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Lex and Verum
The National Association of Workers’ Number CXVII Compensation Judiciary May 2019
NAWCJ President’s Page
By Hon. Jim Szablewicz
The NAWCJ’s commitment to education of the workers’ compensation judiciary continued on April 1 with a Judges’ Program conducted jointly with the IAIABC Dispute Resolution Committee at the IAIABC Forum in San Diego, CA. A highlight of the morning program was an overview of California’s Workers’ Compensation Dispute System presented by Hon. Cliff Levy, the Presiding Judge of the San Diego Office of the California Workers’ Compensation Appeals Board. The morning session also included a fascinating comparative law panel featuring Judge Levy as well as Judge Janet Whitney (WA), Judge Hamdy Ezalarab (WI), NAWCJ President-elect Judge Bruce Moore (KS) and NAWCJ Board member Judge Frank McKay (GA). The afternoon session included thought-provoking and entertaining presentations from NAWCJ Board member Commissioner Wes Marshall (VA) on attorney’s fees arising out of Medicare Set-Asides and from NAWCJ Board member Commissioner Karl Aumann (MD) on the complexities of medical marijuana in workers’ compensation cases. Attendees who were able to remain in San Diego for the entire IAIABC Forum were treated to a veritable United Nations of workers’ compensation, with presenters and panelists from around the world, including Australia, Canada, Germany, Malaysia and Russia. The NAWCJ looks forward to continued collaboration with the IAIABC on future joint programs. Continued, Page 2
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The President’s Page, from Page 1.
Next up is our largest educational endeavor, the annual Workers’ 2018-19 Compensation Judiciary College to be held from August 12 to 14, NAWCJ Officers 2019, at the Marriott Word Center in Orlando, Florida. This year’s curriculum includes sessions on evidence, ethics and legal writing for adjudicators, medical issues ranging from the neuroscience of pain to Hon. Jim Szablewicz determining the nature and extent of impairment and disability and President the increasingly complex interplay between Medicare and workers’ Richmond, Virginia compensation settlements. Read on in this edition of the Lex and Virginia Workers’ Compensation Commission Verum for more details about the College, including the full schedule. For those facing budgetary constraints, a limited number of Hon. Bruce Moore scholarships to the 2019 Judiciary College are available from the President-Elect NAWCJ. A scholarship application can be found in this edition of the Salina, Kansas Lex. If you have any trepidation about applying, be sure to read the Kansas Department of Labor, article below by Judge Catrice Johnson-Reid (LA) describing her Division of Workers’ scholarship experience and the value she received from attending the Compensation College on a scholarship. I echo those sentiments as my first contact with the NAWCJ came via a scholarship to the 2011 Judiciary Hon. Deneise Turner Lott College, attendance at which forever changed my view of what Secretary continuing legal education for workers’ compensation adjudicators Mississippi Workers’ Compensation Commission can and should be. If you will be attending the 2019 College, please also volunteer to Hon. Robert S. Cohen be a judge for the E. Earle Zehmer Moot Court Competition, which Treasurer will be held on August 11, 2019. If you need some convincing to sign Tallahassee, Florida up, read Commissioner Marshall’s excellent article in this edition of Florida Division of the Lex in which he tells us why he loves this competition. To Administrative Hearings volunteer or for more information, contact Commissioner Marshall at [email protected]. Hon. Jennifer Hopens As always, please contact me at james.szablewicz@workcomp. Past-President virginia.gov with your comments and suggestions or if you wish to be Austin, Texas more actively involved with one of the NAWCJ’s many programs or Texas Department of Insurance, committees. Division of Workers’ Compensation
Lex and Verum Committee In This Issue Hon. LuAnn Haley Industrial Commission of Arizona Why I Love the E. Earle Zehmer Moot Court Competition 3
When Judges Become Opponents 4 Hon. Shannon Bruno Bishop Scholarships Just for College Students? 11 Louisiana Workforce Commission
Help us Focus the Judiciary College Curriculum 14
Marijuana Users took more Opioids after Injury 15 Hon. Neal Pitts Florida Office of Judges of States May be Reacting to California’s Dynamex Decision 16 Compensation Claims Making Treatment Guidelines Matter 19
NAWCJ Judiciary College Curriculum and Faculty 22 Hon. David B. Torrey Pennsylvania Department of Labor and Industry
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Why I Love the E. Earle Zehmer Moot Court Competition
Hon. Wesley G. Marshall*
As a precursor to the great NAWCJ College each year, I always make time to serve as a judge for the E. Earle Zehmer Moot Court Competitition. Why is it so great? There are a bunch of reasons. The Zehmer Competition is a first rate national level moot court competition. The 2018 competition included 26 teams from 17 different law schools. The students traveled from 10 different states spanning the country from North Carolina to Arizona and Michigan to Florida. 67 sitting and retired workers’ compensation judges from 15 different states participated in judging the student rounds. This included three members of the Florida First District Court of Appeals. The students who argue in the competition are incredibly well-prepared. They exhibit tremendous command of complicated factual and legal problems. For those who intend to pursue trial or appellate legal work, the competition may be their first chance at big time advocacy – managing a complex case and arguing it before a panel of real judges. The hard work of preparing pays off. The students gain valuable skills and experience. They are able to receive direct feedback on their legal reasoning and the ability to problem solve “on their feet.” Every year I am amazed and impressed by the poise, attention to detail, and high quality argument. It invigorates my faith that our law schools are producing quality lawyers who will uphold the Rule of Law and meet the challenges that will face our legal system and society in the coming years. Judging is fun. Yes, the problems are designed to be challenging. And that means you must take the time to study the problem, the facts, and the law. But with preparation, one can appreciate the subtleties and be well prepared to engage the student advocates and test their knowledge and reasoning. The opportunity to judge a student competition with your peers from other states is a unique and rewarding experience. NAWCJ does a fantastic job of promoting fellowship and camaraderie among judges from different jurisdictions. I have gained friends, shared stories, and compared notes on style. But the Zehmer competition gives you unique insight about how your colleagues actually think and work as judges. Different judges have different perspectives on the moot court problem. They approach the student advocates differently. A little look into the way that your colleagues do their job will expand your views and maybe help you do better in your own judging. So why do I love the Zehmer competition? Collegiality. Academic curiosity. Competition. And giving back in the spirit of improving the legal system. I encourage you to join your fellow judges and to make a difference for these deserving students. If you are interested in volunteering for this year's Moot Court Competition in Orlando, please contact me at [email protected].
______* Commissioner Marshall was appointed to the Virginia Workers’ Compensation Commission in May 2012. He serves on the Southern Association of Workers’ Compensation Administrators’ Executive Committee and the IAIABC’s Dispute Resolution Committee. He is a member National Association of Workers’ Compensation Judiciary, the Lewis F. Powell, Jr. and Virginia Workers’ Compensation American Inns of Court, and other bench and bar organizations. In 2015 he was inducted as a fellow of the College of Workers’ Compensation Lawyers.
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When Judges Become Opponents
By Hon. David Langham*
A Pennsylvania attorney recently authored When Judges Become Opponents: Balancing Your Duties to Client and Court in The Legal Intelligencer. He says his perspective is "as a younger attorney," and according to his firm profile, he is about three years out of law school. He raises some interesting points that are perhaps worthy of further discussion. The Attorney is both critical of the comments made by a workers' compensation judge and seemingly reticent about providing details that would identify the judge. His firm profile suggests his focus is Pennsylvania, but the firm has "offices throughout Pennsylvania, New Jersey, New York and California." From the information provided, potentially, this attorney's story could relate to any number of workers' compensation judges. The attorney characterizes some litigation experiences as a "difficult tightrope walk." He describes a perception of conflict between his role as a "zealous advocate" and remaining deferential "to the judiciary." And, he describes an experience in which he contends the judge became "openly partisan" and thus departed from the role of impartial adjudicator. The role of judges is not a new topic. In To Do Equal Right, this blog discussed the potential for perceptions of partisanship in adjudicatory roles. That post focuses some attention on the perceptions and comments of Chief Justice Roberts of the Supreme Court of the United States (SCOTUS). He has emphasized the role of being an umpire, of enforcing the rules. Justice Roberts has urged humility, reminding that it is not the umpire that brings people to the game. That analogy to a "game" is perhaps a bit troubling as litigation is about important issues; it is about important conflicting, rights and obligations being sorted out. But, from Justice Roberts' analogy, perhaps there are multiple roles on the litigation "field." There are players that participate in the game, advisers (mentors) who coach the players, and umpires that enforce the rules and make interpretations. Those interpretations may be procedural and incremental (about a single pitch or play) or substantive and global (who wins). It is admittedly an imperfect analogy, trial to "game," but perhaps it is instructive nonetheless. No one expects to see a coach take the field and make a play. Similarly, perhaps a more experienced attorney may sit through a trial to provide advice, encouragement, and support to an attorney. But that mentor likewise does not pinch hit or run. Certainly, no one expects the umpire to interrupt the batter, take the bat, and pinch hit (while simultaneously making decisions as to which pitches are balls or strikes). Similarly, a judge is expected not to become the advocate and simultaneously decide whether questions are appropriate or not (most judges would be inclined to conclude her or his own questions are acceptable and appropriate). This blog has also attempted to acknowledge the challenge of being a young lawyer, new (even relatively) to the difficult and intertwined roles of advocate, counselor, and negotiator. In Airspeed and Altitude, there are recognitions that litigation is a difficult environment. There are stressors that impact practitioners; some can be influenced and others are merely part of the environment. The latter can be adapted to, accepted, but perhaps not influenced or changed. It is not easy being a litigator.
Continued, Page 5
May 2019 NAWCJ - Lex and Verum Page 4
Opponents, from Page 4.
