TX Trumps CN Jurisdiction

State jurisdictional issues are rare, but not unusual in workers' compensation.

International jurisdictional issues are even more rare, and with regards to the state of Texas, are unusual.

In a case I believe to be of first impression a Texas appellate court on Tuesday ruled that the state's judicial system had jurisdiction over a British citizen's tort claim against his alleged Houston-based employer for a frostbite injury he sustained while working in Canada.

Spectraseis is an oil and gas exploration company headquartered in Houston, but operations worldwide.

In early 2011, it was in need of workers to carry out a seismic survey in Saskatchewan, a province in the central part of Canada.

Due to potential visa problems, the company decided to bring in workers from the U.K. To accomplish this, the company says it hired Bill Rowlands as an independent contractor. Rowlands then recruited Christopher Mulgrew for the project.

It was bitterly cold at the project site, with temperatures ranging from -30 Celsius to -40 Celsius. By mid-day on his first day on the job, Mulgrew claimed that his fingers had started turning gray. 

Mulgrew sought treatment at a hospital, and he used his own travel insurance to cover the cost. He did not report the injury as being work-related at the time. 

Doctors determined that he was suffering from frostbite, leading to Mulgrew three fingers on one hand being amputated.

Mulgrew then sought to sue Spectraseis for negligence in a Texas court. Spectraseis moved to dismiss the suit for lack of subject matter jurisdiction, claiming that the action was barred by the exclusivity of the Saskatchewan Workers' Compensation Act.

Not Canada, Texas says.

The Texas District Court sided with Spectraseis and dismissed Mulgrew's case.

On appeal Mulgrew argued that "the practical effect often achieved through the dismissal of a case in favor of a foreign forum" is "typically a death knell" for the claim,  and that there there had been no showing that Mulgrew would even potentially be able to obtain workers' compensation benefits in Saskatchewan, especially since Spectraseis had refused to file an industrial accident report and denied liability for his injury. 

Mulgrew also argued that Spectraseis had failed to establish that it would be conferred immunity under Saskatchewan law since it disclaimed an employer-employee relationship with Mulgrew. 

If Mulgrew were an independent contractor, as Spectraseis claimed, then the Saskatchewan Workers' Compensation Act would allow him to bring a suit against the company that is akin to a third-party tort action under Texas law. 

Finally, Mulgrew argued that nothing in Texas law directed the exclusive remedy provisions of the administrative agencies of other states be controlling, much less the administrative bodies for foreign countries.

Consequently, he argued, the Texas court system could and should take jurisdiction over Mulgrew's claim.

The 14th Court of Appeals agreed. 

Since the Texas trial courts are courts of general jurisdiction, the appellate court reasoned, they are presumed to have jurisdiction unless a showing is made to the contrary. As the only jurisdictional argument raised by Spectraseis was the exclusive jurisdiction doctrine, and the doctrine was inapplicable to this case, the court concluded that the trial judge erred in dismissing Mulgrew's lawsuit. 

To read the court's decision, click here.

Iowa Highlights Grand Bargain

Iowa is not a big work comp state.

In fact, I don't believe WorkCompCentral even has any Iowa subscribers, and only a half dozen people from the state even get our newsletter.

But the Iowa Supreme Court is making the state recognizable in the work comp world by putting accountability into Gov. Terry Branstad's office for making work comp the political scape goat it seems to be in most other states by finding that the governor and five senior aides could be found personally liable for damages claimed by former Workers’ Compensation Commissioner Christopher Godfrey.

Godfrey was appointed to a six-year term as Workers’ Compensation Commissioner in 2009 by Democratic Gov. Chet Culver. After Branstad was elected the following year, he asked Godfrey’ to resign.

Godfrey alleges that Branstad’s senior staff members threatened to cut his salary if he didn’t quit. When Godfrey refused, the governor cut his salary from $112,000 to $73,000. 

Branstad said he sought to remove Godfrey because he was an ineffective commissioner who was costing business in the state money, a charge Godfrey has denied.

Iowa Gov. Terry Branstad

Iowa’s average workers’ compensation premium was $1.90 per $100 of payroll in 2012, according to a study by the Oregon Department of Consumer and Business Services. That was slightly above the national median of $1.88. Iowa ranked 25th among the states in average premium in 2012, up from 36th in 2010.

