Greetings from the President

By Sheral C. Kellar, President
National Association of Workers’ Compensation Judiciary
Louisiana Workers’ Compensation Judge – Chief
Louisiana Workforce Commission

 

 

Another College has come and gone.  Many attendees reported to me that the 2024 National Association of Workers’ Compensation Judiciary College was simply, one of the best ever.  For many years the College has convened each August, except during the 2020 Covid 19 pandemic.  It is an understatement to say that we attempt to surpass the College achievements of the year before.  It is not an easy thing to do.  But, this year thanks to the hard work and dedication of our members we far exceeded our own expectations.

Many thanks to Commissioner P. Jason Cording, Deputy Commissioner, Virginia Workers’ Compensation Commission, for a job well-done.  Commissioner Cording was chair of the Curriculum Committee.  He and his committee members, Judges Mike Alvey, Shannon Bruno, Ken Switzer, Pam Johnson, Tim Conner, Edward Wise, David Langham, Wesley Marshall, Bruce Moore, and yours truly worked tirelessly to create an outstanding agenda and curriculum for the annual College, including recruiting speakers and assembling written materials.  This year’s programming will be hard to follow.

If you liked your conference gift, won a door prize, took advantage of the coffee breaks and meals, thank the Conference Committee.  Our esteemed colleague from Louisiana, Judge Shannon Bruno, is Conference Committee chair.  Her members include Judges Mike Alvey, Tim Conner, David Langham, Wesley Marshall, Bruce Moore, Jack Weiss, Kathy Shelton and again, yours truly.  The Conference Committee also manages all logistical and practical operations of the Judiciary College, including assembly of name tags and registration bags, organization of social activities, and handling of PowerPoint presentations and other technical issues.

To reiterate, the Board and members of the NAWCJ endeavor to exceed the efforts of the previous year.  In fact, we begin planning the 2025 College immediately after the end of the 2024 College.  We assess what we did right and what we can do better.  Although, the consensus is that this year’s College was the best ever, improvements can always be made.  One of the things we will definitely address is transportation.  Thank you in advance to the Workers’ Compensation Institute (WCI).   It has offered to assist us next year with our transportation.  The College would not be what it is without the WCI partnership.  WCI provides resources to the NAWCJ without which we could not accomplish the programming and networking that is so important to a successful College.

Finally, we want to hear from you.  Let us know what your thoughts are about the college.  What do you think we could do better?  We value your opinion.  We want you to become involved.  If you have not already joined a committee, I invite you to do so.   NAWCJ Committees are:

Long Range Planning, Membership & Recruitment Committee

Develops a long-term vision for the Association that includes retaining and growing the membership and attendance at events.

Recommends practical steps for outreach to individual adjudicators and workers’ compensation organizations, which may include the

administration of scholarships including reviewing application and making recommendation.

Curriculum Committee

Creates the agenda and curriculum for the annual Judiciary College, including recruiting speakers and assembling written

materials.

Conference Committee

Manages all logistical and practical operations of the Judiciary College, including assembly of nametags and registration bags,

organization of social activities, and handling of PowerPoint presentations and other technical issues.

Give Kids the World Service Project

Recruits and coordinates NAWCJ’s participation in WCI’s efforts to benefit Give Kids the World, a nonprofit that fulfills the

wishes of critically ill children and their families.

Lex & Verum

Develops and produces NAWCJ’s newsletter, Lex and Verum, including the writing and solicitation of articles, proofreading, and layout.

Moot Court

Coordinates NAWCJ’s participation in the E. Earle Zehmer Moot Court Competition held annually in conjunction with the Judiciary College.

New Judges’ Boot Camp

Develops the agenda and content for the biennial New Judges’ Boot Camp, including managing all logistical and practical operations.

Nominating

Identifies and recommends members for appointment and/or election to the Board of Directors or Officers.

Website & Social Media

Monitors the content and appearance of NAWCJ’s website and manages the Association’s presence on other social media platforms.

Our hard work guarantees that we fulfill the mission of the NAWCJ, “to provide educational forums for the workers’ compensation judiciary concerning issues that are unique to this system of justice”.  To clone a cliché’ we need a few good judges to help us fulfill this mission. Join a committee now, by calling Kathy Shelton at (850) 528-3539 or calling me at (225) 572-9234.  You can also e-mail us at Sheral Kellar, sckellar@bellsouth.net or Kathy Shelton, href=”mailto:kshelton@resourcemanagers.net”>kshelton@resourcemanagers.net.

.

 

By Judge Diane Lundeen

Louisiana Workforce Commission

Office of Workers’ Compensation Administration
Covington, LA

 

 

Diane Lundeen has been a workers’ compensation judge for 18 years. During her tenure on the bench, she has presided in courts across the state and served as the Chief Judge from 2016 through 2018.  Judge Lundeen was an adjunct professor at Tulane Law School, where she taught trial advocacy. For the past 14 years, Judge Lundeen has been the chair of the New Orleans Bar Association’s Workers’ Compensation Section.  Judge Lundeen received her B.A. from Tulane University and her J.D. from Loyola School of Law New Orleans.  Judge Lundeen is also an active animal rescue advocate, working with local rescues and assisting with developing animal health and safety laws.

 

The implications of remote work are vast and complex, particularly if an employee is working in a different state than his or her employer.  There are both legal and regulatory considerations. These ramifications range from tax, wage and hour, licensing, benefits programs, leave requirements, privacy laws, business permitting, and workers’ compensation laws.  This article focuses on Louisiana’s workers’ compensation “going and coming rule” for remote employees working in the same state as their employer.

The new flexible workplace

Since the pandemic, working remotely has become a benefit offered by many employers to attract and to retain employees.  These alternative work environments removed employees on a part-time or full-time basis from the office.  In 2023, 35% of United States workers worked remotely from home.[1]  In August through September 2022, 27.5% of private-sector establishments had employees teleworking some or all of the time.[2]   In February 2023, 41% of those with jobs that could be performed remotely were working a hybrid schedule, part time in the office and part time elsewhere.[3]

Teleworking and remote working are often used interchangeably.  However, two distinct categories of offsite employees have emerged: employees who only work offsite and those that work a hybrid location schedule.  The first category, remote workers, are those employees who are not expected to report to an employer’s worksite on a regular and recurring basis.[4] The remote worker works from home or some other place that is not his or her employer’s usual place of business.[5] The remote location is their official duty station.

The hybrid model, or teleworking, involves employees working at home, while communicating with their offices by phone, email, or the internet.  Teleworking is a flexible work arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.  This group still goes to the office as directed by the employer.  Teleworkers’ official duty station is the physical office designated by the employer; however, for many reasons, an employer may only require the employee to come to the office occasionally.  The trend for hybrid work arrangements continues to grow.  One result of the new work place models is a changing interpretation of where someone’s workplace is located and when or if an employee is in the course and scope of his or her employment during traveling activities previously considered to be excluded from workers compensation.

This legal gray area is significant because injuries resulting from vehicular accidents on roadways is the leading cause of work-related deaths.  In 2022, 1,369 workers died in wrecks on public roads and highways.[6]  Vehicular accidents away from public roadways, such as in fields, factories, or parking lots accounted for an additional 325 deaths.[7]  In 2021-2022, roadway incidents resulted in 68,560 cases of non-fatal injuries.[8]   In 2022, non-roadway incidents resulted in an additional 16,970 non-fatal injuries.[9]  These numbers exclude those employees injured or killed in a pedestrian/vehicle accident.

The Going and Coming Rule

The going and coming rule exists in most states’ workers’ compensation laws.    With a few exceptions, this rule disallows workers compensation benefits to employees who are injured while traveling to or from work.  The principle underlying the rule is that when the workday ends, so does the employee-employer relationship. That relationship doesn’t resume, in most cases, until the worker goes back to work.  In most states, compensability for travel-related accidents hinges on whether the worker is injured in the course and scope of his or her employment and whether the accident arises out of the employment.

The exceptions to the rule vary by state.  However, the most common exceptions as illustrated by Louisiana law are:

1. If the accident occurs on the employer’s premises;
2. If the employee was deemed to be on a specific mission or special mission for the employer;
3. If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;
4. If the employee was doing work for his employer under circumstances where the employer’s consent could be fairly implied;
5. If the employee was injured while traveling to and from one work site to another;
6. If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee which is different than the risk to which the general traveling public is exposed (“the threshold doctrine”);[10] or
7. If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee.[11]

The requirement that an employee’s injury occur “in the course of” employment focuses on the time and place relationship between the injury and the employment.[12]  An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employers’ premises or at other places where employment activities take the employee.[13] Because an employee usually does not begin work until he reaches his employer’s premises, his commute is generally considered outside the course of his employment unless he has a duty to perform en route.”[14]  The requirement that an employee’s injury “arise out of” the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment.[15]

In determining whether the employee’s conduct is employment-rooted, the court assesses several factors, including the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the particular act, the time place and purpose of the act in relation to service of the employer, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act.[16] An employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination.[17]

In 1994, Louisiana’s Supreme Court, held that the “going and coming rule” is not inflexible when the employee does not work on the employer’s premises or have a fixed place of work.[18] In Orgeron, the Supreme Court, based upon the time constraints imposed on an employee to report to a particular (non-employer premises) location to work and the emergency nature of the assignment, held that an employer’s automobile accident while he was on his way to work occurred within the course and scope of his employment.

In 2003, the Court recognized that the going and coming rule applies easily when the employee has a fixed place of work.[19]  Almost prophetically, the Court acknowledged the challenges to applying this rule to employees working in non-traditional places.  “Not all employees, however, work on the employer’s premises or have a fixed place of work.  The dispatching of employees to different work locations gives rise to many “shades of gray” in the otherwise “black and white” application of the rule”.[20]  When an employee is required to check in at a certain place and is then dispatched to the work site for that day, he is generally in the course of employment in the travel between the check in place and the work site, but not between home and the check in place.[21]  However, when an employee is instructed to report to different work sites which change periodically, without first reporting to a check in place, there are more variations in the determination of course and scope of employment.[22]

Closely related to the going and coming rule is the “special mission” exception for travel.  “When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course and scope of employment by the fact that the trouble and time of making the journey, or special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.”[23]

In 2003, Louisiana’s Supreme Court analyzed the “special mission” exception.  An employee who worked at a plant in Geismar was injured when driving home from an employer-mandated safety meeting held at a different location than his worksite.  The court held that, “once an employee engages in the performance of a special mission, an injury suffered en route from the employee’s home to the location of the mission, or from the location of the mission to the employee’s home, is considered to be within the course of employment”.[24]  The court reasoned because the employer held the mandatory meeting off-premises, “travel was an indispensable part of attending the meeting”.  The accident arose out of the employee’s employment because the employee was engaged in his employer’s business, a mandatory meeting that “directly benefitted McLin’s employer”.[25]  The special mission exception confers “portal-to-portal” workers compensation coverage.[26]  Louisiana’s Fifth Circuit recently considered the special mission exception as part of the inquiry for remote and teleworking employees.

The court considered whether an employee who worked from home ninety-five percent of the time but who was required to come to monthly sales meetings in his employer’s office was in the course and scope of his employment when he had a car accident while traveling to the meeting.[27]  Louisiana’s Supreme Court reversed the trial court’s finding that the employee was not in the course and scope of his employment.  In determining whether the employee was in the course and scope, one looks to whether the employee was a “work-from-home employee, was commuting to the office, traveling between two work locations, or on a special errand/mission”.[28]  Even if the remote employee were commuting to his employer’s office, the commuting exceptions exist if the trip is employment-connected, the employer had reason to expect it would be performed, or the employee is to be compensated.[29]  In this case, the employee only required his phone and his laptop to work.[30]  The court reasoned that the principle that an employee does not begin to work until he reaches his employer’s premises does not apply to an employee who works remotely and who only requires his laptop and phone to work.[31]  This reasoning highlights that remote and teleworking employees’ worksites are considered to be their homes or other locations from which they choose to work.

