Handout Materials - National Association of Workers` Compensation

Transcription

The National Association of
Workers’ Compensation Judiciary, Inc.
Presents
National Workers’
Compensation
Judiciary College
Curriculum & Agenda
August 21, 22 & 23, 2011
The Orlando World
Center Marriott,
Orlando, Florida
Program Agenda
Sunday, August 21, 2011
2:00 - 5:00 p.m.
National Workers’ Compensation
Judiciary College
Limited to Workers’ Compensation Adjudicators only.
Registration and Information
Outside of Grand Ballrooms 1 - 6, Convention Level
Monday, August 22, 2011
8:00 - 5:00 p.m.
(Afternoon Program)
(Morning Program)
Workers’ Compensation
Educational Conference
Attendance is optional.
11:30 – 1:40 pm
NAWCJ Welcome Lunch and Multi-Jurisdiction Comparative Law Panel
Welcome and Introductions:
Honorable Ellen H. Lorenzen
President, NAWCJ
Florida Office of Judges of Compensation Claims
Tampa, FL
Honorable John J. Lazzara
Past President, NAWCJ
Tallahassee, FL
Moderator:
Honorable Melodie Belcher
Secretary, NAWCJ
State Board of Workers’ Compensation
Atlanta, GA
Panel:
Honorable Karl Aumann
Maryland Workers’ Compensation Commission
Baltimore, MD
Honorable Diane Beck
Sarasota, FL
9:00 – 10:10 am
Welcome and Introductions
James N. McConnaughhay, Attorney
McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A.
General Chairman
Tallahassee, FL
Steven A. Rissman, Attorney
Rissman, Barrett, Hurt, Donahue & McLain, P.A.
Program Chairman
Orlando, FL
10:10 – 10:45 am
Industry Keynote Speaker
(Refer to General Information section of program)
Tim Carter
Chief Underwriting Officer
Zurich North America
Chicago, IL
Honorable Jennifer Hopens
Texas Department of Insurance, Division of Workers’ Compensation
Austin, TX
10:45 – 11:45 am
Guest Speaker and Keynote Address
(Refer to General Information section of program)
Honorable David Torrey
Vice President, NAWCJ
Pennsylvania Department of Labor and Industry
Pittsburg, PA
Football Legend: Larry Csonka
Palms Ballroom - Canary
Convention Level
1:40 – 2:00 pm
Break
11:00 – 5:00 pm Exhibit Hall Open
Cypress Ballrooms 1, 2 & 3
Convention Level
2:00 – 2:50 pm
The Power of Addiction
3:50 – 4:00 pm
Break
The Aging Workforce
Introduction:
Robert S. Cohen
Treasurer, NAWCJ
Director and Chief Judge of the Florida
Division of Administrative Hearings
Tallahassee, FL
4:00 – 4:50 pm
Introduction:
Honorable David I. Imahara
Administrative Law Judge
Atlanta, GA
Moderator:
Nat Levine
Broward Orthopedic Specialists
Ft. Lauderdale, FL
Moderator:
Nat Levine
Ft. Lauderdale, FL
Speaker:
Marc Gerber, MD
MRG Rehabilitation and Pain Medicine
Orlando, FL
Speaker:
Jesse A. Lipnick, MD
Southeastern Rehabilitation Medicine
Gainesville, FL
With Florida having the dubious distinction of the pain pill
capital of the country, injured workers often find themselves
depending on those medications. What causes addiction? What
causes an injured worker to abandon all sensibilities for Opioids
such as Oxycodone or Hydrocodone? What are the psychological
effects of addiction? Do ALL opioids prevent injured workers
from performing their job functions? This presentation is
intended to provide workers’ compensation Judges with an
educational opportunity concerning a growing issue that effects
all injured workers, regardless of jurisdiction.
2:50 – 3:00 pm
Break
With the Dow tanking and IRA’s rolling over dead, millions of
otherwise retired workers aren’t retiring after all. The country’s
workforce grows older as does the concept that all injuries are
treated the same. If you believe that the 60 year old and 25 year
old injured worker heal at the same rate, this breakout might
open your eyes. Older workers often have unrelated conditions
such as hypertension, diabetes and heart problems. How do
those conditions affect their claims for temporary or permanent
disability? Take a sneak peak at the future of claims as our
population gets older.
4:50 – 5:00 pm
Break
3:00 – 3:50 pm The Anatomy of the Injury
5:00 – 5:30 pm Introduction:
Pittsburg, PA
NAWCJ Annual Business Meeting
7:00 – 11:00 pm
Reception and Entertainment
Moderator:
Nat Levine
Ft. Lauderdale, FL
Featured Entertainment:
Club Hop and Party of The Century!
Panel:
Michael T. Reilly, MD
Center for Knee, Shoulder and Hip
Ft. Lauderdale, FL
Tim Joganich
ARCCA, Inc.
Penns Park, PA
The orthopod said what? How did the injury cause that? Case
management personnel and Judges often question causality
based on the orthopaedic surgeon’s diagnosis. This panel will
explore the biomechanical forces necessary to produce injuries to
the spine and joints. We will review how the objective findings
on MRIs combined with the study of biomechanics provides
evidence to determine the causality and age of an injury.
Palms Ballroom - Sabal and Crystal Ballrooms J1 & J2
Convention Level
Casual attire. Beverages & heavy hors d’oeuvres. Adults only,
please. Refer to “General Information” section of program for
additional information.
Tuesday, August 23, 2011
12:00 – 1:00 pm Florida Bar Workers’ 8:00 - 5:00 p.m.
Compensation Section Judicial Luncheon
Grand Ballrooms 1 & 2
Convention Level
8:45 – 9:45 am
Live Surgery-Minimally Invasive Lumbar Fusion
Oral Argument
Convention Level
1:00 – 2:00 pm
(Combined presentation for Breakout for Adjusters, Programs One and Two)
Presented by the Florida First District Court of Appeal
Tallahassee, FL
Surgery Performed by:
G. Grady McBride, MD
Orlando Orthopaedic Center
Orlando, FL
Panel:
Chief Judge Robert T. Benton, III
First District Court of Appeal
Tallahassee, FL
Moderator and Speaker:
Steven E. Weber, DO
Orlando, FL
Honorable Marguerite H. Davis
Tallahassee, FL
Honorable Philip J. Padovano
Tallahassee, FL
Honorable Joseph Lewis, Jr.
Tallahassee, FL
Honorable Paul M. Hawkes
Tallahassee, FL
Honorable Bradford L. Thomas
Tallahassee, FL
Honorable Simone Marstiller
Tallahassee, FL
Jon S. Wheeler
Clerk
Tallahassee, FL
Stephen Nevels
Marshal
Tallahassee, FL
The Orlando Orthopaedic Center presents a live surgery. Dr. G.
Grady McBride, a board certified spine surgeon with over 25
years of experience, will perform a minimally invasive lumbar
fusion called TLIF (Transforaminal Lumbar Interbody Fusion).
This procedure and technology (as compared to the tradional
open fusion) allow for a less invasive placement of hardware
decreasing a patient’s hospital stay, blood loss and allowing an
early return to work.
Dr. Steven Weber, a board certified spine surgeon at
Orlando Orthopaedic Center who specializes in Adult Spinal
Reconstruction, will be on location at the World Center
Marriott to assist with questions from the audience.
9:45 – 10:00 am Break and Transition to Grand Ballrooms 1 - 6
10:00 – 12:00 pm
Evidence, The Command Performance
Introduction:
Honorable Michael Alvey
Frankfort, KY
Speaker:
Charles W. Ehrhardt
Emeritus Professor
Florida State University College of Law
Tallahassee, FL
End the morning with one of the evidence greats! Professor
Ehrhardt will address issues troubling all adjudicators. Despite
the differences between state evidence codes, this speaker’s
thirty plus years of study, reflection, lecture and publication
bring evidence questions into sharp focus. Professor Ehrhardt
brings an enthusiasm for the subject, and presents with such
force and humor that the audience is always left wanting
more.
Convention Level
An actual workers’ compensation appeal will be argued live
before a panel of Judges of the Florida First District Court of
Appeal. The briefs will be made available to attendees prior
to the conference and the Court’s opinion will be published
on the Court’s website several weeks after the oral argument
takes place. The Court’s opinion will also be published in the
NAWCJ’s “Lex and Verum” newsletter.
2:00 – 2:15 pm Break and Transition
to Grand Ballrooms 1 - 6
2:15 – 4:10 pm Neuroscience and Psychology of Judicial Decision-Making For Workers’ Compensation Adjudicators
Introduction:
Atlanta, GA
Speaker:
Kimberly Papillon
California Judicial Council, Administrative Office of the Courts
San Francisco, CA
All Judges recognize that bias has no place in a trial. What
many do not recognize, however, is that bias can be implicit in
everyday life, and as a result, this may accompany the adjudicator
to the hearing room. Kimberly Papillon is a leading national
expert on the subject of implicit bias. She has been a pioneering
force in the quest to identify, dismantle and overcome these
biases using proven methods. She has conducted this training
for the California Judicial Council, various state and federal court
conferences, and state and local bar associations. This program
will not only change what you think about bias, it will help you
first to understand how you think about bias.
4:10 – 4:20 pm
Break
4:20 – 5:10 pm Code of Judicial Conduct for Workers’ Compensation Adjudicators
Introduction:
Austin, TX
Panel:
Honorable Rick Thompson
Atlanta, GA
Honorable David Langham
Pensacola, FL
Can there be a more perplexing (or frankly sometimes onerous)
topic? Various states are struggling with the disqualification
and recusal process. Refinements and resolutions have been
proposed, discussed, and found wanting. This program will
address the focus of the Code of Judicial Conduct on the specifics
of unbiased adjudication of issues, and on the ever-ubiquitous
“appearance of impropriety.” This highly interactive “point/
counter point” presentation will illuminate the subject, make
you think, and at the same time entertain.
5:15 – 6:15 pm
NAWCJ Reception
Grand Ballrooms 1 & 2
Non-judicial members of NAWCJ are cordially invited to attend
this reception in honor of the Judges and regulators from various
states attending the “Regulators Round Table” sponsored
by the Southern Association of Workers’ Compensation
Administrators (SAWCA).
A Special Thanks To Our
Beverage Break Sponsor:
Continuing Education
National Workers’ Compensation
Judiciary College
TO ENSURE YOU RECEIVE CONTINUING LEGAL EDUCATION CREDITS,
PLEASE READ CAREFULLY AND FOLLOW ALL INSTRUCTIONS.
Alabama Bar –
This course or a portion thereof has been approved by the Mandatory Continuing Legal Education Commission of Alabama for a maximum of 10.9 hours credit, including .8 hours of ethics. To receive Alabama CLE
credits:
1. Judges must be registered for the Judiciary College to receive CLE credit.
2. Judges must sign in on the Alabama Bar roster, for Judges, at either the Judicial College registration
desk located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth
located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
3. Judges must complete and turn in a conference attendance form at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education
booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
4. Judges must complete a MCLE Seminar Evaluation Form and return to the MCLE Commission of Alabama.
5. Judges must have their state bar number.
Delaware –
The Florida Workers’ Compensation Institute, Inc. program, “National Workers’ Compensation Judiciary College”, scheduled for Aug. 21, 2011 in Orlando World Center Marriott, has been approved for 13.10 credit(s),
including 1.00 Enhanced Ethics credits. The course ID number for this program is FWC08212011Natio.
1. Judges must be registered for the college to receive CLE credit.
2. Judges must sign in on the Delaware roster, for Judges, at either the Judicial College registration desk
located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth located
at the Crystal Registration Desk on the convention level of the Marriott Hotel.
3. Judges must complete and turn-in a conference attendance form to the continuing legal education
booth located at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth located at the Crystal Registration Desk on
the convention level of the Marriott Hotel.
4. Judges can pick up a Uniform Certificate of Attendance at the continuing legal education booth located at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1– 6,
or at the continuing legal education booth located at the Crystal Registration Desk on the convention
level of the Marriott Hotel.
5. Judges must have their Supreme Court identification number.
Florida Bar –
For the 2011 Workers’ Compensation Educational Conference, The Florida Bar approved The National Workers’ Compensation Judiciary College for the following Credits:
General
Substance
Title Course # C.L.E.R.
Ethics Abuse Certification Work Comp
NATL WC JUD COLL Day 1 – 9909 1 5.5
1.0 5.5
5.5
NATL WC JUD COLL Day 2 – 9927 1 8.0
1.0
8.0
8.0
2. Judges are to pick up a copy of a composite spreadsheet, identifying the breakouts/topics approved,
the course numbers, and the categories of credits, and the instruction memorandum on posting CLE
credits online at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the at the continuing legal education booth located at the Crystal Registration Desk
on the convention level of the Marriott Hotel.
3. Judges are to post their CLE credits online.
Georgia Bar –
The Georgia Commission on Continuing Lawyer Competency (CCLC) has approved Course ID # 155380 for
the following credits under the Mandatory Continuing Legal Education (MCLE) program – 11.0 CLE Hours;
1.0 Ethics Hours; 0.0 Trial Hours; and 0.0 Professional Hours. To receive Georgia CLE credits:
2. Judges must sign in on the Georgia Bar roster, for Judges, at either the Judicial College registration
desk located at the entrance to Grand Ballrooms 1 – 6, or at the at the continuing legal education
3. Pick up, complete, and submit a self-reporting form to the State Bar of Georgia. This form is available at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1
– 6, or at the at the continuing legal education booth located at the Crystal Registration Desk on the
convention level of the Marriott Hotel.
Kentucky Bar –
The KBA CLE Commission has approved Activity No. 123261 for 11.0 total credits, including .75 Ethics.
1. Judges must be registered for the conference to receive CLE credit.
2. Judges must sign in on the Kentucky Bar roster, at either the Judicial College registration desk located
at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth located at the
Crystal Registration Desk on the convention level of the Marriott Hotel.
3. Kentucky judges must file a Form #3 for attendance at a live CLE activity.
4. Judges must have their license number.
Louisiana Bar –
The Louisiana Supreme Court Committee on Mandatory Continuing Legal Education (LASCMCLE) has approved Course #: 7518110821A, Course Title: National Workers’ Compensation Judiciary College for a total of
9.25 hours of credit, including .83 hour(s) of ethics, 0.00 hour(s) of professionalism, and 0.00 hours of law
office practice.
1. Judges must be registered for the conference to receive CLE credit.
2. Judges must sign in on the Louisiana MCLE roster, at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth located at
the Crystal Registration Desk on the convention level of the Marriott Hotel.
3. Judges must complete and turn-in both a conference attendance form and a conference evaluation
form, at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1
– 6, or at the continuing legal education booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
Maryland Bar –
According to Andrea C. Terry, Program Attorney, Maryland State Bar Association – Maryland doesn’t require
its attorneys to complete any continuing legal education so there is no accreditation process in place in our
state.
Minnesota –
The Minnesota State Board of Continuing Legal Education has approved the National Workers’ Compensation
Judiciary College for 9.75 Standard, including 0.75 Ethics. The Event Code is 158273.
1. Judges must be registered for the college to receive CLE credit.
2. Judges must sign in on the Minnesota roster, for Judges, at either the Judicial College registration
desk located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth
located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
3. Minnesota is an attorney-report state. It is your responsibility to report their attendance.
4. Judges must have their license number.
Mississippi Bar –
The Mississippi Commission on Continuing Legal Education has approved this activity for 10.9 CLE credits,
including .8 ethics. To receive Mississippi CLE credit:
2. Judges must sign in on the Mississippi roster, for Judges, at either the Judicial College registration
desk located at the entrance to Grand Ballrooms 1 – 6, or at the at the continuing legal education
form to the Judiciary College registration desk located at the entrance to Grand Ballrooms 1 – 6, or
at the continuing legal education booth, located at the Crystal Registration Desk.
New Jersey State Bar –
New Jersey is a reciprocity state.
North Carolina Bar –
The Board of Continuing Legal Education, through its Accreditation Committee, has approved this activity for
the following – 10.00 hours of CLE credit, of which 0.0 hours will be available to satisfy the professional responsibility/ethics requirement and 10.0 hours will be available to satisfy the general requirement. To receive
North Carolina CLE credit:
2. Judges must sign in on the North Carolina Bar roster, for Judges, at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the at the continuing legal education booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
Ohio Bar –
This course has been approved by the Supreme Court of Ohio, Commission on Continuing Legal Education for
10.25 total CJE hour(s), with .75 of ethics instruction. (Activity Code#: 000232352) To receive credits from
the Supreme Court of Ohio:
2. Judges must sign in on the Ohio attendance roster, for Judges, at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the at the continuing legal education booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
3. Judges will be given a CLE Course Attendance Form for Ohio that must be completed and turned in at
the end of the Judiciary College (or the conference).
5. Judges will only receive credit for those topics at least 60 minutes in length (Rule X, §4(A)(1)).
Pennsylvania Bar –
The Supreme Court of Pennsylvania, Continuing Legal Education Board, has approved this course (Course #
120431) for a maximum 11.00 hours, including 1.0 ethics, and 10.00 Substantive.
To receive Pennsylvania CLE credits:
2. Judges must sign in on the Pennsylvania attendance roster, for Judges, at either the Judicial College
registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the at the continuing legal
education booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
4. Judges must provide their Pennsylvania Lawyer ID number to receive proper credit.
5. Judges must pick up and complete a copy of the Pennsylvania CLE Credit Request Form, and return it
with a check for $1.50 per credit hour to PACLE.
South Carolina Bar –
The Supreme Court of South Carolina, Commission on Continuing Legal Education and Specialization, has approved this course (Course # 114915) for 10.92 credits, including .83 in ethics.
To receive South Carolina CLE credits:
2. Judges must sign in on the South Carolina attendance roster, for Judges, at either the Judicial College
3. Judges must complete and turn-in both a South Carolina attendance form and a conference evaluation form, at either the Judicial College registration desk located at the entrance to Grand Ballrooms
1 – 6, or at the continuing legal education booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
Tennessee Bar –
The Tennessee Commission on CLE and Specialization has approved this course (Course # 109388) for .83
Dual Hours; 0.0 Ethics/Professionalism Hours; General Hours 10.08; Maximum Hours 10.91. Judges may
pick up a copy of the approved topics at the CEU desk.
To receive Tennessee CLE credits:
2. Judges must sign in on the Tennessee attendance roster, for Judges, at either the Judicial College
3. Judges must complete and turn-in a Judiciary College attendance form, at either the Judicial College
registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel.
4. Judges must pick up, complete and submit a Tennessee Commission on CLE “Request for Credits
Earned Out of State, Online or Other Unpaid Credits, along with appropriate fees.
Texas Bar –
The Texas State Bar, Minimum Continuing Legal Education Department, has approved this course for 10.0
MCLE credit hours, including 1.5 Ethics hours. To receive Texas CLE credits:
2. Judges must sign in on the Texas Bar roster, for Judges, at either the Judicial College registration desk
located at the entrance to Grand Ballrooms 1 – 6, or at the continuing legal education booth located
at the Crystal Registration Desk on the convention level of the Marriott Hotel.
3. Judges will be given a CLE Course Attendance Form and an evaluation form, which they are to complete and return, at either the Judicial College registration desk located at the entrance to Grand
Ballrooms 1 – 6, or at the continuing legal education booth located at the Crystal Registration Desk
on the convention level of the Marriott Hotel, when they are through attending courses. FWCI will report attendance hours.
Virginia –
In Virginia, only segments of a program that cover legal topics and have written instructional materials to
cover the subject matter may be considered for approval. If you do not have many Virginia attorneys attending it may be easier for the individual attorneys to apply for the specific portions of the program they attend,
supplying the required instructional material.
Wisconsin Bar –
The Supreme Court of Wisconsin, Board of Bar Examiners, has approved this course for use toward the Wisconsin mandatory continuing legal education requirement for 13.0 hour(s). This includes 1.0 ethics and
professional responsibility (EPR) hour(s), 0.0 Guardian ad Litem minor hours(s), 0.0 Guardian ad Litem
adult hour(s), and 0.0 Guardian ad Litem family hour(s). To receive Wisconsin CLE credits:
2. Judges must sign in on the Wisconsin Bar attendance roster, for Judges, at either the Judicial College registration desk located at the entrance to Grand Ballrooms 1 – 6, or at the at the continuing
legal education booth located at the Crystal Registration Desk on the convention level of the Marriott Hotel. Hours of actual attendance must be reported on a timely filed CLE Form 1 (or a written
amendment thereto) in order to satisfy part or all of the Wisconsin mandatory continuing education
requirement. The Wisconsin Court System has developed an electronic CLE reporting system which
allows attorneys to electronically file their continuing legal education requirements. You can go to
the following site and access the electronic version of the CLE Form 1 [http://www.wicourts.gov/services/attorney/edu.htm ].
National
Judiciary College
2011 Roster of Attendees
Judge Patricia Adams
Maryland Workers’
Compensation Commission
Baltimore, MD
Judge Nata Brown
Department of Employment
Services
Washington, DC
Judge John Coleman
Kentucky Workers’
Compensation Board
Pikeville, KY
Judge Michael Alvey
Kentucky Workers’
Compensation Board
Owensboro, KY
Judge Karen Calmeise
Services
Washington, DC
Judge W. James Condry
Office of the Judges of
Compensation Claims
Orlando, FL
Judge R. Karl Aumann
Maryland Workers’
Baltimore, MD
Judge Gary Cannon
South Carolina Workers
Columbia, SC
Judge emille cox
new jersey division of workers’
compensation
mount holly, nj
Judge Timothy Basquill
Compensation Claims
West Palm Beach, FL
Judge Fred Carney, Jr.