Godfrey, who is openly gay, claims that its wasn’t his performance, but his sexual orientation that motivated Branstad and the other defendants. He alleges sex discrimination, extortion and violation of his contract rights.

Perhaps Godfrey is right about the discrimination charges, but maybe there's more to the story than homophobia. My read on the bigger story is that Branstad would rather fill various government offices with cronies he can better control for his own political gain.

In March of this year it was reported that more than $282,000 in secret settlements were made with six former employees of the state, all Democratic appointees of former administrations. All of these settlements had confidentiality agreements. There were two other settlement attempts but those employees refused to sign a confidentiality clause.

In the meantime, further investigation has uncovered even more settlements with other Iowa state agency employees involving confidentiality agreements. Branstad has refused thus far to relent to Democratic demands to appoint a special counsel to investigate the use of confidentiality agreements in settlement of employment discrimination law suits.

But so far Branstad has used over $500,000 in Iowa taxpayer money to defend against Godfrey's lawsuit.

My guess is the Iowa Supreme Court's ruling will encourage a more prompt settlement now that there is the potential for personal liability.

But the reality is that this Iowa situation is just exemplary of the state of workers' compensation in general - a political football used by politicians to get what they want.

This is played out time after time after time, in state after state after state - from California to New York,  from Texas to Alaska, and nearly every state in between.

It's often said that workers' compensation is a creature of statute and that is why some common law principals don't apply (e.g. equity for example) because what the legislature granteth, the legislature may taketh away.

There are some constitutional protections in the scheme, but these are still state constitutional claims. The Big Paper, i.e. the U.S. Constitution, has very little, if any, to do or say about workers' compensation.

Because it is a creature of statute, that means that laws need to be drafted and passed which means that pretty much everything in work comp is up for trade.

There's a reason it's called the Grand Bargain - because it is not just a compromise of interests, it is a bargaining chip used in bigger political games.

It's no big secret that SB 863 in California was in big part the genesis of big business (which is why the bulk of that bill really dealt with liberalizing self insurance), and Governor Jerry Brown would not sign SB 863 without big business behind his taxation and state organizational plan.

Give me this, and I'll give you that.

That's how politics works, all the way down to the very dirtiest of political dealmaking.

Workers' compensation has nothing to do with protecting employers from financial ruin or providing workers with immediate, non-controverted medical care.

Work comp has everything to do with The Trade - it is used as a token like in a Middle Ages bazaar.

I get asked all of the time what needs to be done to make workers' compensation "work" and the answer is, blow the whistle and take the ball out of the game.

Since that will never happen though, the next best thing is to purchase your politician.

And I'm only partially facetious with that cynical comment.

Helicopters and Traffic

I flew to see Mom on Saturday.

I fly into Oceanside Municipal Airport (KOKB), recently renamed Bob Maxwell Field.

There are two types of airports: those with a control tower (called, sensibly enough, a "controlled field") and those without (called "uncontrolled'). Most airports in the United States, by a large percent, are uncontrolled.

At uncontrolled fields there is no air traffic controller telling you what to do. There are some general guidelines and regulations that affect airman (and airwoman) behavior flying into uncontrolled fields, but largely you're on your own. It's up to the pilots in the traffic pattern to pay attention and avoid any unwanted interactions.

Communication consequently is a very big issue at uncontrolled airports. Communication is critical to any aviation, but at uncontrolled fields adhering to certain standards prevents unwanted surprises.

Saturday's flight was routine - I flew out of Oxnard on an instrument clearance to get out of the June Gloom that predominates coastal California weather in the summer, canceled and then went visual flight rules for the rest of the trip.

As I normally do I asked for and received air traffic control "flight following" which is an optional service provided by ATC that provides the requesting aircraft with traffic advisories and some other alerts along the route.

Oceanside had cleared up by the time I got there so I did not need an approach and ATC, not seeing any other traffic between me and the airport on their radar told me to "squawk VFR and switch to traffic advisory frequency" which means to set the transponder on the airplane to the general code of 1200 and change radio frequency to the Common Traffic Advisory Frequency, which is the radio frequency to be used by all aircraft flying into and out of the airport.