The issue facing modern employers is whether an employer’s office is an employee’s office.  “This determination should not be made lightly as more employers are allowing employees to work from home following the pandemic without clear policies on where the employee’s “office” is located.”[32]  Is the employee’s home his primary worksite where he checks in for work each day?  Is the employer’s office a different worksite? How does one establish that the employer’s office is considered the employee’s office?  What are the company policies relating to where the employer considers the employee to work?  Did the employer take an interest in the employee’s presence in the office sufficient to make the commute in the course and scope?  If the meeting was compulsory, then was it to serve the employer?  Traditionally, commuting to work on a regular schedule is not incidental.  Regularly scheduled meetings in the office are not special missions, depending on the case.[33]  Commuting only becomes incidental when it serves the employer.  There are a series of cases with different outcomes, and this inquiry is a fact sensitive one for which clearly written policies and well-defined work locations are extremely important.  As more people work remotely, the legal interpretation of “course and scope” and “arising out of” in both tort and workers’ compensation cases will continue to evolve rapidly, making it a fertile ground for practitioners.

[1] Pew Research Center, “About a third of U.S. workers who can work from home now do so all the time”, Kim Parker, March 30, 2023.
[2] Bureau of Labor Statistics.
[3] Pew Research Center, Survey of U.S. workers conducted February 6 – 12, 2023.
[4] A teleworker is one who works at home, while communicating with his or her office by phone or email or using the internet.  Cambridge Business English Dictionary, Cambridge University Press. Dictionary.cambridge.org/us/dictionary/English/.  Teleworking is a flexible work arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.  5 U.S. Code §6501(3).  Many federal employers note that the teleworker’s official duty station is the physical office designated by the employer.  See Department of the Interior.
[5] Cambridge Business English Dictionary, Cambridge University Press. Dictionary.cambridge.org/us/dictionary/English/.
[6] Bureau of Labor Statistics.
[7] Bureau of Labor Statistics.
[8] Id.
[9] Id.
[10] Posey v. NOMAC Drilling Corp., 16 So. 3d 1211, 1217 (La. App. 2^nd Cir. 2009); McLin v. Indus. Specialty Contractors, Inc., 851 So. 2d 1135, 1141 (La. 2003).
[11] McLin v. Indus. Specialty Contractors, Inc., 851 So. 2d 1135, 1141 (La. 2003).
[12] McLin, supra; Weber v. State, 635 So.2d 188 (La. 1994).
[13] McLin v. Indus. Specialty Contractors, Inc.,  851 So. 2d 1135, 1141 (La. 2003); Mundy v. Dept. of Health and Human Resources, 593 So. 2d 346 (La. 1992).
[14] Orgeron on behalf of Orgeron v. McDonald, 639 So. 2d 224, 227 (La. 1994).
[15] McLin, supra; Williams v. Regional Transit Authority, 546 So.2d 150 (La.1989); Posey v. NOMAC Drilling Corp., 16 So.3d 1211, 1214 (La. App. 2 Cir. 2009).
[16] Orgeron on behalf of Orgeron v. McDonald, 639 So. 2d 224, 227 (La. 1994).
[17] Orgeron on behalf of Orgeron v. McDonald, 639 So.2d 224 (La. 1994).
[18] Orgeron, on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227–28 (La. 1994).
[19] Louisiana’s workers’ compensation courts and courts of general jurisdiction use the same inquiries in tort and workers’ compensation for determining whether an injured employee was in the course and scope of his employment at the time of an accident.
[20] Orgeron on behalf of Orgeron v. McDonald, 639 So. 2d 224, 227 (La. 1994).
[21] See generally Arthur Larson, Law of Workman’s Compensation § 16 (1993).
[22] Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227(La. 1994).
[23] McLin, 851 So. 2d at 1143 (La. 2003), citing Arthur Larson, Larson’s Workmen’s compensation Law §14.05[1] = 14.05[2].
[24] Mc.Lin v. Industrial Specialty Contractors, Inc., 851 So. 2d 1135, 1138 (La. 2003).
[25] McLin, 831 So. 2d at 1142-43 (La. 2003).
[26] Note 23.
[27] Quatroy v. Thornton, 349 So.3d 1094, 1099–101 (La. App. 5th Cir. 2022), writ granted, decision rev’d, 353 So.3d 718  (La. 1/25/23).  This case was a tort case based on vicarious liability.  The going and coming rule is applicable to this type of Louisiana case, and the same analysis used in workers’ compensation cases is applied.
[28] Quatroy, 349 So. 3d 1094, 1101-02 (La. 5^th Cir. 2022).
[29] Quatroy, 349 So. 3d at 1102.
[30] Id.
[31] Quatroy, 349 So. 3d 1094, 1102 (La. App. 5^th Cir. 2022).
[32] Quatroy, 349 So. 3d at 1102.
[33] See Quatroy v. Thornton, 349 So. 3d at 1099 (regularly scheduled in office safety meeting is not “special” but rather an ordinary part of the teleworking employee’s job, precluding workers’ compensation coverage”); Johnson v. Transit Management of Southeast Louisiana, et al, 239 So. 3d 973 (La. App. 4^th Cir. 2018) (being called in to work early and making the same trip to work the employee routinely made is not an exception and is not compensable); Barnes v. Children’s Hosp., 675 A. 2d 558, 565 (Md. Ct. Spec. App. 1996) (A job task which required an employee to “drop everything and travel to the workplace” could be considered part of a service rendered for the employer in the course and scope and therefore compensable); Matlock v. Hankel, 707 So. 2d 1016 (La. App. 4^th Cir. 1998) (Volunteer firefighter called to service is not an ordinary commute to work.  A “firefighter is “at work” from the time he begins to respond to the fire,” and if he has an accident while on his way, he is in the course and scope of employment.); Strickland v. Galloway, 560 S.E. 2d 448, 450 (Ct. App. 2002) (A “volunteer firefighter is not ‘going to work’ when responding to the call but is ‘at work’ when responding to the emergency call. Because these volunteers must respond immediately and expeditiously, they are performing the fire department’s business when they embark on their response to a fire.”)  Thibodeaux v. Geico Casualty Co., et al, 249 So. 3d 114, 119-20 (La. App. 3^rd Cir. 2018) (Employee injured while traveling to a meeting at a location other than her usual place of work was in the course and scope of her employment.)

 

By Judge Brian Addington
Tennessee Bureau of Workers’ Compensation
Nashville, TN

 

Years ago, I was watching 60 Minutes, and Anderson Cooper reported on what some people considered was the smartest dog in the world.  Chaser, a female border collie, could not only recognize words but groups of words and act accordingly.

John Pilley, a retired psychology professor, had taken an interest in border collie trials after his retirement.  He was joking around with dog trainers one day and told them their dogs were not that smart because they could not even know their names or nouns.  The trainers spoke up and told him he was wrong because the dog not only knew its name but the names of specific sheep on the farms and could pick out a specific sheep from a herd.

That sparked an interest in Mr. Pilley to further research the idea, so he adopted Chaser.  He first taught Chaser what a blue ball was.  After one month, she could recognize 40 nouns.  Pretty soon she was able to recognize adjectives like faster and slower, larger and smaller.  Eventually, she was able to learn over 1,000 nouns during her lifetime.  But it took training, effort and the encouragement from Dr. Pilley to grow that vocabulary, and a dog interested in learning.

The same sort of thinking applies to Workers’ Compensation judges.  All of us were new at some point and willing to learn.  We did have a background of education and experience but no experience with the day-to-day of being a judge.  Most of us were advocates, not neutrals, and it took some time and effort to learn the “judge’s way” of handling things.

In Tennessee, when a new judge is hired, the newbie is assigned a mentor to help with onboarding of day-to-day operations and instructions in the law, and the ability to account for the work they do.  They are also assigned another judge to specifically help them edit their common everyday orders, and all the judges assist them in editing evidentiary hearing orders.  These instructions help the new judge learn the system, but it also enables the new judge to provide fresh insight to the judges who have been here a while.

The new judges are also sent to the NAWCJ boot camp, which helps them understand their new role, network with other new judges, and receive mentoring from well learned judges and professors.  Tennessee judges then are placed in rotation to attend the NAWCJ conference to further educate them and give them an opportunity to engage in thoughtful discussions and training with other judges.

I have found the NAWCJ very helpful.  I have reached out to judges from other states occasionally for help with understanding their system and laws to see if Tennessee could adopt similar helpful rules.  What I have experienced is that all the judges are more than willing to help our profession progress.

Tennessee judges are also required to attend in-house judicial conferences twice a year dealing with judicial writing, evidence, and ethics.  At each meeting, we also discuss best in-house practices and the ways of dealing with our customers.  In other words, the idea is how are we doing, and how can we improve?  We are asked after every meeting, what did you learn?  Sometimes the answer is we need to start thinking differently about issues and keep an open mind to changes.

So, when it comes to the best dog in the world, Chaser obviously could take the title, but so could Lasse – she saved so many people!

But when it comes to who is the best workers’ compensation judge in the world, I won’t name names, but obviously the person is a member of the NAWCJ, actively participates in it and other education conferences, helps other judges when they can, and is always, always open to learning.

 

“Reprinted with permission from the August 29, 2024 edition of the “Daily Report” © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.”

 

What Workers’ Compensation Insurers and Attorneys Need to Know 

By: Ryan Hathcock, Partner at Chartwell Law

On April 4, 2025, the Centers for Medicare & Medicaid Services (CMS) will implement significant changes to the reporting requirements for workers’ compensation claims involving Medicare beneficiaries. This new policy aims to enhance oversight and ensure proper coordination of benefits, particularly concerning Medicare Set-Asides (MSAs). Here’s a brief overview of what these changes entail and how they will impact the management of workers’ compensation claims.

Expanded MSA Reporting Requirements 

CMS has identified gaps in the information it receives about MSAs through the Section 111 reporting process. To address these gaps, CMS is now implementing mandatory reporting requirements and expressing its intent to pursue significant consequences for failure to comply. Effective April 4, 2025, all workers’ compensation settlements involving Medicare beneficiaries that include an MSA of $750 or more, must now be reported to CMS. The new requirements will apply regardless of whether the settlement was previously reported under the voluntary MSA process and regardless of whether the MSA met the CMS threshold for review. The review threshold for voluntary MSA submissions remains at $25,000.

The reporting details for MSAs reported to CMS will include the following fields:

• The amount of the MSA.
• The duration the MSA is designed to cover.
• Whether the MSA is paid in a lump sum or structured.
• For structured MSAs, the amount of the initial deposit and the annual deposit amount.
• Case Control Number.
• Identification of any professional administrator involved, including their tax ID number.

Rationale Behind the Changes 

CMS’s primary objective with these changes is to ensure that post-settlement benefits are properly coordinated and to prevent Medicare from being billed for expenses that should be covered by the MSA. This policy aims to safeguard Medicare’s interests by confirming that MSA funds are used exclusively for medical expenses related to the work injury, and by instituting consequences for non-compliance, including refusing to provide Medicare coverage to the individual.

Impact on MSA Administration 

Once an MSA is completed and a settlement is agreed upon, the injured worker generally has the right to administer the MSA funds independently. However, with the heightened reporting requirements and immense downside risk to non-compliance, it is possible that employees will begin to demand professional administration of MSAs as a condition to settlement. The requirements that will fall on the individual or the professional administrator in the management of the MSA set out in the WCMSA Reference Guide include:

• Interest-Bearing Accounts: MSA funds must be placed in a separate interest-bearing account (Section 17.2).
• Exclusive Use of MSA Funds: Funds should be used solely for claim-related medical treatment covered by Medicare, with exceptions for certain expenses like income tax on interest, banking fees, and postage (Section 17.3).
• Annual Attestation: The Benefits Coordination & Recovery Center (BCRC) will require an annual attestation from the MSA administrator, verifying that the funds were used appropriately. This attestation is due within 30 days of the settlement anniversary and must be submitted each year until the MSA funds are depleted (Section 17.6).

Enforcement and Penalties 

CMS has expressed that a failure to comply with the reporting obligations may result in the use of statutory and regulatory options to recover improperly made payments, including taking action against the responsible reporting entity under the False Claims Act. In addition, failure to comply with the new reporting requirements or incorrect attestation can lead to penalties. Importantly, CMS has indicated that there will be no civil money penalties that are directly related to the errors in the reporting of the MSA elements noted above. However, a rejection of required filings that leads to a delay in reporting of a year or more could result in the assessment of penalties due to the untimeliness of the filing. See 42 CFR § 402.1(22)(i).

Included in the potential penalties that may be imposed, CMS may levy a penalty of $250 per day for noncompliance lasting more than one year but less than two years. That penalty increases to $500 per day for noncompliance lasting from two to three years after the required reporting date. Daily penalties ultimately escalate to $1,000 per day if the attestation is not submitted for three years or more. The maximum penalty for a single instance of noncompliance is capped at $365,000.00. See 42 CFR § 402.105(b)(3). CMS is providing a grace period as it relates to penalties, with the effective trigger date being October 11, 2025.