Services
Washington, DC
Judge Mary D’Ambrosio
Compensation Claims
West Palm Beach, FL
Judge Diane Beck
Compensation Claims
Sarasota, FL
Judge Gerardo Castiello
Compensation Claims
Miami, FL
Professor Charles Ehrhardt
Florida State University
Tallahassee, FL
Judge T. Scott Beck
Columbia, SC
Judge Caroline Clark
Kentucky Workers’
Compensation Board
Louisville, KY
Judge Melodie Belcher
Georgia State Board of
Atlanta, GA
Judge Robert Cohen
Compensation Claims
Tallahassee, FL
Marc Gerber, MD
Marc R. Gerber, MD, PA
Orlando, FL
Judge Lauren Godwin
Maryland Workers’
Baltimore, MD
11
Judge Jeffrey Herwig
Maryland Workers’
Baltimore, MD
Judge Sheral Kellar
Louisiana Workers
Baton Rouge, LA
Judge Kenneth Macleay
Maryland Workers’
Baltimore, MD
Judge Marjorie Renee Hill
Compensation Claims
Gainesville, FL
Judge Joan Knight
Services
Washington, DC
Judge Warren Massey
Atlanta, GA
Judge Charles Hill
Compensation Claims
Miami, FL
Judge Alan Kuker
Compensation Claims
Miami, FL
Judge Robert McAliley
Compensation Claims
Port St. Lucie, FL
Judge Geraldine Hogan
Compensation Claims
Lauderdale Lakes, FL
Judge Richard LaJennesse
Utah Labor Commission
Salt Lake City, UT
Judge Henry McCoy
Services
Washington, DC
Judge Aurora Holley
Utah Labor Commission
Salt Lake City, UT
Judge David Langham
Compensation Claims
Pensacola, FL
Judge William Ray Holley
Compensation Claims
Jacksonville, FL
Judge John Lazzara
Compensation Claims
Tallahassee, FL
Judge Jennifer Hopens
Texas Department of Insurance
Austin, TX
Judge Heather Leslie
Services
Washington, DC
Judge Ralph Humphries
Compensation Claims
Jacksonville, FL
Nat Levine
Broward Orthopedic Associates
Fort Lauderdale, FL
Judge David Imahara
Atlanta, GA
Judge Daniel Lewis
Compensation Claims
Judge Doris Jenkins
Compensation Claims
Tampa, FL
Judge Jesse Lipnick, MD
Southeastern Rehabilitation
Medicine
Gainesville, FL
Timothy Joganich
ARCCA, Inc.
Penns Park, PA
Judge Ellen Lorenzen
Compensation Claims
Tampa, FL
12
Judge Sylvia Medina-Shore
Compensation Claims
Miami, FL
Judge Leslie Meek
Services
Washington, DC
Judge Susan Meek
Houston, TX
Judge Cynthia Miraglia
Maryland Workers’
Baltimore, MD
Judge Joseph Murphy
Compensation Claims
Tampa, FL
Judge Tim O’Malley
Minnesota Office of
Administrative Hearings
St. Paul, MN
Judge J. Landon Overfield
Kentucky Workers’
Compensation Board
Frankfort, KY
Judge Kimberly Papillon
California Judicial Council
Oakland, CA
Judge Kathryn Pecko
Compensation Claims
Judge Neal Pitts
Compensation Claims
Orlando, FL
Judge Thomas Portuallo
Compensation Claims
Daytona Beach, FL
Judge Shelley Punancy
Compensation Claims
West Palm Beach, FL
Judge Maureen Quinn
Maryland Workers’
Baltimore, MD
Michael Reilly, MD
Fort Lauderdale, FL
Judge Donna Remsnyder
Compensation Claims
St. Petersburg, FL
Judge Andrea Roche
South Carolina Workers’
Columbia, SC
Judge Laura Roesch
Compensation Claims
Panama City, FL
Judge Stephen Rosen
Compensation Claims
St. Petersburg, FL
Judge Thomas Sculco
Compensation Claims
Orlando, FL
Judge Anand Verma
Services
Washington, DC
Judge Margaret Sojourner
Compensation Claims
Lakeland, FL
Judge Kimberly Ward
Maryland Workers’
Baltimore, MD
Judge E. Douglas Spangler, Jr.
Compensation Claims
Fort Myers, FL
Judge John Webster, Jr.
Maryland Workers’
Baltimore, MD
Judge Jerome Stenger
Atlanta, GA
Judge Jeffrey Weinberg
Maryland Workers’
Baltimore, MD
Judge Franklin Stivers
Kentucky Workers’
Compensation Board
London, KY
Judge Nolan Winn
Compensation Claims
Pensacola, FL
Judge Kathy Sturgis
Compensation Claims
Fort Myers, FL
Judge James Szablewicz
Virginia Workers’ Compensation
Commission
Richmond, VA
Judge Layna Taylor
Industrial Commission of
Arizona
Phoenix, AZ
Judge Richard Thompson
Atlanta, GA
Judge David Torrey
Pennsylvania Department of
Labor and Industry
Pittsburgh, PA
Judge Harriet Turney
Arizona
Phoenix, AZ
13
National
Association of Workers’
Compensation Judiciary
Officers and Board of Directors
Chief Appellate Administrative Law Judge, Kentucky Workers’ Compensation Board
HONORABLE R. KARL AUMANN
Chair, Maryland Workers’ Compensation Commission
Chief Administrative Law Judge, Georgia State Board of Workers’ Compensation
Secretary
Honorable Robert S. Cohen
Chief Judge & Director, Florida Division of Administrative Hearings
Treasurer
Appellate Judge, Florida First District Court of Appeal
Hearing Officer, Texas Division of Workers’ Compensation
HONORABLE DAVID IMAHARA
Administrative Law Judge, Georgia State Board of Workers’ Compensation
Honorable David W. Langham
Deputy Chief Judge of Compensation Claims,
Judge of Compensation Claims, Florida Office of Judges of Compensation Claims
Immediate Past President
Honorable ELLEN LORENZEN
Judge of Compensation Claims, Florida Office of Judges of Compensation Claims
President
HONORABLE DAVID TORREY
Workers’ Compensation Judge, Pennsylvania Department of Labor & Industry
Vice- President
15
National
Membership Roster
Judge Michael Alvey
Kentucky Workers’
Compensation Board
Owensboro, KY
Judge Nata Brown
Services
Washington, DC
Judge W. James Condry
Compensation Claims
Orlando, FL
Judge R. Karl Aumann
Maryland Workers’
Baltimore, MD
Judge Karen Calmeise
Services
Washington, DC
Judge Bruce Cowden
Kentucky Workers’
Compensation Board
Lexington, KY
Judge Timothy Basquill
Compensation Claims
West Palm Beach, FL
Judge Gary Cannon
Columbia, SC
Judge Emille Cox
New Jersey Division of Workers’
Compensation
Mt. Holly, NJ
Judge Diane Beck
Compensation Claims
Sarasota, FL
Judge Fred Carney, Jr.
Services
Washington, DC
Judge Mary D’Ambrosio
Compensation Claims
West Palm Beach, FL
Judge Melodie Belcher
Atlanta, GA
Judge Gerardo Castiello
Compensation Claims
Miami, FL
Judge Marc Christopher Davis
Kentucky Workers’
Compensation Board
Louisville, KY
Judge David Boddie
Services
Washington, DC
Judge Caroline Clark
Kentucky Workers’
Compensation Board
Louisville, KY
Judge Stephen Farrow
Atlanta, GA
Judge R. Scott Borders
Kentucky Workers’
Compensation Board
Florence, KY
Judge John Coleman
Kentucky Workers’
Compensation Board
Pikeville, KY
Judge Howard Frasier, Jr.
Kentucky Workers’
Compensation Board
Bowling Green, KY
17
Judge Douglas Gott
Kentucky Workers’
Compensation Board
Bowling Green, KY
Judge Gary Israel
Arizona
Tucson, AZ
Judge John Lazzara
Compensation Claims
Tallahassee, FL
Judge Amelia Govan
Services
Washington, DC
Judge Doris Jenkins
Compensation Claims
Tampa, FL
Judge Heather Leslie
Services
Washington, DC
Judge Henry Harnage
Compensation Claims
Miami, FL
Judge Richard Joiner
Kentucky Workers’
Compensation Board
Madisonville, KY
Judge Daniel Lewis
Compensation Claims
Judge Edward Hays
Kentucky Workers’
Compensation Board
Frankfort, KY
Judge Melissa Jones
Services
Washington, DC
Judge Ellen Lorenzen
Compensation Claims
Tampa, FL
Judge Charles Hill
Compensation Claims
Miami, FL
Judge Linda Jory
Services
Washington, DC
Judge Deneise Lott
Mississippi Workers’
Jackson, MS
Judge Marjorie Renee Hill
Compensation Claims
Gainesville, FL
Judge Joseph Justice
Kentucky Workers’
Compensation Board
Pikeville, KY
Judge LaDawn Marsters
Idaho Industrial Commission
Boise, ID
Judge Geraldine Hogan
Compensation Claims
Judge Sheral Kellar
Louisiana Workers
Baton Rouge, LA
Judge William Ray Holley
Compensation Claims
Jacksonville, FL
Judge James Kerr
Kentucky Workers’
Compensation Board
Lexington, KY
Austin, TX
Judge Joan Knight
Services
Washington, DC
Judge Ralph Humphries
Compensation Claims
Jacksonville, FL
Judge David Imahara
Atlanta, GA
18
Judge Alan Kuker
Compensation Claims
Miami, FL
Judge David Langham
Compensation Claims
Pensacola, FL
Judge Warren Massey
Atlanta, GA
Judge Robert McAliley
Compensation Claims
Port St. Lucie, FL
Judge Henry McCoy
Services
Washington, DC
Judge Sylvia Medina-Shore
Compensation Claims
Miami, FL
Judge Leslie Meek
Services
Washington, DC
Judge Jeanie Miller
Kentucky Workers’
Compensation Board
Owensboro, KY
Judge Stephen Rosen
Compensation Claims
St. Petersburg, FL
Judge Paul Terlizzese
Compensation Claims
Melbourne, FL
Judge Joseph Murphy
Compensation Claims
Tampa, FL
Judge Jeffrey Russell
Services
Washington, DC
Judge Richard Thompson
Atlanta, GA
Judge Belva Newsome
Services
Washington, DC
Judge Thomas Sculco
Compensation Claims
Orlando, FL
Judge David Torrey
Pennsylvania Department of
Labor and Industry
Pittsburgh, PA
Judge J. Landon Overfield
Kentucky Workers’
Compensation Board
Frankfort, KY
Judge Lawrence Smith
Kentucky Workers’
Compensation Board
Elizabethtown, KY
Judge Harriet Turney
Arizona
Phoenix, AZ
Judge Kathryn Pecko
Compensation Claims
Judge Margaret Sojourner
Compensation Claims
Lakeland, FL
Judge Anand Verma
Services
Washington, DC
Judge Neal Pitts
Compensation Claims
Orlando, FL
Judge E. Douglas Spangler, Jr.
Compensation Claims
Fort Myers, FL
Judge Nolan Winn
Compensation Claims
Pensacola, FL
Judge Thomas Portuallo
Compensation Claims
Daytona Beach, FL
Judge Franklin Stivers
Kentucky Workers’
Compensation Board
London, KY
Judge Otto Daniel Wolff, IV
Kentucky Workers’
Compensation Board
Florence, KY
Judge Shelley Punancy
Compensation Claims
West Palm Beach, FL
Judge Kathy Sturgis
Compensation Claims
Fort Myers, FL
Judge Donna Remsnyder
Compensation Claims
St. Petersburg, FL
Judge Robert Swisher
Kentucky Workers’
Compensation Board
Lexington, KY
Judge Grant Roark
Kentucky Workers’
Compensation Board
Louisville, KY
Judge James Szablewicz
Virginia Workers’ Compensation
Commission
Richmond, VA
Judge Laura Roesch
Compensation Claims
Panama City, FL
Judge Lawrence Tarr
Services
Washington, DC
19
National
Associate Membership Roster
Robert Donahue
Rissman, Barrett, Hurt, Donahue
& McLain, P.A.
Fort Pierce, FL
John McLain, III
& McLain, P.A.
Orlando, FL
Terry Germany
Anderson Crawley & Burke, PLLC
Ridgeland, MS
David McLaurin
Tupelo, MS
Robert Barrett
& McLain, P.A.
Orlando, FL
Rafael Gonzalez
The Center for Medicare SetAside Administration
Clearwater, FL
R. Briggs Peery
Swift, Currie, McGhee & Hiers,
LLP
Atlanta, GA
Douglas Bennett
LLP
Atlanta, GA
J. Russell Goudelock, II
McAngus, Goudelock & Courie,
LLC
Columbia, SC
William Pipkin, Jr.
Austill, Lewis & Pipkin, P.C.
Mobile, AL
Sharkey Burke, Jr.
Anderson, Crawley & Burke,
PLLC
Ridgeland, MS
Laurence Leavy
Laurence Leavy & Associates, P.A.
Fort Lauderdale, FL
James Anderson
Ridgeland, MS
Regan Ankney
LLC
Charleston, SC
R. Stephen Coonrod
McConnaughhay, Duffy,
Coonrod, Pope & Weaver, P.A.
Tallahassee, FL
Mark Davis
LLC
Charleston, SC
Hugh McAngus
LLC
Columbia, SC
James McConnaughhay
Tallahassee, FL
John Power, II
Power & Cronin, Ltd.
Oak Brook, IL
Steven Rissman
& McLain, P.A.
Orlando, FL
Michael Ryder
LLP
Atlanta, GA
E. Louis Stern
Sarasota, FL
21
Richard Watts
LLP
Atlanta, GA
Patrick Weaver
Panama City, FL
Glen Wieland
Wieland, Hilado & Delaitre, P.A.
Orlando, FL
22
NAWCJ Welcome Lunch
and Multi-Jurisdiction
Comparative Law Panel
Honorable Ellen H. Lorenzen
President, NAWCJ
Tampa, FL
Past President, NAWCJ
Tallahassee, FL
Secretary, NAWCJ
Atlanta, GA
Honorable Karl Aumann
Baltimore, MD
Honorable Diane Beck
Sarasota, FL
Texas Department of Insurance, Division of Workers’ Compensation
Austin, TX
Pittsburg, PA
23
Judge Ellen H. Lorenzen
District: Tampa
Term Expiration Date: 08/01/2012 College: Emory University Law School: Stetson University Background and Professional Experience Ellen Lorenzen was originally from Los Angeles, CA. but grew up in Baton Rouge, LA. She received her
B.A. from Emory University, Atlanta, GA in 1971 and moved to Florida. She began working as an all-lines
adjuster until she attended Stetson College of Law where she graduated in 1978. After admission to the
Bar, she became employed as staff counsel for Continental Insurance in Tampa, practicing primarily
in the area of personal injury defense with some workers’ compensation cases. In 1985 Ms. Lorenzen
became employed with the firm of Morris & Rosen where she represented injured employees. In 1986
she was hired by Travelers Insurance as a staff attorney where she was responsible for a mix of workers’
compensation and personal injury cases until 1990. At that time she became the managing attorney for
the Tampa staff counsel office of Travelers and restricted her practice solely to workers’ compensation
defense. In 1994 Ms. Lorenzen became associated with the firm of Barr, Murman, Tonelli in Tampa and
became a partner there in 1997. In 1998 Ms. Lorenzen and John Dixon, Esq. formed a firm handling
workers’ compensation defense statewide on behalf of several self-insured employers. Ms. Lorenzen
resigned her membership in that firm in 2004 when she was appointed a Judge of Compensation Claims
by Governor Bush. She has been Board Certified in Workers’ Compensation since 1988 and has been
a Board Certified Circuit Civil Mediator since 1994. Ms. Lorenzen serves on the board of Tampa Jewish Family Services, a non-profit social services agency providing mental health counseling and food
bank assistance to those in need in the Tampa area irrespective of race or religion. She is also on the
Friends of 440. 25
District: Tallahassee
Initial Appointment Date: 03/19/1990
Term Expiration Date: 03/18/2014
College: University of Florida
Graduated: 1965
Law School: University of Florida
Graduated: 1967
Background and Professional Experience
Judge Lazzara is a native Floridian. He was initially appointed Judge of Compensation Claims (JCC)
for the Tampa District in 1990 by Governor Bob Martinez. In 1993 he requested reassignment to the
Tallahassee District following the retirement of the late Judge Gus Fontaine. Since then he has been
reappointed twice by Governors Lawton Chiles and Jeb Bush, and once by Governor Charlie Crist. In
1998 and 2002, Judge Lazzara was nominated for appointment to the First District Court of Appeal.
In November 2005, Governor Bush was appointed him Interim Deputy Chief Judge, and served in that
capacity until May 2006.
Prior to his appointment to the Workers’ Compensation Tribunal, Judge Lazzara was engaged in the
private practice of law in Tampa for 23 years. In addition to his law practice, he served as a Hearing
Officer for the Hillsborough County Environmental Commission and the Property Appraisal Adjustment
Board. He was also an Arbitrator with the Florida New Motor Vehicle Arbitration Board; U.S. District
Court, Middle District of Florida; 13th Judicial Circuit; and the American Arbitration Association. Judge
Lazzara has been a Certified Circuit Civil Mediator since 1989, when the Florida Supreme Court appointed him to its initial Special Committee for Mediation/Arbitration Rules.
Judge Lazzara was President, Florida Conference of Judges of Compensation Claims (1997-99); Chair,
Florida Bar Workers’ Compensation Rules Committee (1994-95); and Chair, Division of Administrative Hearings’ Workers’ Compensation Rules of Procedure Revision Committee (2005-06). He was
a member of the Florida Bar Appellate Court Rules Committee (2001-07) and chaired its Workers’
Compensation Practice Subcommittee (2002-03, 2005- 07). Judge Lazzara is currently a member
of the Florida Bar’s Standing Committee on Professionalism. He continues to chair the Scholarship
Committee of the North Florida Chapter of Friends of 440. In 2009, he was inducted as a Fellow of the
ABA-affiliated College of Workers’ Compensation Lawyers, and is a founding Director and the Inaugural
President of the National Association of Workers’ Compensation Judiciary (2008-10).
Judge Lazzara received his B.A. and J.D. degrees from the University of Florida. In 1996, he completed
a course of judicial studies at the IAIABC International Workers’ Compensation College at Arizona State
University. He is a frequent lecturer on workers’ compensation trial, appellate and procedural topics,
27
and has testified before committees of the Florida Legislature on workers’ compensation legislation.
Judge Lazzara has co- authored chapters on “Workers’ Compensation Mediation” in the Florida Bar’s
Alternative Dispute Resolution in Florida, Vol. II, 1995, and in the Florida Workers’ Compensation
Practice, 4th & 5th Editions and Supplements.
Judge Lazzara’s current community involvement include sitting on the Boards of Directors of Literacy
Volunteers of Leon County, Treasurer, and the Epilepsy Foundation of the Big Bend, Vice-President; and
former elementary school mentor as part of the Governor Bush’s Mentoring Initiative.
28
Melodie Belcher
After ten years as a flight attendant for Eastern Airlines, Melodie Belcher needed a new career. She
attended Georgia State University College of Law where she was an editor on the law review, graduating cum laude in 1992. She then worked as an associate for Swift Currie McGhee & Hiers, where she
represented employers and insurers in workers’ compensation claims. In 1999, she joined the State
Board of Workers’ Compensation as a mediator in the Columbus office. She was appointed administrative law judge in 2002, and in October of 2009, she became the chief judge, moving to the Atlanta
office. Melodie is the Chair of the Administration and Procedures Committee for the Southern Association of Workers’ Compensation Administrators and is the Secretary for the National Association of
Workers’ Compensation Judiciary. She speaks regularly on a variety of workers’ compensation issues.
Melodie has two grown children (one lawyer and one in law school), and a cocker spaniel and lives
in LaGrange, Georgia with her husband, Bill (who is not a lawyer).
29
Commissioner, R. Karl Aumann.
Appointed to a 12-year term by Governor Robert L. Ehrlich, Jr., Commissioner Aumann began his tenure
with the Commission on August 3, 2005.Governor Ehrlich appointed R. Karl Aumann to the Maryland
Workers’ Compensation Commission on February 18, 2005. Mr. Aumann was confirmed unanimously
by the State Senate on April 11, 2005.
Born in Baltimore, Maryland, May 17, 1960, Commissioner Aumann graduated from Calvert Hall College High School in 1978. Commissioner Aumann graduated from Loyola College in Maryland with a
B.A. in political science in 1982. He received his J.D. in 1985 from the University of Baltimore School
of Law and was admitted to the Maryland Bar in 1986.
As an attorney, he was an associate with the Towson firm of Power & Mosner (now Bodie, Nagle,
Dolina, Smith & Hobbs) and later with the Baltimore office of Miles & Stockbridge. During his five
years with those firms, Commissioner Aumann specialized in toxic tort, product liability and medical
malpractice litigation.
In 1991, Commissioner Aumann was appointed by President George H. W. Bush as counsel and senior
policy advisor to the Appalachian Regional Commission. After Governor Ehrlich was elected to the
U.S. Congress in 1994, Commissioner Aumann became his Chief Administrator and District Director,
a position he held until 2003. His responsibilities included office oversight and policy development,
with special focus on international relations.
Appointed by Governor Ehrlich to be Secretary of State of Maryland on January 15, 2003, Commissioner Aumann was confirmed unanimously by the State Senate on January 31, 2003. As Secretary,
he oversaw the various office division responsibilities, including legal services, international relations
and COMAR/Maryland Register. He also chaired the Governor’s Subcabinet on International Affairs,
the Governor’s Commission on Maryland Military Monuments and the Interagency Council for the
Nonprofit Sector.
31
Honorable Diane B. Beck
District: Sarasota
Initial Appointment Date: 04/10/1995
Term Expiration Date: 9/29/2013
College: University of Pittsburgh, Johnstown, PA
Graduated: 1974
Law School: Stetson University College of Law
Graduated: 1983
Background and Professional Experience
Judge Beck was admitted to the Florida Bar in 1983 . She is also licensed to practice law (now inactive) in South Dakota and Virginia. In April 1995 she was appointed Judge of Compensation Claims
in Sarasota by Governor Chiles, who re-appointed her to that position in 1997. In 2001 and 2005 she
was re-appointed to the Sarasota position by Governor Bush. She previously practiced as an associate
in a small law firm in Bradenton, Florida, then as a sole practitioner in Aberdeen, South Dakota, in
most areas of law, including criminal defense, wills, estates, and trusts, personal injury, and divorce
and family law. She was an adjunct professor of business law at Northern State University in Aberdeen,
South Dakota. She served as assistant attorney general in Richmond, Virginia, representing various
state agencies and funds in workers’ compensation and social services matters, and represented the
Department of HRS in child abuse and neglect litigation in Sarasota, Florida. She has lectured and
served on panels at numerous seminars regarding workers’ compensation issues. She has served in
past years as the Secretary of the Conference of Judges of Compensation Claims, and as President for
the 2006/2007 term.
33
Jennifer Hopens received her undergraduate and law degrees from the University of Texas at Austin. She
was licensed to practice law in Texas in 2002. In 2007, she joined the Texas Department of Insurance,
Division of Workers’ Compensation as a Hearing Officer. She has traveled extensively for the Division,
holding contested case hearings in workers’ compensation matters in the Austin, Bryan/College Station, Dallas, Fort Worth, Lufkin, Missouri City, Houston East, Houston West, San Antonio, and El Paso
Field Offices of TDI-DWC. She attended the Judicial College of the National Association of Workers’
Compensation Judiciary (NAWCJ) in Orlando, Florida in 2009 and 2010. In 2010, she was chosen to
serve on the NAWCJ Board of Directors. She was previously a Hearing Officer for the Texas Workforce
Commission.