But, this young lawyer recounts an exchange with a judge 2018-19 NAWCJ that led to the attorney's perception of hostility and potential Board of Directors bias on the judge's part. The attorney recounts attending the client's "first hearing" and eliciting testimony from the injured Hon. R. Karl Aumann, 2018-20 worker. This was essentially apparently related to the work, the Maryland Workers’ Compensation injury, an approximately two-year rehabilitation, and possibly Commission perceptions regarding return to work. It was stressed that the testimony had not been contradicted (or seemingly even cross- Hon. Michael Alvey, 2018-20 examined) at this stage of the proceedings. Kentucky Department of Workers’ Claims Counsel perceived that during the presentation of the Hon. T. Scott Beck, 2018-20 workers' testimony, the "workers’ compensation judge took South Carolina Workers’ Compensation over most of the direct examination." The young lawyer Commission expressed surprise that the judge did so, but was seemingly more surprised that the judge's questions were not presented Hon. Shannon Bruno Bishop, 2017-19 "as a plaintiffs’ lawyer would, but rather, as a defense Louisiana Workforce Commission attorney." The young attorney perceived "leading questions," from the judge and they were interpreted as "an attempt to Hon. Suzette Carlisle, 2018-20 disprove the veracity of the injured worker’s case." Thus, Missouri Division of Workers’ Compensation though during "direct," the questions perhaps sound more like "cross?" Hon. LuAnn Haley, 2017-19 Perhaps this young attorney perceived that the judge had Industrial Commission of Arizona departed from referee or umpire and proceeded through the role of coach, directly to taking an active role as a player. Hon. Ralph Humphries, 2018-19 The attorney expresses frustration over perceptions. There is Florida Office of Judges of Compensation acknowledgement that litigation presents difficult decisions for Claims the attorney, some that afford merely "a split second" for reflection and consideration. There is a recognition that the Hon. Pamela Johnson, 2019-20 judge will eventually make the decisions that are fundamental Tennessee Court of Compensation Claims to the point of the litigation: what rights, claims, or defenses Hon. Sheral Kellar, 2018-20 prevail. There is expression or suggestion of a conflict for Louisiana Workforce Commission counsel in deciding between advocacy for the client and alienation of the judge. There is lamentation that law school Hon. Wesley Marshall, 2017-19 fails to provide a litmus for handling such a situation. Virginia Workers’ Compensation The lawyer recites comments that were made by the judge Commission "on the record" including mention of whether some "nuisance value" might obviate the need for further litigation. The Hon. Frank McKay, 2017-19 attorney asserts that thereafter there were comments made "off Georgia State Board of Workers’ Compensation the record"; comments "directed at" the injured worker that perhaps implied a comparison of this worker’s situation and Hon. Neal Pitts, 2018-20 injury to other workers and situations. This, the attorney Florida Office of Judges of Compensation alleges, ended with advice that the worker "should be looking Claims to return to work." Continued, Page 6. Hon. Kenneth Switzer, 2017-19 Tennessee Court of Compensation Claims
Hon. Jane Rice Williams, 2017-19 Kentucky Department of Workers’ Claims
May 2019 NAWCJ - Lex and Verum Page 5
Opponents, from Page 5.
This off-the-record discussion allegedly continued until the attorney interrupted and asked that it cease. The attorney alleges that at that time the judge "apologized" and explained "she may have been wearing her 'mediation' hat." That alleged statement implies that it is at least possible there was recognition of there being various potential roles in this process, and that one might switch roles, intentionally or not. The attorney concludes with a "prospect of seeking recusal" (a side note, parties to a case would seek a "disqualification," while a judge would unilaterally remove her or himself with a "recusal”). The article is worthy of note for several reasons, addressed here in no particular order. First, as an adjudicator I see no reason for discussions of any kind off the record. Everyone has been in a "may I speak to you privately" situation in their lives; everyone has heard the "anything you have to say to me you can say in front of ______." That is apropos in the judicial realm. Anything a judge has to say can be said on the record (write every email like your grandmother will read it). In this example the attorney alleges what was said off the record. But the recollections of those present are the only proof. Over the years I have spent supervising judges and managing a litigation system, I have heard many allegations regarding what was said (or not said) during particular proceedings. The allegations that are most easily addressed involve proceedings on the
record. When there is a record, what was said and in what tone is much easier to discern. Such allegations are less dependent upon the perceptions and recollections of witnesses to the alleged statement. If there is discussion, it should be on the record. This protects the parties and the proceedings. The second point worthy of discussion is that the judge's role is not as advocate or negotiator. It is not the judge's role to decide what questions should be asked of which witnesses, unless some statute specifically charges the judge with that responsibility. It is the judge's role to listen to the evidence that the parties present. On this point there is
not universal agreement. But, any litigator will likely admit that there are sometimes specific reasons that a particular question or theory of the case is or is not pursued. In my experience, lawyers strive to be prepared. They often live by the legal maxim of "don't ask a question you do not know the answer to." Because a lawyer knows the answer (and does not like it) or does not know the answer, she or he may elect not to ask the question. That is a tactical decision, the lawyer's decision. While some question might nonetheless occur to the judge, it is presumptuous to assume the role of advocate
and ask that question. That is not to say a judge should never ask a question; it is to say that a judge should be reticent about such urges and consider carefully whether doing so will be (or perceived to be) an abandonment of the impartial role. The third point was unspoken by the author, but is worthy of mention. The players should be as reluctant prospectively as this attorney is critical retrospectively. Upon the conclusion that judges should be umpires and not players or even coaches, lawyers should refrain from seeking to draw judges into those other roles (don't "draw the
foul"). Lawyers should not seek the judge's advice on issues in a case. Over the years, I have heard anecdote after anecdote of lawyers seeking guidance. They are confronted with issues and complications. They face uncertainty and perhaps fear. They will call; have staff call, schedule "conferences" or hearings to explain their complication or question to the judge or staff. They may cajole or hint at a need for advice or succor. Continued, Page 7.
May 2019 NAWCJ - Lex and Verum Page 6
Opponents, from Page 6.
They may outright ask "what do I do now?" And, the Thanks to our 2018 appropriate judicial answer to those inquiries is as clear in that prospective setting as it is above, the judge should not NAWCJ abandon the adjudicator role. What is the next step? What do I do now? The answer is for the lawyer to find, with the help of fellow players or coaches (mentors), not for Judiciary College the adjudicator to suggest or recommend. The young lawyer makes a final point that is worthy of Sponsors: mentioning in closure. That is, "even when disagreeing with a judge who you believe is acting inappropriately, it is important to remain respectful but forceful when necessary." From experience, there is no one I respect more than a zealous and persistent advocate. The best lawyers I have known are capable of such zest and advocacy without offense to opposing parties, attorneys, or the bench. The have mastered the art of disagreeing without being disagreeable. Their professionalism and skill in such settings enhances them. Counsel should be ever respectful of everyone in the proceeding, and of the proceeding itself, the law itself. Be Torrey-Greenberg critical, be effective, but remain respectful throughout. That is a valuable service to the client, but it is also a Pennsylvania fulfillment of the obligation undertaken as a member of Workers’ Compensation the legal profession. Judges should likewise remain in the treatise, role of adjudicator throughout. They should make rulings on the issues presented (call the pitch that is thrown), and as published by refrain from providing either pitcher or batter with advice Thomson -Reuters. (solicited or not). Finally, Judges should remain vigilant and aware that the "appearance of impropriety" may be as troublesome as actual impropriety under the Code of Judicial Conduct. ______* David Langham is the Deputy Chief Judge of Compensation Claims in Florida. He has published in excess of 100 articles and 900 blog posts regarding workers’ compensation, judicial ethics, constitutional review, evidence, and more. Judge Langham has delivered in excess of 1,100 professional presentations and panel appearances on the law and economics. He is one of the founders of NAWCJ and the Professional Mediation Institute, a member of the Workers’ Compensation Institute Steering Committee, and has been involved in a variety of workers’ compensation organizations. Judge Langham is proud to be an Inns of Court member. The foregoing was adapted from a post originally published on the Florida Workers’ Compensation Adjudication Blog.
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Flashback – NAWCJ Judiciary College 2009
The NAWCJ was formed in 2009 and the inaugural Judiciary College was held that August. For one year only, our colors were black and gold!
The attendees at the first NAWCJ Judicial Reception took a group photograph to commemorate the occasion!
At the inaugural Judiciary College, one of the most popular programs was an appellate review panel discussing the challenge of drafting a sufficient yet succinct order.
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NAWCJ College 2019 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
Will you attend the lunch on Monday, August 12, 2019? Yes ____ No____ Will you attend the lunch on Tuesday, August 13, 2019? Yes ____ No____ Will you attend the dinner at Smokey Bones on Tuesday, August 13, 2019? Yes ____ No____ If yes, do you need transportation to Smokey Bones? Yes ____ No____
Hotel Accommodations: For your convenience a block of sleeping rooms has been reserved at the Caribe Royale at $122 for Queen Double and Standard King, $142 for King Deluxe, Execute Suite $322, and Villas at $297 per night. Parking is $10.00 additional. Complimentary shuttle service will transport attendees to the Marriott World Center Convention Center.
Number of Rooms______Arrival Date 08/_____/2019 Departure Date 08/_____/2019 Check here if you have special needs that require attention. Room Type: _____Double _____ King
College Registration Fee: NAWCJ Members: $225.00 (after July 20, 2018 rate is $265.00) Quantity ______
Non-Members $350.00 (after July 20, 2018 rate is $360.00) Quantity ______
Method of Payment: Check Mastercard VISA American Express Discover
______Credit Card Account Number Expiration Date CVV Signature
______Cardholder Name
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.
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NAWCJ College 2019 Registration Form
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 $265.00 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. Judiciary College 2019 August 11-14, 2019 Marriott World Center, Orlando, Florida
NAWCJ Judiciary College Hotel - The Caribe Royale
Only $122 for Queen Double and Standard King, $142 for King Deluxe, Execute Suite $322, and Villas at $297. Please email Shirley Kendall to reserve: [email protected] One block away from Marriott World Center (convention site) Continuous shuttle service to/from Marriott World Center.
WCI Conference Keynote Announced
Maria Taylor is an analyst and host for ESPN and the SEC Network. She covers college football, volleyball, and men’s and women’s basketball. She was born on May 12, 1987, in Alpharetta, Georgia and played volleyball and basketball for the University of Georgia!