The Importance of Adapting to New Requirements

The upcoming changes represent a significant shift in CMS’s approach to overseeing workers’ compensation settlements and are expected to impact most states handling such cases. The April 4, 2025, reporting changes highlight the need for workers’ compensation insurers and self-insured entities to adapt to new requirements. Proper MSA administration and timely compliance with reporting obligations will be essential to avoiding delays, denials, and potential penalties. Insurers and claim administrators should prepare for these changes by updating their processes and ensuring that all relevant details are accurately reported to CMS.

For more information, contact Ryan Hathcock by email at rhathcock@chartwelllaw.com or by phone at (404) 410-1151.

By Jane Salem, Staff Attorney
Tennessee Bureau of Workers’ Compensation
Nashville, TN

 

Medicine, like so many other professions and businesses these days, seems to have adopted a team approach to patient care. Workers’ compensation is no exception. Injured workers often see many providers when treating, from fields other than medical doctors.

Tennessee law has clarified the proper roles of these other providers. The common theme is they support the physicians but don’t supplant them.

The statute contemplates medical doctors and chiropractors making the major decisions.

For example, as to compensability, the Tennessee Workers’ Compensation Law states that an injured worker must show that the injury arose primarily out of employment, and this must be shown “to a reasonable degree of medical certainty,” that the employment contributed more than 50% in causing the injury. This means, generally speaking, that medical doctors must give causation opinions for the judges’ consideration (except in obvious cases, e.g., a worker accidentally amputates a finger while operating a power saw at work).

Moreover, under the statute panels must list “physicians, surgeons, chiropractors, or specialty practice groups.” No other category of provider is listed. As to impairment ratings, they are assigned by “the treating physician or chiropractor.”

Case Managers, Nurses, Nurse Practitioners, Physician Assistants

In the 1990s, the Division (now Bureau) of Workers’ Compensation implemented rules for “case managers” – typically registered nurses with advanced education or certifications. The development of nurse/case managers represented an advancement for the role of some nurses in workers’ compensation.

The current iteration of rules for case managers states that, among their duties, they may develop treatment plans, monitor the treatment progress of the injured employee, assess whether alternate medical care services are appropriate, ensure that the injured worker is following the prescribed medical care plan, and formulate a plan for return to work.

But the rules are also very specific regarding what a case manager cannot do. Among the activities that a case manager “shall not” do are:

• Prepare the panel of physicians or influence the employee’s choice of physician.
• Discuss with the employee or physician what the impairment rating should be.
• Determine whether the case is work related.
• Question the physician or employee regarding issues of compensability.

The last two prohibitions mirror a Tennessee Court of Appeals 2008 ruling in a wrongful death case. In Hinson v. Claiborne & Hughes Health Center, plaintiffs presented evidence from a registered nurse. She testified by affidavit that she was familiar with the standard of care at nursing homes and, in her opinion, the care an elderly patient received fell below it. The nurse further stated that his ultimate death was “more likely than not directly impacted” by the failures of this particular nursing home.

The appellate court concluded, with little discussion, that, “A nurse is not an expert who can testify as to medical causation.”

Fast-forward to 2015, where the Tennessee Workers’ Compensation Appeals Board cited Hinson to conclude that nurse practitioners in addition to nurses can’t give causation opinions.

In Dorsey v. Amazon.com, citation omitted, the injured worker never saw a medical doctor. Rather, a nurse practitioner evaluated her and gave the opinion that her condition wasn’t work-related. The employer denied the claim based on that opinion.

The Appeals Board held that this was an invalid basis for denial. The medical records didn’t contain an opinion from a physician regarding causation, the Board reasoned. The opinion of the nurse practitioner “did not and could not provide a valid basis for denial of the claim based on causation.” So, the rule may be used as a shield but not a sword.

Administrative rules echo this – and state additional prohibitions.

Specifically, nurse practitioners, physician assistants, and “other mid-level practice extenders under the supervision, direction and ultimate responsibility of a licensed physician,” may provide treatment ordered by the attending physician “in accordance with their licensing.” However, “only the supervising physician . . . may determine medical causation regarding the injury, may issue a permanent impairment rating, and may determine the date of an injured employee’s maximum medical improvement.”

Physical and occupational therapists

In a 1991 opinion, Bolton v. CNA Insurance, 821 S.W.2nd 932 (TN 1991) an employer argued that a trial court incorrectly assigned a sizeable vocational disability, considering a vocational expert who relied on the opinions of a physical therapist.

In the case, the employee injured his neck and back at work. An authorized physician ultimately assigned a three to five percent permanent partial impairment, but he placed no restrictions. The employee’s attorney then referred the injured worker to a physical therapist for evaluation.

The physical therapist performed tests and determined that the worker had limitations in cervical and lumbar motion. She testified, over objection, that she used the AMA Guides to assign a total whole-body impairment rating of 18%. She further testified, also over objection, that she placed physical restrictions.

The Tennessee Supreme Court reversed, holding that a physical therapist “is not qualified to form and express an expert opinion as to the permanent impairment or permanent physical restrictions of an injured person.”

The justices wrote: “[A] physical therapist’s testimony must be limited to objective findings and cannot encompass an opinion on ultimate disability. As a result, that part of the vocational expert’s opinion which was solely based on the opinions of the physical therapist as to permanency and physical restrictions was inadmissible evidence.”

But the high court commented that nothing limits a physical therapist from making future physical activity recommendations to the referring physician or a patient, based on the results of tests performed within the scope of the physical therapist’s licensure. Physical therapists may also testify on those matters.

A few years later, a Supreme Court Panel relied on Bolton to reach a similar conclusion regarding occupational therapists in La-Z-Boy, Inc. v. Van Winkle, E2002-01423-WC-R3-CU (TN 2003). In the case, an occupational therapist testified about the purpose of carpal tunnel release surgery. He also gave a detailed explanation of nerve regeneration and said, “It was my opinion that the first FCE was ordered a little too early.”

The Panel held that the occupational therapist was giving an improper “medical” opinion. It cited Bolton for the proposition that physical therapists must give testimony concerning matters within their licensure. So, too, must occupational therapists.

Conclusion

Medical professionals other than doctors often play varied and vital roles in workers’ compensation cases. But generally speaking, the law requires that they remain within their training and licensure. Stated another way, from the legal perspective at this time, providers within other disciplines help medical doctors to offer appropriate and cost-effective care. But they remain in a supportive role.

Efforts are made during each legislative session in Tennessee to broaden the authority to offer causation and impairment opinions to physician assistants. So far, these efforts have been unsuccessful. Whether that will change in the future is unknown.

By Judge Jennifer F. Nicaud

Mississippi Workers Compensation Commission

Jackson, MS

The cannabis sativa plant, otherwise known as marijuana, has been used as a medicinal product for decades. Delta-9-tetrahydrocannabinol, or THC is the main psychoactive chemical in marijuana which is responsible for most of the intoxicating effects sought by consumers. THC is found in the resin produced by the leaves and buds primarily of the female cannabis plant. The plant also produces hundreds of other chemicals including more than 100 compounds which are chemically related to THC called cannabinoids. In addition, the cannabis plant produces chemicals with anti- inflammatory constituents such as cannabidiol or CBD. Thus, cannabis and its derivatives generally fall within one of two categories: marijuana or hemp.[1]

The first regulation of marijuana occurred with the 1906 Pure Food and Drug Act. The Pure Food and Drug Act required the labeling of over-the-counter drugs containing cannabis. In 1937, Congress passed the Marihuana Tax Act which imposed an occupational excise tax upon certain dealers and dealings in marijuana. The Act did not criminalize the drug, per se, but failure to pay taxes or follow regulations was punishable by fines up to $2,000, up to five years in jail, or both[2]. In 1969, the Supreme Court struck down the Marihuana Tax Act as a violation of the Fifth Amendment protection against self-incrimination in Timothy Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532 (1969). Thereafter, Congress sought to create a new system for classifying drugs based on their medical utility and addictive potential. As a result, in 1970, the Controlled Substances Act (“CSA”) was passed to establish a federal drug policy.[3] Under the CSA, marijuana as well as heroin and LSD were classified as Schedule I drugs which were defined as drugs in which there was no currently accepted medical use with a high potential for abuse. Thus, marijuana and all cannabis products (except hemp and CBD containing less than .3% of THC- not prohibited under the CSA) remain illegal in the United States under federal law.

In 1996, California became the first state to enact medical marijuana legislation with the Compassionate Use Act. In the next four years, Oregon, Alaska, Washington, Maine, Hawaii, Nevada, and Colorado passed similar laws with regard to the use of medical marijuana. Colorado became the first state to decriminalize recreational marijuana in 2014. As of April 24, 2023, approximately 38 states and the District of Columbia have legislation which allows cannabis consumption for patients with qualifying medical conditions. The medical conditions in which cannabis has been prescribed vary from state to state but include cancer, multiple sclerosis, epilepsy, glaucoma, and chronic pain such as with lower back injuries. There are many emerging issues as to evidence supporting the use of cannabis to treat the aforementioned medical conditions. Scientific studies support the use of cannabis to support the end of severe pain, the rigidity of muscles due to a brain/spinal cord injury or multiple sclerosis, and to prevent nausea caused by chemotherapy. In March of 2023, it was estimated that more than 2.97 million people nationwide are enrolled with state medical marijuana programs.[4]

Prior to August of 2023, the U.S. Department of Health and Human Services (“HHS”) repeatedly opined that the drug’s chemistry is not known or consistently reproducible and opined that marijuana had no medical use. In addition, prior to 2023, the U.S. Food and Drug Administration (FDA) had not approved or recommended the use of cannabis as a drug, and, as a result, health insurance carriers generally do not reimburse the costs of cannabis used for medicinal purposes.[5] In a letter dated August 29, 2023, Rachel Levine ( HHS Assistant Secretary) provided a formal recommendation to Anne Milgrim ( Drug Enforcement Administration (DEA) Agency Administrator ) to reclassify rescheduling marijuana from a Schedule I drug to a Schedule III drug. The recommendation came seven years after the DEA declined to initiate rulemaking to reschedule marijuana. The HHS recommendation is predicated, via the FDA, on a scientific and medical evaluation of marijuana, using a statutorily required eight-factor analysis (“8FA”). The eight-factor analysis includes: (1) marijuana’s actual or relative potential for abuse; (2) scientific evidence of its pharmacological effect, if known; (3) the state of current scientific knowledge regarding the drug or other substance; (4) its history and current pattern of abuse; (5) the scope, duration, and significance of abuse; (6) what, if any, risk there is to the public health; (7) its psychic or physiological dependence liability; (8) whether the substance is an immediate precursor of a substance already controlled under the CSA. The FDA concluded that marijuana has acceptable medical uses and a moderate to low risk of physical dependence compared to other Schedule I drugs like LSD and heroin. FDA’s analysis concluded that marijuana has less potential for abuse than other Schedule I or II substances and has a clinically accepted medical use in the United States (including for nausea and lack of appetite associated with chemotherapy and for pain management). FDA found that even for heavy chronic users, marijuana withdrawal syndrome appears to be relatively mild compared to the withdrawal syndrome associated with alcohol, which can include more serious symptoms such as agitation, paranoia, seizures, and even death. Importantly, FDA determined that risks to the public health posed by marijuana are lower compared to other drugs of abuse (e.g., heroin, oxycodone, cocaine). The change would allow marijuana to be classified as Schedule III substance which is defined by CSA as those substances “with a moderate to lower potential for physical and psychological dependence”, and include ketamine, certain over-the-counter pain relievers, and anabolic steroids.

Prior to the FDA’s 8FA study, in June 2014, a Stanford University study found that the legalization of medical marijuana did not reduce the rate of fatal opioid overdoses[6]. There is compelling data showing that cannabis may be associated with changes in brain structure in young people, particularly in the prefrontal cortex, which is associated with decision-making and executive function. Other epidemiological evidence suggests that heavy and early use of cannabis is associated with increased risk of developing schizophrenia, bipolar disorder, depression, and anxiety. For over two decades, Deepak Cyril D’Souza, MD, Albert E Kent Professor of Psychiatry at Yale School of Medicine studied the relationship between cannabis and psychosis, in which an individual experiences a loss of reality after using a high-potency product. Emerging studies suggest that cannabis use leads to an increased risk of reporting psychotic symptoms. A 2022 study, for instance, found a significant correlation between the number of cannabis dispensaries and rates of psychosis presenting in emergency departments[7].