In her free time, she enjoys photography, genealogy, and traveling. In September 2010, she enjoyed a
2-week tour of Scandinavia with her family.
35
Dave Torrey, creator and author of the four-volume treatise Pennsylvania Workers’ Compensation:
Law & Practice (West 3rd ed. 2008), is a Workers’ Compensation Judge for Allegheny County, Pennsylvania. He was appointed to his position during the Casey Administration. He is also a member of
the Department of Labor & Industry WCJ Rules Committee.
Since 1996, Dave has also been an Adjunct Professor of Law at the University of Pittsburgh School
of Law, and he has been a preceptor in the school’s Student Externship Program. He has published
several law review articles dealing with workers’ compensation topics, and he lectures frequently on
the subject.
In 2007, he was elected Fellow of the ABA-affiliate College of Workers’ Compensation Lawyers. In 2010
he was elected to membership in the National Association of Social Insurance. He is Vice-President of
the National Association of Workers’ Compensation Judiciary.
He is a member and past chair (1998-99) of the Pennsylvania Bar Association Workers’ Compensation Law Section. He has written and edited the Section’s bi-monthly, magazine-style Newsletter since
1988. The newsletter includes an unabridged summary and critique of the latest court precedents,
reports on developing legislation and trends, book reviews, and original articles and essays. In May,
2009, he published his 100th issue.
Dave is a 1982 graduate of West Virginia University, and received his law degree from Duquesne University
School of Law, in Pittsburgh, in 1985. While at Duquesne, he was Editor-in-Chief of the Law Review.
Dave is a native of Alexandria, Virginia. He is a former member of the United States Army Band
(“Pershing’s Own”), based in Washington, D.C. (1976-1979); and also served in the 201st U.S. Field
Artillery, West Virginia Army National Guard (1979-1982). Dave is also a middle-of-the pack distance
runner. Since 1993 he has been a member of the Pittsburgh Frontrunners. He has written and edited
the club’s Newsletter since 1995.
37
NATIONAL ASSOCIATION
OF WORKERS’ COMPENSATION JUDICIARY
2011 National Workers’ Compensation
Judiciary College
Orlando, FL
Multi-Jurisdiction Comparative Law Panel
August 22, 2011
Hon. Melodie Belcher, Chief ALJ (GA)
Moderator
Hon. Karl Aumann, Chief Commissioner (MD)
Hon. Diane Beck, Judge of Compensation Claims (FL)
Hon. Jennifer A. Hopens, Hearing Officer (TX)
Hon. David B. Torrey, Workers’ Compensation Judge (PA)
STATES: GA, PA, TX, FL, MD
TOPICS
I. Workers’ Compensation Agency Structure
II. Hearing Process: Discovery, Medical Reports
III. Appellate Process: Levels and Standards of Review
IV. Settlement Process: Scope, Criteria, Hearing
V. Judges and ALJs: Hiring, Evaluation, Numbers
39
1) Agency make-up/structure
GEORGIA
a. Commission Structure
The State Board of Workers’ Compensation is the agency handling all matters concerning workers’ compensation issues in Georgia. The agency is headed by three directors who are appointed to four year terms by the
governor. One of the directors is the chairman, and currently, we are led by Chairman Richard S. Thompson.
The agency resolves all workers’ compensation disputes through the Hearing Division. Administrative Law
Judges preside over the evidentiary hearings and render decisions called awards. Hearings are conducted
throughout the state and we have six regional offices in addition to our main office in Atlanta. These awards
may be appealed to the Appellate Division of the State Board, which is made up of the three directors. There
are additional appeals outside of the agency.
Our agency also has a Mediation Division. This Division focuses primarily on settlement mediation and free
mediations are conducted throughout the state. Our mediators (staff attorneys and ALJs) are extremely busy
and successful.
Our Enforcement division focuses on ensuring compliance with insurance coverage laws and prosecuting
workers’ compensation fraud. It is comprised of sworn law enforcement personnel, attorneys and compliance officers.
We also have a Rehabilitation Division overseeing catastrophic claims, an Insurance Division, a Claims Processing Division, a Claims Assistance Division and an IT Division.
b. Multiple Agency Structure
Georgia does not have a multiple agency structure.
2) Hearing Process
a. Time to hearing
40
In Georgia, hearings are requested by the electronic filing of a WC-14. When the WC-14 is filed, the claim is
automatically routed to the appropriate ALJ (depending on territory). The ALJ’s secretary will immediately
schedule the hearing and generate a hearing notice that is electronically sent to the attorneys and the insurers
and mailed to the other parties. This process generally takes less than 48 hours. The hearing is scheduled
between 45 and 60 days of the filing of the WC-14. It cannot be scheduled earlier due to discovery restraints.
The majority of the hearings do not go forward on the first setting. Many claims are reset three or four times.
When all parties agree that a reset is necessary, they may have to have a conference call with the ALJ, but resets
are generally granted. Resets are granted due to legal conflicts, continuing discovery, and morphing issues.
Resets generally add a month to the hearing process and claims are usually heard within six to nine months.
b. Number of hearings per judge
ALJs have an average of 300 hearings pending at any given time. Generally, 45 – 50 claims are scheduled for
hearing on each calendar and most judges have 4-5 calendars per month. However, AJLs hear anywhere from
1 to 12 claims per month. Our hearings are full evidentiary hearings with the rules of evidence. They could
also be described as bench trials. We do use court reporters to create a record. The most an ALJ can probably
hear in one day would be 5 or 6 and only if a couple were very short. Hearings generally last 1-3 hours, but
they can be as short as 15 minutes or as long as 3 days. In 2010, 927 awards were issued by ALJs, about 49
awards per ALJ.
c. Use of Discovery
Discovery under the Civil Practice Act is available when hearings are pending and includes depositions (of the
claimant, witnesses or physicians), requests to admit, requests for production of documents and interrogatories. These discovery methods are employed in almost every pending claim.
d. Admissibility of Medical Reports
Any medical report or document signed and dated by an examining or treating physician or other duly
qualified medical practitioner shall be admissible in evidence insofar as it purports to represent the history,
examination, diagnosis, treatment, prognosis, or opinion relevant to any medical issue by the person signing
the report, as it that person were present at the hearing and testifying as a witness, subject to the right of any
party to object to the admissibility of any portion of the report and subject to the right of an adverse party to
cross-examine the person signing the report and provide rebuttal testimony within the time allowed by the
administrative law judge. Medical records that will be tendered into evidence must be provided to opposing
parties at least 10 days before the hearing.
e. Awards and their structure
Awards are issued within 60 days of the hearing and must include findings of fact and conclusions of law. They
are generally three to twelve pages of single-spaced type with analysis of the facts and the legal arguments of
the parties. Our awards are published, and we are bound to protect the privacy of the parties so we do not
use their names. Once a claim has been heard, the parties are provided an opportunity to submit post-hearing
briefs. These briefs are filed electronically and appear in the ALJ’s queue. After briefs are filed, Awards are
generated through our electronic filing system and are emailed and mailed to the parties as appropriate.
f. Use of Mediation
As noted above, we have a very active Alternative Dispute Resolution Division at the State Board of Workers’
Compensation in Georgia. The mediations involve accepted claims and disputed claims. On occasion, mediation is used for other issues such as attorney fee liens or change of physician. There are three ALJs assigned to
the ADR Division and four staff attorney mediators. In addition, most of our ALJs mediate on a regular basis,
but they cannot mediate claims assigned to them. Mediations are conducted at 15 locations throughout the
state for the convenience of the parties. In 2010, we had 7,616 requests for mediation. Our ADR judges also
handle other orders, attorney fee approvals and motions in claims not assigned to a hearing ALJ. Claims are
not assigned to a hearing ALJ unless a hearing is pending.
3) Appellate Process
a. Levels of review
The first level of appeal is at the State Board of Workers’ Compensation and is with our Appellate Division,
comprised of our three directors. This appeal is either argued orally by the attorneys or is submitted on
briefs. The appeals are all conducted in Atlanta at our main office, but we are in the process of installing
41
video-conferencing equipment in our Albany and Savannah offices so parties from South Georgia will not have
to travel a great distance for a five-minute argument. The appeal to this level is a matter of right.
The next level of appeal is to the Superior Court of the County where the injury occurred. This appeal is also a
matter of right, but there are strict scheduling issues and if the claim is not timely heard and the order timely
issued, then the decision of the Appellate Division is affirmed as a matter of law.
The next levels of appeal are discretionary. They include appeals to the Court of Appeals and to the Supreme
Court. The Court of Appeals probably takes 15 – 20 cases each year, but the Supreme Court may take only one
or two and often does not take any workers’ compensation cases.
b. Standard of review
At the Appellate Division, the award of the ALJ must be upheld if supported by the law and by a preponderance
of the evidence. At all other levels of review, the award of the Board must be upheld if supported by the law
and any evidence.
c. Volume of cases appealed
There were 689 appeals to the Appellate Division in 2010. We do not keep track of the appeals beyond our
agency.
4) Settlement Process
a. Permitted?
Settlement is not only permitted, but it is encouraged through our active mediation practice. There were
12,659 settlements in 2010.
b. Settlement of medical allowed?
Settlement of all issues is permitted, and settlements are allowed on both a “no liability” basis (meaning that
an order is issued that the accident did not occur), and on a liability basis.
c. Review required
1. Criterion of approval,
All settlements must be approved by the State Board of Workers’ Compensation. Settlements are reviewed
to determine if they are just, with a focus on the most recent medical records and the PPD rating. However, when attorneys are involved, the Board generally defers to the attorneys absent significant red flags.
The majority of concerns with settlements involve MSAs, attorney fee issues, other medical issues, and
guardianships.
2. Types of settlements
42
Georgia permits both “no liability” settlements and “liability” settlements or compromise settlements. We
permit settlement of all issues. Once a claim is settled, the Board loses jurisdiction of the claim except
when medical is left open or there are additional MSA issues or when there are issues with attorney fee
liens. In those cases, the Board has limited jurisdiction to address those issues. Settlements are approved
by our Settlement Division under the authority of the Appellate Division. This Division also handles advances – requests for advance payment of benefits due to economic hardship.
5) Judges and ALJs
a. Hired v. appointed
Our three Directors are appointed by the governor to four year terms. The Directors hire the Administrative
Law Judges and they are at will state employees. They do not have terms. Many of our ALJs have been with the
Board more than 20 years.
b. Evaluated
Our ALJS are evaluated annually by the Chief Judge. The evaluations are also reviewed by the Executive Director and the Chairman.
c. Continuing ed requirements
In Georgia, our ALJs continue to maintain CLEs as required by attorneys in this state. This is easy and fun,
because we have a large workers’ compensation seminar in St. Simons every year that is attended by lawyers
from both sides of the bar and by the majority of the judges. The seminar affords us all of the necessary credits, and in fact, many of our judges are speakers each year. Additionally, our Judges meet once or twice a year
for ALJ specific training. We usually have a professor of evidence and/or a speaker on judicial ethics.
d. Territories
Our main office is in Atlanta, and we have offices in Dalton, Covington, Columbus, Albany, Macon, and Savannah. In the past several years we closed offices in Augusta, Rome, and Gainesville due to budget issues. ALJs
do have to travel for hearings, because hearings are held in the county where the injury occurred, a contiguous county or within 50 miles of the county where the injury occurred. Georgia has more than 150 counties,
so we have many hearing locations (borrowed courtrooms, zoning rooms, and other free space we can
find).
e. Numbers
We have 10 hearing ALJs in Atlanta and 9 regional hearing ALJs. We also have three ALJs in the ADR Division
who are able to fill in as hearing ALJs.
43
PENNSYLVANIA
The Office of Adjudication (for which I work) is the workers’ compensation adjudication section of the state
Department Labor & Industry. We interface with the Bureau of Workers’ Compensation, an enforcement and
oversight entity which also acts as our filing office; we are, however, independent of that agency and our administrative supervisor, the Director of Adjudication, reports directly to the Secretary of Labor & Industry and
her deputies.
Our office also handles mediations. Virtually all mediation in Pennsylvania is undertaken in-house and most
judges mediate for a fellow judge.
Appeals from our adjudications go to the Workers’ Compensation Appeal Board, which undertakes substantial evidence/error of law review. Thus, Pennsylvania WCJs are the final fact-finders. Appeals beyond the Appeal Board thereafter go to judicial review.
We do not have a multiple-agency structure in Pennsylvania. There is no central hearing panel, or the like, in
our state.
2) Hearing Process
a. Time to hearing
Under the Pennsylvania Act, a hearing must be convened within 35 days of a petition filing by either party. In
certain instances, a hearing must be convened within 21 days. Those instances are when (1) a claimant who
has been on TTD or TPD returns to work, has his benefits stopped, and then encounters an aborted return;
(2) an employer seeks to stop payments based upon a physician’s affidavit of full 100% recovery. (Under the
Pennsylvania Act, when a claimant is receiving benefits, and declines to sign-off, a Goldberg v. Kelly-inspired
pre-deprivation due process hearing is required before benefits may be stopped.)
In the Pittsburgh office, the average case load is between 150 and 200 claimants. Most judges hold hearings
all day two to three days per week.
c. Use of Discovery
44
Under the Pennsylvania Act, a set of rules, which have the force of regulations, exists to define procedure before WCJ’s. These are called the Rules of Practice & Procedure Before WCJ’s. The rules have a section on discovery. All materials obtained must be disclosed. Any material not disclosed and tendered may not be used at
hearings; a pervasive rule is the familiar civil discovery rule that no planned surprises are permitted. Because
most WCJ’s utilize “serial” hearings, that is, a series of hearings spread over time, evidence not disclosed may
be disallowed at the first meeting but permitted later in the litigation.
The “no surprise” rule specifically applies to surveillance evidence.
No authority exists for interrogatories and admissions. All depositions, meanwhile, are for trial use; there
are no discovery depositions per se, as in civil practice, though in reality discovery is undertaken of claimants and other witnesses at both hearings and depositions. In the end, however, any deposition is offered into
evidence.
In a case involving fewer than 52 weeks of disability, a signed medical report is admissible over hearsay objection. In all other cases, a signed medical report is objectionable hearsay. If an objection is raised, the party
submitting the document must schedule the deposition, pay for it, and expose the witness to cross-examination.
The same rule applies for medical records.
Hospital records are admissible in all cases for the fact of treatment and for “pathologically germane” statements found therein.
Adjudications of the WCJ must be in the form of findings of fact and conclusions of law. Under reforms of
1993 and 1996, the WCJ must set forth the bases of his or her credibility determinations. This requirement is
called the “reasoned decision” requirement. If the WCJ does not comply with the statute, the decision may be
remanded. This is a rare occurrence, but certainly does happen. The Board and the court, which undertake
substantial evidence review, have not used this review power to try to reassess credibility.
Under a ruling of the Pennsylvania Supreme Court, the WCJ must, in particular, explain the bases of his or her
credibility determinations when he or she has not actually seen the witness (that is, when the testimony is by
deposition).
f. Use of Mediation
Since 2007, mediation is “mandatory” in Pennsylvania. This is so unless the WCJ determines that mandating
a mediation session is “futile.” Parties my also request a voluntary settlement conference. In Pennsylvania we
do not have a separate corps of mediators; instead, certain judges have decreased case loads and undertake
mediation of cases. While the mediation requirement is taken seriously, we do not have the type of mandatory
mediation said to exist in Florida, where, to quote Judge Lorenzen, “no one gets to see the JCC unless they
have been to mediation.”
a. Levels of review
Three levels of review exist above the adjudication of the WCJ. The first (1) is “intra-agency” review before
the Workers’ Compensation Appeal Board. This is a purely independent agency within the Department of
Labor & Industry with which we otherwise have no interface.
Beyond the Board, true judicial review, as a matter of right, exists in the (2) Commonwealth Court of Pennsylvania. This court was created in the late 1960’s to hear appeals exclusively from state agencies or from
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civil adjudications where the state or one of its subdivisions has been a party (aside from criminal cases).
The Supreme Court, thereafter, and in contrast, accepts those workers’ compensation cases that it chooses.
The court may accept up to ten per year.
The WCJ is the final-fact finder. All levels of review for substantial evidence/error of law. The true judicial
courts, notably, review the decision of the WCJ, not that of the Appeal Board.
We do not, to my knowledge, keep track of this aspect of appellate volume. I would estimate that 1/3 of my
final adjudications on the merits are appealed to the WCAB, but appeals to true judicial review are rare; perhaps three or four per year.
a. Permitted?
Yes; since 1996 any and all liability said to exist under the Act may be settled by the claimant tendering a release in compromise of his or her rights.
Yes; both disability and medical may be settled. No requirement exists, as in some states, that claimant must
have achieved MMI.
c. Review required
1. Criterion of approval, hearing or conference requirement
The criterion of approval is whether the claimant understands the full legal significance of the compromise of his rights and his tender of the release. A hearing is required in all cases, regardless of whether
claimant is represented by counsel.
Virtually all compromise settlements are via lump sum. Structured settlements are also permitted.
5) Judges and ALJs
WCJ’s since 1972 are members of the civil service. One must be a lawyer and have five years of workers’
compensation or cognate experience (1996), and then sit for a law-school style exam. The highest score
achievers are then interviewed by the Director of Adjudication on such subjective criteria as temperament.
b. Evaluated
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Each year the WCJ’s immediate supervisor undertakes an Employee Performance appraisal. The appraisal
criteria are (1) job knowledge; (2) work results; (3) communication skills; (4) initiative/problem solving;
(5) interpersonal relations; and (6) work habits.
In 2008 the Allegheny County (Pittsburgh) Bar Association added WCJ’s to its system of lawyer evaluations of
judges, state and federal. The criteria with regard to which members were polled were (1) impartiality; (2)
legal ability; (3) diligence; and (4) temperament of the various WCJ’s. This survey is undertaken every four
years.
Yes; CLE is required under a reform Act of 1996. Under Section 1401 of the Act, “(f) The secretary shall
develop and require all workers’ compensation judges to complete a course of training and instruction in
the duties of their respective offices and pass an examination prior to assuming office. The course of training
and instruction shall not exceed four weeks in duration and shall consist of a minimum of forty hours of class
instruction in medicine and law.
(g) The secretary shall develop a continuing professional development plan for workers’ compensation
judges which shall require the annual completion of twenty hours of approved continuing professional development courses.”
d. Territories
WCJ’s shadow the civil courts. The hearing in each case is in the county of the injured worker’s residence.
Thus, each WCJ is assigned one or more counties. There are 24 regional adjudication offices. (Two of these
are very large and are in Philadelphia.) Judges from these offices travel to sparsely-populated counties.
e. Numbers
Ninety (90) judges staff 24 regional adjudication offices. The state is divided into four divisions, each administered by a “Judge Manager,” who is the WCJ’s immediate administrative supervisor. The Director of Adjudication is in essence the chief judge.
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TEXAS
The Texas Department of Insurance (TDI), Division of Workers’ Compensation (DWC) regulates workers’
compensation in Texas. Though DWC is actually part of TDI, DWC has its own Commissioner, who is appointed by the governor. The DWC Hearings section oversees most types of dispute resolution in workers’
compensation cases in Texas. Benefit Review Conferences (BRCs), which are essentially mediations between
the parties, fall under DWC dispute resolution, as do contested case hearings (CCHs). BRCs are overseen by
Benefit Review Officers, who provide mediation, and CCHs are presided over by Hearing Officers. The judges
of the DWC Appeals Panel, which is also part of DWC Hearings, review appeals of CCH decisions. Benefit Review Officers, Hearing Officers, and Appeals Panel Judges are employees of TDI-DWC. Appeals going beyond
the Appeals Panel go to District Court.
The Division of Workers Comp (DWC) is part of the Texas Department of Insurance (TDI). Both TDI and
DWC have commissioners appointed by the Governor.
2) Hearing Process
a. Time to hearing
Pursuant to 28 Texas Administrative Code Section 142.6, DWC must set a CCH no later than 60 days from the
date of the BRC or, if DWC determines that an expedited setting is appropriate, no later than 30 days from the
date of the BRC.
This tends to vary depending on volume. Typically, hearing officers are assigned to hear at least two CCHs per
day.
c. Use of Discovery
28 Texas Administrative Code Section 142.13 contains rules guiding discovery in CCHs. Discovery includes,
according to 28 Texas Administrative Code Section 142.13(a):
(1) parties’ exchange of documentary evidence;
(2) interrogatories, as prescribed by §142.19 of this title (relating to Interrogatories); and
(3) witness depositions, as follows:
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(A) a health care provider may be deposed only on written questions; and
(B) other witnesses may be deposed within their county of residence or employment, orally or on written
questions, if the hearing officer determines the party has good cause to request such testimony.
Pursuant to 28 Texas Administrative Code Section 142.13(f), a hearing officer may grant additional discovery upon a showing of good cause at a hearing held for that purpose.
According to 28 Texas Administrative Code Section 142.13(a), if evidence is not produced voluntarily, the
party may request a subpoena, as provided in 28 Texas Administrative Code §142.12.
Per 28 Texas Administrative Code Section 142.13(c)(1) and (c)(2), “Parties’ exchange of documentary evidence”:
(1) Except as provided in subsection (g) of this section, no later than 15 days after the benefit review conference, parties shall exchange with one another the following information:
(A) all medical reports and reports of expert witnesses who will testify at the hearing;
(B) all medical records;
(C) any witness statements;
(D) the identity and location of any witness known to have knowledge of relevant facts; and
(E) all photographs or other documents which a party intends to offer into evidence at the hearing.
(2) Thereafter, parties shall exchange additional documentary evidence as it becomes available.”
Pursuant to Texas Labor Code Section 410.165(b), a hearing officer shall accept all written reports signed by
a health care provider. Therefore, subject to the timely exchange rules of 28 Texas Administrative Code Section 142.13(c)(1), (c)(2), and (g), medical reports are admissible.
Following a contested case hearing, the DWC Hearing Officer issues a written Decision and Order (D&O). The
D&O follows a standard format, which includes findings of fact and conclusions of law.
f. Use of Mediation
In most circumstances prior to proceeding to a CCH, parties must go through a BRC, which is a mediation
process. Parties are limited to two BRCs before proceeding to a CCH.
a. Levels of review
The DWC Appeals Panel reviews CCH decisions of DWC Hearing Officers. The next step after the Appeals Panel
is District Court. Pursuant to Texas Labor Code Section 410.205(b), a decision of the Appeals Panel that is
appealed for judicial review is binding on the parties during the pendency of the appeal in judicial review.
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Most cases are reviewed in court under a modified de novo standard. See Texas Workers’ Compensation
Comm’n v. Garcia, 893 SW 2d 504 (Tex. 1995). Issues other than compensability of the injury, eligibility for
income and death benefits and the amount of those benefits are reviewed without a jury under the substantial
evidence test (see Garcia, above).