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Scholarships Just for College Students? By Hon. Catrice Johnson-Reid*
I thought applying for a scholarship was a thing of the past for me. Since graduating from college and law school so many years ago, the only applications I have recently filled out were for credit cards and elementary and middle school admission for my son. As the mother of an active seventh grade student, I must admit that I do not look forward to filling out the numerous scholarship offers which will present themselves when it’s time for my son to apply for college. The very thought of writing an essay is not what I like to do in my spare time. However, I want to encourage all adjudicators of workers’ compensation to attend the annual NAWCJ Judiciary College held in Orlando, Florida. I attended last year’s Tenth Annual NAWCJ Judiciary College “Striving for Excellence in Workers’ Compensation Adjudications,” as a first-time National Association of Workers’ Compensation Judiciary scholarship recipient. The NAWCJ offers scholarship opportunities to adjudicators attending the Judicial College. First-time scholarships recipients, like myself, are awarded by the National Association of Workers’ Compensation Judiciary. The scholarship covers a maximum of $300.00 for hotel accommodations, waiver of the conference registration fee and a maximum of $500.00 for travel expenses. Although no scholarship funds are available for meals, two lunches and a reception with appetizers are included with the registration fee. I was blown away by the current and progressive content of the agenda set for adjudicators. The in-depth presentations by seasoned judges and lawyers were well worth its weight in gold for me as a newly minted adjudicator. The opportunity to interact and meet other workers’ compensation adjudicators, discussing issues relevant to workers’ compensation proved invaluable. Sessions including The NAWCJ New Judge Program, Comparative Workers’ Compensation Law Panel, Writing the Order for Appellate Scrutiny, Judicial Ethics Conundrums and Humdrums were only a few from last year’s outstanding agenda. The judicial college is an excellent opportunity to receive continuing legal education credit in a relaxed and comfortable environment. I encourage all to apply for the scholarship to the 2019 judicial conference. Please contact the NAWCJ at the email address and with the scholarship application on the following pages. ______* Catrice Johnson-Reid is the District Judge in the New Orleans Workers’ Compensation Court. As District Judge, Judge Johnson-Reid conducts judicial hearings and renders decisions that are appealable to Louisiana’s Fourth Circuit Court of Appeals. Judge Johnson-Reid is a native of New Orleans and received her Bachelor of Arts degree from Loyola University New Orleans and her Juris Doctorate from Southern University Law Center. Prior to her appointment as District Judge, Judge Johnson-Reid served as Division Judge in the New Orleans Workers’ Compensation Court. She came to the Louisiana Workforce Commission – Office of Workers’ Compensation Administration after being in private practice for 20+ years, litigating workers’ compensation, medical malpractice, class action, and personal injury cases. During that time, she also provided numerous hours of pro bono legal service to individuals and small business owners throughout the community. Judge Johnson-Reid’s past and/or current professional and community involvement include: American Bar Association, National Bar Association, Louisiana State Bar Association, Louis A. Martinet Legal Society, New Orleans Bar Association, Independent Women’s Organization, Delta Sigma Theta Sorority, Incorporated, and the NAACP. Judge Johnson-Reid is married to Winston Reid and has two sons, ages 22 and 13.
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NAWCJ JUDICIARY COLLEGE 2019 SCHOLARSHIP OFFER
Scholarship opportunities are available for some adjudicators attending the 2019 NAWCJ Judicial College, which is taking place from August 11-14, 2019, in Orlando, Florida. First-time scholarships may be awarded to any currently presiding workers’ compensation adjudicator and may include a maximum of $300 for hotel accommodations, waiver of the conference registration fee, and a maximum of $500 for travel expenses. Second-time awards will be for a 50% reduction in the conference registration fee. No scholarship funds are available for meals but two lunches and a reception with appetizers are included in the registration. The award of a scholarship depends, in part, on whether the employment agency funds any portion of the applicant’s costs. Preference will be given to first-time attendees who are interested in becoming actively involved in NAWCJ. The scholarship program is funded by a grant from the Workers’ Compensation Institute, along with annual dues from associate members of NAWCJ (attorneys and other individuals/companies interested in supporting the education of members of the workers’ compensation judiciary). Each interested adjudicator must email a completed scholarship application to [email protected] by May 15, 2019. Scholarship awards will be announced by June 30, 2019, and successful applicants will be asked to make travel arrangements soon after to help minimize airfares. College attendees will have an opportunity to meet members of the workers’ compensation judiciary from throughout the U.S., as well as practitioners and industry leaders. The Judicial College is an excellent opportunity to receive continuing education credit in a variety of areas, including order writing, evidence, medical issues, and other matters that routinely come before workers’ compensation adjudicators. I encourage you to apply for a scholarship for the 2019 NAWCJ Judicial College. The scholarship application is found on the next page of the Lex & Verum. I hope to see you in August in Orlando.
Sincerely, The Honorable Jim Szablewicz, President
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Application for Scholarship, NAWCJ College, August 11-14, 2019
Name: ______Address: ______E-mail: ______Phone #: ______E-mail:______Agency Name and Address:______Are you a member of NAWCJ? ______If so, when did you join NAWCJ? ______(year)
Have you ever attended a NAWCJ Judiciary College or WCI Annual Conference? ___YES ___NO
If so, what year(s)? ______Did you receive a scholarship? ______Have you participated on a NAWCJ panel or committee in the past or would you be willing to do so in the future? ___YES ___NO Explain how you would like to participate in the NAWCJ: ______Will you receive any support from your employer to attend the college? (leave time, payment of expenses beyond registration waiver and partial reimbursement of travel expenses): ___YES___NO If yes, explain support offered by employer: ______Please estimate your travel expenses for attending the college: ______Current adjudicatory position, dates held and description of duties: ______Past experience in workers’ compensation law (may attach resume): ______How will attending the 2019 NAWCJ Judicial College and WCI Conference benefit you in the performance of your job: ______Would you be willing to write a brief article for the NAWCJ newsletter about the 2018 NAWCJ Judicial College and WCI Conference and its benefits? ___YES ___NO E-mail application to [email protected]. Deadline 5/15/2019.
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Help Focus the Judiciary College Curriculum on Your Concerns
Hon. Bruce Moore*
At the upcoming National Association of Workers’ Compensation Judiciary’s annual judicial college in Orlando, August 11-14, 2019, the curriculum will include sessions on evidence, ethics and dealing with self- represented (pro se or pro per) litigants. These will be interactive sessions and will reflect the diversity of the many jurisdictions represented at the college. To better serve judges and regulators in attendance, the curriculum committee is soliciting comments and suggestions to make the various presentations more relevant and probative. Have you encountered some particularly vexing evidentiary issues, whether that be social media, documents from foreign jurisdictions, or chain-of-custody concerns? What ethical issues, unique to your jurisdiction, have arisen in the recent past? What is it about dealing with self-represented (pro se or pro per) litigants that you find most challenging? Share your “war stories,” challenges or, potentially, helpful solutions with the curriculum committee, by emailing them to: [email protected]. Thanks! See you in Orlando!
______
* 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 is President-Elect of the NAWCJ and chairs the Curriculum Committee. Judiciary College 2019 August 11-14, 2019 Marriott World Center, Orlando, Florida
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Marijuana Users Took More Opioids After Injury, Study Finds
By Elaine Goodman April 12, 2019
While marijuana is increasingly being viewed as an alternative to opioids for pain patients, new research suggests the interplay between opioids and pot can be complicated. A study published in the December issue of the Journal of Bone and Joint Surgery found that use of marijuana during recovery from a musculoskeletal injury increased the amount of opioids prescribed, as well as the duration of opioid prescribing. The study included 500 patients with a traumatic musculoskeletal injuries who were evaluated one to six months after trauma. The patients were asked to complete a survey about their marijuana use. About 40% of participants said they had never used marijuana; 46% said they had used marijuana, but not while recovering from their injury; and 14% said they used marijuana while recovering. The study found that the amount of opioid use was the lowest among those who had never used marijuana, followed by those who previously had. The highest opioid use was among patients using marijuana during their recovery. Similar results were found for the duration of opioid prescribing. For those who had never used marijuana, opioids were prescribed for about 15 days. That increased to about 55 days for former users and to about 90 days for patients using marijuana while they recovered. The higher amounts of opioids and longer duration of prescribing was found even among patients who said marijuana decreased their opioid use, according to the researchers. “This is in contrast to many patients' perception that the use of marijuana reduces their pain and therefore the amount of opioids used,” concluded the researchers, from Harvard Medical School, Massachusetts General Hospital, Cedars-Sinai Medical Center and Brigham and Women’s Hospital. Dr. Robert Goldberg, chief medical officer and senior vice president at Healthesystems, noted the study has several limitations, including the fact that marijuana use was self-reported by participants. Still, he said, the study raises questions about patients’ use of opioids and marijuana. “It should give us pause in thinking that we know how this all works,” Goldberg said. In a commentary accompanying the research report, Dr. David Ring, from the Dell Medical School at the University of Texas, Austin, said there are several possible explanations for the finding of more opioid use among marijuana users. One possibility is that the patients using marijuana during their recovery “may be self- treating psychological distress and have less-effective coping strategies,” adding to their perception of pain, Ring said. In another recent study, presented last week during the American Pain Society meeting in Milwaukee, researchers looked at the impact of opioids and cannabis used together by chronic pain patients. Compared to patients using opioids alone, the opioid and cannabis users had higher levels of anxiety and depression, while pain intensity and disability didn’t significantly differ between the two groups.
Continued, Page 16.
May 2019 NAWCJ - Lex and Verum Page 15
Marijuana, from Page 15.
“These findings highlight a vulnerable population of substance co-users with chronic pain and indicates the need for more comprehensive assessment and treatment of chronic pain,” concluded the researchers from the University of Houston. As to whether an injured worker has been using marijuana, Goldberg at Healthesystems said medical providers should already be collecting this information as part of determining what medications their patient is taking. It should also be a routine question for nurse case managers to ask, he said. Anecdotal reports indicate that medical marijuana can benefit injured workers. For example, injured worker Gaetan Bourgoin, whose case regarding marijuana reimbursement went to the Maine Supreme Judicial Court, reported that marijuana reduced his pain, allowed him to stop taking opioids and helped him sleep better. The court ultimately ruled employers can't be ordered to reimburse workers for medical cannabis, as doing so would amount to aiding and abetting a violation of federal law. “For some people, it may be beneficial,” Goldberg said. And while more research is needed on medical marijuana’s effectiveness, Goldberg noted that the risk of overdose or death is very low for marijuana, in contrast to opioids.
States May Be Reacting to California's Dynamex Decision
By Elaine Goodman Wednesday, April 3, 2019
The California Supreme Court’s landmark decision in the Dynamex case, which established a three-part test for determining if a worker is an independent contractor, could be having ripple effects in other states. The court’s April 2018 decision in Dynamex Operations West Inc. v. Superior Court of Los Angeles created a presumption that someone working for a company is an employee, unless the worker meets three criteria to be deemed an independent contractor. Under the so-called ABC test, the worker must be free from control by the employer; doing work outside the employer’s usual course of business; and engaged in an independently established business. The Dynamex decision applies to worker classification for purposes of wage-order claims. But Assembly Bill 5 in the California Legislature, introduced by Assemblywoman Lorena Gonzalez, D-San Diego, would add the three-part test to Labor Code for use in determining whether a worker is an employee or independent contractor for other disputes, including whether someone is entitled to comp benefits for a work-related injury. Gig-economy companies, which typically classify their workers as independent contractors, acted quickly to try to fend off the Dynamex decision, including seeking a legislative override of the decision, according to the National Employment Law Project. And legislation introduced in other states this year to establish more conservative definitions for independent contractors are “part of a concerted effort in reaction to the Dynamex decision,” said Matthew Capece, who represents the general president at United Brotherhood of Carpenters & Joiners of America. Continued, Page 17.
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Dynamex, from Page 16.
