NAWCJ President's Page
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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 May 2019 NAWCJ - Lex and Verum Page 1 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 May 2019 NAWCJ - Lex and Verum Page 2 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. May 2019 NAWCJ - Lex and Verum Page 3 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