourself frustrated, aggravated, sarcastic, or confrontational the credibility will likely be impacted.