I do not have this information.
a. Permitted?
Yes, but they are limited under Texas Labor Code Sections 408.005 and 410.256.
Under the “new” workers’ compensation law (i.e., the 1989 Texas Workers’ Compensation Act), settlements
are permitted. Settlements may not provide for payment of income benefits in a lump sum except for future
impairment income benefits in certain cases.
Not under the “new” workers’ compensation law (i.e., the 1989 Texas Workers’ Compensation Act), which
applies to dates of injury on and after January 1, 1991. “New law” settlements are limited to specified future
income benefits only, not medical benefits.
c. Review required
1. Criterion of approval,
Texas Labor Code Section 408.005 and 410.256 specify criteria for agency and/or court approval of a
proposed settlement.
I do not have this information.
5) Judges and ALJs
Hearing Officers and Appeals Panel Judges are hired by TDI-DWC and are at-will employees of TDI-DWC.
Both Hearing Officers and Appeals Panel Judges are required to be licensed to practice law in the state of
Texas. There is no civil service component to these positions.
b. Evaluated
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Hearing Officers are evaluated based on performance on a yearly basis for such criteria as knowledge of
work, work quality, communications, etc.
There are no formal CLE requirements for DWC Hearing Officers and Appeals Panel Judges in the Texas Workers’ Compensation Act or Rules, but all Texas lawyers must complete a minimum number of CLE hours annually in order to maintain their license to practice law.
d. Territories
There are currently 24 TDI-DWC Field Offices located throughout the state of Texas. In most of the offices, a
Hearing Officer is permanently assigned to hear cases in that office.
e. Numbers
There are currently 32 Hearing Officers with DWC Hearings, 3 of whom are traveling Hearing Officers who are
assigned to work out of TDI-DWC’s central location in Austin and who travel into the field as needed to hear
CCHs. There is a Hearing Officer Manager assigned to the TDI-DWC central location in Austin. The current
head of the DWC Hearings department is the acting Deputy Commissioner for Hearings. FLORIDA
a. Division Structure
The Division of Administrative Hearings (DOAH) operates two distinct programs: the adjudication of administrative disputes by Administrative Law Judges (ALJs) and the adjudication of workers’ compensation disputes
by Judges of Compensation Claims (JCCs) within the Office of the Judges of Compensation Claims (OJCC) (I
am a JCC). DOAH provides ALJs to conduct hearings pursuant to Chapter 120, Fla. Stat., (primarily disputes
involving state agencies), pursuant to other law, and under contract with governmental entities. Pursuant to
Chapter 440, Fla. Stat., DOAH provides 32 JCCs and 32 mediators in 17 offices throughout the state to conduct
workers’ compensation mediations and hearings.
The ALJs and JCCs are not subject to control, supervision, or direction by any party or any department or
commission of state government. DOAH is established within the Department of Management Services for
provision of support services only. The OJCC is funded entirely through assessments on the workers’ compensation industry from the workers’ compensation administrative trust fund. Employers and Insurance
Carriers or their Servicing Agents that appear as parties in hearings before the JCCs also have filing and other
responsibilities with the Division of Workers’ Compensation in the Department of Financial Services, which is
the industry oversight and enforcement entity.
We do not have a multiple-agency structure in Florida.
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2) Hearing Process
a. Time to hearing
Under Florida Workers’ Compensation Law, 40 days after a petition for benefits is filed a JCC must notify the
parties by order that a mediation conference has been scheduled unless the parties have already notified the
JCC that they have scheduled or held a private mediation. The mediation must be held within 130 days of the
filing of the petition for benefits, and the final hearing held and concluded within 90 days of the mediation
conference. If the issues are not resolved at the mediation conference, the parties may file pretrial stipulations but if they fail to do so, a pretrial hearing must be scheduled and held with 14 days notice. The final
hearing must be held within 210 days after receipt of the petition for benefits. The claimant may waive the
timeframes for good cause shown (which usually occurs when doctors’ depositions cannot be coordinated
or an expert medical advisor is appointed). The JCC statewide average is less than 130 days to the mediation
conference and 200 days from the petition to the trial.
Exceptions to this are emergency conferences which can be convened without written notice for bona fide
emergencies involving the health, safety, or welfare of an employee, and expedited hearings. Expedited hearings may be held without mediation conferences or hearing on the issue of the average weekly wage, and
may be held without a mediation conference and with a hearing on claims for benefits of $5,000 or less. The
parties are to exchange pretrial outlines at least 15 days before the hearing and presentation of evidence and
argument is limited to 30 minutes.
For fiscal year 2009-2010 67,981 petitions for benefits were filed. The average trials per JCC for fiscal year
2010-2011 is 59, although numerous other types of hearings are held such as motion hearings and settlement
hearings. Most JCCs hold hearings four to five days a week. Each JCC office has video teleconference (VTC)
equipment which allows the JCC to hear cases from other districts, and which is also used by the ALJs, who
are all headquartered in Tallahassee, Florida.
c. Use of Discovery
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The OJCC promulgates rules through the Administrative Process Act which are called Rules of Procedure for
Workers’ Compensation Adjudications. Rule 60Q-6.114 governs Discovery, which provides for use of discovery methods specifically authorized by statute, including depositions, issuance of subpoenas, and requests
for production, prior to or after invoking jurisdiction of the JCC. (Interrogatories and admissions are not
permitted). Depositions, production, responses, and objections are as provided in the Florida Rules of Civil
Procedure. The JCC can enter orders to effectuate discovery.
Rule 60Q-6.113 governs Pretrial Procedure and includes provisions that all witnesses including impeachment
and rebuttal witnesses must be identified, including whether they will be testifying in person, by telephone, or
by deposition; all available written reports of experts to be offered at trial must be exchanged; witness lists,
exhibit lists, supplements, and amendments served and exhibits exchanged less than 30 days before the final
hearing must be approved by the judge or stipulated to by the parties; and no discovery shall be permitted
within 10 days of the final hearing absent prior approval by the judge for good cause shown or by agreement
of the parties.
Section 440.30, Fla. Stat. regarding Depositions, allows for the taking of depositions either prior to or after
the institution of a claim if the claimant is represented by an attorney, or after the filing of a claim in the same
manner as in civil actions in circuit court. If no claim has been filed when the depositions are taken, then the
carrier or employer taking the depositions shall pay the claimant’s attorney a reasonable fee for attending the
depositions.
For cases involving dates of accident after January 1, 1994 section 440.13(5)(e), Fla. Stat. provides that no
medical opinion other than the opinion of a medical advisor (EMA) appointed by the JCC or the department
of financial services, an independent medical examiner (IME), or an authorized treating provider is admissible in proceedings before the JCC. For earlier dates of accident there is no such restriction. Although
opinions of doctors other than EMA, IME, or authorized are not admissible, the records can be received for
factual purposes upon proper authentication, and factual testimony can also be received.
Section 440.29(4), Fla. Stat., provides that all medical reports of authorized treating health care providers
relating to the claimant and subject accident shall be received into evidence by the JCC upon proper motion
served on the opposing party at least 30 days before final hearing. The section does not limit any right of further discovery, including depositions.
Within 30 days after final hearing or closure of the hearing record (unless agreed otherwise by the parties),
the JCC must enter a final order on the merits of the disputed issues. The JCC may enter an abbreviated final
order in cases in which compensability is not disputed, and either party may request separate findings of fact
and conclusions of law, which they must do within ten days and must do if they wish to appeal. The order
is referred to as a “compensation order” and except for the abbreviated order mentioned above, must set
forth the findings of ultimate facts and the mandate and need not include any other reason or justification for
such mandate. The standard of proof is generally preponderance of the evidence, except for certain issues;
overcoming a statutory presumption of the correctness of an EMA opinion requires clear and convincing
evidence, and for dates of accident after October 1, 2003 in cases involving occupational disease or repetitive
exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence.
f. Use of Mediation
Mediation began as a voluntary alternative in 1989 in Florida and later became mandatory unless waived upon
motion by the Deputy Chief Judge in a given case. The mediation conference must be held within 130 days of
the filing of the petition for benefits. There are 32 state mediators, one for each JCC, and a mediation conference is assigned on the 40th day after the petition is filed. The parties may use a private mediator and do not
need permission to do so, provided they notify the JCC at least 30 days before the state scheduled mediation
conference. Private mediation can also be ordered if the state mediator’s calendar is too crowded to accommodate a mediation conference within the 130 day requirement. The mediation conference can be continued
upon good cause shown or for circumstances beyond the movant’s control. The mediator has discretion to
allow telephone appearances. By statute, mediation conferences may not be used solely for the purpose of
mediating attorney’s fees.
a. Levels of review
There are two levels of appeal. Appeals from our adjudications all go to the District Court of Appeal, First
District in Tallahassee, Florida regardless of where the underlying case was heard, so that there can be uniformity in the decisions. In most other civil and criminal cases, appeals are filed in a particular geographical
district-for instance, in my district of Sarasota, Florida, civil and criminal appeals are normally heard by the
District Court of Appeal, Second District in Lakeland, Florida. Further review by the Florida Supreme Court
is available but does not occur frequently. Because only one District Court of Appeal hears all workers’ compensation cases, there rarely exists conflict between Districts to allow for Supreme Court review on that basis.
The Supreme Court does accept cases that are certified by the District Court of Appeal, First District, to have
questions of great public importance, but they do not accept all certified cases. The Supreme Court also re-
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views District Court decisions declaring state statutes or a state constitutional provision invalid, and they have
discretionary jurisdiction over decisions declaring a state statute or constitutional provision valid or construing the state or federal constitution.
Florida JCCs are the final fact finders. The Court of Appeal reviews for competent substantial evidence or
abuse of discretion depending on the issue involved and generally does not reassess credibility. Issues of law
only are reviewed de novo. Cases are occasionally remanded for additional findings.
Jon S. Wheeler, the District Court of Appeal First District Clerk of Court, provides statistics related to that Court
at this educational conference each year. Some of those statistics from his last year’s presentation include that
505 workers’ compensation appeals were filed in 2009 which accounted for 8 percent of the Court’s appeals,
and for the period from January to June 2010 223 workers’ compensation appeals were filed, accounting
for 7 percent of the appeals. The number of workers’ compensation appeals of approximately 500 per year
has been relatively consistent since 2000. Of the 505 cases filed in 2009, 71 percent were filed by the claimant, 28 percent by the employer and 1 percent other. Of those cases, 12 percent were reversed, 58 percent
affirmed, and 30 percent were administratively disposed. After the administrative dispositions, the remaining dispositions for 2009 consisted of 17 percent reversed, 13 percent affirmed by opinion, and 70 percent
affirmed PCA. In my case, for fiscal year 2010 to 2011 I heard 74 trials and 9 of those decisions have been
appealed (approximately 12 percent).
a. Permitted?
Yes.
Yes. Previously MMI was required but since 2001 is only required for unrepresented claimants.
c. Review required
1. Criterion of approval, hearing or conference requirement
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If the claimant is not represented by an attorney, and if the case was accepted as compensable by the
employer, the claimant must be at MMI, efforts must be made to obtain a statement from the doctor as to
future medical needs, and it must be found that the settlement will definitely aid the rehabilitation of the
injured worker or is clearly for the best interests of the party entitled to compensation. A hearing need
not be held, but if one is scheduled the employer must be given notice and be informed of the right to appear and testify. Claimants must provide a sworn statement that they have disclosed all child support obligations and reports from the Department of Revenue and the Clerks of Court where the claimant resides
now and at the time of the accident must be submitted showing whether any child support arrears exist.
If there are child support arrears provision must be made to address payment. We generally require the
claimant to pay all arrears owed if they are less than one-half of the net proceeds of the settlement, or one
half of the net proceeds if more than that is owed. If the case is controverted or denied by the employer,
MMI and future medical needs need not be obtained, but the employer or carrier must have filed a notice
of denial within 120 days of the notice of the accident, and a bona fide justiciable controversy as to legal
or medical compensability must be found in addition to the other above requirements.
If the claimant is represented by an attorney, then the JCC only determines whether the attorney fees and
costs are appropriate per the statutory guidelines and whether child support arrears are owed and addressed, and these are the only two items we approve by order; there is no requirement that we review
the underlying settlement documents or any medical information or hold hearings for represented claimants’ settlements.
Virtually all settlements are via lump sum. Indemnity only can be settled with medical left open but that is
rarely used. Structured settlements are permitted.
5) Judges and ALJs
JCCs are appointed. They must be members of the Florida Bar in good standing for the previous 5 years and
experienced in the practice of law of workers’ compensation. Once appointed they may not engage in the
private practice of law during a term of office. They are chosen initially by a statewide nominating commission that is comprised of both attorneys and lay persons from the various state districts. When a position is
open, the nominating commission interviews applicants and generally chooses three names to submit to the
Governor, who then chooses one of the three, usually after an interview with his chief of staff or a panel of his
attorneys. The Governor is not required to choose any of the three but can request additional names. Positions are filled for four year terms. Prior to the expiration of the term of a sitting JCC, if he or she desires
reappointment, they must fill out the application, provide copies to each member of the nominating commission, and interview with the nominating commission. The interviews are open to the public, and occur
throughout the year depending on the JCCs term expirations and the commission’s availability. Usually three
or more JCC position interviews are conducted at each time the commission conducts interviews. This year,
as in most years, the commission will hold interviews during the educational conference at the Marriott World
Center. The public is permitted to come to the interview and anyone who wishes to speak against a JCC’s reappointment may do so, provided they give notice within the deadline the commission provides. The commission does not permit the public to speak on behalf of a JCC, but they accept letters of support which remain
in the file for the Governor. The commission is to determine whether the sitting JCC has done a satisfactory
job during the previous four years, and they vote on whether to recommend the JCC to the Governor for reappointment. If they recommend that the JCC should be reappointed, they notify the Governor, and then the
Governor’s office sets appointments with his staff for another interview, after which he determines whether to
reappoint the sitting JCC. There is no requirement that he do so, and if he does not, then the nominating commission advertises the position and interviews other applicants, again sending the names to the Governor for
consideration.
b. Evaluated
JCCs do not have performance appraisals but there are statutory measures considered by the nominating commission in determining whether performance is satisfactory: timely mediation, pretrial procedure, appropriate continuance grounds and orders, timely final hearing notice, timely final hearings and final orders, final
order filing, appropriate attorney fee order findings, and compliance with the Code of Judicial Conduct. The
Chief Judge investigates any complaints regarding JCC compliance with the Code of Judicial Conduct, and the
Governor may remove any sitting JCC for cause. The Deputy Chief Judge prepares an annual report that lists
the JCCs compliance with the statutory requirements. The Deputy Chief Judge also sends a yearly anonymous
survey to members of the Workers’ Compensation Section of the Florida Bar and other attorneys who practice
in front of the JCC for completion regarding various categories of performance for the JCCs, Mediators, and
Staff, with the results provides to the Section and the JCCs and Mediators.
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JCCs are not exempt from CLE requirements of the Florida Bar, although we are in the “not eligible to practice
category”. The yearly NAWCJ conference and Second Friday seminars generally keeps everyone current with
the requirements.
d. Territories
Venue for final hearings is the county where the injury occurred, but the parties may stipulate to a change
of venue, which the JCC usually approves. There are 17 district offices and most JCCs cover more than one
county, with some JCCs having to travel to conduct hearings. Some districts are multi-JCC and some single JCC
(I am in a single JCC district and cover two counties, but my office is on the border of the two so I do not have
to travel).
e. Numbers
Thirty-two (32) judges staff 17 district offices. As we have VTC technology in each office, the JCCs are really
multi jurisdictional, as we can hear a case in any venue with the parties in their correct venue and the JCC
remaining in his/her district office.
MARYLAND
The Maryland Workers’ Compensation Commission is comprised of ten commissioners who are appointed by
the Governor with the advice and consent of the Senate for twelve year terms. One of the ten (chosen by and
serves at the pleasure of the Governor) as chairman. The Commission is an independent executive agency
which adjudicates disputed claims, administers the self-insurance program, handles vocational/rehabilitation certification and implementation, assesses for the collection of funds for the agency and two non-agency
programs, approves settlements, promulgates regulations, and establishes/enforces the medical fee guide.
Appeals go directly to the Circuit Court for judicial review with the right to a de novo jury trial.
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There is no multiple agency structure, but the Commission works closely with the Maryland Insurance Administration and the Maryland Department of Labor, Licensing and Regulation.
Hearing Process
2)
a. Time to hearing
Claims are deemed filed upon the submission of the Claimant’s form with an effective medical release and
hearings will generally take place within 60 days. Subsequent hearings for issues filed in an existing claim are
prioritized and are typically held within 75 days.
Commissioners hear cases 4-5 days each week with a docket beginning with 25 claims daily. The number of
hearings actually held is approximately 12-18 each day. In the most recent fiscal year, the Commission issued
more than 23,000 orders.
c. Use of Discovery
Discovery is significantly limited with respect to pending claims – no depositions, document productions,
interrogatories, etc. are permitted. Medical records, including IME reports are exchanged among the parties
and subpoenae for medicals and work records are also allowed.
The rules of evidence are relaxed in proceedings before the Commission and medical reports, written expert
opinions and other medical records are readily admitted into evidence.
Commission decisions are typically concise, usually no longer than 2-3 pages. They identify critical information such as average weekly wage, temporary total benefits paid and attorneys’ fees authorized. A decision
will set out the issues heard before the Commissioner and the finding for each of those issues. Rarely is there
a detailed analysis of the evidence presented or the specific facts underlying the award.
f. Use of Mediation
Prior to a hearing and order from the Commission, mediation is unusual and the agency does not administer
a mediation program.
a. Levels of review
Appeals from the Commission go to the Circuit Court where the moving party may seek a de novo jury trial.
Parties may pursue review beyond this level at the Court of Special Appeals (intermediate) and ultimately to
the Court of Appeals (highest).
The Circuit Court conducts an “essentially de novo” trial, a procedure similar to a new trial except that the
decision of the Workers’ Compensation Commission is admitted as evidence and treated as presumptively
correct. A trial that is essentially de novo is unlike the procedure applicable to many other administrative law
bodies, where appeal to the circuit court is usually determined on the record made at the agency hearing.
At trial, the parties may rely on the same or different evidence than was presented to the Commission. At the
same time, the Commission’s decision is not treated as if it had never occurred. ‘It is, rather, the case that the
presumptively correct outcome of that adjudication is admissible as an item of evidence and is the proper
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subject of a jury instruction.’ Pro-Football, Inc. v. Tupa, 14 A.3d 678 (Md. Ct. App. 2011); and Applied Indus. Techns. v. Ludemann, 148 Md. App. 272.
About 7% of decisions from the Commission are appealed to the Circuit Court, but a majority of those are
resolved prior to trial.
a. Permitted?
Settlements are permitted.
Yes.
c. Review required
Criterion of approval
Commissioners review and approve all settlements, even claims which have been appealed from earlier Commission decisions. They are given broad discretion and the agency has promulgated regulations covering a
variety of settlement issues, including Medicare set-aside requirements among others.
5) Judges and ALJs
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All ten Commissioners are appointed for twelve year terms by the Governor with the advice and consent of the
Senate. There is no formal evaluation process or continuing education requirement. The Commissioners are
scheduled for dockets at all seven hearing sites around the State.
The Power of Addiction
Robert S. Cohen
Treasurer, NAWCJ
Director and Chief Judge of the Florida
Division of Administrative Hearings
Tallahassee, FL
Nat Levine
Ft. Lauderdale, FL
Marc Gerber, MD
MRG Rehabilitation and Pain Medicine
Orlando, FL
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Robert S. Cohen, Chief Judge
Director, FL Division of Administrative Hearings (DOAH)
Judge Cohen graduated from Brandeis University in 1979 with a B.A. cum laude in American Studies.
He graduated in 1981 from the Florida State University College of Law. After 20 years in private practice,
concentrating in administrative and civil law, Judge Cohen was recently appointed as the Director and
Chief Administrative Law Judge at the Florida Division of Administrative Hearings. He has performed
his pro bono work through the Legal Aid Foundation of the Tallahassee Bar Association. Judge Cohen
has represented indigent clients in countless legal matters for nearly 20 years and has also served as
a frequent presenter before the United Way to help secure funding for pro bono programs.
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Nat Levine
Nat Levine has been involved in Workers’ Compensation for 29 years. Mr. Levine opened the oldest
urgent care center in Palm Beach County in 1982. Despite the lack of acceptance by the medical
community his center continued to offer walk in, no appointment medical care for injured workers
and grew to 4 centers in Palm Beach County and 2 in Broward County. After divesting himself of the
centers, Nat continued to manage a free standing urgent care center, a Cardio vascular group and is
now the Administrator at Broward Orthopedic Specialists. Nat has been involved with Florida Workers Compensation Educational Institute for over 20 years. He sits on the program committee of the
Institute and serves as the Breakout Chair for Medical Issues for Adjusters and Case Managers. He
served on the planning committee of the Florida Managed Care Conference and sat on the FMA committee to revamp the DWC-25. This year Mr. Levine will also be moderating the Medical Issues for the
very popular Judicial College.
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Marc R. Gerber, M.D.
PRACTICE: MRG REHABILITATION AND PAIN MEDICINE
ORLANDO, FL
September 2005 - Present
Provide outpatient based diagnosis and treatment of both acute and chronic musculoskeletal injuries, pain management, electrodiagnostic medicine, spinal injections and sports medicine.
FLORIDA SPINE CARE CENTER
ORLANDO, FL
March 1999 – August 2005
MATTHEWS ORTHOPAEDIC CLINIC
ORLANDO, FL
August 1996 - February 1999
CLINICAL CLINCAL ASSISTANT PROFESSOR, UNIVERSITY OF
APPOINTMENTS: CENTRAL FLORIDA COLLEGE OF MEDICINE
ORLANDO, FL
July 2009 - Present
Member of volunteer faculty since schools inception in 2009
FLORIDA DEPARTMENT OF HEALTH- EXPERT IN PAIN MEDICINE
January 2003 - Present
Perform chart reviews for administrative complaints involving physicians; Render opinions related to standards of care and discuss cases with Department of Health attorneys
RESIDENCY: STATE UNIVERSITY OF NEW YORK
HEALTH SCIENCE CENTER AT SYRACUSE, NY
July 1993 - June 1996
Physical Medicine and Rehabilitation
NEW ROCHELLE HOSPITAL MEDICAL CENTER, NY
July l991 - June 1993
General Surgery, PGY I and II
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EDUCATION: M.D., STATE UNIVERSITY OF NEW YORK
HEALTH SCIENCE CENTER AT BROOKLYN
August 1987 - May 1991
B.A., STATE UNIVERSITY OF NEW YORK AT BINGHAMTON
Major: Biology; August 1983 - May 1987
BOARD
CERTIFICATIONS:
Diplomate of the American Board of Physical Medicine and
Rehabilitation - May 1997; Board Recertification - July 2007
Subspecialty Board Certification in Pain Medicine
- September 2000; Board Recertification - September 2010
Diplomate of the National Board of Medical Examiners – July 1992
PROFESSIONAL
ORGANIZATIONS:
- American Academy of Physical Medicine & Rehabilitation
- Florida Society of Physical Medicine & Rehabilitation
- American Association of Electrodiagnostic Medicine
- Physiatric Association of Spine, Sports & Occupational Rehabilitation
- American Medical Association
Diplomate of the American Board of Independent Medical
Examiners - May 1999
- American Academy of Pain Medicine
SPORTS MEDICINE 1996-PRESENT: PHYSICIAN VOLUNTEER FOR
EXPERIENCE: DISNEY WORLD MARATHON
Provide medical care to marathon participants at this annual event.