Named for Tuskegee Airman, Bob Maxwell

My plane is equipped with a special piece of equipment called a Traffic Collision Avoidance Device. This unit has been pretty good at displaying conflicting traffic and I consider it a "must have" for flying the busy airspace of Southern California.

In fact TCAD has saved my bacon on several occasions. On one particularly memorable event late last year I was within the Los Angeles Class Bravo airspace (with the appropriate clearance, being followed by ATC radar) and was asked to descend to a different altitude. As I was descending the plane's TCAD alerted me to a possible traffic conflict directly below me by only about a hundred feet, so I leveled off and queried ATC on the radio to ask whether their system showed that traffic - the controller quite embarrassingly advised to hold altitude...

So as I made my entrance to the Oceanside Airport I called out my position on the CTAF: "Oceanside traffic, Bonanza 6641M at the river mouth heading towards the water tower at 2,000 feet descending to make right traffic, 24 ... Oceanside."

Note - there are four critical communication elements when flying into an uncontrolled field: who you are, where you are, how high you are, and where you are going.

There was another plane, a Piper Tomahawk, in the pattern and his radio calls were not as crisp or well constructed - I later learned that this was a student pilot who had been released to solo and he was practicing in the pattern. Made sense that his radio transmissions were loose...

There was another aircraft too - a helicopter. The male chopper pilot had partially announced his position by stating that he was "over the harbor heading towards the water tower." No who. No how high, and in fact the where description was a bit vague too considering the geography.

But I had TCAD - and it clearly showed the aircraft below me by 700 feet so I held altitude.

At the water tower I again announced my position and advised that I was "entering the 45 for right traffic, 24, Oceanside."

Around this time I heard the airport manager counsel the helicopter to not overfly the housing on the north end of the approach pattern - noise is a big issue at KOKB, particularly from helicopters.

A female voice came over the frequency sounding upset, announcing that an aircraft had just flown over head as she approached the water tower - and nothing more. "No s%#t" I thought to myself - that was me you moron, in case you weren't listening...

The helicopter ceded its position to me which was wise since I was still going about 120 knots, and since the student pilot in the Tomahawk was ahead of me in the traffic pattern, I ceded position to him, flying an extended downwind because he was long on position and slow in speed.

At each change of attitude in the traffic pattern I announced my position, in the manner recommended by the Federal Aviation Administration's published guidelines. The Tomahawk student pilot did too, albeit requiring more radio time to sort his thoughts into intelligible communication.

The female in the helicopter likewise made announcements on the CTAF, however missing some requisite details, such as altitude, and where she was, and still sounding a bit upset.

I landed and tied up my plane. I watched the helicopter come in for a quick landing and then take off again, leaving the area.

As I was exiting the gate the airport manager, with whom I've become good friends due to my frequency at Oceanside, commented that the helicopter "instructor" sounded upset at me.

Ah, things were coming together now. The male voice I first heard in the helicopter didn't sound entirely professional. The female voice, the instructor, sounded professional enough, but wasn't communicating professionally.

Another local pilot commented to me that she was a local instructor and that "helicopters just think that everyone has to get out of their way and watch out for them - like motorcycles of the sky."

Well I've been riding motorcycles since I was 10 years old, so that last comment didn't seem accurate to me, but his point was well taken. Helicopters have the unique ability to hover. Fixed wing aircraft must keep moving forward at a minimum speed or they fall out of the sky.

Regardless of her professional designation as a Certified Flight Instructor, her flight communication was less than professional.

In aviation, communication is everything. One wrong word, one failure to convey accurately, can be disaster.

And of course this leads to workers' compensation, and where we are in California with SB 863.

The architects of SB 863 I think had good intentions - they wanted to bring the conversation down to the level of the basic stakeholders: employers and employees.

In theory that seemed a good idea. Theory doesn't translate well into practice many times though and I think that is what is happening with SB 863.

The failure to communicate who, where, what and where going with the law not only became a monopolization of the conversation but has carried on into the implementation of the law - as the recent WorkCompCentral exposes on the Independent Medical Review contract bidding has shown and likewise the recent flap on the Qualified Medical Examiner process.

The administration seems to be in a helicopter with the attitude that everyone should be looking out for them and to stay out of the way; maybe there will be communication, maybe not, but certainly only on their terms if and when communication is made.