In addition, a July 2019 article from the National Institute on Drug Abuse (NIDA)[8] noted that more research was needed to be done on the effect of medical marijuana laws, on opioid overdose deaths and cautioned against drawing a causal connection between the two. The NIDA study noted that there may be a relationship between availability of medical marijuana and opioid analgesic overdose mortality. One of NIDA’s funded studies published in 2014 showed that opioid deaths had decreased in states with medical marijuana laws, but extending the data through 2017 showed a reversal in that trend. NIDA’s conclusion is that more research is still needed on the benefits of cannabis or cannabinoids. In contrast, a 2018 article from PropertyCasualty360[9] noted that opioid abuse has cost employers $18 billion a year and individual workers may face a personal toll of potential job loss, family and legal problems, and addiction. So, pursuing options that are less addictive and equally or more effective than opioids, with fewer side effects, was warranted. The article noted that “marijuana is thought to be significantly less addictive, and doesn’t lead to overdoses, according to medical experts.”[10]

Thus, medical experts opine about significant potential benefits, but with lack of adequate medical evidence, medical marijuana exists in a relatively new space for the treatment of injuries – especially those in workers’ compensation. Supporters of medical marijuana believe the drug is critical for injured workers as a method for treating many common work-related injuries, including those with chronic pain. A 2021 study conducted by the National Bureau of Economic Research (NBER) found that in states where marijuana has been legalized for adult use, there has been a decrease in workers’ compensation claims. In the midst of a national opioid epidemic, the idea of a less addictive and less expensive medication to treat pain long-term has become increasingly appealing to many insurers.

However, some states as well as provincial boards in Canada have supported reimbursement for cannabis costs in workers’ compensation claims as a possible alternative to opioids for pain management. There are several factors which appear to be indicative of successful reimbursement for cannabis in the workers’ compensation area. First, the claimant must be diagnosed with a qualifying medical condition under the state’s relevant law and registered in the state’s medical cannabis program. Second, the use of medicinal cannabis must be established as a reasonable and necessary medical care for the claimant as part of his/her workers’ compensation claim as determined by his/her treating physician.[11] At this time, cannabis remains a Scheduled I substance under the CSA, physicians can only “recommend” but not “prescribe” the use of cannabis to treat a qualifying condition according to the FDA. Cannabis must be established as a medical treatment of law resort. In other words, other FDA-approved prescription pain relief medications must first be tried and shown to be unsuccessful before cannabis can be recommended. This process will no doubt significantly change if marijuana is rescheduled.

Another limiting factor in some states and Canadian provinces is the restriction as to the type of occupation a claimant can be engaged in to receive cannabis reimbursement. Some jurisdictions require a full risk assessment which involves a review of all occupational and worksite risks as well as a review of the impact on the work environment, co-workers and the individual’s ability to perform safety sensitive tasks including operating a motor vehicle or equipment.

In some states, the dosage of cannabis, the amount supplied, and ongoing physician monitoring are required for cannabis reimbursement. Some studies indicate it is an indication that the average levels of THC have increased from 4% in 1995 to 15% in 2017[12]. THC levels must be included in cannabis labeling but there is a lack of uniform standards for processing, testing, and labeling. Also, the dosage can vary due to the method of consumption as a vapor or an edible.

Some states allow for reimbursement for cannabis in workers’ compensation claims but the amount of supplied cannabis that will be reimbursed varies. In New Hampshire, claimants cannot obtain more than two ounces of cannabis over ten days. In Connecticut, the amount possessed by a claimant should not exceed the amount reasonably necessary to ensure uninterrupted availability for one month. In New Mexico, where a workers’ compensation fee schedule was developed, the limit is a claimant’s consumption in a three-month period. Other states require claimants to receive ongoing physician monitoring and demonstration of subjective patient improvement and objective clinical improvement (such as work ability). This gray area creates confusion for carriers and third-party administrators (“TPA”). Thus, while marijuana is classified under the CSA as a Schedule I substance, many TPAs deny coverage due to a fear of running afoul of federal regulations and any inadvertent liability; however, if marijuana is changed to a Schedule III drug, many TPAs may change their position. Employers in a safety-sensitive industry (or with safety-conscious risk managers) may be more likely to support a treatment if it is widely accepted. On the other hand, in industries where injured workers cannot return to work while using either opioids or medical marijuana (as a Schedule I drug), the employer may be more willing to allow medical marijuana treatment based on perceived cost savings or long-term benefits (when compared to opioid use).[13]

Other difficulties arise under Drug-free Workplace Act of 1988 as all federal agencies, federal grantees, and companies with federal contracts of $100,000 or greater are required to maintain drug-free workplaces. While many states treat certified medical marijuana use as a disability, there are exceptions when the protection would otherwise conflict with federal requirements. Similarly, safety-sensitive industries such as oil and gas and transportation (aviation, railroads, trucking) that are federally regulated also must maintain drug-free workplaces.

No state requires employers to accommodate cannabis use at the workplace. Twenty-four states and the District of Columbia currently provide anti-discrimination protections to a worker who uses medical cannabis outside the workplace. However, a worker can be subject to disciplinary action which includes termination if found to be working under the influence or impaired at work due to cannabis use outside the workplace.

Determining impairment from cannabis use is not clear. Testing focuses on levels of tetrahydrocannabinol (THC), and detection of THC varies with the kind of test (blood, hair, saliva, urine) and the frequency of recent usage. While drug tests reflect varying degrees of success in detecting the presence of THC, there are no reliable tests that accurately identify the timing of the last drug usage (i.e., during off-hours or on the job). The Journal of Medical Toxicology and Mayo Clinic Proceedings demonstrated that urine testing for THC does not correlate with acute impairment as cannabis is stored in body fat and released into the bloodstream over days or weeks after its initial use[14]. There is an indication that the measurement of THC and metabolites in serum or plasma above 5 nanograms per milliliter is a better indicator of impairment. Thus, a worker’s positive test for marijuana does not necessarily mean the worker was impaired and unable to do their job safely.  In addition, issues arising from states with laws regarding the Rebuttable Presumption of Intoxication which allows for the denial of a workers’ compensation claim if the worker tested positive for marijuana at the time of injury.

What is the future of medicinal cannabis? The de-scheduling of cannabis on the federal level would accelerate the use of cannabis where it is determined to a reasonable and necessary treatment for difficult to manage work related conditions. Rescheduling marijuana would have a critical impact on medical marijuana programs and products. With respect to medical marijuana, a key difference between placement in Schedule I and Schedule III is that substances in Schedule III have an accepted medical use and may lawfully be dispensed by prescription, while substances in Schedule I cannot. If marijuana is rescheduled as a Schedule III drug, businesses that manufacture, distribute, dispense, and possess medical marijuana would be able to do so legally under the CSA, subject to state and federal licensing and manufacturer registration schemes. Further, such rescheduling would render certain manufacturers subject to increased FDA oversight, including requiring manufacturer registration and compliance with current good manufacturing practices. The FDA likely would release additional regulations regarding composition, labeling and advertising. Research limitations also may decrease, which could further encourage innovation in the industry. Users of medical marijuana would need to obtain valid prescriptions for the substance from medical providers, subject to federal legal requirements that differ from existing state regulatory requirements for medical marijuana.

To reschedule marijuana, the DEA must follow procedures outlined in CSA and the Administrative Procedures Act (APA). The CSA governs the production and distribution of drugs in the U.S. The APA governs how agencies operate and, relevantly, how agencies issue regulations. Federal law outlines the authority and criteria for the classification of substances. Section (a) of 21 USC 811 states that “rules relating to this statute subsection shall be made on the record after opportunity for a hearing pursuant to the rule making procedures prescribed by [the APA, specifically 5 USC 553].” The APA requires that the DEA provide interested persons an opportunity to submit comments, which the DEA must consider when issuing any rules related to the CSA. This is commonly referred to as the notice and comment period. The public must have at least 30 days to provide comments, with some exceptions, including when a matter relates to the foreign affairs functions of the U.S. However, the DEA could determine that, due to treaty obligations, it can reschedule marijuana by order rather than through the standard rule making process. HHS provided its recommendation to the DEA that marijuana be rescheduled from Schedule I to Schedule III in August 2023. Once the DEA makes a determination that marijuana should be rescheduled, the DEA could initiate rule making, or based on its interpretation of treaty obligations, it could reschedule marijuana by order. While the DEA maintains final authority to reschedule marijuana, under the CSA.

In Gonzales, Attorney General et al v. Raich, et al 545 U.S. 1 (2005), the U. S. Supreme Court determined that states could actually legalize marijuana because the states cannot change federal law, and the Constitution’s Supremacy Clause dictates that federal law takes precedence over conflicting state laws. So long as marijuana is a Schedule I controlled substance under the CSA, all unauthorized activities involving marijuana are federal crimes anywhere in the United States, including in states that have purported to legalize medical or recreational marijuana. However, laws have been passed to encourage the use of medical marijuana.  In July of 2023, the U.S. House of Representatives introduced a bipartisan bill entitled Cannabis Users Restoration of Eligibility Act, or CURE Act, that would allow marijuana users to be hired by the federal government and obtain federal security clearances. In addition, the House introduced the Veterans Medical Marijuana Safe Harbor Act, which aimed to make medical marijuana treatment available for military veterans with similar requirements for licensing and approval authority. Moreover, H.R. 84542[15] was signed into law on December 2, 2022, and has opened the door to allow for research on medical marijuana. The PREPARE Act was reintroduced in a bipartisan bill in 2023 to establish a Commission on the Federal Regulation of Cannabis.

Thirty-eight states have legalized medical marijuana; only of these 27 states have legalized recreational and medical marijuana.[16] As of October 2021, six states (CT, MN, NH, NJ, NM, NY) explicitly allow for workers’ compensation insurance reimbursement for an injured worker’s medical marijuana use either under a court or administrative ruling or pursuant to an administrative rule[17]. Another six states (ME, MA, FL, ND, OH, WA) expressly prohibit workers’ compensation reimbursement for an injured worker’s medical marijuana use. In addition, 14 states (AZ, AR, CA, CO, DE, IL, LA, MI, MO, NV, OR, PA, UT, VT) have determined that insurance carriers cannot be required to reimburse for an employee’s medical marijuana use; thus, there is some speculation as to whether reimbursement might be provided voluntarily in some cases.[18]

The specific issue which has recently come up in workers’ compensation litigation is whether state workers’ compensation laws can compel an employer to reimburse an injured employee for the cost of medical marijuana. Currently, as of March of 2023, only four state Supreme Courts have addressed this issue and their decisions are split down the middle.

The Supreme Courts of New Hampshire and New Jersey have held that the CSA does not preempt the state medical marijuana laws, so that employers can be ordered to reimburse injured employees for the cost of medical marijuana. In contrast, the Supreme Courts of Maine and Minnesota held that the CSA does in fact preempt state medical marijuana laws, so that employers cannot be compelled to reimburse injured employees for the cost of their medical marijuana prescription. Many other lower state courts have addressed this same issue, and the results are also a mix between for and against reimbursement. In light of this ambiguity, the United States Supreme Court was called upon to clarify as to whether the CSA preempts a State workers’ compensation order requiring an employer to reimburse an injured employee for the cost of medical marijuana and has declined to do so.

Upon receipt of the determination by the Minnesota Supreme Court decision in Musta v. Mendota Heights Dental Center, 965 N W 2d 312, S.Ct. Minn. (Oct 2021) the parties sought intervention from the U.S. Supreme Court. In Musta, the Claimant injured her neck while working as a dental hygienist for her Employer. After all medical interventions failed to relieve the Claimant’s pain, she became certified and enrolled in the Minnesota state program for medical marijuana. The Claimant purchased medical marijuana from a state dispensary to treat her admitted work-related injury. Thereafter, the Claimant sought reimbursement for her purchase of medical marijuana from her Employer. Mendota refused to reimburse Musta for her purchase of medical marijuana on the basis that in doing so, it would be in conflict with the federal prohibition against aiding and abetting the possession of marijuana under the CSA. Nevertheless, a workers’ compensation judge ordered Mendota to reimburse Musta for the cost of medical marijuana purchased to treat her chronic pain as a result of her work-related injury. Mendota appealed the judge’s order, and the case ended up before the Minnesota Supreme Court.