For example, Senate Bill 313 in Missouri would define an 2019 WCI independent contractor as someone who signs a written contract acknowledging that he is providing services as an independent contractor. He would also acknowledge that he won’t be provided with Conference workers’ comp or unemployment benefits, and is obligated to pay any applicable federal or state taxes. SB 313 was introduced on Jan. 28 and Entertainment referred to the Senate Small Business and Industry Committee. In West Virginia, HB 2786 was introduced on Jan. 31 and contains similar Announced! provision. In Tennessee, HB 539 would adopt the Internal Revenue Service’s 20-factor test for whether a worker is an independent contractor. The state’s Workers' Compensation Advisory Council last month opposed the bill. A report from NELP last month described the proposed worker classification policies as the third, and most recent, phase of policies to “carve out” gig economy workers from being considered employees.
During what NELP describes as phase one, from 2014 to 2017, policies were introduced to carve out drivers working for Chart-topping, singer/songwriter transportation network companies. That was followed by phase two, Jake Owen will be the featured from 2016 to present, in which “marketplace contractor” bills were entertainment at WCI 2019! introduced in 10 states and enacted in seven. With seven #1 songs to his name, The bills applied to “qualified marketplace contractors” providing “Down To the Honkytonk” service via a “qualified marketplace platform,” and state that they are follows Owen’s fastest-rising independent contractors, according to NELP. NELP said the bills were career #1 single, “I Was Jack heavily backed by gig-economy company Handy, which provides (You Were Diane).” Owen’s home cleaning and services. Marketplace contractor bills were passed songs have resonated with in Arizona, Iowa, Indiana, Kentucky, Tennessee, Utah and Florida. listeners and audiences “Gig company carve-out policies create a ‘test’ for independent everywhere with 2X contractor status that simply restates the elements of the current PLATINUM anthem “Barefoot business models of the gig companies,” NELP said in its report. Blue Jean Night,” PLATINUM- “Indeed, the ‘test’ is rigged so that gig companies will always earn a certified hits “Beachin,’” passing grade and an exemption from labor standards governing the “Anywhere With You,” “Alone employer-employee relationship.” Capece said tech companies argue With You,” “The One That Got that new laws are needed to accommodate new models of employment. Away,” and GOLD-certified “How does the future of employment necessitate a return to 19th “American Country Love Song.” century working conditions?” he said. In contrast, some states may be moving toward California’s Dynamex standard. The Washington state Legislature this year considered a bill, HB 1515, that would have incorporated the ABC test across most of the state’s labor laws. But the House Committee on Labor and Workplace Standards on Feb. 21 rewrote the bill to instead call for a study of worker classification. The bill remained pending in committee on Tuesday. And in Oregon, HB 2498 would modify the test for whether a worker is an independent contractor, adding a provision that he does not provide services within the usual course of the client’s business. ______The articles on pages 15-17, Marijuana Users Took More Opioids After Injury, and States May Be Reacting to California's Dynamex Decision 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.
May 2019 NAWCJ - Lex and Verum Page 17 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.
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May 2019 NAWCJ - Lex and Verum Page 18
Making Treatment Guidelines
Matter
By Peter Rousmaniere*
Our industry puts a lot of trust in guidelines that present best evidence of good medical care. Does medical practice endorsed by these guidelines ensure better outcomes? Or are they window dressing? A third-party administrator (TPA) says that guidelines definitely matter, but not in ways that most people think. Its research is a big step forward in the decades-long effort to improve the quality of medical care for injured workers. Gallagher Bassett reached this conclusion after an intensive review of its claims history. It applied a research method that had been successfully used by a Johns Hopkins-related study of workers' comp claims in Michigan. The Gallagher Bassett study was nationwide. The TPA says that guidelines are a valid means to better understand the course of treatment and predict duration of disability and medical costs. Importantly, the firm does not expect complete compliance. Medical care is too complicated to be shoved into a cookie cutter regime of rigid adherence. Its research shows that non- compliance is not necessarily wrong, only that in certain circumstances it might be wrong. This is a major departure from common expectations. So, it is not surprising that Gallagher Bassett does not, at least for today, use guideline adherence to profile the overall performance of a provider, over many cases, to create a provider score. A brief history of the workers' comp industry efforts to improve quality of care will show how important these new findings are. Since about 1990, states have been introducing statutes designed to ensure that medical care stays reasonably close to what is considered good medicine. These laws have clearly been ineffective where powerful providers have their own idea of good medicine. Fusion surgery and extensive use of opioids are examples. Nonetheless, state legislatures stood by their laws. According to the Workers’ Compensation Research Institute, 23 have prescribed medical treatment guidelines, and 24 have mandated prior authorization of treatment. There is a very small body of research into whether these laws make a bit of difference in outcomes. One first has to find out if medical treatment varies. A small handful of studies show, in fact, dramatic variation by providers in medical costs and duration of disability, and these studies associate the variance at least in part to medical treatment decisions. Gallagher Bassett's research found that compliance with medical treatment guidelines matters. Significant departures from the guidelines leads to longer disability durations and higher medical costs. Its researchers defined significant departures in two ways. First, it used ODG/MCG's designation of specific treatments as “black” – unsupported by any credible evidence. Second, it looked at how unsupported treatments arise in a case. The researchers divided claims into severity classes based on factors not related to the actual care delivered, such as state, litigation, and normal disability duration by diagnosis. They found the difference in outcomes for light severity cases was not much, but increased along higher and higher severity classes. After discussing the research with the firm, I came away with the following take-aways, which I consider unique among all the research I have encountered. Continued, Page 20.
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Treatment Guidelines, from Page 19.
First, problems with treatment worthy of attention can be quickly identified as they happen. Non-compliant treatment Interesting that tends to seriously worsen outcomes tends to include a cluster of non-compliant treatments, and these very often take place roughly around 50 to 60 days after the date of Workers’ injury. Prompt analysis of care and follow-up are feasible. Second, I question utilization review's use as a universally applied tool. For many injuries, when a provider makes a Compensation single treatment not in compliance with treatment guidelines, that may not adversely affect outcomes. On the contrary: the provider knows the patient, and may know Blogs what works. If a claims payer trusts a provider, it should not worry about single or infrequent treatments that are non- Law Professor’s Blog compliant. A confident, effective physician or physical http://www.lawprofessorblogs.com/ therapist has good reason to regard many UR or peer review interventions as a kind of harassment. Managed Care Matters A third take-away concerns medical care when it entirely http://www.joepaduda.com/ adheres to guidelines. Many of these cases will still have poor duration outcomes, for reasons unrelated to the quality Tennessee Court of Compensation of care. Don't expect that a top-class medical provider network will solve all your problems. Claims These findings sum up to a profile of a how a claims https://tncourtofwcclaims.wordpress.com/ payer should manage provider relations. A chronic weakness in medical care for injured workers is the low Workers’ Compensation investment claims payers make in seeking constructive http://workers-compensation.blogspot.com/ relationships with their provider community. They need to know whom to trust and to treat them accordingly. They From Bob’s Cluttered Desk need to be alert to when real problems arise. They cannot http://www.workerscompensation.com/compnewsnetw expect even their best providers to be magicians. ork/from-bobs-cluttered-desk/ They should, in sum, regard medical providers as what they should be: partners. Workers’ Comp Insider http://www.workerscompinsider.com/ ______* Peter Rousmaniere is widely known throughout the workers’ compensation industry, both for his writing and consulting Maryland Workers’ experience. Based in the picture perfect New England town of Compensation Blog Woodstock, VT, he is a regular on the conference circuit, and is http://www.coseklaw.com/blog/ deeply in tune with trends and developments within the industry. His passion is writing and presenting on issues largely related to immigration, and he maintains a blog on the subject Wisconsin Workers’ at www.workingimmigrants.com. Compensation Experts http://wisworkcompexperts.com/
Workers’ Compensation http://workers-compensation.blogspot.com/
May 2019 NAWCJ - Lex and Verum Page 20
NAWCJ 2019
Associate Members
James M. Anderson* James McConnaughhay* Anderson, Crawley & Burke McConnaughhay, Duffy, Coonrod, Pope & Weaver
Robert Barrett* John E. McLain* Rissman, Barrett, Hurt, Donahue & McLain Rissman, Barrett, Hurt, Donahue & McLain
Douglass Bennett* R. Briggs Peery* Swift, Currie, McGhee & Hiers Swift, Currie, McGhee & Hiers
Sharkey Burke* William E. Pipkin Anderson, Crawley & Burke Austill, Lewis & Pipkin
Deborah Carr John F. Power Miller & Long Co., Inc. Power & Cronin
Regan Cobb* Steven A. Rissman* McAngus, Goudelock & Courie Rissman, Barrett, Hurt, Donahue & McLain
R. Stephen Coonrod* Gerald A. Rosenthal* McConnaughhay, Duffy, Coonrod, Pope & Weaver Rosenthal, Levy, Simon & Ryles
Mark Davis* Michael Ryder* McAngus, Goudelock & Courie Swift, Currie, McGhee & Hiers
Charlie Domer Jacqueline Steele Domer Law McConnaughhay, Duffy, Coonrod, Pope & Weaver
Robert Donahue* E. Louis Stern* Rissman, Barrett, Hurt, Donahue & McLain McConnaughhay, Duffy, Coonrod, Pope & Weaver
Terry Germany* Richard A. Watts* Anderson, Crawley & Burke Swift, Currie, McGhee & Hiers
J. Russell Goudelock* Patrick E. Weaver* McAngus, Goudelock & Courie McConnaughhay, Duffy, Coonrod, Pope & Weaver
Laurence Leavy* Glen D. Wieland* Laurence Leavy & Associates, P.A Wieland, Hilado & Delaitre, P.A.
Hugh McAngus* McAngus, Goudelock & Courie . *Denotes Charter Associate Member.
May 2019 NAWCJ - Lex and Verum Page 21
Eleventh Annual NAWCJ Judiciary College Orlando, Florida August 11-14, 2019
Sunday, August 11, 2019
11:30 – 1:30 A.M. MOOT COURT JUDGES’ LUNCHEON
1:40 – 5:00 P.M. E. EARLE ZEHMER MOOT COURT PRELIMINARY ROUNDS Jointly presented by the National Association of Workers’ Compensation Judiciary and the Workers’ Compensation Institute, the E. Earle Zehmer Moot Court is a premier moot court competition. Named for Judge E. Earle Zehmer, former chief judge of the Florida First District Court of Appeal, the competition is in its 32nd year. Law schools from across the country send their best moot court teams to argue novel and complex workers’ compensation issues. The preliminary rounds are judged by members of the NAWCJ, and the Monday finals are judged by a panel of the Florida First District Court of Appeal. Observers will have the opportunity to see bright young legal minds in action. Moot court competitions challenge law school students to analyze legal and factual issues, undertake legal research, draft appellate briefs, and argue their respective positions before a panel of judges.
The 2018 E. Earle Zehmer Moot Court Champions!