1997: ORLANDO JACKALS PROFESSIONAL ROLLER
HOCKEY TEAM
Team physician for all home games.
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1994 - 1996: SYRACUSE CRUNCH PROFESSIONAL
HOCKEY TEAM (NHL AFFILIATION - VANCOUVER CANUCKS)
Assisted team physicians with coverage at home games.
MARCH 1995 & MARCH 1996: WINTER SPORTS CLINIC FOR DISABLED AMERICAN VETERANS, Crested Butte, Colorado
Physician volunteer with the medical team for this 7-day event.
SEPTEMBER 1995: SPORTS MEDICINE ELECTIVE
Orthopedic Surgery Dept. at Syracuse University Hospital
AUGUST 1994: PARTICIPANT AT SPORTS MEDICINE SYMPOSIUM
Empire State Games, Syracuse, NY
EMPLOYMENT
EXPERIENCE:
SUMMERS 1986-1988 ADVANCED EMERGENCY MEDICAL
TECHNICIAN, Jones Beach State Park, Wantagh, NY
SUMMER 1985: EMERGENCY MEDICAL TECHNICIAN,
Gosline Ambulance Company, Amityville, NY
VOLUNTEER 1994 - 1996: SYRACUSE EMERGENCY MEDICAL SYSTEM
ACTIVITIES: Physician volunteer and AEMT - Level 3
1984-1987: N.Y. STATE ADVANCED EMERGENCY MEDICAL TECHNICIAN - LEVEL 3
Vestal Volunteer Emergency Squad, Vestal, N.Y.
1986 - 1987: FIRST AID INSTRUCTOR . Vestal, N.Y.
Taught Basic First Aid and CPR to members of the community.
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Understanding the Power of Addiction
If a loved one suffers from alcoholism or addiction, you may wonder why the person can’t or won’t stop using a
substance that has such negative and dangerous consequences.
Chances are, the ability to stop abusing the substance is no longer in his or her control.
“Most people who develop a drug addiction or become alcoholics begin with occasional use or experimentation,” says
Marvin Seppala, M.D., chief medical director of Hazelden, an alcohol and drug addiction treatment center in Minnesota.
With continued use, brain structure and function are altered, and they depend on the drug not simply to feel good
but to feel normal. “At that point,” Dr. Seppala says, “using drugs or alcohol is no longer a choice.”
When addicted, the drug user will do just about anything to obtain the drug, the National Institute on Drug Abuse
says. The drug becomes the most important part of the person’s life, overshadowing any other aspect.
Not inevitable
Even so, addiction isn’t inevitable for everyone. Drugs differ in their addictive qualities, and people differ in their
sensitivity to drugs. Just under one-third of people who try heroin become addicted to it, as will just over one-third of
people who try tobacco and 12 to 15 percent of those who drink alcohol.
Genetics and environment are also important. “The sons of alcoholic fathers, daughters of alcoholic mothers, and
anyone who has a history of sexual or physical abuse or who grows up in an environment where substance abuse is the
norm is more likely to become addicted than someone without these risks,” says Dr. Seppala.
Research over the last decade reveals that addictive drugs and alcohol alter the function of the brain and the way
cells work. As a result, normal thought processes, memory, and emotions are fundamentally affected and changed
permanently.
“Once addicted, people will risk their own survival to use the drug, and their desire becomes stronger than any
natural drives, like that for food or sex,” says Dr. Seppala. “And at that point, the overpowering drive to drink or use
drugs changes what was once a voluntary behavior into an involuntary one.”
Desire always there
When the brain has experienced these changes, the desire will always be there.
“Studies have shown that no matter how long people have been clean and sober following active addiction, their
brain cells will always have the potential to develop a full-fledged addiction if they ingest any amount of the substance
again,” warns Dr. Seppala.
That’s why addiction is considered a chronic illness that has to be managed for the remainder of a person’s life.
“The key to recovery is lifelong monitoring of a person’s lifestyle so he or she can avoid triggers, significant stress,
and any use of addictive substances,” says Dr. Seppala. “Otherwise, the risk for a relapse is virtually guaranteed.”
What Makes Up an ‘Addictive Personality’?
Addiction comes in many forms, from the gambler to the overeater to the drug abuser. Research has found,
though, that people who engage in addictive behaviors tend to have certain characteristics in common.
“They’re often impulsive and tend to have a low tolerance for frustration, for example,” says Sheila Hermes,
M.Ed., supervisor of the women’s recovery program at Hazelden in Center City, Minn. “These and other personality
traits common among people who abuse alcohol and drugs can be warning signs that a person may have a higher risk
of becoming an addict.”
Although personality can play a role in addiction, social and environmental factors also have an influence.
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Personality studies
No single set of psychological characteristics is common to all addicts, according to a study prepared by the
National Academy of Sciences. The report did find that following “significant personality factors” contribute to addiction:
• A tendency toward impulsive behavior. This can make it difficult to delay gratification and lead to sensation-seeking.
• A high value on nonconformity. This is combined with a weak commitment to achievement goals. “Clearly,
an addict’s behavior results in actions that don’t conform to society’s expectations or demands,” Hermes
says.
• A sense of social alienation and a general tolerance for deviance. “Many people who struggle with
addiction say they always felt like they were on the outside because they never fit in while in school or after,”
Hermes says. “Of course, addiction further isolates them from others.”
• High stress. This may explain why adolescence and life’s other stressful transition periods tend to be associated with severe drug and alcohol problems.
Other possible traits and psychological issues noted in people who tend toward substance abuse include lack of
self-esteem, depression, and chronic anxiety.
Becoming familiar with these traits, and addressing them before the person turns to alcohol or drugs to ease the
pain he or she feels, could help a loved one avoid addiction, Hermes says. “Anytime you can be proactive instead of
reactive, that’s a good thing.”
Prescription Drugs
Addiction to prescription drugs can strike anyone, including those millions of people who take the medications
because of a legitimate illness, as well as the significant percentage of the population that uses them improperly. The
bottom line: whatever the reason a person starts taking prescription drugs, their addictive properties often make it
hard to stop.
The most addictive prescription drugs are painkillers. These opiate-based drugs including Vicodin, OxyContin,
Methadone, Percocet, Hydrocodone, Lortab and other medications that were designed to help those suffering from
serious chronic pain, but instead have become the source of a dependency to the drug. Addiction to these opiates has
the power to destroy lives and tear families apart.
What follows is vital information about prescription drug addiction for those who think they may be addicted and
their families.
What are the signs of prescription drug addiction?
As a friend or family member, it is important to stay vigilant and watch for any of the following signs with individuals who you believe may be addicted to prescription drugs: stealing to pay for drugs, doctor shopping to find
physicians willing to prescribe the medication, withdrawal from social groups, poor performance at work and school,
and trouble with law enforcement. More advice about prescription drug abuse is available at the National Institute of
Health.
How to help the individual with a prescription drug addiction
In order to defeat their addiction, an individual is strongly advised to consider going through treatment at an inpatient drug treatment center. In treatment, the individual will learn how to cope psychologically without prescription
drugs, and rebuild the life that has been taken from them. But before effective drug rehab can begin, the individual
may first need to complete the drug detox process. Detox allows all the harmful toxins associated with the drug to
leave the body so that rehab can be effective. Traditional opiate detox can take several days to complete and has generally meant going through withdrawal symptoms as a result of stopping the drug intake into the body. Much more
information about drug detox is available online as well, and consultations with professional counselors are often free
of charge.
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What happens during opiate withdrawal?
When an individual stops taking prescription painkillers (during the detox process), he or she will likely experience opiate withdrawal symptoms. These symptoms can become extremely uncomfortable and may include the following: irritability, depression, sweats, chills, shakes and general nausea. Depending on the nature of the person’s
addiction, these symptoms can be seriously dangerous, which is often the cause for continued drug use or relapse.
For these reasons, opiate withdrawal is strongly recommended to be supervised properly by a professional at a drug
rehab program.
Is there any way to avoid withdrawal symptoms?
While traditional detox procedures always include some level of withdrawal experience, there is a newer detoxification process known as rapid detox that promises the speedy removal of opiates from the system without the withdrawal symptoms.
What is rapid detox?
An alternative form of detoxification, rapid detox, takes place under the supervision of a physician in a hospital
setting. The individual is placed under anesthesia and treated with drugs which are supposed to assist in easing the individual off of the opiate in question. While Rapid Detox has many advocates, there is a growing movement away from
Rapid Detox because of the inherent risks and dangers associated with the procedure. The side effects of being under
anesthesia can be severe, and the rapid detox process tends to “overlook” many of the deeply psychological problems
associated with drug addiction. For deep and thorough treatment, drug rehabilitation is often the best course of action.
According to a study performed by the Journal of the American Medical Association (JAMA), rapid detox is not
more effective in relieving opiate withdrawal or retaining people in treatment than other commonly used methods.
(specifically, “Rapid opioid detoxification with opioid antagonist induction using general anesthesia has
emerged as an expensive, potentially dangerous, unproven approach to treat opioid dependence.”). Another
study by Columbia University Medical Center showed that “Rapid Detox Fails to Show Advantages Over Other Methods”
(citation).
What is the best way to overcome a Prescription Drug Addiction?
The million dollar question is how one can overcome a prescription drug or opiate addiction. Unfortunately, there
are no easy answers. Some people are able to use the 12-step method and recovery powerfully. Others opt to begin
with an inpatient prescription drug rehab and then continue aftercare through outpatient treatment, sober living or
regular visits with therapists. The options do not have to be as daunting as they may sound. While the prescription
drug detox can be frightening, new treatments like Suboxone detox and Buprenorphine are allowing people to safely
and comfortably withdraw from opiate dependency and go on to live completely normal lives. The best course of
action is to consult with a professional and/or do some research on the web to find communities of those who have
recovered successfully. Often the best advice can be taken from those who have been through the difficult process and
emerged triumphantly to live happy, joyous and free lives.
Drug-treatment centers fear flood of patients as Florida’s pill-mill law kicks in
With a new state law in place designed to root out pill-mill operations and make potent prescription drugs harder
to get for dealers and addicts, Florida’s drug-treatment centers are bracing for an influx of new patients and hoping
they have the resources to accommodate them.
“Essentially you have a new class of drug-addicted individuals who if their supply is stopped will need at least detox capacity and most probably treatment capacity, and programs are full across the state,” said Mark Fontaine, executive director of the Florida Alcohol and Drug Abuse Association. “So it will be a challenge.”
For several years, prescription-drug abuse has skyrocketed in Florida, with pain clinics, known as pill mills, dotting the state, particularly in South and Central Florida. In 2009 the Florida Department of Law Enforcement reported
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that nine people a day were dying of prescription-drug overdoses. And law-enforcement officers in other states such
as Kentucky and Ohio complained to Florida officials that residents were road-tripping to the Sunshine State to load up
on painkillers.
After much negotiation, Florida lawmakers compromised on a new law this spring that imposes criminal and administrative penalties for overprescribing narcotics, bans some doctors from dispensing narcotics and requires a new
permitting process for pharmacies that sell medication such as oxycodone and other controlled substances. The new
law also sets out a number of standards that individual pain clinics must meet and gives doctors seven days to report
prescriptions to the state so that the Prescription Drug Monitoring Program can track patients who might be doctorshopping to feed their addiction.
Doctors and lawmakers hope the new law, which went into effect July 1, will be tough enough to stop many people
from getting the drugs, but they may also soon be faced with another problem: whether treatment clinics have enough
funds and space to provide the help that many addicts need.
Todd Dixon, director of community affairs for the Center for Drug-Free Living in Orlando, which is paid for
through a mix of private and public money, said there was no way the publicly funded facilities could handle a huge
spike of patients if that now happens. However, he said that since 2007, the center has slowly seen its numbers go up
anyway because of the growing prescription-drug problem. “The public system is maxed out,” he said. “There isn’t a
lot of capacity. So we’re talking about a large influx of people at one time. That system can never handle it.
The Center for Drug-Free Living is the only detoxification-treatment center in the Orlando area that serves patients
ordered there by a judge. It has 40 beds to serve a four-county region. Dr. Barbara Krantz, medical director for the
Hanley Center, a private addiction and treatment center in West Palm Beach, said emergency-room doctors in her area
have told her they are already seeing an uptick in the number of patients coming to the hospital with bad withdrawal
symptoms and in need of detoxification because their access to drugs has been cut off by the new law. Krantz said her
facility’s staff expects more and more patients to walk through its doors in the coming months. “I’m sure we’re going
to see it in all phases of treatment,” she said. “We’re going to see it across the board.”
The Florida Department of Children and Families, which funds a variety of locally based drug programs across the
state, has fought to keep its substance-abuse funding intact in an era of sharp budget shortfalls. Its total annual budget
for drug- and alcohol-abuse treatment has hovered around $215 million for the past few years, but now demand may
be outpacing the dollars. We anticipated this would happen,” said state Sen. Lizbeth Benacquisto, R-Wellington, whose
area has been particularly hard-hit by the prescription-drug problem. “We will have to pay close attention to what
that increased demand is and the strain that puts on the system. But our goal is to have those folks break the cycle of
addiction.” According to a DCF report, Florida was ranked 35th out of 50 states in 2009 for per-capita spending on
substance-abuse and addiction programs.
State Sen. Mike Fasano, R-New Port Richey, who sponsored the pill-mill legislation, said the Legislature must track
the ongoing fight against prescription-drug abuse to see whether dealers are finding ways around the law, but for now,
his focus is on whether drug-recovery centers can provide detoxification and treatment to all who need them. “You’re
going to have a big problem, not problem, but a situation where many addicts thankfully will not be able to get their
fix, and we’re going to need to assist those individuals in any way we can so they don’t commit crimes,” Fasano said.
What Do You Know About Addiction?
Addiction is a chronic brain disease that can be caused by abusing drugs or alcohol. Over time, addiction changes the
structure and function of the brain, according to the National Institute on Drug Abuse (NIDA). Find out more about
addiction by taking this online quiz.
http://www.bettermedicine.com/topic/substance-abuse/addiction-quiz
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The Anatomy of the Injury
Pennsylvania Department of Labor andIndustry
Pittsburg, PA
Nat Levine
Ft. Lauderdale, FL
Michael T. Reilly, MD
Center for Knee, Shoulder and Hip
Ft. Lauderdale, FL
Tim Joganich
ARCCA, Inc.
Penns Park, PA
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Dave Torrey, creator and author of the four-volume treatise Pennsylvania Workers’ Compensation:
Law & Practice (West 3rd ed. 2008), is a Workers’ Compensation Judge for Allegheny County, Pennsylvania. He was appointed to his position during the Casey Administration. He is also a member of
the Department of Labor & Industry WCJ Rules Committee.
Since 1996, Dave has also been an Adjunct Professor of Law at the University of Pittsburgh School
of Law, and he has been a preceptor in the school’s Student Externship Program. He has published
several law review articles dealing with workers’ compensation topics, and he lectures frequently on
the subject.
In 2007, he was elected Fellow of the ABA-affiliate College of Workers’ Compensation Lawyers. In 2010
he was elected to membership in the National Association of Social Insurance. He is Vice-President of
the National Association of Workers’ Compensation Judiciary.
He is a member and past chair (1998-99) of the Pennsylvania Bar Association Workers’ Compensation Law Section. He has written and edited the Section’s bi-monthly, magazine-style Newsletter since
1988. The newsletter includes an unabridged summary and critique of the latest court precedents,
reports on developing legislation and trends, book reviews, and original articles and essays. In May,
2009, he published his 100th issue.
Dave is a 1982 graduate of West Virginia University, and received his law degree from Duquesne University
School of Law, in Pittsburgh, in 1985. While at Duquesne, he was Editor-in-Chief of the Law Review.
Dave is a native of Alexandria, Virginia. He is a former member of the United States Army Band
(“Pershing’s Own”), based in Washington, D.C. (1976-1979); and also served in the 201st U.S. Field
Artillery, West Virginia Army National Guard (1979-1982). Dave is also a middle-of-the pack distance
runner. Since 1993 he has been a member of the Pittsburgh Frontrunners. He has written and edited
the club’s Newsletter since 1995.
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Nat Levine
77
Michael T. Reilly, M.D.
OFFICE
Center For Knee, Shoulder & Hip
5301 N. Dixie Highway, #203 Ft. Lauderdale, FL 33334
Telephone:
(954) 771-3334
Facsimile:
(954) 771-1069
Web Site: www.sportsknee.com
E-mail: [email protected] EDUCATION
Fellowship
American Sports Medicine Institute of Alabama; Birmingham, Alabama
Fellow for James R. Andrews, M.D.
Sports Medicine; 1988
Residency
University of Miami School of Medicine; Miami, Florida
Jackson Memorial Hospital Medical Center
Department of Orthopaedics and Rehabilitation
Orthopaedic Surgery; 1984-1988
Internship
University of Utah Medical Center; Salt Lake City, Utah
General Surgery; 1983-1984
Doctor of Medicine
University of Miami School of Medicine
Miami, Florida; 1979-1983
Bachelor of Arts, Biology
University of Pennsylvania
Philadelphia, Pennsylvania; 1976-1979
CERTIFICATION AND LICENSURE
Diplomate, American Board of Orthopaedic Surgery ;1991-2000
Recertification – January 1, 2001 – December 31, 2011
Recertification – January 1, 2012 – December 31, 2021
Diplomate, American Board of Orthopaedic Surgery
Subspecialty Certification in Sports Medicine
November 9, 2007- December 31, 2017
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Fellow, American Academy of Orthopaedic Surgeons
Fellow, American College of Surgeons
Diplomate, National Board of Medical Examiners
Certified, American Board of Independent Medical Examiners
Certified Expert Medical Advisor - State of Florida; 2008-2010
PROFESSIONAL APPOINTMENTS
Archdiocese of Miami – Board of Directors of Catholic Health Services; 2002-2005
Broward General Medical Center - Past
Comprehensive Home Care of Broward – Medical Consultant
CORA Rehabilitation Clinics – Medical Consultant
Expert Medical Advisor – Division of Workers’ Compensation State of Florida
Holy Cross Hospital
Surgical Procedure Review Committee; 1989 - Present
Imperial Point Medical Center; 1989- Present
Sports Medicine Task Force
Medical Director Physical Therapy Department; 1994
Jackson Memorial Hospital and Clinics - Past
North Ridge Medical Center - Past
Medical Executive Committee – 2008
Critical Care Committee; 1990 – 2008
Chief of Orthopaedics; 1998 - 1999
North Broward Medical Center – 2001 - 2006
Nova Southeastern - Health Professional Division
Clinical Associate Professor; 1999 – Present
St. John’s Rehabilitation Hospital – Consulting
St Anthony’s Rehabilitation Hospital - Consulting
Stryker Howmedica Osteonics Unicondylar Knee System – Clinical Investigator
United States Quadrennium National Swim Team
National Team Physician; 1996 - 2000
University of Florida College of Medicine - Courtesy Clinical Assistant Professor
Department of Community Health and Family Medicine - Past
US Olympic Sports Medicine Society - Present
US Swim team – Pan Pacific Games; Australia, 1999
HONORS AND AWARDS
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“Certificate of Appreciation” – United States Department of State – June 2007
“2007 Distinguished Physician” – Florida Medical Association
Selected by Castle Connolly Guide as South Florida’s Top Doctors.
Gold Coast Magazine – May 2006
Florida CHOICE Awards, Florida Workers’ Compensation – 2005 Nominee
Outstanding Physician; North Ridge Medical Center – Sept 2004
Strathmore’s WHO’S WHO – 2002-2004
Top Docs 2001 Best Physicians in South Florida; Miami Metro Magazine –
Fall 2001
Top Docs 2000 Best Physicians in South Florida; Miami Metro Magazine – October 2000
Selected by Castle Connolly Guide as How to Find the Best Doctors: Florida:
Top Orthopaedic Surgeon South Florida; South Florida Magazine – 1993
Jill Green Halpern Research Award for research in diseases of the new born; University of Miami
MEMBERSHIP IN PROFESSIONAL ORGANIZATIONS
American Academy of Orthopaedic Surgeons - Board Certified July 1991
Subspecialty Certification in Sports Medicine -November 2007
American Association of Hip and Knee Surgeons - Past
American Athletic Trainers Association/Medical Advisor
American College of Occupational and Environmental Medicine
American Medical Association - Past
American Orthopaedic Society for Sports Medicine
American Sports Medicine Association/Medical Advisor
American Sports Medicine Fellows Society
Arthroscopy Association of North America
Broward County Medical Association
Broward County Orthopaedic Society
Dade County Medical Association - Past
Easter Seal High School Athletic Program - Past
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Florida Medical Association
Florida Orthopaedic Society
Florida Physicians Association
Fort Lauderdale Surgical Society
International Cartilage Repair Society
National Athletic Trainers Association/Medical Advisor
United States Olympic Sports Medicine Division - Physician
United States Swimming Sports Medicine Society
PUBLIC SERVICE
AAU Boxing Physician
Arthritis Foundation - Medical Advisory Panel
Broward Community College (Athletic Program); Medical Consultant
Cardinal Gibbons High School; Team Physician
Citrus Open Division III College Wrestling Tournament; Medical Consultant
Coconut Creek High School; Team Physician
Ft. Lauderdale Swimming Hall of Fame; Medical Consultant
Honda Classic PGA; Medical Advisor, 1990-1995
Irish Olympic Team; Team Physician, July 1996
Little League District Medical Director - AOSSM Sponsored Injury Prevention and
Emergency Management Programs
Lynn University Physical Therapy Department; Instructor
Northeast High School; Team Physician
Orange Bowl Wresting Tournament; Medical Consultant
Senior Masters Judo Tournament - Medical Director
St. Thomas Aquinas High School; Team Physician
Sun Sentinel Newspaper - Medical Consultant
UMBRO Select Soccer College All-Stars Games; Medical Consultant, 1996/1997/1998
Women’s Professional Volleyball Association; Medical Team/Advisor
WWF Smack Down Event 2000; Sports Physician; Ft. Lauderdale
PUBLICATIONS AND PRESENTATIONS
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“Arthrotek- Advances in Knee and Shoulder Arthroscopic Surgery”
Clinical Instructor, Orthopaedic Learning Center
Rosemont, Illinois – April 28, 2005
“Is Suture Welding A Better Option For Tendon Repair?”