But the system is a fixed wing aircraft - it can't just stop; the momentum continues, air moving over the wings giving lift. Constant, accurate communication and information is the only thing that keeps it from colliding with the helicopter, or the ground. The current administration doesn't seem to value that ideal. It seems more intent on controlling the process all the way in a death spin into the ground.

A real danger exists when government behaves in this manner: it loses credibility. A government without credibility can not remain effective for long - it too will crash.

Leaving the attorneys, the doctors, the insurance companies and all of the other ancillary vendor voices to the system out of the reform conversation may have been ideal from the standpoint of the folks that wanted to accomplish what THEY wanted to accomplish, but there are other aircraft in the traffic pattern going to the same place, perhaps with more momentum, and perhaps willing to work in the pattern so long as the limitations of physics are safely observed.

At some point the helicopter is going to depart the traffic pattern and everyone else will be left to clean up the mess from the rotor wash and deal with the noise complaints from neighboring homes.

It doesn't have to be that way.

Time To Start Cleaning

Mom turned ninety years old yesterday.

She lives in a memory care facility since Dad died. Her dementia is moderate - for instance she asked me at least a dozen times at lunch yesterday if she had read the birthday card I brought her!

But as you can see, Mom is a radiant, beautiful ninety years old and one of the happiest residents at her facility.

Above all else, Mom taught integrity.

I visit Mom about twice a week. It's difficult maintaining that schedule with all of the work and other activities I'm involved in, but Mom was at my side most of my childhood (except after the Christmas holidays when Dad would whisk her off to Tahiti for a few weeks and leave me and my brother with our grandfather - but that's a couple of other stories!).

I was raised Catholic, so perhaps this is just part of that Catholic guilt thing, but every time I visit Mom I come away with that worrisome feeling that there must be something more that I can, or should, do.

I did buy her new, state of the art, hearing aids. This made a world of difference. She can hear normal conversational levels, seems to be more alert and cognizant, and I can tell that she is much more engaged.

Mom has always been social (now you know where my extroversion comes from - double barreled genes!) and has always been a happy soul, except for the numerous times when my brother or I, or the both of us together, challenged her sense of humor with our antics ("Just wait 'till your father gets home!"). When I visit staff and other visitors at the facility always tell me how pleasant she is and how much fun she is to have around.

I can vouch for that - she never misses an opportunity to tell a joke or pull some senior prank.

For instance, recently designated incontinent, I was escorting Mom from lunch and asked if she would like to use the bathroom. She said she would, so I told her I would get a care taker to assist her. She looked at me and dead pan said, "it's easier if I just pee in my diaper."

That's Mom.

Mom's fortunate. Dementia can be a very troublesome condition. She's lived with painful arthritis, particularly in her fingers, for the past 10 years. She frets about keeping her teeth clean (her husband after all was a dentist). And though she asked me yesterday about a dozen times whether she had already read the birthday card I brought her, she can tell some amazing stories about growing up during the Great Depression.

Despite these afflictions, though, Mom troops on through. She really doesn't seem to be too bothered by her living situation. She knows her memory isn't very good, so she jokes about it. Farting is funny to her. She makes funny faces and comments about the way others at the residence dress, act, or look.

She's obsessive compulsive and can't stand things out of place. She's always been clean. I grew up in a very clean house, and Mom is still very clean and detail oriented. That can be dangerous because if she sees something on the floor that she feels doesn't belong there she will attempt to pick it up rather than have housekeeping take care of it.

She attained a Master's degree in Art from Loyola/Marymount and she still has a fantastic eye. When the residents do art work her's always stands out.

But most of all, I'd have to say that Mom developed, retained, and taught a great sense of integrity. She has always maintained a very high sense of morality and honesty - and with her dementia she really does wear her emotions on her face; it's easy to tell what she's thinking.

Unlike the institution that's just about as old as Mom, the California Department of Industrial Relations (established 1927) seems to have lost the moral compass and does not appear to be trustworthy.

Yesterday WorkCompCentral News reported a delay in the bidding of the Independent Medical Review contract to Maximus Federal Services, Inc. because of two bid protests. Today, WCC News gets into the details of those protests, and if the allegations are correct I see no possibility to trust our government.