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Monday, August 12, 2019
8:00 – 8:50 A.M. REGISTRATION
8:50 – 9:00 A.M. WELCOME Honorable Jim Szablewicz President Virginia Workers’ Compensation Commission Richmond, Virginia
9:00 – 10:50 A.M. EVIDENCE FOR ADJUDICATORS Professor Charles W. Ehrhardt Florida State University School of Law Tallahassee, Florida
Panelists:
Sheral Kellar, Assistant Secretary Honorable Deneise Turner Lott Louisiana Office of Workers’ Mississippi Workers’ Compensation Administration Compensation Commission Baton Rouge, Louisiana Jackson, Mississippi
Honorable Bruce Moore Kansas Department of Labor, Division of Workers’ Compensation Salina, Kansas
Long a popular feature of the Judiciary College, NAWCJ welcomes back Prof. Charles Ehrhardt, from the Florida State University School of Law, a renowned expert and lecturer on evidence. Prof. Ehrhardt will analyze factual scenarios presented, query the assemblage as to whether and under what circumstances evidence would be admissible, and explain how the Federal Rules of Evidence impact the discussion. Prof. Ehrhardt’s clear, logical explanations demonstrate his command of the subject matter. His garrulous manner makes learning the rules of evidence fun. Attendees will gain both a better understanding of the rules of evidence, and the rationale underpinning those rules. A panel consisting of Judges Deneise Lott (Mississippi), Sheral Kellar (Louisiana) and Bruce Moore (Kansas) will join Prof. Ehrhardt in reviewing the factual scenarios, and will comment on their disposition in states which do not utilize or strictly apply the Federal Rules of Evidence.
10: 50 – 11:00 A.M. BREAK
11:00 – 11:50 A.M. NEUROSCIENCE OF PAIN Dr. Teresa Pitts University of Louisville Louisville, Kentucky
What is pain? Why do two people with substantially the same injury suffer different levels of pain? Why is one debilitated by pain, while another is only mildly inconvenienced? Dr. Teresa Pitts, a neurophysiologist, will help us understand the interaction among the neurological and biochemical components of pain, and why chronic pain can be so hard to control.
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Monday, August 12, 2019, Continued
11:50 – 12:30 P.M. LUNCH (PROVIDED)
12:30 – 12:50 P.M. BUSINESS MEETING
12:50 – 1:50 P.M. COMPARATIVE LAW PANEL Hon. Judge Knowrasa Patrick, Moderator Washington Board of Industrial Insurance Appeals Cranston, Washington
Panelists:
Honorable Douglas Gott Kentucky Department of Workers’ Claims London, Kentucky
Honorable Jennifer Hopens Texas Department of Insurance, Division of Workers’ Compensation Austin, Texas
Honorable Ali Marchant Kansas Department of Labor, Division of Workers’ Compensation Wichita, Kansas
Honorable Margaret Sojourner Florida Office of Judges of Compensation Claims Orlando, Florida
A perpetual NAWCJ favorite, the Comparative Law Panel offers assembled adjudicators a view of some of the substantive and procedural similarities and differences in states’ workers’ compensation acts. Moderated by Judge Knowrasa Patrick, the panel will address the different approaches states take in addressing common issues confronted by workers compensation adjudicators. Audience participation expands the scope of the panelists’ perspectives.
1:50 – 2:00 P.M. BREAK
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Monday, August 12, 2019, Continued
2:00 – 2:10 P.M. ANNOUNCEMENTS
2:10 – 3:00 P.M. VIEW FROM THE OTHER SIDE OF THE BENCH Honorable Neal Pitts, Moderator Florida Office of Judges of Compensation Claims Orlando, Florida
Panelists: James Anderson, Esq. Attorney Bonnie Hoskins, Esq. Anderson Crawley and Burke Hoskins Law Offices Ridgeland, Mississippi Lexington, Kentucky
Jake Schickel, Esq. Glen Wieland, Esq. Coker Law Wieland, Hilado, and DeLattre Jacksonville, Florida Orlando, Florida
Judges manage courtroom proceedings and make decisions, sometimes unaware of how the proceedings or their decisions are being perceived by the affected parties and attorneys. Moderated by Florida Judge Neal Pitts, this distinguished panel of attorneys, James Anderson, Bonnie Hoskins, Jake Schickel and Glen Wieland, will offer their perspectives on what it takes to be a “good” judge. Newer judges and experienced judges alike will benefit from being exposed to others’ views of how we perform our judicial functions.
3:00 – 3:10 P.M. BREAK
3:10 – 4:00 P.M. DETERMINING NATURE AND EXTENT OF IMPAIRMENT OR DISABILITY - AMA GUIDES VS. “KNOWLEDGE, TRAINING AND EXPERIENCE” Honorable Steve Minicucci, Moderator: Rhode Island Workers’ Compensation Court Cranston, Rhode Island
Panelists: Honorable Pamela Johnson Honorable Ferrell Newman Tennessee Court of Compensation Claims Virginia Workers’ Compensation Comm. Knoxville, Tennessee Richmond, Virginia
Honorable David Torrey Pennsylvania Department of Labor and Industry Pittsburgh, Pennsylvania
Some jurisdictions have adopted some version of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, while others rely on the “knowledge, training and experience” of medical experts. Which is better, and why? Rhode Island Judge Steve Minicucci moderates a panel discussion among workers’ compensation adjudicators from across the country, focusing on how impairment or disability is measured, and the rationale supporting the chosen measurement.
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Monday, August 12, 2019, Continued
4:00-4:10 P.M. BREAK
4:10 – 5:00 P.M. ETHICAL/PRACTICAL CONUNDRUMS In another popular returning feature, small groups discuss ethical issues confronting adjudicators—from Facebook “friends” to ex parte communications, and anything in between. The factual scenarios presented guarantee lively discussion from a variety of perspectives. Learn from your peers!
Honorable Michael Alvey, Moderator Kentucky Workers’ Compensation Board Owensboro, Kentucky
Panelists:
Honorable Wesley Marshall Virginia Workers’ Compensation Commission Richmond, Virginia
Honorable Bruce Moore Kansas Department of Labor, Division of Workers’ Compensation Salina, Kansas
Honorable Catrice Johnson-Reid Louisiana Workforce Commission New Orleans, Louisiana
OR
2:00 – 5:00 P.M. SAWCA ROUNDTABLE
Monday Evening:
5:00–6:00 P.M. 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 P.M. 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.
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Tuesday, August 13, 2019 9:00 – 9:45 A.M. LIVE SURGERY As adjudicators, we are accustomed to reading operative notes and other medical records describing common surgical procedures. Take advantage of this opportunity to view a common orthopedic surgical procedure, performed live (via remote), and moderated both by the operating surgeon and an on-site facilitator. You’ll gain insights and a better understanding.
10:00 – 10:50 A.M. ETHICS JEOPARDY Attorney Kelly Legier, Esq. Judiciary Commission of Louisiana New Orleans, Louisiana
Attorney Legier, Commission Legal Counsel for the Judiciary Commission of Louisiana, will educate and entertain assembled adjudicators, while testing our knowledge of ethical rules. Using a game-show format, Attorney Legier will encourage both collaboration and competition, to see which group of judges can make the “correct” ethical decision. Learning to understand ethical rules couldn’t be more entertaining and fun.
10:50 – 11:00 A.M. BREAK
11:00 – 11:50 A.M. WRITING THE ORDER/DECISION/OPINION TO AVOID REMAND Panelists:
Honorable Marshall Davidson Tennessee Workers’ Compensation Appeals Board Nashville, Tennessee
Honorable Michael Alvey Kentucky Workers’ Compensation Board Owensboro, Kentucky
Honorable Wesley Marshall Virginia Workers’ Compensation Commission Richmond, Virginia
Hearing all the testimony and considering all of the exhibits is just the start. You then have to write a decision that reflects your consideration of the evidence. You want your decision to be well-founded and authoritative. You surely don’t want to have that decision remanded to you to cure some gap or oversight. Remember the adage, “There’s never time to do it right, but there’s always time to do it over.” Judge Davidson’s presentation will help you craft your decisions and orders to appropriately frame the issues, describe the evidence you relied upon, and support your legal analysis, to reduce the likelihood of a remand.
11:50 – 12:50 P.M. LUNCH (PROVIDED)
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Tuesday, August 13, 2019, Continued
1:00 – 1:50 P.M. THE ROLE OF THE INDEPENDENT MEDICAL EXAMINER Panelists: Marjorie Eskay-Auerbach, MD, JD International Academy of Independent Medical Evaluators Tucson, Arizona
Honorable LuAnn Haley Industrial Commission of Arizona Tucson, Arizona
In many jurisdictions, an adjudicator may be called upon to appoint, or just consider the report of, an Independent Medical Examiner. IMEs may assist the finder of fact in assessing diagnosis, causation, need for temporary or permanent work restrictions, and permanent impairment. Dr. Auerbach and ALJ Haley will address the role of the IME in workers’ compensation adjudications, and Dr. Auerbach will comment on the role of evidence-based medicine in the context of an IME.
1:50 – 2:00 P.M. BREAK
2:00 – 4:00 P.M. JUDICIAL WRITING Panelists: Matt Hearn, Ph.D. Lipscomb University Nashville, Tennessee
Elizabeth Usman, Esq. Belmont University School of Law Nashville, Tennessee
We all have to write decisions - decisions in which we need to convey an understanding of both the operative facts and the controlling law. The decisions need to be read and understood by a variety of parties, with varying levels of education and comprehension, and have to be persuasive. Achieving an appropriate level of “readability” requires work and practice. Matt Hearn, Ph.D., an English professor at Lipscomb University, in tandem with Elizabeth Usman, J.D., a professor of law at Belmont University School of Law, will help you polish and refine your writing skills to achieve that elusive goal of a well- written decision.
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Wednesday, August 14, 2019
9:00 – 9:50 A.M. BEST PRACTICES IN HANDLING CASES WITH SELF-REPRESENTED LITIGANTS Honorable Bruce Moore Kansas Department of Labor, Division of Workers’ Compensation Salina, Kansas
Do you have self-represented litigants appear before you? Does dealing with self- represented litigants cause you stress? How do you handle a self-represented litigant to ensure that she/he receives the same appropriate consideration as someone represented by counsel? Judge Bruce Moore from Kansas will share “Best Practices” for handling cases with self-represented litigants, practices developed by the National Judicial College and the National Conference of State Courts.
10:00 – 11:50 A.M. CENTERS FOR MEDICARE SERVICES/MEDICARE SET ASIDES Attorney Rafael Gonzalez, Esq. Optum Workers’ Compensation Lithia, Florida
Attorney Gonzalez returns to the NAWCJ Judiciary College with an encore performance, discussing the interplay between Medicare and workers’ compensation settlements. Not knowing the rules can cost a party dearly. Attorney Gonzalez brings a wealth of knowledge and experience to bear, and will answer all of your questions about Medicare and Workers’ Compensation. Judiciary College 2019 August 11-14, 2019 Marriott World Center, Orlando, Florida NAWCJ Judiciary College Hotel - The Caribe Royale
Additional information will be provided in next month’s Lex. One block away from Marriott World Center (convention site) Continuous shuttle service to/from Marriott World Center.