CH.10 – Kristi’s Good Health – T.V. Appearance
Ft. Lauderdale, FL – January 25, 2002
“Rare Condition Could Make You Weak In The Knees”
CH.10 – Kristi’s Good Health – T.V. Appearance
Ft. Lauderdale, FL – December 28, 2001
“Healthy Living” - T.V. Appearance
Ft. Lauderdale, FL – May 3, 2001
“Evaluation of the Knee”
“Evaluation of the Shoulder”
New Horizons in Rheumatology Symposium
Naples, FL, June 1997
Case Presentation - Tumor Boards
Holy Cross Hospital; Ft. Lauderdale, FL, December 1996
“A Rapid Microtechnique For In Vitro Stimulation of Canine Lymphocytes Using Whole Blood”
Wistar Institute Grant
University of Pennsylvania Veterinary School
“Use of CT Scan for Selection of Operative Treatment in Slipped Femoral Capital Epiphysis”
Michael T. Reilly, M.D., Anthony Ballard, M.D.
“Allograft Anterior Cruciate Ligament Reconstruction”
Michael T. Reilly, M.D., R. Levitt, M.D.
“Posterolateral and Posterior Knee Injuries: Selection of Patients for Non-operative, Operative and Techniques of Treatment”
Knee Society National Meeting; New Orleans, LA, 1988
Authors: J.R. Andrews, M.D., Michael T. Reilly, M.D.
“ACL Insufficiency: Selection of Patients for Operative Treatment - Who Needs Extra-articular vs. Intra-articular or Both?”
“Role of Knee Extra-articular Reconstruction”
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ARTICLES
“Arthroscopic Acromioclavicular Decompression”
Robert Metcalf Arthroscopic Regional Meeting; Snowbird, UT, January 1989
Authors: J.R. Andrews, M.D., Michael T. Reilly, M.D., A. Mattilino, M.D.
“Cortisone’s Damage Extensive – Steroid’s Effects Are Felt Years After Treatment”
Story by Bob LaMendola
Contributing author: Michael T. Reilly, M.D.
Sun Sentinel Newspaper - Sports Section, Ft. Lauderdale, FL, March 25, 2001
“New Knee Surgery Increases Chance of Full Recovery”
Author: G. Singer, M. Reilly, M.D.
Sun Sentinel Newspaper, Ft. Lauderdale, FL, March 1997
“Ask the Doctor” Medical Column
Contributing author: Michael T. Reilly M.D.
Sun Sentinel Newspaper, Ft. Lauderdale, FL, 1996-1999
“Repair vs. Resection for the Treatment Of Meniscal Tears”
Author: Michael T. Reilly, M.D.
Broward County Medical Association Journal, Ft. Lauderdale, FL, April 1996
“Orthopaedics: A Joint Confrontation”
Story by Larry Schwingel
Contributing Author: Michael T. Reilly, M.D.
Vim & Vigor Magazine - 1995
“Damage Control - Treating Common Orthopaedic Problems”
Sun Sentinel Magazine, Ft. Lauderdale, FL, July 1995.
“Preventing Common Ski Injuries”
Business in Broward, Ft. Lauderdale, FL, Jan/Feb 1993
LECTURES
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“Determining Work-Relatedness and Causality: The View from the Exam Table”
Patriot Risk Services - Doubletree Hotel – Ft Lauderdale, FL – October 22, 2010
“Determining Work-Relatedness and Causality: The View from the Exam Table”
64th Annual Workers’ Compensation Educational Conference
Orlando, FL - August 17, 2009
“State of the Art Computerized Knee Replacement“
John Knox Village
Ft. Lauderdale, FL – October 22, 2008
“Computer-Navigated Joint Replacements”
Comprehensive Home Care of Broward
Ft. Lauderdale, FL – March 20, 2008
“Computer Navigation in Total Joint Knee Replacement”
Genex
Winter Park, FL – May 9, 2007
“Computer Navigated Total Knee Arthroplasty”
Stryker Learning Center
Ft. Lauderdale, FL – April 14, 2007
“Computer Assisted Joint Replacement Surgery Minimally Invasive Hip Replacement Surgery”
Holy Cross Hospital - 2006 CME Trip Program
Squaw Valley, CA – April 8-15, 2006
“Mini-Incisional Total Hip Replacement Surgery” Ortho-Neuro Seminar
North Ridge Medical Center
Ft. Lauderdale, FL – October 3, 2005
Arthrotek – “Advances in Knee and Shoulder Arthroscopic Surgery”
Orthopaedic Learning Center
Rosemont, Illinois – April 28, 2005
“Genzyme”
Unisource, Inc
Sarasota, FL January, 2004
“Genzyme”
Broadspire, Inc
Plantation, FL January 2004
“Genzyme”
Unisource, Inc
Tampa, FL January, 2004
85
“MIS Hip Surgery”
Broward Association of Rehab Nurses
Ft. Lauderdale, FL January 2004
“MIS Hip Surgery”
Wynmoor Village
Coconut Creek, FL
“Shoulder Rotator Cuff Injuries”
Broward Risk Management
Ft. Lauderdale, FL January 2004
“Shoulder Update 2003”
North Ridge Medical Center Winter Update
Park City, Utah March 9-14, 2003
“Cartilage Injury and Treatment”
Grand Bahama Medical & Dental Association Conference 2002
Freeport, Grand Bahama October 5, 2002
“New Frontiers in Shoulder Surgery”
Participating Faculty
Aventura, FloridaMay 29 – June
“Articular Cartilage Injury and Treatment”
HealthSouth Sports Medicine & Rehab
Plantation, FL September 21, 2000
January 2004
“Knee Cartilage Injury and Treatment”
North Ridge Medical Center Spring Seminar
Park City, Utah March 5, 2001
“An Evidence Based Approach to Orthopaedic Care”
Case Management Society of America
Tampa, FL June 9, 2000
“Orthopaedic & Sports Medicine for Primary Care Physicians”
“Physical Examination/Office Management”
Imperial Point Medical Center
Ft. Lauderdale, FL April 26, 2000
86
“Patellofemoral Dysfunction: Examination & Treatment Methods”
HealthSouth Sports Medicine & Rehab
Plantation, FL September 18, 1999
Genzyme Lecture, Travelers Insurance
September 29, 1999
Genzyme Lecture, CorVel Corporation
July 22, 1999
Genzyme Lecture, Kemper Insurance
July 20, 1999
“Cartilage Surgery Update”
Snowmass, CO, March 30, 1999
“Arthritis Can Hit Even (if you’re) Young”
Arthritis Foundation/Florida Chapter
Tamarac, FL, October 1998
“Identifying Your Risk for Orthopaedic Injury”
North Ridge Medical Center, Community Lecture Series - April 1997
“Identifying Your Risk for Orthopaedic Injury”
Fitness Center; Ft. Lauderdale, FL - April 1997
“New Techniques in Knee Surgery”
Physicians Roundtable; Ft. Lauderdale, FL - March 1997
“Retreading Your Knees”
Holy Cross Hosp., Community Lecture Series; Ft. Lauderdale, FL - February 1997
“Solutions to Joint Problems”
Physicians Roundtable; Ft. Lauderdale, FL - August 1996
“Golf Update”
Holy Cross Hospital; Ft. Lauderdale, FL - 1995, 1996
“Winter Sports Injury Prevention and Treatment”
North Ridge Medical Center Winter CME Seminar; Beaver Creek, CO -March 1996
“Knee Ligament Reconstruction”
North Ridge Medical Center Winter CME Seminar; Breckenridge, CO-Jan 1995
“Sports Medicine Update”
Broward County Physical Therapy Association; Sunrise Rehabilitation; Sunrise, FL - 1995
87
“Ski Update”
Holy Cross Hospital; Ft. Lauderdale, FL - 1992, 1993, 1994, 1995
“Prevention and Emergency Management of Little League Baseball Injuries”
American Orthopaedic Sports Medicine Society; Ft. Lauderdale, FL - 1992, 1993, 1994
“Prevention of Sports Related Injuries”
North Ridge Medical Center Winter CME Seminar; Beaver Creek, CO - January 1994
“Common Injuries that Occur in Tennis”
Imperial Point Medical Center; Ft. Lauderdale, FL - March 1994
“Allograft Anterior Cruciate Ligament Reconstruction”
University of Miami; Department of Orthopaedics Grand Rounds; Coral Gables, FL May 1988
“Shoulder Injuries in Throwing Athletes”
Hughston Clinic Sports Conference; Miami, FL - March 1988
“Common Shoulder Injuries in Athletics”
American Certified Athletic Trainers Conference; Miami, FL - February 1988
“Treatment of Femoral Shaft Fractures in Children”
Department of Orthopaedics Grand Rounds; University of Miami, Coral Gables, FL September 1987
“Use of CT Scan for Selection of Operative Treatment of Slipped Femoral Capital Epiphysis”
Department of Orthopaedics Grand Rounds; University of Miami, Coral Gables, FL July 1987
POST-GRADUATE COURSEWORK AND PROFESSIONAL MEETINGS
Scientific Symposiums International – “VuMedi Current Controversies in Metal on Metal Arthroplasty
Webinar”- August 31, 2010
JBJS Quarterly Journal CME Activities 2010 – June 29, 2010
2010 Annual Meeting - Arthroscopy Association of North America
Hollywood, FL - May 20-23, 2010
“Partial Cuff Pathology” - Arthroscopy Association of North America
Hollywood, FL - May 22, 2010
88
“Masters Knee Symposium” – Arthrex – Naples, FL – January 8-9, 2010
“Prevention of Medical Errors” - Florida Medical Association - Ft. Lauderdale, FL – December 18,
2009
“Effective Risk Management: Medical Records”, Imperial Point Medical Center– Ft Lauderdale, FL
– October 20, 2009
“64rd Annual Workers’ Compensation Educational Conference” – Orlando, FL – August 17-19,
2009
Advanced Carticel Concepts Meeting – Genzyme Biosurgery Conference – Boston, MA - June 13,
2009
Broward Health, Imperial Point Medical Center – “Dealing With Difficult People” – Ft Lauderdale, Fl
– April 29, 2009
American Board of Independent Medical Examiners – Chicago Medical Society “AMA Guides to Evaluation of Permanent Impairment, 6th ed With Review of Principles of Disability Assessment” – Tampa,
FL – February 7-8, 2009
American Board of Independent Medical Examiners – Chicago Medical Society “Traumatic Brain
Injuries And Concussion Claims” – Tampa, FL – February 5, 2009
American Board of Independent Medical Examiners – Chicago Medical Society “Causations In Medicolegal Claims, What Does The Science Say?” – Tampa, FL – February 5, 2009
DJO Surgical – “Orthopedic Education Summit” – Snowbird, UT – January 9-10, 2009
American Orthopaedic Society for Sports Medicine – “Board Maintenance of Certification Preparation
& Review” - Boston, MA – December 4-7, 2008
“63rd Annual Workers’ Compensation Educational Conference” – Orlando, FL – August 18-20,
2008
American Orthopaedic Society for Sports Medicine – “AOSSM 2008 – Annual Meeting”
Orlando, FL – July 10-13, 2008
American Orthopaedic Society for Sports Medicine – “205 Meniscus Repair, Replacement, & Resection” - Orlando, FL – July 10-13, 2008
American Orthopaedic Society for Sports Medicine – “301 Knee: Multiligament Reconstruction”
Orlando, FL – July 10-13, 2008
89
Biomet Sports Medicine – “Knee and Shoulder Arthroscopy Surgical Skills Course”
Celebration, FL – May 9, 2008
American Academy of Orthopaedic Surgeons – “75nd Annual Meeting”
San Francisco, CA – March 5-9, 2008
American Orthopaedic Society for Sports Medicine –“2008 Specialty Day Program”
San Francisco, CA – March 8, 2008
Arthroscopy Association of North America –“2008 Specialty Day Program”
San Francisco, CA – March 8, 2008
American Association of Hip & Knee Surgeons
17th Annual Meeting
Dallas, Tx – November 2-4, 2007
Stryker - South Florida Learning Center
“Hip Resurfacing” - Advanced Product & Procedural Training
Fort Lauderdale, FL – September 15, 2007
American Orthopaedic Society For Sports Medicine
“Review Course for Subspecialty Certification in Orthopaedic Sports Medicine”
Chicago, IL – August 3-5, 2007
Encore – Orthopedic Education Summit
Bachelor Gulch, CO – January 4-7, 2007
“AOSSM 2006 – Annual Meeting”
Hershey, PA – June 29 – July 2, 2006
American Orthopaedic Society for Sports Medicine
“105 What Doesn’t Work – Upper Extremity”
Hershey, PA – June 29, 2006
2006 AANA Annual Meeting
“A Systematic Approach to MRI Interpretation of the Knee & Shoulder”
Hollywood, FL – May 19, 2006
2006 AANA Meeting Instructional Course
“How To Repair A Rotator Cuff Tear Arthroscopically-Model Demonstration”
Hollywood, FL – May 19, 2006
“Computer Assisted Joint Replacement Surgery Minimally Invasive Hip Replacement Surgery”
Holy Cross Hospital - Continuing Medical Education 2006 CME Trip Program
Squaw Valley, CA – April 8-15, 2006
90
“Prevention of Medical Errors”
North Broward Hospital District - Ft. Lauderdale, FL – October 15, 2005
“HIV/AIDS Update”
“Domestic Violence”
Zimmer Institute – “MIS Anterolateral Hip Surgeon Training”
Practical Anatomy & Surgeon Education Lab
St. Louis, Mo – September 23, 2005
Stryker - “Orthopaedic Navigation Learning” – Total Knee & Hip
Memphis, TN – June 16, 2005
Nova Southeastern University – “Comprehensive Five Day Medical Review Conference”
Ft. Lauderdale, FL – March 9-13, 2005
American Academy of Orthopaedic Surgeons – “72nd Annual Meeting”
Washington DC – February 23-27, 2005
American Orthopaedic Society for Sports Medicine –“2005 Specialty Day Program”
Washington DC – February 26, 2005
Arthroscopy Association of North America –“2005 Specialty Day Program”
Washington DC – February 26, 2005
“Computer Assisted Surgery Course for Surgeons-Total Knee”
Endo-Surgery Institute, DePuy – Cincinnati, Ohio November 11-12, 2004
“Comprehensive Approach to Patellofemoral Pain, Instability & Malalignment”
Arthroscopy Association of North America – 23rd Annual Meeting, Orlando, FL April 22, 2004
“Emerging Techniques in Arthroscopic Surgery of the Shoulder”
Arthroscopy Association of North America – 23rd Annual Meeting, Orlando, FL April 22, 2004
“The Aging Athlete in 2004: Exploring Treatment Options” American Sports Medicine Institute, San
Francisco, CA March 10, 2004
“State of the Art in Orthopaedics 2004 – Hip Knee Shoulder Elbow”, HealthStream
Snowbird, Utah February 9-13, 2004
“A Look to the Future in Total Hip Surgery”, HealthStream – Philadelphia, PA June 26-27, 2003
91
“Interdisciplinary Winter Update” (NRMC), Park City, Utah, March 9-14, 2003.
ABIME Re-Certification Review and AMA Guides to the Evaluation of Permanent Impairment 4th and
5th Edition Training Course 2003, Orlando, FL, February 1-2, 2003
Advanced Topics in Disability Medicine Workshop, Orlando, FL, February 3, 2003
American Orthopaedic Society for Sports Medicine 28th Annual Meeting, Orlando, FL
June 30 – July 3, 2002
“Bloodless Medicine & Surgery” Principles & Practice
North Broward Hospital District, June 20, 2002
New Frontiers in Shoulder Surgery: Open and Arthroscopic
Aventura, FL, May 30 – June 1, 2002
Continuing Medical Education Symposium “HIV / AIDS and Domestic Violence”,
North Ridge Medical Center, October 2, 2001
56th Annual Florida Workers’ Comp Educational Conference, Orlando, FL, August 21, 2001
“Independent Medical Examinations and Expert Medical Advisors”
56th Annual Florida Workers’ Comp Educational Conference, Orlando, FL, August 21, 2001
“2001 Update on Workers’ Compensation Case Law and Legislation Affects PEOs”
56th Annual Florida Workers’ Compensation Educational Conference, Orlando, FL, August 2001
Orthopaedic Learning Center, Rosemont, IL, “Shoulder Program”, August 15, 2001
Orthopaedic Learning Center, Rosemont, IL, “Knee Program”, August 16 2001
United States Swimming Sports Medicine Society Meeting, Colorado Springs, CO, April 2001
American Academy of Orthopaedic Surgeons 2001 Annual Meeting (18) San Francisco, CA, February/March, 2001
Arthroscopy Association of North America “2001 Specialty Day” (7) San Francisco, CA, March,
2001.
American Orthopaedic Society for Sports Medicine “2001 Specialty Day” (7) San Francisco, CA,
March, 2001.
Florida Medical Association “A Multispecialty Overview” (12) North Ridge Medical Center, Fort Lauderdale, FL, March, 2001
92
American Academy of Disability Evaluating Physicians “Comparative Impairment Summit” (8) Miami,
FL, November, 2000
Howmedica “Surgical Challenges and Choices in Hip and Knee Reconstruction” (15) Miami, FL,
November 2000.
55th Annual Florida Workers’ Compensation Educational Conference (3) September 2000
Arthroscopy Association of North America 19th Annual Meeting, Miami Beach, FL, April 2000
Arthroscopy Association of North America 19th Annual Meeting Instructional Course, Coding, Billing,
Medical Audit Survival Techniques and Applications of Thermal Energy in Arthroscopic Surgery, Miami
Beach, FL, April 14-15, 2000
Current Concepts in Reconstruction & Trauma – Steadman Hawkins Sports Medicine Foundation, Vail,
Colorado, April 2000.
Arthroscopy Association of North America, 2000 Specialty Day, Orlando, FL, March, 2000.
American Orthopaedic Society of Sports Medicine, 2000 Specialty Day, Orlando, FL, March 2000.
16th Annual Current Concepts in Joint Replacement–Winter 1999, Orlando, FL, December 1999.
Partners for Success in Healthcare Delivery, Fort Lauderdale, FL, November 1999
Oral Heparin Study, Fort Lauderdale, FL, July 1999
Mid-Winter Seminar, Holy Cross Hospital, Fort Lauderdale, FL, March/April 1999
Health South, Riverside Hotel, Fort Lauderdale, FL, March 1999
American Academy of Orthopaedic Surgeons 67th Annual Meeting, Orlando, FL, March 2000
Evolution in Arthritis, Coral Ridge Country Club, Fort Lauderdale, FL, March 1999
Exeter Hip Symposium, Howmedica, Fort Lauderdale, FL, July 1998
Arthroscopy Association of North America 17th Annual Meeting, New Frontiers in Chondral and Meniscal Surgery, Orlando, FL, April/May 1998
Arthroscopy Association of North America 17th Annual Meeting, Assorted Knee Conditions: Pathological
Basis of Surgical Judgment, Orlando, FL, April/May 1998
American Orthopaedic Society of Sports Medicine, The Athlete’s Shoulder, Lake Buena Vista, FL, January/February 1998
93
Education Design: New Visions in Total Hip and Knee Arthroplasty. Designs for the Next Millennium,
Stuart, FL, November 1997
American College of Physician Executives of Holy Cross Hospital, Management Education, Ft. Lauderdale, FL, October 1997
Arthroscopy Association of North America, Fall Courses, Nashville, TN, November 1997
New Horizons in Rheumatology, Naples, FL, June 1997
Risk Management and Domestic Violence Update, Ft. Lauderdale, FL, May 1997
Broward Orthopaedic Society Annual Meeting, Ft. Lauderdale, FL, May 1997
United States Swimming Sports Medicine Society Meeting, Colorado Springs, CO, April 1997
Medical Surgical Update - A Multispecialty Approach, Beaver Creek, CO, March 1997
American Academy of Orthopaedic Surgeons Annual Meeting, San Francisco, CA, February 1997
Campbell Clinic Symposium, Marco Island, FL, January 16-19, 1997
Florida Orthopaedic Society, Palm Beach, FL, May 1996
Orthopaedic Shoulder Injuries, North Miami Beach, FL, April 1996
Medical Surgical Update: A Multispecialty Approach, Beaver Creek, CO, March 1996
Issues in Orthopaedics: Clinical Results & Economic Outcomes, Vail, CO, March 1996
Implantation of Autologous Cultured Chondrocytes, Boston, MA, October 1995
American Academy of Sports Medicine Annual Meeting, Toronto, Ontario, Canada, July 1995
American Academy of Orthopaedic Surgeons Annual Meeting, Orlando, FL, February 1995
American Academy of Sports Medicine, Orlando, FL, February 1995
Arthroscopy Association of North America Specialty Day, Orlando, FL, February 1995
Physician’s Update: Risk Management, Ft. Lauderdale, FL, January 1995
Medical/Surgical Update: A Multi Specialty Approach, Ft. Lauderdale, FL, January 1995
Physician’s Certification for Workers’ Compensation, Ft. Lauderdale, FL, July 1995
94
Arthroscopy Association of North America Annual Meeting, Orlando, FL, April 1994
Hip and Knee Symposium, Key Largo, FL, December 1994
Arthroscopy Association of North America, Fall Courses, Albuquerque, NM, October 1993
American Orthopaedic Society of Sports Medicine Annual Meeting, Sun Valley, ID, July 1993
Meniscal Allograft Transplantation, Sun Valley, ID, July 1993
Holmium Yag and CO2 Laser in Arthroscopy Surgery, Houston, TX, July 1990
95

Professional Biographical Outline
Timothy G. Joganich, M.S., C.H.F.P.
Background
Mr. Joganich is an engineer with a Bachelor of Science degree in Mechanical Engineering and a Masters
degree in Exercise Science, with an emphasis in biomechanics. He is a Certified Human Factors
Professional (CHFP). Mr. Joganich has over 20 years of experience in the sciences of human
movement, biomechanics, and human factors. He applies his expertise from these areas to product
safety (hazard analysis, guarding, warnings/instructions); slip, trip and falls; occupant kinematics;
occupant crash protection; egress/ingress; and biomechanical injury analysis. Mr. Joganich has
published in the areas of human factors, injury biomechanics, slip resistance and occupant crash
protection. He is a member of a number of professional societies. Mr. Joganich also specializes in the
analysis of bicycle accidents with his extensive cycling experience. He has over 30 years of cycling
experience including competitive racing, touring, fitness/recreational riding, commuting, and coaching. He is
a League Certified Instructor for bicycle safety through the League of American Bicyclists.