The investigation by Greg Jones reveals last minute notifications depriving bidders (not Maximus) of a reasonable opportunity to present their best case, leaked bid information so that Maximus can lower its bid to be more competitive with the other bidders, tweaking of the bid process to give Maximus an unfair advantage in the process, inconsistency in the application of so called objective disqualifying criteria, and a complete lack of transparency to the public for the entire procedure, including the withholding of documentation that is supposed to be public information.

The allegations raised by the protests are numerous, and very, very serious.

If these allegations are proven to be true, I'd be willing to bet that there are other serious, nefarious activities going on within the DIR and it's child, the DWC, that question the integrity of these agencies to the point, as I said yesterday, that trust is highly misplaced.

If we can not trust those in charge of a $30 billion system to do the right thing, to make sure that the system operates efficiently, fairly, and within the ethical boundaries that we all should operate within, how can anyone in the system trust anyone else?

The guiding lamp of morality and ethics seems to have dimmed. Integrity at the top is missing.

Some time ago the Los Angeles Times ran a series of stories about the shenanigans that Deloitte Consulting, LLP engaged in to win, and then exploit, computing contracts with the State of California (and other states), including the highly criticized EAMS system. Deloitte was exposed to have made some generous contributions to key people to gain favors in the contract bid process.

Perhaps Maximus, with over $1.3 billion in revenue, also has extraordinary lobbying strength (people on the street refer to that as "money") and is using it to test the integrity of of the DIR and the people that are responsible for running this system.

I don't know, but perhaps we will find out soon enough.

Regardless, the actions of the DIR as alleged by protestors, CID Management and Peer Review, is reprehensible and is a complete lack of integrity.

We run stories all the time about fraud, corporate wrong doing, people cheating, others suffering as a consequence - if CID and Peer Review are correct in their allegations we have a long, long way to go to resolve California's workers' compensation problems.

It's not about rates. It's not about doctors manipulating billing. It's not about carriers playing with premium factors. It's not about employers denying care. It's not about claimants falsifying injuries.

It IS about integrity. We can not trust our government.

Mom can't admonish, "wait 'till your father gets home," any longer. He's dead.

But trust me, she would send a steely glare in the direction of DIR if these accusation are true.

I get asked all of the time why California workers' compensation is so difficult and expensive. Just start at the top. If Mom could, she'd start the cleaning right now...

I don't think this is a Catholic guilt thing. In law we are counseled about appearances of impropriety. 'Nuff said.

IMR Bid Process and Credibility

The California Independent Medical Review process, introduced by SB 863 in 2012, was intended to be anonymous.

But it wasn't intended to be cloudy and opaque.

That's, however, how the Department of Industrial Relations and the Division of Workers' Compensation seem to want to keep it.

The news that was supposed to be announced yesterday was that the IMR contract for the next contracting period was to go to the existing contractor, Maximus Federal Services, Inc. There was no indication that there had been protests, or that any bidder might able to compete on the government's IMR selection scoring process.

But WorkCompCentral News discovered that in fact the process is not transparent and that CID Management, Inc. out of Westlake Village, CA, was competitive and should have been considered for the second round of the selection process.

CID has filed a protest to the award contract so the announcement that Maximus was the successful bidder has been delayed while the California Department of General Services reviews the protest to see if it has merit.

If the CID protest is found to be meritorious then the second round of the review process will be reinstated and it's quite possible that CID may take the contract away from Maximus because based on WorkCompCentral's analysis of the bid data and award criteria, had CID made it past the first round of elimination, it outscores Maximus on second round criteria.

It was not apparent from WCC's review of the process that CID was properly eliminated in the first round, so it is very possible that the contract process will be reinstated by DGS.

Trust is relative, particularly when it comes to money.

The race is a tight one, but it is market driven and could reduce fees to employer/payers regardless because of the competitive bid submitted by CID.

When WorkCompCentral evaluated the bids using DWC's rating methodology the conclusion was that IMR fees could be reduced by about a third had CID won the contract.

This is a good thing and is what a competitive marketplace should deliver.

What's not a good thing is that the bid and award process was kept as secretive as possible by the administration.

It seems that initially the administration was loathe to even talk to WCC reporter Greg Jones or supply documents requested.

DIR is reviewing Jones' request for documents to determine whether under the state Public Records Act it is required to release the proposals it received and the scores it assigned.

But the agency’s request for proposals states all documents submitted will become the property of the state and “will be regarded as public records under the California Public Records Act and subject to review by the public.”