Mendota’s argument before the Minnesota Supreme Court centered around the overarching issue of preemption: the judge’s order requiring reimbursement for Musta’s purchase of marijuana would make it impossible to comply with both the federal and state law. In response to Mendota’s position on the issue, Musta argued that the appropriation riders enacted by Congress, which prohibit the United States Department of Justice from spending funds to prosecute persons who use medical marijuana consistent with their state laws, demonstrated the federal government’s purpose as to not interfere with the operation of state medical marijuana programs and Minnesota workers’ compensation laws. Further, Musta argued that Mendota’s action of merely reimbursing for past purchase of medical marijuana would not satisfy the intent required for aiding and abetting under federal law. Therefore, Musta argued that Mendota would not and could not be federally prosecuted for complying with the order requiring reimbursement as authorized under Minnesota state law.

The majority of the Minnesota Supreme Court[19] ultimately found that a court order requiring Mendota to reimburse for the purchase of medical marijuana would in fact subject them to criminal liability for aiding and abetting the possession of marijuana under the CSA. The Minnesota Supreme Court determined as Mendota could not comply with both federal and state law, the Minnesota compensation court’s order was preempted by the CSA, and the compensation order mandating reimbursement was overturned.

Thereafter, the claimant filed a petition for writ of certiorari to the United States Supreme Court.[20] In her petition, Musta re-presented her argument that complying with the workers’ compensation order would not amount to a federal crime; therefore, there was no preemption issue.  In response, the United States Solicitor General filed a brief to the U.S. Supreme Court[21], addressing their opinion that this specific issue presented did not warrant the U.S. Supreme Court’s review at this time. The crux of the Government’s argument against review by the U.S. Supreme Court’s was that Minnesota’s Supreme Court decision should be maintained when a federal law such as the CSA prohibits possession of a particular item, it preempts a state law requiring a private party to subsidize the purchase of that item. Further, their position against review highlighted the fact that this specific issue was so limited and recent, that the highest state courts have not yet developed and addressed all relevant preemption questions involved. Therefore, additional litigation within the lower courts still had an opportunity to address all arguments and potentially resolve the issue. Lastly, the United States argued that the Executive and Legislative Branches of the federal government were more properly situated to resolve these conflicts involving federal and state marijuana laws. The U.S. Supreme Court declined to review the Musta case.

A more recent case, Bourgoin v. Twin Rivers Paper Company[22] considered the issue of reimbursement for medical cannabidiol (CBD). In the case of Bourgoin, the injured worker sought reimbursement from his employer for CBD gummies purchased from a medical marijuana retailer in Maine. Due to the fact that the retailer did not grow the products it sold, they were unable to verify that the CBD gummies had less than .3% THC. Since Bourgoin could not meet his burden of proof that the CBD gummies contained less than .3% THC, thereby exempting them from the CSA, and the fact that the gummies had not been approved for use by the FDA, an Administrative Law Judge determined that the employer in this case could not be ordered to reimburse the costs of purchasing the CBD gummies. The judge’s opinion was supported by the Maine Supreme Court’s decision that THC remained illegal under the CSA and federal law reigned supreme and preempted Maine’s law legalizing and regulating medical marijuana.[23]

As the rescheduling of marijuana from a Schedule I drug to a Schedule III drug is on the brink of occurring, the gravity of rescheduling will not be fully afforded until it occurs. There is no question approval and supervision of the FDA of marijuana may change the reimbursement and accessibility of the drug in workers’ compensation.

[1] Congressional Research Service, “Legal Consequences of Rescheduling Marijuana,” May 1, 2024
[2] The goal of this Act was to reduce the hemp industry through excessive tax. It is rumored that William Randolph Hearst was supported the Act as hemp was seen cheap substitute for paper pulp and as a result Hearst’s extensive timber holdings were threatened. Sterling Evans (2007). Bound in twine: the history and ecology of the henequen-wheat complex for Mexico and the American and Canadian Plains, 1880-1950. Texas A&M University Press. p. 27. ISBN 978-1-58544-596-7.
[3] Congressional Research Service, “Legal Consequences of Rescheduling Marijuana,” May 1, 2024
[4] Linda Searing, U.S. medical cannabis enrollments quadrupled from 2016 to 2020 (June 21,2022), https://www.washingtonpost.com/health/2022/06/21/ medical-cannabis-popularity-grows/.
[5] American Academy of Actuaries, “Navigating Workers’ Compensation and Medical Marijuana”, April 2023.
[6] Mandy Erickson “ Medical Marijuana does not reduce Opioid Deaths,” Stanford Medicine News Center, June 10, 2019
[7] Id.
[8] “Medical Marijuana Laws and Opioid Overdose Rates”; National Institute on Drug Abuse; National Institutes of Health; July 5, 2019.
[9] “Using medical marijuana to treat construction workplace injuries”: Property Casualty 360; Jan. 29, 2018.
[10] Id.
[11] Many states require that a physician obtain a license to recommend medical marijuana, and the recommendation must be filed by a licensed marijuana dispensary.
[12] Ethan Andrew, “Not Your Grandmother’s Marijuana: Rising THC Concentrations in Cannabis Can Pose Devasting Health Risks”, Yale School of Medicine Health News, August 23, 2023.
[13] Id.
[14]
[15] https://www.congress.gov/bill/117th-congress/house-bill/8454
[16] American Academy of Actuaries, “Navigating Workers’ Compensation and Medical Marijuana”, Issue Brief, April 2023.
[17] Id.
[18] Id. citing “Workers’ Compensation Reimbursement for Medical Marijuana Usage Reviewed”; LexisNexis; Oct. 21, 2021
[19] 965 N.W.2d 312 (2021)
[20] Petitioners Reply Brief in Support of Petition for a Writ of Certiorari, Musta v. Mendota Heights Dental Center, No. 21-676 (U.S. February 1, 2022)
[21] Brief for the United States as Amicus Curiae, Musta v. Mendota Heights Dental Center, No. 21-676, 21-998 (U.S. May 16, 2022)
[22] Bourgoin v. Twin Rivers Paper Company, Case No. App. Div. 21-0022, Decision No. 23-2, State of Maine Workers’ Compensation Board (January 6, 2023).
[23] Id. at paragraph 3.

By Judge Jennifer F. Nicaud
Mississippi Workers’ Compensation Commission
Jackson, MS

 

The Department of Labor narrows the scope of the definition of independent contractor.

 

On March 11, 2024, a new rule began effective which rescinds the 2021 independent contractor rule (which made it easier to achieve independent contractor status under the Fair Labor Standards Act (FLSA) and replaced it with a six-factor test. The new test considers the following:

(1) opportunity for profit or loss depending on managerial skill; (2) investments by the worker and the potential employer;(3) the degree of permanence of the work relationship; (4) the nature and degree of control; (5) the extent to which the work performed is an integral part of the potential employer’s business; and (6) skill and initiative.

This new rule focuses on the “economic reality” as opposed to the 2021 Rule which focused on the “totality of circumstances” standard. A new inquiry concerns whether a worker is economically dependent on the employer’s business or is operating a business on their own. According to the Department of Labor (“DOL”), the 2021 Rule prohibited consideration of whether the work performed by the individual is central or important to the “potential employer’s” business. Under the 2024 Rule, the “integral” question asks not whether the worker’s role is an integrated unit of production but whether the worker’s role is an integral part of the potential employer’s business. In addition, the DOL emphasized that 2021 Rule did not consider a worker’s investment and initiative as a stand-alone factor; this factor was evaluated only as part of the “opportunity for profit or loss” analysis.

With regard to the 2024 Rule, the first inquiry regarding the worker’s opportunity for profit or loss depends on managerial skill concerns “whether the worker exercises managerial skill that affects the worker’s economic success or failure in performing the work.” Additionally, the DOL identified the following list of facts that may be relevant in evaluating this factor – “whether the worker accepts or declines jobs or chooses the order and/or time in which the jobs are performed; whether the worker engages in marketing, advertising, or other efforts to expand their business or secure more work; and whether the worker makes decisions to hire others, purchase materials and equipment, and/or rent space.” While no single fact is determinative, the DOL opines that “if a worker has no opportunity for profit or loss, then this factor suggests that the worker is an employee.”

The second inquiry, investments by the worker and the potential employer, concerns whether the worker is making any investments that are capital or entrepreneurial in nature. Investments by the worker that are capital or entrepreneurial in nature suggest that the worker is an independent contractor and should be viewed on a relative basis when compared to the investments of the potential employer in its overall business. The DOL’s guidance states that the “worker’s investments do not have to be equal to the potential employer’s investments and should not be compared only in terms of the dollar value investments or the sizes of the worker and the potential employer.” It is critical to focus on whether the investments by the worker are of a similar nature to the investments of the potential employer, even though the worker’s investments may be on a much smaller scale.

With regard to the degree of permanence factor, when the work relationship between the worker and potential employer is definite in duration, non-exclusive, project based, or sporadic based, which may include regularly occurring fixed periods of work, then this factor lends itself to the worker being an independent contractor. However, if the work relationship has no fixed duration, continuous, or is exclusive to the potential employer, then this factor weighs in favor of the worker being an employee and not in business for themselves. Notably, a work relationship that is seasonal or temporary does not by itself weigh in favor of an independent contractor classification. The DOL explained that if the lack of permanence in the working relationship is caused by “operational characteristics that are unique or intrinsic to particular businesses or industries and the workers they employ, this factor is not necessarily indicative of independent contractor status unless the worker is exercising their own independent business initiative.”

Inquiry as to the nature and degree of control factor considers the potential employer’s control over the worker’s performance of work and the economic aspects of the working relationship. The 2021 Rule focused on the worker’s and the potential employer’s nature and degree of control. The 2024 Rule shifts the focus back primarily to the nature and degree of control exercised by the potential employer. The relevant facts under this factor are whether the potential employer has control over the worker’s schedule, supervises the performance of work, or expressly limits the worker’s ability to provide their services to others. Additionally, the 2024 Rule considers whether the potential employer “uses technological means to supervise the performance of the work (such as by means of a device or electronically) [or] reserves the right to supervise or discipline the workers,” which are facts that would weigh in favor of the worker being an employee. The DOL stated that actions by the potential employer that are taken solely to comply with federal, state, or local laws or regulations are not indicative of control, additional actions taken by the potential employer that exceed its compliance with such specific laws or regulations but “serve the potential employer’s own compliance methods, safety, quality control, or contractual or customer service standards may be indicative of control.”

The fifth inquiry, the extent to which the work performed is an integral part of the potential employer’s business, focuses on whether the work performed by the worker is an integral part of the potential employer’s business or operations. If the function of the work performed by the worker is “critical, necessary, or central to the potential employer’s principal business,” then this factor leans in favor of the employee classification. The 2021 rule “focused on whether the worker is part of an ‘integrated unit of production'” (i.e., the extent to which a worker is integrated into a business’s production processes). The DOL explained that various courts tend to adopt a “common-sense approach to determining whether the work or service performed by a worker is an integral part of a potential employer’s business. For example, if the potential employer could not function without the service performed by the workers, then the service they provide is integral.” Some have asserted that the new approach to the “integral factor would lead to virtually every worker being classified as an employee since most, if not all, work performed for a business could theoretically be considered critical or necessary to an employer’s business.” However, the DOL explained that this “integral factor” is simply one factor that should be weighed with the other five factors in determining the ultimate inquiry of whether, as a matter of economic reality, the worker is economically dependent or independent on the employer for work.

The final factor, the skill and initiative of the worker, considers any specialized skills that the worker possesses to perform the work and whether such skills contribute to the worker’s business initiative. The DOL’s guidance suggests that a worker is not in business for themselves and is an employee when the worker is dependent on the potential employer to provide them with training to complete the work or does not use any specialized in the performance of the same. If a worker possesses specialized skills, then this fact, in itself, is not wholly indicative of independent contractor status as employees and independent contractors may both be skilled workers. For example, the DOL explained that a highly skilled welder who provides welding services to a construction firm would not be an independent contractor if the “welder does not make any independent judgments at the job site beyond the decisions necessary to do the work assigned. The welder does not determine the sequence of work, order additional materials, think about bidding the next job, or use those skills to obtain additional jobs, and is told what work to perform and where to do it.”