Specialty areas include:
Slip & Fall
Ingress/Egress
Occupant Kinematics
Occupant Protection
Bicycle Helmets
Human Factors
Biomechanical Injury Analysis
Biomechanical Human Movement Analysis
Ergonomics
Bicycle Accidents & Reconstruction
Bicycle Product Safety
Product Safety
Summary of Experience
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Analyzes slip, trip and fall mishaps utilizing expertise in codes, human factors and biomechanics
Conducts biomechanical injury analysis
Analyzes occupant kinematics and the design and performance of occupant protection systems
Analyzes bicycle mishaps. Analysis includes reconstruction, rider behavior, component failure,
bicycle maintenance, helmet issues, and rider/bicycle interface
Performs human factor evaluations of products and software
Conducts safety analysis of products.
Professional Affiliations
• Human Factors and Ergonomic Society (HFES)
o Director, Delaware Valley Chapter (present)
o President, Delaware Valley Chapter (2005-2006)
o Program Chair, Delaware Valley Chapter (2000-2005)
o Executive Director, Arizona Chapter (1996)
• ASTM (American Society of Testing and Materials) F13 Committee on Pedestrian/Walkway Safety
and Footwear
• American Society of Safety Engineers (ASSE)
• International Code Council (ICC) Member
• Society of Automotive Engineers (SAE)
• League of American Bicyclist
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Professional Highlights
Education
M.S. Exercise Science with emphasis in Biomechanics, Arizona State University, 1991
B.S. Mechanical Engineering, Arizona State University, 1981
Engineer, ARCCA Incorporated, Penns Park, PA
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1997 -Present
Analyzes injury mechanisms and occupant kinematics
Analysis of occupant crash protection systems as it relates to crashworthiness.
Analysis of product safety: machine guarding, warnings/instructions, codes/standards.
Evaluates slip, trip and fall mishaps including slip resistance testing of walkway surfaces
Performs analysis of building codes associated with personal injuries and premise liability
Participates in the design and testing of occupant restraint and seating systems for occupant safety
and human factors/ergonomic issues
Human factors evaluation of products/product safety
Analyzes ingress and egress issues
Provides instruction in the area of slip/trip/fall analysis, human factors, biomechanical and injury
causation analysis.
Project Engineer, Analytica Systems International, Tucson AZ
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September 1996-May 1997
Provided consulting services in areas of ergonomics, biomechanics, human factors, occupational
safety, product design, product safety, and slip and fall accidents
Focused on increasing employee productivity while decreasing costs associated with occupational injuries
Human Factors Specialist, WYKO, Tucson AZ
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March 1996-September 1996
Implemented and directed human factors and ergonomic activities related to the design and
development of optical instrumentation
Focused on increasing productivity and minimizing occupational injuries
Managed various activities, including software interface and product design, product evaluations to
ensure compliance with pertinent ergonomic safety standards, and generation of on-line help
documentation and other technical documentation
Conducted usability evaluations of equipment and software
Biomechanist, Arizona Movement and Balance Laboratory, HealthSouth Rehabilitation Institute of
Tucson, Tucson AZ
January 1994-November 1995
• Instituted and operated multidisciplinary biomechanics motion analysis laboratory
• Participated in biomechanical research in cooperation with the University of Arizona
• Researched neurological movement disorders, orthopedics, orthopedic and ergonomic product
development and rehabilitation. Research activities included generation of research proposals,
experimental design, statistical analysis, data acquisition system design and software development
• Secured and managed contract for orthopedic product testing
Research Project Engineer/Biomechanist, Orthopedic Biomechanics Institute, Orthopedic
Specialty Hospital, Salt Lake City, UT
October 1991-March 1993
• Conducted biomechanical/gait analysis research studies in the causation, prevention and treatment
of sport, occupational and orthopedic related injuries
• Generated proposals
Joganich Bio Page 2 6/08 
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Performed experimental design, statistical analysis, data collection, data acquisition system design
and software development
Instrumentation Engineer, Garrett Turbine Engine Company, Phoenix AZ
1984-1988
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Controlled instrumentation in the design and development of gas turbine engines
Ensured instrumentation and data met quality standards
Certifications and Training
Certified Human Factors Professional, BCPE, 2003.
Pedestrian/Bicycle Crash Investigation, Institute of Police Technology and Management,
University of North Florida. October 2006
LCI (League Certified Instructor), League of American Bicyclist, July 2005
Engineer in Training (E.I.T.) State of Arizona
League of American Bicyclist, Road I course, June 2005
IBC Solving Means of Egress Issues in Commercial Buildings, 2003
Symposium on Metrology of Pedestrian Locomotion and Slip Resistance, Conshohocken, PA June 2001
Overview of the 2000 International Building Code Seminar, Wilmington, DE May 2001.
Ergonomics Job Analysis, Sponsored by University of Michigan, San Diego, CA 1995
Quality Improvement, Tucson Medical Center, Tucson, AZ. 1994.
Ergonomics, Rocky Mountain Center for Occupational and Environmental Health, Park City, UT 1993.
Ergonomics (graduate course work for non-credit), University of Utah. 1993
Boom & Scissor Lift Training Course, Diamond Tool, Philadelphia, PA February 2009
Publications
Joganich T. (2008). Investigating slip, trip and fall mishaps. Proceedings of the 2008 ASSE Professional
Development Conference. Las Vegas, NV: ASSE.
Joganich, T., Sicher, L., Nicholson, K., Whitman, G., Butch, F. and Nichols, C. (2007). Human Factors
Evaluation of Restraint Systems for Military Vehicles. Proceedings of the Human Factors and
Ergonomics Society, 51st Annual Meeting. October 1-5, Baltimore, Maryland.
Gushue, D. L., Joganich T., Probst, B.W., Markushewski, M.L. (2007). Biomechanics for Risk
Managers-Analyses of Slip, Trip & Fall Injuries. Proceedings of the 2007 ASSE Professional
Development Conference. Orlando, FL: ASSE.
Joganich T. (2006). Biomechanical Analysis in Slip, Trip, Stumble, and Fall Incidents. Proceedings of
the 2006 ASSE Professional Development Conference. Seattle, WA: ASSE.
Gushue, D., Probst, B., Benda B., T. Joganich, et al. (2006). Effects of Velocity and Occupant Sitting
Position on the Kinematics and Kinetics of the Lumbar Spine during Simulated Low-Speed Rear Impacts.
Safety 2006, Seattle, WA, ASSE.
Joganich, T. and McCuen, L. (2005). Influence of groove count on slip resistance using NTL test feet,
Journal of Forensic Science, 50(5), 1141-1146.
Joganich, T.G., Markushewski, M.L., Cantor, A., D’Aulerio, L. et. al. (2000). Effect of Cognitive Workload
on Automatic Restraint Usage.(2000-01-0174). SAE 2000 World Congress, Detroit, MI.
Joganich, T.G., and Norton, C. (1993). Kinematic Differences Between Water and Land Gait, Medicine,
Science and Sports Exercise, 25(5), S68.
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Joganich, T.G., and Martin, P.E. (1991). Influence of Orthotics on Lower Extremity Function during
Cycling. Proceedings of American Society of Biomechanics.
Joganich, T.G., Bagley, A.M., Triplet, T., and Paulos, L.E. (1993). Functional Biomechanical Analysis of
the Pilates Reformer during Demi-plie Movements, Proceedings of International Association of Dance
Medicine and Science.
Bagley, A.M., Erickson, A., Joganich, T.G., Greenwald, R., France, P.E. (1992). Biomechanical
Evaluation of Patellofemoral Knee Brace, Proceedings of Annual Fall Meeting for the Biomedical
Engineering Society.
Hinrichs, R.N., Thomas, J.R., Martin, P.E., Thomas, K.T., Marzke, M., Joganich, T., DeWitt, J.K., and
Sherwood, C.P. (1993). 3-D Analysis of Throwing Patterns of Young Boys and Girls, Proceedings of the
American Society of Biomechanics.
McClean, S., Hindrichs, R., DeWitt, J., Heise, G. Hrelijac, A., Joganich, T., Marsh, T., and Munkasy, B.
(1991). A Comparison of DLT With and Without Extrapolation and NLT 3-D Cinematography Methods,
Proceedings of the American Society of Biomechanics.
Occupant Crash Protection Handbook for Tactical Ground Vehicles (Light, Medium & Heavy).
Department of Army, November 2000.
Whitman, G., Joganich, T., Dayman, J., Holmberg, B., Gedeon, M. and Reed, J. (2000). Multimedia
Occupant Crash Protection Development Guide and Its Applications to All Modes of Human Transport.
Presented at SAFE, Reno Nevada.
Whitman, G., Joganich, T., Dayman, J., Holmberg, B., Gedeon, M. and Reed, J. (2000). Multimedia
Occupant Crash Protection Development Guide (2000-01-3427). Presented at SAE Truck and Bus
Meeting and Exposition, 21st Century Truck Initiative, Portland, Oregon.
Joganich, T. (2009) Two-Wheeled Trouble Determining Fair Liability in a Bicycle Accident Investigation
Claims Magazine
Selected Presentations and Educational Instruction
Investigating Slip, Trip and Fall Mishaps. ASSE (American Society of Safety Engineers) Virtual
Symposium, October 2009.
Multidimensional approach for investigating slip, trip, and fall accidents. 2006 ASSE Professional
Development Conference, Seattle, WA, 2006.
Slip, trip and falls: a biomechanical approach. Annual Meeting of International Association of Special
Investigation Units (IASIU), Palm Springs, CA. September 2006.
Slip, Trip and Falls: A New Paradigm. MetroNorth Transit Authority, New York, August 18, 2005.
Biomechanics of Slip, Trip and Falls. Invited Lecture Biomechanics 635, Doctorate in Physical Therapy
Program, Hahnemann Programs in Rehabilitation Science, Drexel University, Philadelphia, PA. July 2004.
Multimedia Occupant Crash Protection Development Guide. Presented at SAE Truck and Bus Meeting
and Exposition, 21st Century Truck Initiative, Portland, Oregon, December 2000.
Multimedia Occupant Crash Protection Development Guide and Its Applications to All Modes of Human
Transport. Presented at SAFE, Reno Nevada, October 2000.
Participatory Ergonomics, Southwest Safety Congress, Phoenix, AZ, 1997.
Slips and Falls, Southern Arizona Chapter of American Industrial Hygiene Association, Tucson, AZ 1997.
Slips and Falls, Southern Arizona Chapter of American Society of Safety Engineers, Tucson, AZ. 1997.
Biomechanics of Ergonomic Injuries, Ergonomic Express Seminar, Phoenix, AZ. 1996.
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A Motion Analysis Laboratory, AMBL. Southern Arizona Chapter of the American Physical Therapy
Association, Tucson, AZ. 1994.
Gait Analysis for Podiatry, Southern Arizona Chapter of the American Podiatry Association, Tucson, AZ 1994.
Differences in Jaw Kinematics during Speech between a Parkinsonian and a Normal, Southern Arizona
Chapter of Speech and Hearing, Tucson, AZ, 1994.
Motion Analysis in Physical Therapy. Utah Chapter of the American Physical Therapy Association, St.
George, UT, 1992.
Current Research in Aquatic Therapy, Advances in Aquatic Therapy, Salt Lake City, UT, 1992.
Motion Analysis in Back Care. 2nd Annual Spine Symposium, Salt Lake City, UT,1992.
Biomechanical Assessment of Skiing, The Art and Science of Skiing, Salt Lake City UT, 1992.
Biomechanics of Running, The 5K Run for Research Runners Clinic, Salt Lake City, UT, 1992.
Grants
Joganich, T.G. and Parseghian, M. “A biomechanical and clinical evaluation of a corrective knee brace
for medial osteoarthritis. Awarded by OrthoTech, 1995.
Joganich, T.G., and Martin, P.E. “Influence of orthotics on lower extremity function in cycling.” Awarded
by Nike, Inc. Jan 1990.
Nicholson, D.E., Dibble, L.E., and Joganich, T.G. “Quantitative measures of physical impairment and
function: tools for improving the accuracy of documentation, prediction and long-term outcomes, and
evaluation of therapeutic efficacy. 1993.
Additional Cycling/Athletic Experience
• Masters Swim Coach: Tempe, AZ. Provided coaching to adult swimmers. Coaching included
technique instruction, nutrition, biomechanics, injury assessment and event organization. Provided
cycling instruction to triathlons.
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Bicycle Coach (SomaKinetics): Tempe, AZ. Provided bicycle fitting for proper sizing and adjustments,
biomechanical assessment for injury prevention and management and performance enhancement.
Conducted training rides focusing effective and safe riding technique.
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Competitive Swimming: Tempe, AZ. High school, collegiate (Arizona State University) and master
swimming.
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Bicycle Racing: Seven years racing - USCF (United State Cycling Federation) 1979-1986; Top ten
finishes in Sr I-II Pro category; 4th place Arizona State Championships- 1985
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Touring: 5,000 mile cycling trek Vancouver, B.C – Anchorage Alaska – Tempe, AZ, 1982; Numerous
multi-day tours
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Sample Report
Workers Compensation
***
ARCCA, Incorporated
Philadelphia**Pittsburgh**Chicago**Boston**Seattle**Tampa
Philadelphia, PA HQ
2288 Second Street Pike, P.O. Box 78, Penns Park, PA 18943-0078
215-598-9750 main
215-598-9751 fax
800-700-4944 toll-free
www.ARCCA.com
103
ARCCA, INCORPORATED
2288 SECOND STREET PIKE
P.O. BOX 78
PENNS PARK, PA 18943
PHONE 215-598-9750 FAX 215-598-9751
www. arcca.com
November XX, 200X
Sam Smith
Sr. Claims Representative
PO Box 9999
Somewhere, IL 607777
Re:
Samantha Somename
ARCCA File No.: 2xxx-0000
Your Claim No.: 0000001
Dear Mr. Smith:
Thank you for the opportunity to participate with you in the above-referenced matter. You engaged
ARCCA, Incorporated to conduct a biomechanical analysis of Ms. Samantha Somename’s claimed
work related injury in the context of her fall incident at the your store located in Somecity, Illinois. This
analysis is based on information currently available to ARCCA. However, ARCCA reserves the right
to revise or supplement this report if additional information becomes available to us.
The opinions given in this report are based on my analysis of the material available to me using
generally accepted scientific and engineering methodologies. The opinions are also based on my
education, background, knowledge, and experience in the fields of safety, building codes, human
factors, and biomechanics. I have a Bachelor of Science degree in Mechanical Engineering and a
Master of Science in Exercise Science with an emphasis in biomechanics. I am a Certified Human
Factors Professional (CHFP). This credential is same as a Certified Professional Ergonomist, which is
more commonly known in the industrial setting. During the course of my career, I have conducted
numerous studies and published in the areas of human movement biomechanics, injury biomechanics,
slip resistance, and human factors/ergonomics. I am a member of the Human Factors and Ergonomics
Society (HFES), American Society of Safety Engineers (ASSE), International Code Council (ICC),
Society of Automotive Engineers (SAE), and the American Society for Testing and Materials (ASTM)
F13 Committee for Pedestrian/Walkway Safety and Footwear.
BACKGROUND:
According to the available information, on June 20, 2008, Ms. Samantha Somename, a 40 year-old
female at the time, reportedly slipped and fell on water during the course of her employment for your
store. Ms. Somename is claiming cervical injuries as a result of her reported incident. The subject
incident occurred at your store located at 3333 Euclid in Somecity, Illinois.
104
Mr. Smith
November X, 200X
Page 2
Scope of Review:
As part of my analysis in this matter, I reviewed the following materials:
•
•
•
Worker’s compensation – first report of injury or illness report, June 20, 2008
Employee’s Report of Accident/Incident/Injury, July 10, 2008
Various medical records for Samantha Somename including the IME report from Steve
Doctor, M.D., July 24, 2009
FINDINGS:
According to the available information, Ms. Samantha Somename slipped and fell, catching
herself with her right hand. Ms. Somename stated that she was walking at the time and slipped
on water.
Medical records from the day of Ms. Somename’s subject incident indicate that she had
complaints of right hand and wrist pain. She was diagnosed with a right hand contusion. Medical
records approximately 4 months post accident indicates that Ms. Somename had complaints of
neck pain. An MRI dated October 29, 2008, states a moderate right posterolateral protrusion of
the C5-C6 intervertebral disc. Ms. Somename is claiming this cervical disc herniation is causally
related to her subject slip and fall incident on June 2, 2008. Ms. Somename is 5 foot 6 inches in
height and 160 pounds in weight.
ANALYSIS/DISCUSSION:
My investigation in this matter consisted of conducting a biomechanical analysis to determine
whether there was an injury mechanism present in the subject incident to account for Ms.
Somename’s herniated cervical disc. In other words, the causal relationship between Ms.
Somename’s cervical disc herniation and her subject incident must be more than her saying so.
From a biomechanical perspective, the forces resulting from the fall kinematics must first be
present and if present, then of sufficient magnitude to produce the damage to the biological tissue
in question.1,2
As previously stated, medical findings for Ms. Somename indicate a C5-C6 intervertebral disc
herniation. The intervertebral disc functions to bear and distribute loads and restrain excessive
motion.3 The inner portion of the disc is a gelatinous mass termed the nucleus pulposus, and is
surrounded by a tough outer covering, the annulus fibrosus which consist of fibrocartilage. A
herniated disc entails a significant degradation of these fibers allowing the nucleus pulposus to
exert pressure on the spinal cord never roots. (See Figure 1)
1
2
3
Nahum, A.M. and Gomez, M.A. (1994). Injury reconstruction: biomechanical analysis of accidental injury.
Society of Automotive Engineers, Warrendale, PA. SAE Paper No. 940568.
Nordin, M. and Frankel, V. H. (2001). Basic Biomechanics of the Musculoskeletal System. Third Edition.
Lipincott Williams & Wilkins, Philadelphia, Pennsylvania.
Ibid.
105
Mr. Smith
November X, 200X
Page 3
Figure 1: herniated cervical disc
Ms. Somename’s alleged causal relationship assumes an injury mechanism of an annulus fibrosus
failure under acute compressive loading conditions arising from the subject slip and fall event. My
analysis shows that such an injury mechanism did not exist in Ms. Somename’s subject slip and
fall incident. Based on research conducted at ARCCA, Inc. with an instrumented test dummy,
acute cervical compressive loading in a worse case fall scenario without any reflexive protective
mechanisms such as trying to catch one with outstretched arms4, is on the order of 450 pounds.
This testing entailed a 50th percentile dummy ( 5 feet and 6 inches in height and 170 pounds in
weight) falling freely backwards from a bent over standing position such that the dummy’s
buttocks would impact with the its torso in an vertical orientation. Given that Ms. Somename in
fact did try to catch herself with her right arm and she did so to the extent that she injured her hand
and wrist, one can reasonably expect that the compressive loads in her cervical neck would have
been considerably less than 450 pounds. Biomechanical research has shown that the ultimate
compressive load for cervical segments is on the order of 674 to 1,365 pounds.5 Of specific interest
is that the authors conclude that intervertebral disc failures do not occur in single acute
compressive loading conditions without associated severe boney fractures. In other words, if a disc
4
5
106
Roos, P.E. et al. (2008). The role of arm movement in early trip recovery in younger and older adults. Gait &
Posture, 27, 352-356.
Duma, S.M. et al. (2008) Biomechanical response of the human cervical spine. Presented at Rocky Mountain
Bioengineering Symposium & International ISA Biomedical Science Instrumentation Symposium. Copper
Mountain, CO.
Mr. Smith
November X, 200X
Page 4
herniation were to have occurred under an acute loading event such as a slip and fall, then one
would expect severe boney fractures to be present. Given Ms. Somename medical records are
absent of any such condition, one can reasonably conclude that there was no injury mechanism
present in Ms. Somename’s subject slip and fall event to account for her herniated cervical disc.
This conclusion is consistent with that of the conclusion expressed by Dr. Steve Doctor in his
IME report dated, July 24, 2009. Furthermore, compressive neck loads in the cervical spine have
been estimated to be on the order of 260 pounds under maximum voluntary contraction of the neck
muscular in live human subjects.6
Conclusions:
Based on my findings and analysis, I have concluded, within a reasonable degree of engineering and
biomechanical certainty that there was no injury mechanism present in Ms. Somename’s subject slip
and fall event to account for her cervical herniated disc.
If any additional information becomes available, please provide the same to me. Thank you for using
ARCCA.
Sincerely,
Timothy Joganich, MS, CHFP
Senior Engineer
6
Moroney, S.P. et al. (1988). Analysis and measurement of neck loads. Journal of Orthopedic Research, 6, 713720.
107



Sample Report
Workers Compensation
***
ARCCA, Incorporated
Philadelphia**Pittsburgh**Chicago**Boston**Seattle**Tampa
Philadelphia, PA HQ
2288 Second Street Pike, P.O. Box 78, Penns Park, PA 18943-0078
215-598-9750 main
215-598-9751 fax
800-700-4944 toll-free
www.ARCCA.com
109
Guy Fawkes, Esquire
March 11, 2010
Page 2
Thank you for the opportunity to participate with you in the above-referenced matter. You engaged ARCCA,
Incorporated to conduct a biomechanical analysis and investigation of Mr. Glenn Smythe’s claimed work
related injury in the context of his fall incident while working in the New York City Authority Jigsaw Street
tunnel in Brooklyn, New York. This analysis is based on information currently available to ARCCA.
However, ARCCA reserves the right to revise or supplement this report if additional information becomes
available to us.
The opinions given in this report are based on my analysis of the material available to me using generally
accepted scientific and engineering methodologies. The opinions are also based on my education,
background, knowledge, and experience in the fields of safety, building codes, human factors, and
biomechanics. I have a Bachelor of Science degree in Mechanical Engineering and a Master of Science in
Exercise Science with an emphasis in biomechanics. I am a Certified Human Factors Professional (CHFP).
This credential is same as a Certified Professional Ergonomist, which is more commonly known in the
industrial setting. During the course of my career, I have conducted numerous studies and published in the
areas of human movement biomechanics, injury biomechanics, slip resistance, and human
factors/ergonomics. I am a member of the Human Factors and Ergonomics Society (HFES), American
Society of Safety Engineers (ASSE), International Code Council (ICC), Society of Automotive Engineers
(SAE), and the American Society for Testing and Materials (ASTM) F13 Committee for
Pedestrian/Walkway Safety and Footwear.