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NAWCJ Judiciary College 2019 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 engaged in a general civil practice, which included workers’ compensation, federal black lung and personal injury claims, as well as corporate and business law. On November 13, 2009 Chairman Alvey was appointed to serve as Chairman of the Kentucky Workers’ Compensation Board effective January 5, 2010. Chairman Alvey was reappointed as Chairman of the Kentucky Workers’ Compensation Board for a term beginning January 5, 2014, and most recently for a term beginning January 5, 2018. Chairman Alvey is a past president of the National Association of Workers’ Compensation Judiciary, Inc., and continues to serve on its Board of Directors, where he began serving in January 2011. Chairman Alvey was inducted as a member of the College of Workers’ Compensation Lawyers in March 2014. 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 and Advanced courses. 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. He has served as Chairman of the Western Kentucky University-Owensboro advisory board, and has served on that board since 1995. He currently serves on the National Western Kentucky University Alumni Association Board of Directors. Chairman Alvey also serves on the Kentucky Workers’ Compensation Education Association Board of Directors, and served on the planning committee for the Kentucky Workers’ Compensation Centennial Commission. He additionally serves on the selection committee for the Kentucky Workers’ Compensation Hall of Fame. Chairman Alvey previously served as editor of the Kentucky Workers’ Compensation Review. Chairman Alvey has made numerous presentations, both at the state and national level, and has contributed to state and national publications on topics related to workers’ compensation law. Chairman Alvey represented the National Association of Workers’ Compensation Judiciary at a national summit in Dallas, Texas in May 2016, and again in Orlando, Florida in August 2016.
James Anderson, Esq. James Anderson is a founding member of Anderson, Creawley and Burke in Ridgeland, Mississippi. He is admitted to practice before all courts in the State of Mississippi and before the United States Supreme Court (Mississippi Bar, 1978). Mr. Anderson has been named to The Best Lawyers in America since 1995. He is a a Fellow and Member of Board of Governors, College of Workers’ Compensation Lawyers. Mr. Anderson serves as member and Past President of the Multiple Sclerosis Association of America. He is a member and Past President of the Mississippi Workers’ Compensation Educational Association, Inc. and Chair of the Steering Committee, Mississippi Workers’ Compensation Educational Association’s Annual Conference, 2008—present. He serves as Editor of the Mississippi Workers’ Compensation Claims Guide . And is co-chair of the National Workers’ Compensation Review, presented at the WCI annual conference in Orlando, Florida. He is a member of the Defense Research Institute, the American Bar Association, and Board of Deacons, Northminster Baptist Church. He earned his BS from the University of Southern Mississippi (Hattiesburg, Mississippi), and his Juris Doctor from Mississippi College School of Law (Jackson, Mississippi).
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Honorable R. Karl Aumann Appointed Commissioner of the Workers’ Compensation Commission in March 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 by Governor Mark Sanford. In 2010, he was elected by the Commission as Interim Chairman and subsequently nominated by Governor Haley for reappointment in 2012, 2014, and 2016 as Chairman. He graduated with a BS Degree from Penn State University in 1981 and from the University of South Carolina 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. Commissioner Beck currently serves on the Board of Directors of the National Association of Workers’ Compensation Judiciary and the Southern Association of Workers’ Compensation Administrators.
Honorable Shannon Bruno Bishop Shannon Bruno Bishop is the Office of Workers’ Compensation (OWC) District Judge in Harahan, Louisiana. 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. 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. Judge Bishop is a Board Member of the National Association of Workers’ Compensation Judiciary. She also serves on the Editorial Committee of the Lex and Verum newsletter.
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Honorable Suzette Carlisle Judge Suzette Carlisle earned a B.S. degree and J.D. degrees from St. Louis University, an MBA from Lindenwood College, and a Masters’ degree in Judicial Studies from the University of Nevada-Reno (“UNR”). Currently, she is a candidate for a Ph.D. in judicial studies from UNR. Since 2005, Judge Carlisle has served as an administrative law judge (“ALJ”) with the Missouri Division of Workers’ Compensation. She served as a legal advisor in the same office for 8 years before becoming an ALJ. For a brief time Judge Carlisle served as a criminal defense attorney, and later as an Assistant Circuit Attorney in St. Louis City.
Honorable Marshall Davidson Marshall L. Davidson, III, graduated with honors from the University of Tennessee College of Law where he served on the Tennessee Law Review. He worked as a law clerk for the Tennessee Court of Appeals and the Tennessee Supreme Court and then spent time in private practice handling civil and criminal cases before serving as a Staff Attorney for the Tennessee Supreme Court for twenty-two years focusing primarily on civil appeals. Under the supervision of the Chief Justice, Judge Davidson implemented and managed the Supreme Court’s system for handling appeals of workers’ compensation cases for roughly a decade. He has served as a Judge Advocate General Officer in the United States Army Reserves, taught at the collegiate and law school levels for many years, and has authored numerous law review and bar journal articles about appellate litigation and other legal topics. He is a member of the Belmont College of Law American Inns of Court and a CASA training volunteer working with children who are the subject of abuse or neglect proceedings. In 2014, Judge Davidson was appointed by Governor Bill Haslam to the Tennessee Workers’ Compensation Appeals Board where he serves as Presiding Judge, the first person to serve in that role. Judge Davidson is married and has three children but no grandchildren, though he is patiently waiting. Professor Charles W. Ehrhardt Author of Florida Evidence (West 2011), the leading treatise on the topic, and Florida Trial Objections (West 4th ed. 2007), Professor Ehrhardt has been cited as an authority by appellate courts more than 500 times. He taught Torts, Evidence, Trial Practice and Trial Evidence Seminar, and was named Outstanding Professor seven times. After serving as the Ladd Professor of Evidence for 35 years, he earned emeritus status in 2007. He continues to teach Evidence at the law school. Professor Ehrhardt served as a commissioner to the National Conference of Commissioners on Uniform State Laws from 1996-2005. He was a member of the faculties of both the National Judicial College in Reno, Nevada, and the Federal Judicial Center in Washington, D.C. He has been a visiting professor at University of Georgia and Wake Forest. Professor Ehrhardt received the Selig I. Goldin Award from the Criminal Law Section of The Florida Bar and the President's Award from the Florida Board of Trial Advocates. He clerked for the Honorable M.D. Oosterhout of the U.S. Court of Appeals for the Eighth Circuit and joined Florida State University College of Law's faculty in 1967. For almost 20 years, he served as the university's representative to the NCAA and the ACC. In 2007, he was inducted into the Florida State Sports Hall of Fame. Education: J.D., University of Iowa, 1964; B.S., Iowa State University, 1962.
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Marjorie Eskay-Auerbach MD, JD Marjorie Eskay-Auerbach, MD, JD, FAAOS, FIAIME is a board-certified orthopedic surgeon with fellowship training in spine surgery. She is an attorney and medical-legal consultant with a special interest in spine care. She is also an author and frequent lecturer nationally. Dr. Eskay-Auerbach earned both her undergraduate and medical degrees at the University of Michigan, where she was a student in the combined Six- Year Integrated Premedical-Medical Program (Inteflex). She completed her residency training in Orthopaedic Surgery at the University of Pittsburgh Health Sciences Center and her fellowship under Dr. Leon Wiltse at Long Beach Memorial Hospital in Long Beach, CA. Attorney Eskay-Auerbach received her JD from University of Arizona. Dr. Eskay-Auerbach is board-certified by the American Board of Orthopedic Surgeons. She currently serves as president of the International Academy of Independent Medical Evaluators. She has been an active member of the North American Spine Society, and served as a member of the Board of Directors. She is an active educator for the AMA on the most recent edition of the AMA Guides to the Evaluation of Permanent Impairment. She and was a contributing editor for the AMA Guides to Evaluation of Permanent Impairment, Sixth Edition musculoskeletal chapters, and co-author of Transition to the AMA Guides Sixth and a number of workbooks related to use of the Guides. She has contributed chapters to a number of AMA publications including the AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Edition and AMA Guides to the Evaluation Work Ability and Return to Work. Dr. Eskay-Auerbach has over 30 years of clinical experience. She performs medical-legal consultations, independent medical evaluations, review of impairment ratings and record reviews, and provides expert opinions and testimony. She holds medical licenses in AZ, CA, NY, NM,OK and MT.
Rafael Gonzalez, Esq. Attorney Gonzalez obtained a Bachelor’s of Science degree from the University of Florida (UF) in 1987. After graduating from UF, Attorney Gonzalez earned his Jurisprudence Doctorate degree from the Florida State University in 1990. During law school, Attorney Gonzalez interned for Rep. Lincoln Diaz Balart at the Florida House of Representatives. He also clerked for Judge Charles McClure at the Florida 2nd Circuit Court, Judge James Joanas at the Florida 1st District Court of Appeal, and Justice Gerald Kogan at the Florida Supreme Court. Attorney Gonzalez practiced social security disability, workers’ compensation, and personal injury law in Tampa for 15 years and defended claims as corporate counsel for three years. He served as Chief Executive Officer for The Center for Lien Resolution; The Center for Medicare Set Aside Administration; and The Center for Special Needs Trusts Administration, and then as Vice President of Gould & Lamb; Attorney Gonzalez has also served as Vice President at PMSI/Helios/Optum/United Healthcare. He is currently President of Flagship Services Group in Denver, Colorado. Attorney Gonzalez has published over 300 articles, book chapters, and books, including his series on Workers’ Compensation, Social Security Disability, and Medicare Set Asides. He has taught Workers’ Compensation, and federal programs like Medicare and Medicaid at FSU and Stetson Colleges of Law, as well as at USF Departments of Vocational Rehabilitation, Occupational Medicine, College of Public Health. Attorney Gonzalez has lectured extensively nationally on workers’ compensation, healthcare and Medicare issues, and also served as a consultant to legislative and congressional staff on these substantive areas.
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Honorable Douglas Gott Douglas W. Gott is a native of Hopkinsville, Kentucky. He graduated from Western Kentucky University in 1987, and from the University of Kentucky College of Law in 1991. He had a general civil practice with a focus on workers’ compensation cases until he was appointed Administrative Law Judge in 2008. In 2013, he was one of two ALJs who implemented a new expedited process for administering medical disputes. He was appointed Chief Administrative Law Judge in 2017. He is a frequent presenter at workers’ compensation conferences, and particularly enjoys speaking on ways lawyers and judges can learn to write better. He was honored by his local bar association for pro bono work in 2002. From 2000-2006 he served on the Kentucky Bar Association’s IOLTA Board of Trustees.