It does not mention whether the scores would be considered public documents.

But they should.

How can government be held accountable to ensure that the competitive marketplace contemplated by the qualified bidding process actually works? How can the people paying for the system know that the administration in fact is looking out for the best interests of the system, rather than the best interests of a vendor or even itself?

And the unfortunate part of public information games is that the credibility of the DWC, DIR, and the government as a whole is hugely challenged - undermining confidence that the system is running as well as it can under the laws and regulations that govern it.

I've never really understood government's penchant for secrecy unless it is a matter of security - even then, as history has shown, security interests either may be trumped up or inflated, or worse, non-existent at all.

Whether it is embarrassment, something is being hidden, someone made a mistake, or no one wants to deal with tough questions or a review process, that a governmental agency deems information about a public bidding process and the outcome of that process proprietary information causes public mistrust.

Workers' compensation is all about mistrust. Lack of trust is what drives the system and creates frictional costs.

When the government itself is a source of mistrust, though, we have a much bigger problem than an employee not trusting the employer, or insurance company.

If workers' compensation is to ever accomplish its ultimate goal of providing protection to injured workers at a reasonable cost to employers then trust must be reestablished as the cornerstone to those promises, and it's up to the government to foster that trust.

Not stonewall when a process is questioned.

Comunicación No Es Médicamente Necesario

Immigration has been the root of America's economic growth and with immigration comes diversity.

Diversity is experienced in race, religion, culture and language, among other criteria.

In the sixties diversity was defined by skin color and that ultimately spawned the Civil Rights Act to deal with the adverse consequence of diversity: discrimination.

Over the past 50 years population diversity has changed character. While discrimination is still a reprehensible reality, there have been some significant advances in race relations, religious tolerance and acceptance of sexual preferences.

One element that has always defined acceptance as an American, though, has been language.

While English is the preferred language of America, the 1980s introduced an unofficial second language - Spanish.

As immigrant rights continued to expand and be recognized, along with the huge economic market represented by the Hispanic population, governments and then businesses began interpretive communications.

Public and private signs in both English and Spanish are common place. Nearly all instructions for whatever good you might buy are in both languages (sometimes more). Governmental publications are published in English and Spanish and it seems most second generation Americans are bilingual.

There are still friction points though, and a recent Florida workers' compensation case about entitlement to bilingual treatment demonstrates the diversity of opinion on the subject.

In 2012 Jesus Trejo-Perez suffered a closed head injury when he fell 30 to 40 feet from a ladder. His employer, Arry's Roofing, accepted the injury as compensable and authorized treatment from several doctors, including Dr. Angelo Alves, a neurologist.

Alves recommended that Trejo-Perez undergo a neuropsychological evaluation for his memory, cognition and emotional state. Arry's then set an appointment with Dr. Arthur J. Forman. Since Forman did not speak Spanish, and Trejo-Perez's spoke only limited English, Arry's made an interpreter available for Trejo-Perez's office visits.

Trejo-Perez objected to this arrangement and filed a petition for benefits, seeking authorization for an evaluation by a Spanish-speaking neuropsychologist. He explained that he "didn't want to do it through an interpreter" because he didn't want to talk about the intimate details of his life through another person.

Alves supported his claim, testifying that Trejo-Perez "needs to have a neuropsychological evaluation done by a Spanish speaking-psychologist." He explained that having the evaluation done through an evaluator is "not the same," because the doctor "could get the wrong information."

The Judge of Compensation Claims wasn't persuaded. He said that, "Dr. Alves' insistence on a Spanish-speaking psychiatrist and neuropsychologist is based solely on the possibility that one 'could get the wrong information'" and this "does not equate to medical necessity."

Trejo-Perez appealed but a split panel of the First District Court of Appeals, which has original and exclusive appellate jurisdiction over workers' compensation appeals, agreed with the JCC.

The court found that while a Spanish speaking provider would be preferred, the evidence did not establish medical necessity.

In a concurring opinion Judge Makar addressed the challenges of meeting health care expectations within the limited resources of any health care delivery system.

"In an ideal world with unlimited resources," he said, "patients would have health care information published in their own primary languages, and their health care service providers would speak their primary languages." But since this ideal is "unattainable," Makar noted that "the trajectory of the language access movement in the United States currently has gravitated to the use of translators (for written communication) and interpreters."