The rule does not adopt an “ABC” test and does not impact independent contractor classification under state laws utilizing the “ABC” test, such as California, Illinois, New York, Massachusetts, and New Jersey. The DOL represents that the new rule is being implemented to allegedly provide more clarity and consistency for businesses especially those businesses involved in transportation/ logistics, healthcare, consulting/IT services, and the gig sector (e.g. Uber, Door Dash, Lyft and Grubhub) which will the industry’s most likely to experience significant impact due to the changes.  Some of the factors in the 2024 Rule have been used by courts for years to determine whether workers should be classified and treated as independent contractors, however, the 2024 Rule is controversial as it is designed to recognize fewer independent contractors. Clearly, the change in the law may lead to an influx of cases as some will seek to reclassify former independent contractors as employees to be awarded damages for overtime, etc. The key question to be resolved under the new rule is whether, as a matter of “economic reality,” the workers are dependent on the alleged employer or are in business for themselves. There is no realistic solution for the frequent scenario where workers who desire to be independent contractors choose themselves to be “economically dependent” on work made available to them by one company, such as an ongoing business relationship between a vendor and its customer. Thus, the new rule is likely to create more uncertainty for companies that utilize legitimate independent contractor relationships to carry out their business functions.

Similarly, the 2024 Rule appears to favor classifying a worker as being an employee if the work they perform is critical, necessary or central to the potential employer’s business. But few businesses choose to pay for services that are not in some way necessary. Similarly, actions taken by companies to ensure compliance, safety, quality control, and contractual or customer service standards maybe indicative of control over the worker under the 2024 Rule, which is directly at odds with numerous court decisions finding those actions to be reasonable and justified. Moreover, simply reserving, but not exercising, control over the performance of the work is given greater relevance under the 2024 Rule, which will require certain businesses to reevaluate their written agreements with contractor.

Whether the 2024 Rule will have the intended impact is unclear. Most federal circuits courts already have established legal tests in place for determining independent contractor status. Moreover, the U.S. Supreme Court this term will take up an important administrative law case that asks the justices to reconsider the “Chevron” doctrine, in which courts grant considerable deference to certain federal agency regulations. The Court’s eventual decision in Relentless, Inc. v. Department of Commerce (No. 22-1219) and Loper Bright Enterprises v. Raimondo (No. 22-451) could sharply restrict the DOL’s authority to enforce the 2024 Rule in the courts.

With regard to workers’ compensation, workers who were previously classified as independent contractors become employees, and they become eligible for statutory workers’ compensation benefits in the event of work-related injuries will increase the total cost of risk (including premiums and retained losses) for many employers. One concern is that premiums will increase to an extent that businesses will no longer be able to absorb their costs and instead have to pass them on to customers, which might, in turn, impact revenues and margins. Whether the 2024 Rule and its new focus will change the inquiry established by state precedent with regard to independent contractors’ status with regard to workers’ compensation is yet to be seen.

By Judge Robert G. Rassp
California Workers’ Compensation Appeals Board
Los Angeles, CA

 

Position paper presented at CSIMS 2024 by Hon. Robert G. Rassp, Chairman of the Board of Directors, Friends Research Institute (friendsresearch.org)

Disclaimers: The opinions expressed in this article are those of the author and are not those of the State of California Department of Industrial Relations, Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board. The opinions expressed herein are based in part on the “Common Rule” 45 CFR 46 that pertains to the ethical requirements in medical research and the protection of research participants.  There is no current legal requirement that 45 CFR 46 applies to injured workers whose claims may involve the use of AI.

INTRODUCTION

Artificial Intelligence, or “AI,” is taking our society by storm.  When computers first became in wide use in business applications, advances in the programming language would occur every five years or so with upgrades in software development that would cause users of computers to replace old operating systems and download the latest operating system applicable to either their Mac or IBM based computer.  Today, software is being upgraded by software itself by at least six versions of machine language. In fact, computer programmers can download software applications that are bundled so that applications can easily be embedded in sophisticated computer programs.  Have you used a kiosk at McDonald’s?  Or ordered a coffee from Starbucks lately?  Machines are now processing our orders at fast food joints thanks to the sophisticated computer programming. You call a Call Center and you never speak to a human being.  You see the “Chat” icons for banks and other services with a web site?  Those are run by AI based software.  If you want to speak to a human being, you usually have to keep repeating “representative!” multiple times, or hit “0” repeatedly, and you might get lucky and get a live person on the phone or in the chat.

Call centers for some companies are now voice activated and responses are via a computer program upon verbal or numerical prompting by the calling party.  Most of these programs are driven by AI.  AI is now affecting much of our daily lives even though we may not even realize a response to something is driven by a computer program.  Your physician interacts with you by physician-patient portals that may be driven by AI via link to your medical records and the physician’s electronic medical record notes.  Did you know that the telehealth appointment you had with your doctor was actually with an avatar while your real doctor was golfing at his favorite course?

So how does AI fit in the context of medicine and law?  This article was written by this author as a result of prior notes he utilized for a presentation at the California Society of Industrial Medicine and Surgery Conference that occurred on August 14, 2024, at the Loews Coronado Island Resort. The title of the program was “Artificial Intelligence in Medicine and Workers’ Compensation Law.”  The panel consisted of this author (in the capacity of both a workers’ compensation presiding judge and Chairman of the Board of Directors of Friends Research Institute (friendsresearch.org), Dr. Christopher Brigham MD (editor of the AMA Guides To The Evaluation of Permanent Impairment, 6^th Ed. and principal of emedicine.com), Ray Mieszaniec (COO of Evenup – a legal tech company), and defense attorney Negar Matian (who is using AI applications in her workers’ compensation defense law practice).

This author’s presentation focused on the author’s opinion that guardrails need to be placed in the use of AI in the context of medicine and workers’ compensation litigation. While there is no question that AI development companies have emerged to focus on specific industries, including our own in workers’ compensation claims, a discussion of ethical considerations is necessary as these applications are introduced into our everyday lives.  This is especially true in the context of workers’ compensation claims and the role of physicians including treating doctors and medical-legal evaluators.

So how does the legal requirements for medical-legal reporting work if a physician utilizes AI software to review medical records, to communicate with the injured worker, to write reports that are admissible at the Workers’ Compensation Appeals Board? Can a defense attorney rely on AI software to write a communication to the employer or claims examiner recommendations for further case handling?  Can defense counsel rely on AI to provide an injured worker’s deposition summary or to develop questions to ask a physician at a deposition? Can counsel delegate writing Points and Authorities, a legal brief, or a Petition for Reconsideration to a generative artificial intelligence-based software program? Can a workers’ compensation judge write a decision with the use of an AI program?  These questions are all relevant and everyone in the workers compensation system have or will be confronted by the issue of how AI affects the way these cases are handled going forward. What is a legitimate role, if any, of the use of AI in the context of workers’ compensation cases?

CHATGPT

Most of the public’s first exposure to AI occurred in November 2022 with the public launch of ChatGPT which allowed anyone with a computer to seek information from an AI platform. You type in a key word, or words, and the program would produce a litany of information that the user can obtain from the program. Think in terms of a Google Search on steroids. Sometimes the information would be “garbage in and garbage out” but more on that issue below.  Commercial use of AI became the goal of the software developers of AI – how can AI be developed and marketed to assist specific industries in their use of computer based intelligent information processing?  The goal was and is to monetize the applications of artificial intelligence to the public from how to apply in the logistics and warehouse industry, medicine, transportation, legal, educational, and research. The potential use of AI is endless.

AI IN MEDICINE IN WORKERS’ COMPENSATION CLAIMS

There are two aspects of artificial intelligence that exist in the practice of medicine from an analytical standpoint, not including such things as robotic assisted surgical procedures or other “hands-on” clinical practice.  AI in medicine has two forms: (1) predictive analytics and (2) generative AI.  Predictive analytics involves such things as AI indicating that a patient has a 75% likelihood of being admitted into an intensive care unit. Generative AI is more prevalent in the context of workers’ compensation related medical practice where, for example, a computer program using AI using a large language model writes an article.  This author guarantees to you, the reader, that this article was NOT generated by AI. Generative AI involves relationships between people.

Further examples of Generative AI include patient-portal messages which can use conversational interfaces for patients to learn about their diagnosis, treatment options, or prepare for surgery (based on patient’s literacy level), or for patients to self-diagnose a condition. Can Generative AI be used for a medical-legal physician to “write” a medical-legal report?  Can a medical-legal physician rely on a commercially available proprietary generative AI program to review and summarize medical records?  There are AI companies who are selling the commercial use of their AI programs that claim, for example, that an accurate summary of 500 pages of prior medical records for an injured worker takes seven minutes for the AI program to generate.  You are reminded that medical records review of over 200 pages are billed by the medical-legal physician at $3.00 per page pursuant to the medical-legal fee schedule under Title 8 Cal. Code of Regulations Sections 9793(n) and 9795. Is an AI generated summary of medical records in a litigated workers’ compensation case reliable, accurate, credible, and persuasive evidence of the actual records?

AI IN LAW AND IN WORKERS’ COMPENSATION CLAIMS

The use of AI in a workers’ compensation attorney’s law practice could include such things as researching statutes, regulations, and case law.  AI based programs could write a legal brief, a legal article for a legal publication, or establish a best-worst case scenario for the outcome of a claim.  AI programs could summarize deposition transcripts of injured workers, witnesses, or physicians. Can an AI application be used by a judge to write a Summary of Evidence, an Opinion on Decision? A Report and Recommendation on a Petition for Reconsideration or Removal?

The use of AI is already embedded in legal search engines that attorneys and judges use every day.  When counsel enters a word or phrase into the LexisNexis data base, an AI assisted search engine can and will generate a list of statutes, regulations, and cases that may be pertinent to the search. Are those search engines accurate?  Are trial briefs, Points and Authorities, medical or deposition summaries generated by an AI assisted search engine reliable, accurate, credible, and persuasive?  Is a judge’s decision or response to a Petition for Reconsideration or Removal reliable, accurate, credible, and persuasive?  Can an AI based program write a medical-legal report including providing WPI ratings of an injured worker or write predictive apportionment findings?

Here is an example of an advertisement for a Generative AI subscription that was advertised online:

With the most robust set of capabilities (sic) in the market, “NAME OF AI PROGRAM” helps you:

1. Review Documents: Ask complex questions about a batch of documents and receive a substantive analysis complete with citations.
2. Search a Database: Pinpoint relevant documents within a large database of your files.
3. Draft Correspondence: Draft tailored letters and emails with speed.
4. Summarize: Condense long, complex documents into succinct summaries.
5. Extract Contract Data: Obtain precise information about the content of contracts.
6. Timeline: Automatically assemble chronologies of events described in your documents.
7. Contract Policy Compliance: Provide a set of policies to identify non-compliant contract language and receive automated redlines to bring the contracts into compliance.
8. Prepare for a Deposition: Easily identify pertinent topics and questions for investigative projects of all kinds.

Does this generative AI program replace law clerks, staff attorneys, paralegals, secretaries, and first-year attorneys?  Do you trust a computer application to guide your legal analysis of what may become a disputed issue?  Where are the analytical skills about credibility or issue spotting? Can this program identify legal or factual issues that only a practicing attorney can determine?  How do we know that if this generative AI program cannot find a legitimate legal citation that it will invent a fictitious one instead?  What is really irritating about this is that speed is not necessarily quality, accuracy or reliability.

A generative AI program cannot replace an attorney’s gut feelings or ability to smell a rat or to simply know what to ask in a deposition while on the fly during a deposition. Sometimes an attorney’s instincts kick in and will establish a strategy just based on those instincts – which generative AI cannot accomplish. Generative AI does not have human intuition, feelings, or empathy.

OVERLAPPING ETHICAL ISSUES

The use of artificial intelligence in the context of workers’ compensation litigation raises significant ethical issues that need to be developed in order to keep pace with the usage of AI.  Since no formal ethical code of conduct exists in the use of AI in workers’ compensation litigation, a discussion of some basic premises of ethics in medicine may apply.

The analysis of ethical considerations in the medical-legal context begins with the Belmont Report in 1979 that was adopted by the federal government to apply to any federally funded medical research that involved human participants for new drugs, biologics, or devices.  This broad ranging mandate was codified under 45 CFR 26 called the “Common Rule” which applies throughout the United States and has been adopted in our own Health and Safety Code [see Health and Safety Code Sections 24170-24179.5].  While ethical requirements in human subject protections in medical research are mandated by law, no such mandate exists in use of AI in legal or medical-legal applications.