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. Judge 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.
Professor Matt Hearn Dr. Matthew Hearn earned graduate degrees in English and in Literary Theory from Vanderbilt and Duke before beginning his teaching career in 1990 at Valdosta State University. He currently serves as Professor of English at Lipscomb University in Nashville, Tennessee, where he chaired the English Department from 1999-2013. Twice recognized as Outstanding University Teacher (2006 & 2011) and Outstanding Academic Advisor (2004 & 2005), he has also twice been elected to Lipscomb’s Faculty Senate Council and currently serves on the university’s Health Professions Advising Committee. He has published and presented on topics ranging from medieval literature and film studies to legal writing and interdisciplinary teaching. Since 2016, he has served with Dr. Elizabeth Usman as a writing consultant for the Tennessee Board of Workers’ Compensation.
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. From 2016 to 2017, she served as the Director of Hearings for the Northern & Western regions of the Division. In 2017, she was named Interim/Acting Director of the Division Appeals Panel. She is Board Certified in Workers’ Compensation law by the Texas Board of Legal Specialization. She also serves as past president of the National Association of Workers’ Compensation Judiciary.
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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.
Honorable Ralph Humphries Judge Ralph J. Humphries was appointed Judge of Compensation Claims in Jacksonville in 2010. Prior to appointment, he practiced law in the Jacksonville, Florida area since his admission to the Florida Bar in 1977. Since 1984, he practiced primarily in the areas of insurance defense to include medical malpractice defense, personal injury litigation and workers compensation where he has represented injured workers as well as employers and carriers. From 1993 until 2009, Judge Humphries was senior partner of his own firm and also practiced in a partnership of professional associations with Schutt, Humphries & Becker and its progeny. In 2010, Judge Humphries joined the firm of Boyd & Jenerette as a partner practicing exclusively workers’ compensation defense. Judge Humphries has also served as a Supreme Court certified mediator. He has been “AV” rated by Martindale-Hubbell for nearly 20 years. Professional affiliations have included the Florida Association of Defense Counsel where Judge Humphries served on the Board of Directors and also as chairman of its workers’ compensation section. He has been a longtime member of the Jacksonville Association of Defense Counsel where he was treasurer, vice president and president. Judge Humphries was a charter member of the E. Robert Williams Inns of Court, an organization comprised exclusively of workers’ compensation practitioners. Additionally, he has been a member of the Florida Bar's Workers’ Compensation Rules Committee.
Honorable Pamela Beason Johnson In May 2014, Judge Johnson was one of eight attorneys appointed to the newly established Tennessee Court of Workers’ Compensation Claims. Now a twelve-member Court, Judge Johnson currently hears cases pending in Knoxville. She is a member of the National Association of Workers’ Compensation Judiciary (NAWCJ), Tennessee Bar Association (TBA), Knoxville Bar Association (KBA), and East Tennessee Lawyers’ Association for Women (ETLAW). She is a regular speaker on issues of workers’ compensation practice and procedures at the national, regional, state, and local levels. She received her Bachelor’s Degree from the University of Tennessee, Knoxville in August 1997, and her law degree from the University of Memphis, Cecil C. Humphreys School of Law in May 2000.
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Honorable Catrice Johnson-Reid Catrice Johnson-Reid is the District Judge in the New Orleans Workers’ Compensation Court. As District Judge, Judge Johnson-Reid conducts judicial hearings and renders decisions that are appealable to Louisiana’s Fourth Circuit Court of Appeals. Judge Johnson-Reid is a native of New Orleans and received her Bachelor of Arts degree from Loyola University New Orleans and her Juris Doctorate from Southern University Law Center. Prior to her appointment as District Judge, Judge Johnson-Reid served as Division Judge in the New Orleans Workers’ Compensation Court. She came to the Louisiana Workforce Commission – Office of Workers’ Compensation Administration after being in private practice for 20+ years, litigating workers’ compensation, medical malpractice, class action, and personal injury cases. During that time, she also provided numerous hours of pro bono legal service to individuals and small business owners throughout the community.
Judge Johnson-Reid’s past and/or current professional and community involvement include: American Bar Association, National Bar Association, Louisiana State Bar Association, Louis A. Martinet Legal Society, New Orleans Bar Association, Independent Women’s Organization, Delta Sigma Theta Sorority, Incorporated, and the NAACP. Judge Johnson-Reid is married to Winston Reid and has two sons, ages 22 and 13.
Honorable Sheral Kellar Sheral C. Kellar was appointed Assistant Secretary, Office of Workers’ Compensation Administration, Louisiana Workforce Commission (formerly the Louisiana Department of Labor) in January, 2016 by Governor John Bel Edwards and Secretary, Ava Dejoie. Prior, Kellar served at the Louisiana Workforce Commission as a Workers’ Compensation Judge since 1990 and as Workers’ Compensation Chief Judge since May 1999. In July 2018, she was elected as Secretary/Treasurer of the Southern Association of Workers’ Compensation Administrators (SAWCA) at its mid-year meeting held in Middleburg, VA. In June 2018, she was elected to the Board of Governors of the College of Workers Compensation Lawyers (CWCL), an organization to which she was inducted in 2014. In July 2015, she was appointed to the new Louisiana State Bar Association’s (LSBA) Access to Justice Commission, co-chaired by the Chief Justice of the Louisiana Supreme Court and has been reappointed each year since. Since 2007 Secretary Kellar has been a member of the NAWCJ and serves on its Board of Directors and its Curriculum Committee. She is also a member of Baton Rouge Bar Association and the Louisiana State Bar Association. In June 2007 Kellar received the highest award given by the Louisiana State Bar Association. She was presented with the President’s Award by then LSBA President Marta A. Schnabel, for her many contributions to the Bar Association and her exceptional service as Co-Chair of the Access to Justice Committee. 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 LSBA Board of Governors having been appointed in 2002 to a three year term. She is a former Court Appointed Special Advocate (CASA volunteer). Kellar speaks frequently on issues of workers’ compensation and professionalism. She received her Bachelor of Science and Juris Doctor degrees from Louisiana State University. She has three children, five grandchildren, one dog and attends the Mount Pilgrim Baptist Church in Baton Rouge, Louisiana.
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Kelly McNeil Legier, Esq. Kelly McNeil Legier, a native New Orleanian, currently serves as Commission Legal Counsel for the Judiciary Commission of Louisiana, where she advises the Commission on procedural and ethics rules to assist it in making decisions regarding complaints brought against judges and justices of the peace. Ms. Legier earned her Juris Doctorate, cum laude, from Loyola University New Orleans College of Law in 1993 (where she served as Comment Editor of the Loyola Law Review and as a member of the Spring Moot Court Team) and earned her Bachelor of Arts, magna cum laude, from Loyola University New Orleans in 1989. She previously served as an administrative law judge with the Division of Administrative Law in Baton Rouge, handling appeals from decisions of the Louisiana Department of Health and Hospitals. Ms. Legier also served as the first Director of Member Outreach and Diversity for the Louisiana State Bar Association, where she created and implemented ground-breaking diversity/inclusion programs and initiatives that garnered national awards and recognitions. Before the LSBA, Ms. Legier worked in the Staff Attorney’s Office of the United States Fifth Circuit Court of Appeals. She clerked for Hon. Carl E. Stewart on the United States Fifth Circuit Court of Appeals and Hon. Ivan L.R. Lemelle on the United States District Court for the Eastern District of Louisiana. In addition to clerking, Ms. Legier spent several years in private practice in the area of ERISA, employment law, and commercial litigation in large local and international firms. She practiced with Stone, Pigman, Walther, Wittmann & Hutchinson, LLC; Shook Hardy & Bacon, LLP, and Proskauer Rose LLP. Ms. Legier has been actively involved and held leadership positions in many organizations, including the New Orleans Chapter of the Federal Bar Association, the Louisiana State Bar Association, the St. Thomas More Inn of Court, the Greater New Orleans Louis A. Martinet Legal Society, and the Loyola Alumni Association and Visiting Committee. She has been recognized for her service and achievements by various organizations. Ms. Legier has been married for 27½ years to Attorney Ernest P. Legier, Jr., with whom she has three sons.
Honorable Deneise Turner Lott Judge Lott received her undergraduate and law degrees from the University of Mississippi and is a past president of SAWCA, the Southern Association of Workers’ Compensation Administrators. She has also chaired SAWCA’s Adjudication Committee since 2006. Judge Lott has twice served as president of the Administrative Law and Workers’ Compensation Section of the Mississippi Bar, and she is a Fellow of the Mississippi Bar Foundation and of the American College of Workers’ Compensation Lawyers. She is a member and currently serves on the board of the National Association of Workers’ Compensation Judiciary. She is also a former adjunct professor of workers’ compensation law with Mississippi College School of Law. Between 2008 and 2016, she served on a twelve-member Advisory Committee on Disability Compensation chartered by the United States Congress to recommend improvements to the disability compensation system administered by the Compensation Service of the United States Department of Veteran’s affairs.
Honorable Ali N. Marchant Ali N. Marchant was initially appointed to a four-year term as a Workers’ Compensation Administrative Law Judge in Wichita, starting July 28, 2014. Marchant was an attorney with Fleeson, Gooing, Coulson, & Kitch, L.L.C. in Wichita since March 2007 where she focused primarily on workers’ compensation cases, representing both claimants and respondents. She has also been an instructor at Hutchinson Community College the past two years. Marchant received her Juris Doctor degree from the Washburn University School of Law, her bachelor's degree from the University of Kansas, and was admitted to the Kansas Bar in 2007.
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Honorable Wesley Marshall Commissioner Marshall was appointed to the Virginia Workers’ Compensation Commission in May 2012. He serves on the Southern Association of Workers’ Compensation Administrators’ Executive Committee and the IAIABC’s Dispute Resolution Committee. He is a member National Association of Workers’ Compensation Judiciary, the Lewis F. Powell, Jr. and Virginia Workers’ Compensation American Inns of Court, and other bench and bar organizations. In 2015 he was inducted as a fellow of the College of Workers’ Compensation Lawyers.
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.