Makar said there was no evidence as to whether use of a linguistically-compatible interpreter is incompatible with prevailing practice parameters in the provision of health care services generally or psychiatric services specifically. Likewise, the record had no evidence on whether the field of psychiatry has adopted − as a widely accepted practice − a requirement that patients are entitled to a primary language-speaking psychiatrist.

The dissent by Judge Bradford L. Thomas argued that no medical testimony supported the JCC's view that the Spanish-speaking psychiatric evaluation was NOT medically necessary, and that the JCC had failed to give any "reason" for rejecting Alves' opinion.

With regard to the dissent by Judge Thomas, it seems to me that he has the burden of proof backwards, and he also ignores the substantial evidence standard.

However, the majority opinion seems to take the position that Spanish is a "minority" language - and it isn't.

Demographic research shows that the Hispanic population has outgrown the white population in California and New Mexico, and probably a few other state, and projections are that these demographics will be reflected in the overall United States population by 2040.

California has about 14 million Hispanics out of an overall population of about 33 million, as measured by the Census Bureau, and 47% of New Mexico's population is Hispanic. While the white population is still the majority in Texas, that status is projected to change very soon as Hispanic population growth represents nearly 64% of all population growth since 2000.

In contrast, Florida has 4.5 million Hispanics, representing about 23% of the population. And since workers' compensation is state specific, relative to the overall demographic make up of Florida, the 1st DCA's ruling would make sense.

But as Bob Dylan sang 50 years ago, "the times, they are a changing."

I don't think that can be ignored.

To read the court's decision, click here.

Do Regional Differences Matter?

This morning's WorkCompCentral News includes a comprehensive report on regional differences within same state jurisdictions, and there are some interesting conclusions.

It is pretty well known that Southern California is a different state than Northern California, even though they are within the same borders that define "California." The amount of litigation is greater in the souther part of the state, there seems to be a greater emphasis on ensuring that injured workers treat outside the employer's Medical Provider Network, permanent disability ratings tend to be higher and there is more lien filing (and consequently lien litigation) than in the northern part of the state.

Experts and practitioners interviewed for the story don't seem to know exactly why this phenomenon exists, but they do acknowledge that the differences are real.

Florida seems to experience a similar phenomenon.

According to folks interviewed for the piece, southern Florida experiences a higher degree of disputed cases than the northern part of the state.

Miami, similar to the Los Angeles region in California, seems to be more of a hotbed of litigation and the reasons are likewise the subject of conjecture: northern and central attorneys are more likely to settle since attorney fees were capped, the population diversity of the Miami area lends itself to greater attorney influence, employers are more "honest" up north, are among some of the reasons given for the differences.

Philadelphia, Pennsylvania, being the most populace city in the state, also has the highest litigation rate.

And the perception is that the city pays better with higher awards and settlements than in other parts of the state.

Other speculative reasons include that the city is closer to the more closely associated Eastern state borders so there is greater diversity of residency, more physically demanding jobs, greater populations of immigrant labor, and smaller towns in other parts of the state mean that is more likely that litigants and attorneys are going to run into constituents so civility is kept in check.

It would seem that the population size of significant markets is the common thread in this story, but Illinois attorneys say litigation is lower in Chicago and that cases are taken to trial more often in the southern part of that state.

According to Illinois practitioners interviewed for the story, settlement and award amounts are fairly consistent within state borders, but folks outside of Chicago tend to take more cases to trial. This behavior is attributed to an "old boys network" where attorneys have tighter relationships with arbitrators.

The California Workers' Compensation Institute has proven statistically that the Los Angeles area is much more responsible for state costs and litigation than the rest of the state, and I suspect they are delving into why as I type.

Perhaps the research that CWCI conducts into this regional disparity will help explain why there is similar disparities in other jurisdictions.

And perhaps not.

It is an interesting, if not practical, issue to study. Whether there actually can be a certain determination as to the causes of litigation and case management activity needs to be seen - as you can discern, the reasons are complex and multitudinous.

But I think that what it all comes down to is people: the culture, the personalities, the motives, the diversities - all of these variables define regional differences. Maybe there's something that can be done about this, maybe not.

Maybe it doesn't really matter.