Since there is no law that governs how AI can be used or restricted from use in workers’ compensation litigation, the legal protection of human subjects in medical research community can be analogized to form a framework of protection against abuse of the use of AI in workers’ compensation claims. We are, after all, engaging in a form of social, medical, and legal research just by using artificial intelligence in proposed ways during the course of a workers’ compensation claim.  We do not have enough data or experience to draw any conclusions about the short term or long-term effects on a claim or individuals involved in a claim when a party uses AI in the prosecution or defense of a claim. As of today, there are no legal or ethical guardrails in place to limit or regulate the use of AI in litigation.  So how do we develop an ethical framework for the use of AI outside of the medical research community?  We use medical research guardrails as a guide for the development of ethical usage of artificial intelligence in both medicine and the law.

The Belmont Report and 45 CFR 46 have a tripartite mandate:

1) Respect for Person – treat people individually and account for individual variances, perform research [or in our context – use artificial intelligence] in the best interest of a patient.

2) Beneficence: medical research must provide a benefit to society and improve diagnostics and the treatment of disease [AI should be available to everyone for the benefit to individuals and groups of individuals]

3) Justice: – apply the concept of equality in the selection of research participants [the benefits of artificial intelligence should be distributed equally among populations and individuals].

In addition to the proposed basis for guardrails for the use of AI in medicine and law, there is also the concept in medicine that medical processes follow, FAVES: Fair, Appropriate, Valid, Effective, and Safe.  You are reminded that in the context of medical-legal evaluations in workers’ compensation cases in California, Title 8 California Code of Regulations Sections 41 and 41.5 govern the ethical considerations for all physicians who perform medical-legal evaluations.  Someday there should be a provision in those sections that indicate that if any part of the medical-legal process is performed with the assistance of an artificial intelligence resource or program, a written disclosure statement shall be part of the physician’s reporting requirements.

POTENTIAL SHORTFALLS OF THE USE OF AI IN WORKERS’ COMPENSATION LITIGATION

There are a number of concerns about the use of artificial intelligence in the context of any form of litigation, especially in workers’ compensation cases. For the use of AI in both law and medicine, the FAVES factors should apply because AI can be misdirected to what is financially favorable to the doctor or claims administrator and not of ultimate benefit to legitimately injured workers. The use of AI by physicians and attorneys should be transparent, explainable, and subject to inspection. Remember, no one can cross-examine a computer or a computer program or application. How do you cross-examine a medical-legal physician who uses AI to (1) establish a diagnosis, (2) causation of injury, (3) determine WPI ratings, or (4) apportionment? An AI program cannot examine the injured worker, can it?  Will it some day?

Those of you who are not familiar with the mechanism of artificial intelligence, there are some aspects of it that are very concerning. There are at least six machine languages that have been developed that can allow artificial intelligence programs to write its own codes.  Generative AI can have a “hallucination” when it generates a false medical or legal citation. AI programs can deteriorate or drift from when it was first introduced.  In addition, AI could invent its own data set that is not based on reality. This phenomenon is called “performance drift” and must be monitored by human-based evaluation and oversight.

At the time of publication of this article, there is an organization called the “Coalition for Health AI” (chai.org) which has developed what is called an “Assurance Standard Guide” that divides oversight into three categories:

(1) AI developer’s Responsibility – evaluate the AI model thoroughly before deployment to ensure it meets safety and performance standards
(2) End-User’s Responsibility – conduct local evaluations to ensure the AI tool fits the specific needs and conditions of the health system
(3) End-User’s Monitoring Responsibility – monitor AI tool performance over time, ensuring it remains effective and adapting to any changes in conditions.

The Coalition for Health AI is a public-private oversight organization involving academia, tech companies, and the federal government to develop a national quality assurance laboratory to evaluate the safety and effectiveness of AI in medicine (covering the concept of beneficence).  The idea is to prevent AI from making financial decisions in favor of payers rather than decisions benefitting a patient (sounds like UR, doesn’t it?).

Remember, there is no legal mandate (legislative or regulatory) to require these guardrails in the development or use of AI in medicine or in law. The promotors and supporters of the Coalition include major, credible, medical groups including but not limited to UCLA Health, Mayo Clinic, Google, Johns Hopkins Medicine, Boston’s Children’s Hospital, Kaiser Permanente, UC Irvine, UC Davis, UC San Diego, and others. The Coalition plans on monitoring AI models use in medicine, developing best practice guidance for developing and deploying health AI technologies on a use case by use case basis, and to publish an AI “report card” on an accessible registry that has public access.

Is there a similar “Coalition for Law AI” that will do the same things as Coalition for Health AI?  Not yet – the only “oversight” of AI-based programs currently being marketed to medical-legal physicians and attorneys is the market itself.  Software developers are beginning to saturate the market to sell AI based programs to medical-legal physicians, claims administrators, and attorneys to help streamline the processing of information that is needed in the prosecution or defense of workers’ compensation claims.

These include programs that summarize deposition testimony, provide predictive case outcomes based on mechanism of injury and parts of body injured, set loss reserves, summarize 500 pages of medical records in seven minutes, analyze a mechanism of injury, develop, and send a client the “attorney’s” recommendations for further case handling, managing a law practice, and answering emails or phone calls from clients.

This raises a serious point:  How much inter-rater reliability is there for a summary of medical records that is generated by an artificial intelligence program versus the medical-legal physician actually doing the summary as well?  We would like to see a side-by-side comparison of an AI generated medical records summary with one that is actually done by a human QME or AME. Would a 5% variation be acceptable?  There are no studies yet on this issue. Further, who does the claims administrator pay the $3.00 per page above 200 pages of records to be reviewed?  Doesn’t that alone raise some significant ethical issues for QMEs and AMEs who use artificial intelligence programs to review and summarize medical records?

Artificial intelligence is currently embedded in MS Office (WORD especially) and now in a LexisNexis search. All you have to do is type a word or phrase into the search engine and AI will assist the user to obtain a data base.  We already know that some AI based programs have gone awry – a Federal judge in New York received an AI assisted legal brief from an attorney who did not check the legal citations that were generated by the AI program.  The judge did check them and discovered that the citations were a figment of the AI program’s imagination – the cited cases never existed.  It did not take a computer program to generate sanctions against the attorney who filed the AI generated brief.

Counsel is strongly advised to check their work.

ETHICAL CODE OF CONDUCT?

Artificial intelligence is becoming part of our normal day to day lives. AI is being used even when you do not know it. Artificial intelligence programmers can take the likeness of any person, say Taylor Swift for example, and generate what is known now as a “deepfake” which generates her likeness in an AI generated image and uses her voice to say anything the programmers want that sounds like her real voice.  The introduction of our AI seminar at the CSIMS conference in Coronado Island in August 2024 used the likeness of Scarlett Johansson and her voice in a video that was developed using AI. The image and sound were very real, but the actual person and her voice were not.

So how would the Belmont Report of 1979 along with the protections of human research participants apply in the context of the use of predictive analytics and generative AI in medicine and law?  Respect for persons: (1) there needs to be transparency on how patient data is being used, (2) clarity of the role AI is being used in decision making, and (3) allowing regulators access to the algorithms.  Beneficence:  A patient should be able to decline using AI as part of the informed consent process. An injured worker should be told that the utilization review process may be determined by AI but the injured worker will be provided reasonable treatment to cure or relieve the effects of the injury that is based on the medical treatment utilization schedule in ACOEM upon review by a licensed physician and/or a licensed physician through the Utilization Review and Independent Medical Review processes of Labor Code Sections 4610, 4610.5 and 4610.6.  Justice:  any decision-making process or review of a record by artificial intelligence is subject to scrutiny by the Workers’ Compensation Appeals Board.

Here is an ethical issue:  can a treating physician create an avatar who meets with the patient electronically? Is a physician obligated to disclose to a patient that some of the interactions between the patient and the doctor’s office is through an avatar or otherwise from an artificial intelligence-based application? Does a physician have to disclose that the probable outcome of surgery is based on a predictive analytics algorithm from an AI program?

An AI based algorithm has to be “fair” one that provides the same treatment recommendation for all patients with the same clinical features.  Can AI undermine physicians’ or attorneys’ professional role as a fiduciary for a patient’s or client’s best interests?  Ethical considerations exist in both the medical and legal fields of practice.  Attorneys are bound by the Code of Professional Conduct [See Business and Professions Code Sections 6000 et. seq.] and physicians are bound by their own professional standards and ethics.  Specifically, Title 8 Cal. Code of Regulations Sections 41 and 41.5 govern the ethical considerations for medical-legal evaluators.

DISCLOSURE-DISCLOSURE-DISCLOSURE!

There is no formal code of conduct in medicine or in law as to the limitations by practitioners of the use of applications programmed with artificial intelligence. There need to be guardrails along the use of both predictive analytics and generative AI in medicine and law.  We need to look to the National Institutes of Health, the Centers for Disease Control and Prevention, and the federal Office of Human Research Protections for guidance. Meanwhile, the California Business and Professions Code or the Rules of Professional Conduct do not cover ethical considerations for attorneys’ use of predictive analytics or generative AI in a law practice. There has to be a movement to build public trust in the use of artificial intelligence in medicine and in the courtroom. A lawyer, like a doctor, has a fiduciary duty to their client.  There should be a requirement that if a physician, an attorney or a judge writes anything using generative AI, the physician, the attorney or the judge has to disclose its use and to attest to its authenticity and accuracy.

After all, the attorney or physician owns what is written and has to defend its contents.  The missing element from written articles or reports that are generated by artificial intelligence is the style or uniqueness of the writer’s prose.  There is almost an innate ability to tell when something was written by a machine and not by a person.  All of us have a certain style of writing and there is always a human touch to how it reads. This article for example has some clunky word usage to it that are a product of this author’s unique writing style. The tone and emotion of writing is missing from AI generated prose. You can tell it was not written by a human.  It just does not pass the smell test. But the AI-based applications will improve over time.

The narrative of the concept of disclosure is not new or foreign in the practice of medicine or in the practice of law.  Informed consent is the hallmark of any fiduciary relationship between a patient and their physician or between a client and their attorney.  If any part of a workers’ compensation claim has been run through an artificial intelligence application by a physician or injured worker’s attorney, the injured worker should have knowledge of that fact. The metrics that are offered for claims administrators are limited as well – no one can predict the outcome of a claim – not every lumbar spinal fusion surgery has the same outcome. Predictive AI probably has very little use in the legal profession other than to give a claims examiner, risk manager, or defense attorney a “best case” and “worse case” scenario that a good defense attorney could already do just by reading the case file.

I SENSE DANGER, WILL ROBINSON!

Do you remember Robot in the television show, “Lost In Space?”  So how far can a medical-legal physician rely on a currently marketed application that is based on generative artificial intelligence to write a medical-legal report? Can a physician utilize a program that uses generative artificial intelligence to write a summary of 500 pages of medical and legal records?  What about our anti-ghost-writing statute?

Since this article is written about workers’ compensation claims and the use of predictive analytics and generative AI within the workers’ compensation community, a direct quotation of California Labor Code Section 4628 is appropriate.  Labor Code Section 4628 is the “ghost-writing” prohibition that says the medical-legal physician writes and signs the report and must disclose who else contributed to the medical-legal evaluation process and report writing process.  Here is Labor Code Section 4628 in its entirety:

4628(a) Except as provided in subdivision (c), no person, other than the physician who signs the medical-legal report, except a nurse performing those functions routinely performed by a nurse, such as taking blood pressure, shall examine the injured employee or participate in the non-clerical preparation of the report, including all of the following:
(1) Taking a complete history.
(2) Reviewing and summarizing prior medical records.
(3) Composing and drafting the conclusions of the report.
(b) The report shall disclose the date when and location where the evaluation was performed; that the physician or physicians signing the report actually performed the evaluation; whether the evaluation performed and the time spent performing the evaluation was in compliance with the guidelines established by the administrative director pursuant to paragraph (5) of subdivision (j) of Section 139.2 or Section 5307.6 and shall disclose the name and qualifications of each person who performed any services in connection with the report, including diagnostic studies, other than its clerical preparation. If the report discloses that the evaluation performed or the time spent performing the evaluation was not in compliance with the guidelines established by the administrative director, the report shall explain, in detail, any variance and the reason or reasons therefor.
(c) If the initial outline of a patient’s history or excerpting of prior medical records is not done by the physician, the physician shall review the excerpts and the entire outline and shall make additional inquiries and examinations as are necessary and appropriate to identify and determine the relevant medical issues.
(d) No amount may be charged in excess of the direct charges for the physician’s professional services and the reasonable costs of laboratory examinations, diagnostic studies, and other medical tests, and reasonable costs of clerical expense necessary to producing the report. Direct charges for the physician’s professional services shall include reasonable overhead expense.
(e) Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report.
(f) Knowing failure to comply with the requirements of this section shall subject the physician to a civil penalty of up to one thousand dollars ($1,000) for each violation to be assessed by a workers’ compensation judge or the appeals board. All civil penalties collected under this section shall be deposited in the Workers’ Compensation Administration Revolving Fund.
(g) A physician who is assessed a civil penalty under this section may be terminated, suspended, or placed on probation as a qualified medical evaluator pursuant to subdivisions (k) and (l) of Section 139.2.
(h) Knowing failure to comply with the requirements of this section shall subject the physician to contempt pursuant to the judicial powers vested in the appeals board.
(i) Any person billing for medical-legal evaluations, diagnostic procedures, or diagnostic services performed by persons other than those employed by the reporting physician or physicians, or a medical corporation owned by the reporting physician or physicians shall specify the amount paid or to be paid to those persons for the evaluations, procedures, or services. This subdivision shall not apply to any procedure or service defined or valued pursuant to Section 5307.1.
(j) The report shall contain a declaration by the physician signing the report, under penalty of perjury, stating:
“I declare under penalty of perjury that the information contained in this report and its attachments, if any, is true and correct to the best of my knowledge and belief, except as to information that I have indicated I received from others. As to that information, I declare under penalty of perjury that the information accurately describes the information provided to me and, except as noted herein, that I believe it to be true.”
The foregoing declaration shall be dated and signed by the reporting physician and shall indicate the county wherein it was signed.
(k) The physician shall provide a curriculum vitae upon request by a party and include a statement concerning the percent of the physician’s total practice time that is annually devoted to medical treatment.