Hon. Steven A. Minicucci Judge Minicucci is an Associate Justice of the Rhode Island Workers’ Compensation Court, having been appointed to the Court by her Excellency Governor Gina Raimondo in 2017. Prior to his Judicial Tenure, Attorney Minicucci was in private practice for 28 years with the law firm Calvino Law Associates in Providence, Rhode Island where he practiced in the areas of workers’ compensation, personal injury litigation and probate law with his focus on representing injured workers and plaintiffs. He served the Town of Warren, RI as its Probate Judge from 2012 through 2017. Judge Minicucci was a board member and past President of the Rhode Island Association for Justice where he chaired the Workers Compensation Practice Group and the Legislative Affairs Committee. He continues to serve on the Board of The Institute for Labor Studies & Research, the RI Workers’ Compensation Advisory Council and previously served on the RI Immigrant Workers Task Force. He was a recipient of the Justice Louis Powell Medal for Outstanding Advocacy, the Anthony A. Giannini Award for Professionalism, The ILSR’s Eagle Award for Community Service, the RIAJ Lifetime Achievement Award and the International Workers Compensation Foundation’s Certificate of Merit. Mr. Minicucci is a Graduate of Providence College and Suffolk University Law School and is an adjunct Professor of Law at Roger Williams University School of Law, as well as a frequent lecturer in a variety of areas. He was also a contributing author to the published legal treatise “A Practical Guide to Workers Compensation in Rhode Island” by MCLE Press.
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Honorable Bruce Moore Judge Bruce Moore has served as an administrative law judge for the Kansas Department of Labor, Division of Workers’ Compensation, since 1995 where he presides over workers’ compensation cases. He also serves as a municipal court judge pro tempore for the City of Salina, Kansas. Before joining the Department of Labor, Judge Moore served as municipal court judge pro tempore for the City of Prairie Village, Kansas, and as a district judge pro tempore for Kansas’ 10th Judicial District. He practiced law in Kansas for 15 years, concentrating his practice on criminal prosecution and defense and the prosecution and defense of personal injury and workers’ compensation claims. Judge Moore received his bachelor’s degree from Kansas State University and Juris Doctor from Kansas University. He is the author of “Litigating a Defense of Alcohol or Drug Impairment Under the Workers’ Compensation Act,” published by the Journal of Kansas Trial Lawyers Association, and Chapter 25, “Causation: A Judge’s Perspective,” for the American Medical Association’s Guides to the Evaluation of Disease and Injury Causation,” Second Edition (2013). He has served as President of two Rotary Clubs, and as an Assistant District Governor of Rotary International; he served two terms as President of the Board of Directors of the Salina Community Theatre, and as a Disaster Response team member for the American Red Cross. Judge Moore was awarded a Professional Certificate of Judicial Development in Administrative Law Adjudication Skills in 2008 and a Professional Certificate of Judicial Development in Dispute Resolution Skills in 2009 by the National Judicial College. Judge Moore is an alumnus of The National Judicial College and joined its faculty in 2009.
Honorable R. Ferrell Newman Commissioner Newman was appointed by the 2013 Virginia General Assembly and began his position with the Virginia Workers’ Compensation Commission on March 11, 2013. Commissioner Newman earned a J.D. from the College of William and Mary’s Marshall Wythe School of Law in 1983 and a B.A. from the University of Richmond in 1979. Prior to his appointment with the Commission, Mr. Newman was in private practice of law for 30 years, with a heavy concentration in workers’ compensation.
Honorable Knowrasa Patrick Knowrasa T. Patrick has been a judge with the Washington Board of Industrial Accident Appeals since 2011. She is a 1997 graduate of the University of Puget Sound, attended one year of law school at Temple University, and graduated Cum Laude from the Seattle University School of Law in 2000. Before joining the BIAA, Judge Patrick practiced in the areas of workers’ compensation and labor relations. She is active as a volunteer in her community and bar association.
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Honorable Neal Pitts Neal Pitts was appointed a Judge of Compensation Claims on November 1, 2009 to serve in the Jacksonville, Florida district office. Effective December 1, 2010, he transferred to the Orlando, Florida district office. He holds a BA degree from Rhodes College (1975); a JD degree from Ohio Northern University in 1978, where he was a member of the Law Review, Phi Kappa Phi, and Willis Society honor societies and listed in Who’s Who in American Colleges and Universities and the National Dean’s List; and a Master of Laws (in taxation) from the University of Florida Levin College of Law in 1982. In law school, he served on the Law Review where two of his articles were published in the Ohio Northern University Law Review in 1978 and 1982. He also received a Certificate of Merit for outstanding contribution to the field of legal journalism from the Ohio Northern University Law Review in 1982 for his article regarding federal taxation of natural resources. Prior to his appointment as a JCC, he practiced law in Orlando, Florida. He has been a member of the Florida Bar since May 31, 1979. He holds an AV rating from Martindale Hubbell and is listed in The Bar Registry of Preeminent Lawyers in both the Peer Review and the Judicial Editions. He recently received recognition for his 15th year listing in The Bar Registry of Preeminent Lawyers. He is a member of The Florida Bar, Orange County Bar Association, an honorary member of the E. Robert Williams American Inn of Court, and the Judge William Wieland American Inn of Court. He is the immediate past president of the Judge William Wieland American Inn of Court and the recipient of the David Hammond Professionalism Award. He is a past president of the Conference of the Judges of Compensation Claim. He also serves as a member of the Advisory Board for the University of Florida College Of Public Health and Health Professions.
Teresa Pitts, Ph.D. Dr. Teresa Pitts holds a PhD from the University of Florida and is an Assistant Professor at the University of Louisville, Director of the Laboratory of Airway Protection. Her expertise is on the neurophysiology of the airway. Her laboratory is funded by the National Institutes of Health. Included in the NIH funding from the Office of the Director are research funds to investigate and examine the effects of opioids on regulation of breathing and the upper airway. She has published more than 50 papers in peer-reviewed scientific journals and presented internationally, nationally, and locally more than 100 times.
John J. Schickel, Esq. Mr. Jake Schickel’s decorated career could be considered the benchmark for success in the legal community. In addition to multiple professional leadership positions, he has been highly active in supporting legal professionalism and the cause of justice. He has been named a Florida Super Lawyer every year since the program’s inception and was honored by The Florida Bar in 2006 with the Justice Harry Lee Anstead Board-Certified Lawyer of the Year. In 2017, the E. Robert Williams American Inn of Court even named their chapter’s professionalism award in his honor. Mr. Jake Schickel’s passion for justice is matched only by his long-term commitment to his community. He has served the Jacksonville community on several executive, strategic, economic and planning committees, including leadership positions with nonprofit and civic organizations. Prior to becoming a founding partner of Coker Law, Mr. Jake Schickel worked as an Assistant State Attorney and Chief Assistant Attorney for the 4th Judicial Circuit.
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Honorable Margaret Sojourner Judge Margaret E. Sojourner received a Bachelor of Arts with Honors from the University of Florida and a Juris Doctorate from Stetson University College of Law. After admission to the bar, she was employed as a Research Assistant to Judge Winifred Sharp at the Fifth District Court of Appeal. In 1981 she began employment with the firm of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., where she represented employers and insurance carriers. In 1984 she became a partner in the firm of Daze & Sojourner, P.A., a general practice firm, including representation of injured workers. In 1987 she was employed with the staff counsel office of Travelers Insurance where she limited her practice to workers’ compensation matters and the appeals of those matters. In 1998 she joined the firm of Langston, Hess, Bolton, Znosko & Helm, P. A. where she continued to represent employers and carriers in workers’ compensation matters and in the appeals of these matters. Ultimately she became a partner in the firm, which at the time of her appointment as Judge of Compensation Claims was known as Langston, Hess, Augustine, Sojourner & Moyles, P.A. She has been Board Certified in Workers’ Compensation since 1992. Judge Sojourner served as a Guardian Ad Litem through the Orange County Bar Association and as a tutor to at risk children through Outreach Love.
Honorable Kenneth Switzer Kenneth M. Switzer was appointed to the Tennessee Court of Workers’ Compensation Claims in spring 2014 to serve as the Court’s first chief judge. In that role, he has led rolling out the new court, which officially opened its doors on July 1, 2014. Chief Judge Switzer oversees all court operations, in addition to handling a full docket of cases. In the past he spoke frequently on the subject of civil trial practice and Tennessee workers’ compensation law at continuing education seminars and before business and community groups. At present he speaks exclusively on workers’ compensation and the new system. Chief Judge Switzer is a retired “on the field” Ohio Valley Conference Football official, having worked as a Referee for 13 years. In 2014, he transitioned into an assistant replay official in C-USA. He now works in replay for the Ohio Valley Conference, the Southeastern Conference and the National Football League. He is an avid runner and has completed 30 marathons. His other hobbies include biking and spoiling his two grandsons and one granddaughter.
Honorable James Szablewicz Jim Szablewicz is the Chief Deputy Commissioner of the Virginia Workers’ Compensation Commission and is responsible for 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. Deputy Commissioner Szablewicz 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. He is the President of the National Association of Workers’ Compensation Judiciary and an active participant in the Southern Association of Workers’ Compensation Administrators and the International Association of Industrial Accident Boards and Commissions. Deputy Commissioner Szablewicz was inducted as a Fellow of the College of Workers’ Compensation Lawyers in 2014.
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Honorable David Torrey David B. Torrey has been a Workers’ Compensation Judge for the Pennsylvania Department of Labor & Industry, in Pittsburgh, PA, since January 1993. He teaches the workers’ compensation law courses at the University of Pittsburgh School of Law. His four-volume treatise on Pennsylvania workers’ compensation, published by Thomson- Reuters, is in its Third Edition. Judge Torrey has written and edited the quarterly newsletter of the Pennsylvania Bar Association Workers’ Compensation Law Section since June 1988, and he recently published the 137th edition. He received his A.B., 1982, from West Virginia University; and his J.D., 1985, from Duquesne University School of Law. During law school, he was Editor-in-Chief of the Duquesne Law Review, Volume 23. Judge Torrey is a Fellow and Recording Secretary of the College of Workers’ Compensation Lawyers, and he is a Past-President of the National Association of Workers’ Compensation Judiciary.
Elizabeth Usman, Esq. Elizabeth Usman is an Assistant Professor of Law at Belmont University College of Law in Nashville. She earned her Bachelor of Arts degree in English literature summa cum laude from Boston University and her Juris Doctor degree from Boston College Law School, where she held the position of articles editor on the Boston College Law Review and graduated Order of the Coif. Before beginning a career in legal education, Professor Usman served as a law clerk to both the Honorable Mark E. Fuller of the United States District Court for the Middle District of Alabama and the Honorable Martha Craig Daughtrey of the United States Court of Appeals for the Sixth Circuit, and she also spent several years as an associate at the Boston law firm of Ropes & Gray LLP. She is a member of the Massachusetts bar. Professor Usman teaches Legal Information and
Communication I & II.
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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. She 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. She serves on the Board of Directors of the National Association of Workers’ Compensation Judiciary and served as part of the Kentucky delegation to the “New Judges College” for the new Tennessee Court of Workers’ Compensation Claims. In 2017, she was inducted as a Fellow of the College of Workers’ Compensation Lawyers. She presents annually for various workers’ compensation seminars including NAWCJ, Comp Ed, KWCEA and the Kentucky Chamber of Commerce. 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.
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