CONCLUSION – FOR LAWYERS AND JUDGES

There must be a movement to build public trust in the use of AI in medicine and in the courtroom. A lawyer, like a doctor, has a fiduciary duty to their client.  There should be a requirement that if an attorney or a judge writes anything using AI, the attorney or judge has to disclose its use. For goodness sakes, check your work!  Double check the citations that are generated by the software and read the actual cases to verify the authority you are citing. No one can cross-examine a computer or its programming.

CONCLUSION – FOR MEDICAL-LEGAL PHYSICIANS

Is Labor Code Section 4628 a full stop for medical-legal physicians to use generative AI in their report writing process? Can a medical-legal physician use AI to summarize medical records? Could a judge disallow payment and deem a medical-legal report inadmissible because the evaluating physician was assisted by AI in the generation of the report?  Regulations and case law may be necessary to answer these questions. In the meantime, we can look forward to some ethical considerations within the medical, medical-legal, and legal communities in the use of predictive analytics and generative AI since artificial intelligence in general is rapidly becoming part of our daily lives as human beings.

CONCLUSION – THE ULTIMATE GUARDRAILS FOR INJURED WORKERS

Is there potential civil liability of the owners and developers of proprietary artificial intelligence software that generates a deepfake image of an injured worker, their attorney, or a proprietary generative AI program that has an inaccurate medical record summary or claim analysis that a QME, AME, employer, or claims examiner relies on?  The ultimate guardrail against harm by a software company who sells artificial intelligence programs to participants in a workers’ compensation claim is a civil lawsuit against the AI developers in Superior Court for damages in addition to costs, sanctions, and attorney’s fees in the workers’ compensation case at the WCAB against am applicant or defendant who misuses AI.

The ultimate responsibility of anyone who utilizes any form of artificial intelligence in the course of a workers’ compensation case is full disclosure by the person or persons who utilize AI during any step along the claims process.  There needs to be regulations, industry standards, or other required ethical considerations that any use of AI by any person involved in a workers compensation case be fully disclosed to any affected participant in that case.  Generative and predictive analytics by artificial intelligence does not have a human touch. No one knows what software was written by a human and what was written by a machine.

In addition, there should be required written disclosure that AI was utilized and how it was utilized with some form of assurance that a human being reviewed information that was generated by an AI program before any substantive decision making was made by a human being concerning all aspects of a claim. There is absolutely no room for deception in the course of a workers’ compensation claim since every judge has a duty to decide the rights and obligations of parties based on the evidence admitted at trial. That evidence has to be valid, reliable, accurate, credible, and persuasive.  A computer software system that uses artificial intelligence cannot make those determinations for us. There must be a human touch from claim form to claim resolution.

Postscript:  The author of this article wants to acknowledge the essay “The Ethics of Relational AI – Expanding and Implementing The Belmont Principles” by Ida Sim M.D. Ph.D. and Christine Cassel MD., New England Journal of Medicine, 391:3, July 18, 2024, pp. 193-196.

© 2024 Robert G. Rassp, all rights reserved.

 

By Judge Michael Alvey

Chairman, Kentucky Workers’ Compensation Board

Louisville, KY

 

The NAWCJ celebrated the induction of the 2024 Adjudicators Hall of Fame class in Orlando, Florida, on August 19, 2024.  The Criteria for selection into the Hall of Fame includes membership, or former membership (for those no longer serving as adjudicators) in the NAWCJ; Eight years of exemplary service as an adjudicator of workers’ compensation issues, trial, appellate, or any combination of the two, without requirement such period of service be uninterrupted; a record of notable service to the NAWCJ, defined as multi-faceted contributions to the ideals and goals of the organization; a record of service including educating, speaking, writing, advocating, and/or involvement with entities assisting those affected by workplace injuries.  Others who have made significant contributions to the NAWCJ, although never having served as an adjudicator, may be considered for induction into the Hall of Fame as an Honorary Member.

The NAWCJ Hall of Fame Committee includes Hon. Shannon Bruno-Bishop (LA), Hon. David Langham (FL), and Hon. Michael W. Alvey (KY). Nominations were solicited from current NAWCJ members through Survey Monkey.  After the period for nominations closed, the nominees were presented to the previously inducted Hall of Fame Members. Nominees are required to receive at least 60% of the votes submitted to be elected to the Hall of Fame.  At the induction ceremony, each inductee was awarded a plaque and a special membership pin.  Induction into the Hall of Fame is an ongoing annual event recognizing those who have provided great service to the NAWCJ.   The photographs and biographical sketches of the inductees are listed below.

 

Hon. Pamela B. Johnson

Judge Pamela Beason Johnson serves as a Workers’ Compensation Judge with the Tennessee Bureau of Workers’ Compensation Court of Workers’ Compensation Claims.  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, Tennessee Bar Association, Knoxville Bar Association, and East Tennessee Lawyers’ Association for Women. She is a Past-President of the National Association of Workers’ Compensation Judiciary, and she chairs the Lunch and Learn and New Judges’ Boot Camp committees. Judge Johnson is a regular speaker on issues of workers’ compensation practice and procedures at the national, 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.

 

 

Hon. Frank R. McKay

JUDGE MCKAY is an Appellate Judge and Director for the Georgia State Board of Workers’ Compensation where he served as Chairman and Chief Appellate Judge for eight years. Judge McKay received the 2019 National Judge Comp Laude Award from WorkCompCentral.  He is a Past-President of the Southern Association of Workers’ Compensation Administrators (SAWCA) and Co-Dean of the 2023 and 2024 Roger L. Williams National Regulators College.  He served on the Board of Directors for the National Association of Workers’ Compensation Judiciary (NAWCJ).  He served on the Board of Directors for the International Association of Industrial Accident Boards and Commissions (IAIABC) and serves on the Board of Advisors for the Workers’ Compensation Institute (WCI). He served on the Board of Directors of Kids’ Chance of Georgia.  He served on the Workers’ Compensation Research Institute’s (WCRI) Georgia Advisory Committee.  He is a Fellow in the College of Workers’ Compensation Lawyers (CWCL).  He serves on Georgia’s Statewide Opioid Task Force.  Judge McKay is a frequent speaker at the National Association of Workers’ Compensation Judiciary College and many other conferences.

He came to the Board in 2013 from private practice where he was a partner in the Stewart, Melvin, and Frost law firm in Gainesville, Georgia. His practice was concentrated in workers’ compensation, and he tried and presented many cases before the Administrative Law Judges and the Appellate Division of the State Board and appeals to the Superior Courts and the Georgia Court of Appeals. He was a former Special Assistant Attorney General handling workers’ compensation claims for the State of Georgia. He was on the State Board’s Advisory Council prior to being appointed the Chairman by the Governor of Georgia in 2013 and 2017.  Judge McKay was reappointed Director and Appellate Judge by Governor Brian P. Kemp in 2021.  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.

 

James Mcconnaughhay,

Mr. McConnaughhay concentrates his practice in workers’ compensation and administrative law. A Florida Board Certified workers’ compensation lawyer, Jim has actively practiced since his admission to the Florida Bar in 1969. His clients include national insurers as well as employers of every size. His administrative law experience primarily deals with the Florida Division of Workers’ Compensation and the Office of Insurance Regulation including but not limited to issues relating to rule promulgation, excess profits determinations, and insurance company regulatory activities. Jim was named one of Florida Trend’s Florida Legal Elite 2004 for the area of Workers’ Compensation. He is the recipient of the Florida State University College of Law Alumni Association Distinguished Service Award and the WorkCompCentral 2016 Comp Laude Award with honors as an industry leader. Jim has authored “Defending Workers’ Compensation Cases” for the Florida Bar Continuing Legal Education Handbook and the annually updated Florida Workers’ Compensation Desk Manual. He was the author of the 1989 Governor’s Task Force Report on Workers’ Compensation and the 1990 Oversight Board Report. Served as consultant for the 2003 systemic changes in the Florida Workers’ Compensation Law. He is an Adjunct Professor of Workers’ Compensation Law for the Florida State University College of Law and The Florida State University Juris master’s degree Program. Mr. McConnaughhay was instrumental in forming the NAWC and continues to be a great proponent of the organization.

 

Steve Rissman

Mr. Rissman is the Senior Partner of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.  He limits his practice to the representation of employers and carriers or self-insureds in workers’ compensation cases.  He is on the Board of Directors and Perpetual Program Chair of the annual Workers’ Compensation Educational Conference, the largest gathering of workers’ compensation professionals in the country.  He has been selected for inclusion in Best Lawyers in America from 1995 to the present.  He has been named as one of Orlando’s Top Lawyers by Orlando, The City’s Magazine, an honor held by a very small handful of defense lawyers in Central Florida.  He has served as an adjunct professor of law at Florida State University College of Law teaching a workers’ compensation course.  In April 2011, he was elected to the College of Workers’ Compensation Lawyers, a national organization that recognizes the expertise of workers’ compensation lawyers around the country.  Most recently, he has been named as one of the lawyers elected to the Florida Workers’ Compensation Hall of Fame.  Like Mr. McConnaughhay, Mr. Rissman was instrumental in forming the NAWCJ and continues to be a great proponent of the organization.

NAWCJ HALL OF FAME INDUCTEES

 

2021

Hon. Melodie Belcher, Georgia                                                   Hon. LuAnn Haley, Arizona

  Hon. John Lazzara, Florida                                                           Hon. Ellen Lorenzen, Florida

        Hon. Deneise Turner Lott, Mississippi                                         Hon. Dwight T. Lovan, Kentucky

        Hon. Bruce Moore, Kansas                                                           Hon. David Torrey, Pennsylvania

Hon. Roger L. Williams, Virginia*

2022

Hon. Michael W. Alvey, Kentucky                                                  Hon. Robert Cohen, Florida

 Hon. Robert Dietz, Florida*                                                            Hon. Jennifer Hopens, Texas

   Ms. Abbie Hudgens, Tennessee**                                                  Hon. David Langham, Florida

   Hon. James Szablewicz, Virginia                                                     Hon. Jane Williams, Kentucky

2023

Hon. Karl R. Aumann, Maryland

Hon. Shannon Bruno-Bishop, Louisiana

Kathy Shelton, Florida **

2024

Hon. Pamela B. Johnson, Tennessee

Hon. Frank McKay, Georgia

Jim Mcconnaughay, Florida**

Steve Rissman, Florida**

 

*Denotes posthumous inductee

** Denotes Honorary Inductee

If you know of an adjudicator meeting the criteria outlined above, please remember to nominate her or him.  While an adjudicator may be nominated at any time, we will follow up with a request for nominations next spring.   You may submit your nominations to any of the committee members:  Judge Michael Alvey michael.alvey@ky.gov; Judge Shannon Bruno-Bishop SBruno@lwc.la.gov; or Judge David Langham David.Langham@doah.state.fl.us.