BACKGROUND:
According to the available information, on April 22, 2006, at or about 4:00 a.m. Mr. Glenn Smythe, a 42
year-old male at the time, reportedly slipped and fell while walking a catwalk during the course of his
employment for the New York Transit Authority. Mr. Smythe is claiming exacerbation of his lower lumbar
disc injuries from his reported incident. The subject incident occurred approximately 3,000 feet into the tunnel
from the opening on the Manhattan side (Tavern station).
Scope of Review:
As part of my analysis in this matter, I reviewed the following materials:
•
•
•
•
•
•
•
•
•
•
•
•
•
110
Verified Bill of Particulars
Verified Supplemental Bill of Particulars
Various medical records for Glenn Smythe
MRI of lumbar spine, July 3, 2006
Operative report for Glenn Smythe, July 20, 2006
Operative report for Glenn Smythe, November 30, 2006
Preliminary 90 Day CPM Narrative by Contractor Oscar Construction Company
Safe & Qualified Plus, Inc. Invoice, Timesheets, Safety Reports, & Site Safety Managers Logs
Thirty four (34) color reproductions of subject premise
Deposition transcript of Glenn Smythe, June 24, 2008
Deposition transcript of Glenn Smythe and Georgia Smythe, December 4, 2008
Deposition transcript of Victor Pitter, March 16, 2009
Deposition transcript of Jon Popper, December 17, 2008
Guy Fawkes, Esquire
March 11, 2010
Page 3
FINDINGS:
According to the available information, Mr. Glenn Smythe was working as a journeyman electrician in
the tunnel. At the time of Mr. Smythe’s incident, he was walking along a 1 ½ foot wide catwalk with a
10 inch gap between the catwalk and a debris container. Mr. Smythe testified that his right leg fell into
this gap after his right leg slipped on concrete debris that had fallen onto the catwalk from the
construction process. Specifically, Mr. Smythe testified:
“My right foot, I felt it just slide on top of pieces of concrete and my right side just went
inside of the gap between the catwalk and the container” and his right foot slid
“forward” and to the “side.”
Mr. Smythe further testified that his whole right leg went into the gap between the catwalk and side of
the container up to his groin, and then his left knee banged the catwalk.
Additionally, Mr. Smythe described that the catwalk was covered with plywood about chest high
forcing him to walk bending forward. It is noted that there is testimony indicating that even with the
plywood, debris would fall on the catwalk.
Medical records one to three months post incident indicate that Mr. Smythe was diagnosed with
sprain/strain of his lower back, L4-L5 bulge with annular tear and L5-S1 herniation. Mr. Smythe
subsequently had a discectomy surgery on July 20, 2006, and fusion surgery on November 30, 2006.
The available information also indicates that Mr. Smythe had a prior history of lumbar injuries. He
testified that he was involved in a rear end motor vehicle accident as a driver on April 4, 2005, and as
result sustained various injuries including L4-L5 bulge and L5-S1 herniation. Medical records indicate
that at the time of the subject incident, Mr. Smythe was between 6 foot and 6 foot 1 inches tall and 275
and 305 pounds in weight.
ANALYSIS/DISCUSSION:
My investigation in this matter consisted of conducting a biomechanical analysis to determine whether
there was an injury mechanism present in the subject incident to account for Mr. Glenn Smythe’s lumbar
injuries. In other words, the causal relationship between Mr. Smythe’s lumbar injuries and his subject
incident must be more than him saying so. From a biomechanical perspective, the forces resulting from
the fall kinematics must first be present and if present, then of sufficient magnitude to produce the
damage to the biological tissue in question.1,2
As previously stated, medical findings for Mr. Smythe indicate he was diagnosed with a L4-L5 bulge
with annular tear and L5-S1 herniation. The intervertebral disc functions to bear and distribute loads and
restrain excessive motion.3 The inner portion of the disc is a gelatinous mass termed the nucleus
pulposus, and is surrounded by a tough outer covering, the annulus fibrosus which consists of
fibrocartilage. A herniated disc entails a significant degradation of these fibers allowing the nucleus
1
2
3
Nahum, A.M. and Smythe, M.A. (1994). Injury reconstruction: biomechanical analysis of accidental injury. Society of
Automotive Engineers, Warrendale, PA. SAE Paper No. 940568.
Nordin, M. and Frankel, V. H. (2001). Basic Biomechanics of the Musculoskeletal System. Third Edition. Lipincott
Williams & Wilkins, Philadelphia, Pennsylvania.
Ibid.
111
Guy Fawkes, Esquire
March 11, 2010
Page 4
pulposus to exert pressure on the spinal cord nerve roots. (See Figure 1) The acute injury mechanism for
lumbar disc herniations is compression with flexion.4
Figure 1: herniated cervical disc
Mr. Smythe’s alleged causal relationship assumes an injury mechanism of an annulus fibrosus failure
under acute compressive loading conditions arising from his subject fall event. My subsequent
biomechanical analysis shows that such an injury mechanism did not exist in Mr. Smythe’s subject fall
incident. Specifically, this analysis assesses the tolerance of Mr. Smythe’s spine to compressive loading
by comparing the compressive lumbar loads that would be expected in Mr. Smythe’s lumbar spine
during activities of daily living to those expected lumbar compressive loads that occurred during his
subject fall event.
Biomechanical research has shown that lumbar compressive loading in various activities of daily living
range from 0.6 BW (times body weight) for normal walking, 4.0 BW for running to 5.0 BW for sitting
down in a chair quickly.5,6,7 In a similar manner, lumbar compressive loading in more work related
activities range from 1.1 to 1.9 BW for pushing and pulling 110 pounds, 0.8 to 1.8 BW for pushing and
pulling 55 pounds; to 5.0 BW for squat lifting 22 pounds.8,9 The simple act of bending over to tie a shoe
can result in lumbar compressive loading on the order of 3.5 BW.10
4
5
6
7
8
112
Adams, M.A. and Hutton, W.C. (1981). Prolapsed intervertebral disc. A hyperflexion injury. Spine, 7(3), 184-191.
Ng, T.P. et al. (2006). Thoracic and lumbar spine accelerations in everyday activities. Presented at the Rocky Mountain
Bioengineering Symposium & International ISA biomedical Sciences Instrumentation Symposium., April 7-9, Terre
Haute, Indiana.
Kavanagh, J.J. et al. (2004) Upper body accelerations during walking in healthy young and elderly men. Gait and
Posture, 20, 291-298.
Latt, M.D. et al. (2009). Acceleration patterns of the head and pelvis during gait in older people with Parkinson’s
disease: a comparison of fallers and non-fallers. J Gertonal A Biol Sci Med Sci doi:10.1093/Gerona/glp009
Dolan, P. et al. (1994). The lumbar spine during lifting activities bending and compressive stresses acting on the
lumbar spine during lifting activities. Journal of Biomechanics, 27(10), 1237-1248.
Guy Fawkes, Esquire
March 11, 2010
Page 5
Mr. Smythe essentially describes a forward fall incident reflecting forward kinematics. These kinematics
are consistent with Mr. Smythe’s described forward leading posture at the time of his incident. Based on
research conducted at ARCCA, Inc. with an instrumented Hybrid III test dummy, acute lumbar
compressive loading in a worse case fall scenario without any reflexive protective mechanisms such as
trying to catch one with outstretched arms,11 is on the order of 176 to 267 pounds or as expressed as a
percentage of body weight, 1.0 to 1.6 BW. This testing entailed a 50th percentile dummy (approximately
5 foot 9 inches in height and 170 pounds in weight) falling freely forward from a standing position. The
magnitude of these lumbar compressive forces is clearly less than those that can be expected during
activities of daily living and work. The presumption of an injury mechanism being present is further
abated considering that these magnitudes are closer to those that occur during normal level walking than
lifting a 22 pound load. Consequently, there is no reason to expect an injury mechanism in Mr. Smythe’s
subject fall incident.
This conclusion is further supported by biomechanical researchers examining intervertebral disc failures
and concluding that these failures do not occur in single acute compressive loading conditions without
associated severe boney fractures.12 In other words, if a disc herniation were to have occurred under an
acute loading event such as a fall event, then one would expect bony fractures to be present. Given Mr.
Smythe’s medical records are absent of any such condition, one can further conclude that there was no
injury mechanism present in Mr. Smythe’s subject fall event to account for his lumbar disc injuries.
AND COMPRESSIVE STRESSES ACTING ON
Conclusions:
Based on my findings and analysis, I have concluded, within a reasonable degree of engineering and
biomechanical certainty that:
•
There was no injury mechanism present in Mr. Glenn Smythe’s subject fall event to account for
his lumbar injuries.
If any additional information becomes available, please provide the same to me. Thank you for using
ARCCA.
Sincerely,
Timothy Joganich, MS, CHFP
Senior Engineer
9
10
11
12
Schibye, B. et al. (2001). Mechanical load on the low back and shoulders during pushing and pulling of two-wheeled
waste containers compared with lifting and carry of bags and bins. Clinical Biomechanics, 16, 549-559.
Arjmand, N. et al. (2005). Biomechanics of changes in lumbar posture in static lifting. Spine, 30(23, 267-2648.
Roos, P.E. et al. (2008). The role of arm movement in early trip recovery in younger and older adults. Gait & Posture,
27, 352-356.
Duma, S.M. et al. (2008) Biomechanical response of the human cervical spine. Presented at Rocky Mountain
Bioengineering Symposium & International ISA Biomedical Science Instrumentation Symposium. Copper Mountain,
CO.
113
Determining Injury Causation: Sorting the Chaff from the Wheat
Published 4-12-11 by DRI
by David L. Gushue, Ph.D.; Michael L. Markushewski; Timothy Joganich, M.S., CHFP; and Thomas F.
Jennings, ARCCA, Inc.
Contentious bodily injury claims often involve soft tissue injuries alleged to have resulted from minor
impacts. Whether the impact involved a low speed vehicular incident, a workers' compensation
(WC) incident or a slip, trip or fall, the key question to be answered is “Was there an injury mechanism
with sufficient force present in this incident to have caused these injuries?” Answering this question is the
task of the biomedical/biomechanical engineer.
Biomedical engineering integrates traditional engineering principles with fundamental knowledge of the
anatomy and physiology of the human body. As a scientific subdiscipline of biomedical engineering,
biomechanical engineering applies the laws of physics and the tools and approaches of mechanical
engineering to the joints and tissues of the human body. More specifically, biomechanical engineers
investigate the response of the human body to the application of mechanical forces in order to determine
the potential for failure or injury to the human body.
Medical Doctor or Biomechanical Engineer?
Determination of a causal relationship between claimed injuries and a specific event requires thorough
analysis of the subject incident, an understanding of the unique tolerance level of the individual in
question and a biomechanical analysis of the associated injury mechanisms and force magnitudes.
Unfortunately, this task is often incorrectly given to a treating physician whose education and training is
directed towards the diagnosis and treatment of injury—not determining the cause.
Trained in both mechanical engineering and the physical sciences, the biomechanical engineer applies
these concepts and methods to determine the likelihood of a causal relationship between the claimed
joint/tissue injuries and the claimed occurrence. Typical biomechanical injury analyses can include (but
are not limited to) intervertebral disc bulges/herniations within the cervical, thoracic or lumbar spine,
rotator cuff and labrum tears, carpal tunnel syndrome, meniscus and ligament tears within the knee joint,
temporomandibular joint injuries or closed head injuries.
Biomechanical Injury Causation Analysis
The method used to conduct a biomechanical injury causation analysis is well defined and accepted in
the biomechanical engineering community and is an established approach to assessing injury causation.
This is well documented in the technical literature. Within the context of a specific incident, a proper
analysis approach consists of the following steps:
1. Identify the claimant’s diagnosed injuries alleged to have been caused by the incident.
2. Define the mechanisms/loads that cause such injuries.
3. If vehicular:
A. Quantify the nature of the incident in terms of forces, accelerations and/or changes in velocity
of the vehicle occupied by the claimant.
B. Define the kinematics (movement) of the claimant’s body within the vehicle as a result of the
115
incident and any interaction between his or her body and the interior components of the vehicle.
C. Determine whether the interaction between the claimant and the vehicle during the incident
created any of the mechanisms/loads known to cause the injuries he or she attributes to the
claimed incident.
4. If WC or slip, trip or fall:
A. Identify the body movement/fall mechanism (slip or trip) and body kinematics (movement)
through either the claimant’s deposition or statement.
B. Assess whether the body movement/fall mechanism is consistent with the described body
kinematics (i.e., a slip results in a rearward fall and trip results in a forward fall) and the claimed
defective condition.
C. Determine whether the claimant’s described kinematics and/or fall mechanism created the
mechanisms and loads known to cause the injuries that he or she attributes to the claimed
incident.
Personal Tolerance Levels and Preexisting Conditions
Injury mechanisms and associated failure loads of the joints and tissues of the human body have been
extensively studied and published in peer-reviewed scientific literature and learned treatises. However, a
properly trained biomechanical engineer does not simply extrapolate the results of these scientific studies
to a specific incident or individual. To provide an opinion regarding the causation (or lack thereof) of an
alleged minor impact soft tissue (MIST) injury, the biomechanical engineer’s evaluation of a causal
relationship between an alleged injury and a specific incident uses thorough analyses of the forces and
accelerations during the incident, an understanding of the unique tolerance level of the claimant’s body,
and a biomechanical analysis of the associated injury mechanisms and force magnitudes.
Testimony and Admissibility
Challenges to biomechanical engineering testimony and admissibility can come from a variety of
directions based upon the facts of the case, the scientific methodologies utilized (or lack thereof), venue,
improper or inaccurate assumptions made by others and judicial bias, to name a few. However, the
testimony of a properly trained and qualified biomechanical engineer has been shown to be an effective
tool in mitigating or refuting MIST claims. Nevertheless, court decisions precluding the testimony of
biomechanical engineers exist and it is important to understand the details of those cases and how a
properly conducted biomechanical injury causation analysis addresses those rulings. Further information
and legal case citations are available from Tom Jennings, VP, ARCCA, Inc.(617 835 7151)
[email protected].
David L. Gushue, Ph.D., Director of Biomechanical Engineering
Michael L. Markushewski, Chief Engineer, Chief Technical Officer
Timothy Joganich, M.S., CHFP
Thomas F. Jennings, Vice President
ARCCA, Inc. (with offices in Boston, Chicago, Philadelphia, Pittsburgh, Seattle and
Tampa)
116
The Aging Workforce
Honorable David I. Imahara
Administrative Law Judge
Atlanta, GA
Nat Levine
Ft. Lauderdale, FL
Jesse A. Lipnick, MD
Southeastern Rehabilitation Medicine
Gainesville, FL
117
David Imahara
David Imahara is the Deputy Chief Judge of the Hearing Division. David has been practicing workers’
compensation for over 10 years, and employed in a number of positions at the Board. David is the
former Director of the ADR (Mediation) Section from 2004-2008, and Division Director of the Appellate Division from 2000-2004. David obtained his undergraduate and law degrees from the University
of Georgia, and is a member of the State Bar of Georgia, California, and the District of Columbia.
119
Nat Levine
121
Jesse August Lipnick, M.D.
Business: Southeastern Rehabilitation Medicine
4343 W. Newberry Road, Suite 6
Gainesville, FL 32607
(352) 224-1813
Home: 6209 NW 83rd Drive
Gainesville, FL 32653
(352) 336-2821
PROFESSIONAL EDUCATION
School Attended
Graduated
Degree
Major
Thomas Jefferson University Hospital
1995
Resident
PM & R
Albert Einstein College of Medicine
1992
Intern
Internal Medicine
Washington University School of Medicine 1991
M.D. Medicine
Brandeis University
A.B. Psychology
LICENSURE #:
Florida
Pennsylvania
1986
ME0068806
MD-052587-L
CERTIFICATIONS:
Fellow American Association of Neuromuscular & Electrodiagnostic Medicine 2009-2019
Fellow American Board of Physical Medicine & Rehabilitation 1996-2016
Fellow American Board of Electrodiagnostic Medicine 1997-2007
Member American Board of Occupational Medicine 1998 to present
Certified IME by the American Board of Independent Medical Examiner (expired 2002)
Certified by Florida Division of Worker’s Compensation
Diplomate - Subspecialty Pain Medicine - American Board of Anesthesia 2004-2014
HONORS & AWARDS
American Spinal Injury Association - 1994 National Meeting
First place poster presentation in Basic Science Category
“Emergent Care in Patients Wearing a Body Cast”
123
Washington University School of Medicine
Juvenile Diabetes Foundation International Student Representative 1990
Washington University Cycling Team - Captain
First place team contribution - American Diabetes Association Bike-A-Thon 1991
Brandeis University
Honor Roll 1981-1985
Magna Cum Laude
4 Varsity Letters - Swimming and Diving
Brandeis Swimming and Diving Teams - Captain 1984-1985
PRESENTATIONS
“Emergent Care in Patients Wearing a Body Cast”, Lipnick, J.A., Jacobs, S.R., Cotler, J.M, American
Spinal Injury Association National Meeting poster presentation, 1994, Philadelphia, PA
“Memory Function after Traumatic Brain Injury”, Thomas Jefferson University Hospital, Physical
Medicine and Rehabilitation Grand Rounds, Philadelphia, PA, February 1994
“The Rehabilitation of Diabetic Neuropathies”, Thomas Jefferson University Hospital, Physical Medicine
and Rehabilitation Grand Rounds, Philadelphia, PA, May 1993
“Electrical Burns”, Thomas Jefferson University Hospital, Physical Medicine and Rehabilitation, Grand
Rounds, Philadelphia, PA, October 1994
Radio Talk Show, “Rehabilitation Medicine - What’s On Your Mind?,” WRUF FM & WUFT AM radio,
Gainesville, FL (Host: Mark Wise)
Radio Talk Show, “The Weekend Warrior: Common Sports Injuries,: A Question of Health, WRUF FM
& WUFT AM radio, Gainesville, FL (Host: Lynn Mercadante)
“The Rehabilitation of Post Polio Syndrome”, Columbia Ocala Regional Medical Center Medical Staff,
Ocala, Florida, May 7, 1997
“The Rehabilitation of Patients with Stroke”, University of Florida, Department of Geriatric Medicine,
May 30, 1997
“A Question of Health” appearance 1/29/98- Mediator: Mark Wise; topic: Neck and Back Pain.
“Care of the Post Polio Patient in the Rehab Setting”, presentation Grand Rounds for Shands Rehab,
Tuesday, April 14, 1998
July 22, 1998, lecture, “Brachial Plexus Injuries”, Shands Rehab Hospital
July 23, 1998, presentation, “Rehabilitation of Stroke Syndromes”, Department of Neurology, University
of Florida.
124
September 18, 1998, presentation, “Rehabilitation”, at the Geriatrics: Art and Science review course,
Miami Beach, FL
May 14, 1999, “Rehabilitation: Every Team Member’s Responsibility”, Gainesville, FL., presentation to
University of Florida, Department of Geriatric Medicine.
May 11, 2000, “Case Management Insight into Electrodiagnostic Studies”, Nationwide Insurance
Company, Gainesville, FL
“The Aging Work Force Added Considerations for Successful Claims Resolution,” 57th Annual Worker’s
Compensation Educational Conference: The Changing Tide of Worker’s Compensation, Orlando, Fl.
2002.
The 63rd Annual Worker’s Compensation Educational Conference 8/18/08; Breakout for Health Care
Providers Panelist Legally and Medically Complex Cases, presenter with A. Dawn Hayes, Esquire; Tampa,
Florida; Steven L. Rosen, Esquire; Tampa, Florida; James D. McKlusky, MD, PhD
PROFESSIONAL SOCIETY MEMBERSHIPS
American Academy of Physical Medicine & Rehabilitation - Fellow
American Association of Electrodiagnostic Medicine - Fellow
American Academy of Pain Medicine - Member
International Spinal Injection Society - Member
Florida Academy of Pain Medicine - Member
North American Spine Society - Member
Florida’s Task Force on the Availability and Affordability of Long-Term Care
American Medical Association
Pennsylvania Medical Society
Florida Society of P M & R
Alachua County Medical Society
Brain and Spinal Cord Injury Advisory Council/EMG/Acute Care Committee
American Society of Interventional Pain Physicians ASIPP
Member Florida Society of Interventional Pain Physicians
Alachua County Representative to FSIPP
American Society of Interventional Pain Physicians
Board Member of the Florida Society of Interventional Pain Physicians -- Director At Large
APPOINTMENTS
Board Member Southeastern Integrated Medicine 2008-2009.
Member (Appointee of the FMA), Task Force on the Availability and Affordability of Long-Term Care,
established by the Florida Legislature under the leadership of Lt. Governor Frank Brogan, 6/00 to
present
125
Board Member, Gator Sport Advisory Board, Department of Occupational Therapy at the University of
Florida, 7/24 to present
Courtesy Clinical Assistant Professor, Department of Community Health and Family Medicine, University
of Florida, Gainesville, FL 8/96 to present
-Organized and produced educational curricula for medical student and house officer training, University of Florida, Gainesville, FL 8/95-4/99
-Organized and produced educational curricula for rehab staff at Shands Rehabilitation Hospital, Gainesville, FL 8/95-8/97
Rehabilitation Medical Director, Integrated Health Services, Gainesville, FL 1997
-Developed rehabilitation programs in a sub-acute setting
Thomas Jefferson University Representative to the Resident Physician Council, 1994 - 1995
Archives of Physical Medicine and Rehabilitation, Manuscript Evaluation and Review,
1995 - present.
Physician Advisory Board on Worker’s Compensation to The Florida Medical Association Appointee
11/03 - present
Southeastern Integrated Medical Board of Directors 2003-2004 and 2007-2008
RESEARCH EXPERIENCE
10/08 Site Initiation Florida Medical Research Institute SIMED, Ortho-McNeil Janssen, a randomized double-blind placebo and Oxycodone immediate-release controlled study of Tapentadol IR for
the treatment of acute pain caused by vertebral compression fractures associated with osteoporosis.
Protocol R331333-PAI-3021; principle investigator.
5/08 Site Initiation Florida Medical Research Institute SIMED, Meda Pharmaceuticals randomized
double-blind double-dummy trial of two sustained-released formulations of Carisoprodol compared
to placebo in patients with acute painful musculoskeletal spasm of the lower back. Protocol MP510;
principle investigator.
5/08 Site Initiation Florida Medical Research Institute SIMED, Sucampo, a multi-center open label study
of the long-term safety of efficacy of Lubiprostone in patients with opioid-induced bowel dysfunction.
Protocol SPI/021OBD-0651; principle investigator.
12/07 Site Initiation Florida Medical Research Institute SIMED, Sucampo, a multi-center randomized
placebo-controlled double-blinded study of the efficacy and safety of Lubiprostone in patients with
opioid-induced bowel dysfunction. Protocol SPI/0211OBD-0631.
9/05 Site Initiation Florida Medical Research Institute SIMED, GlaxoSmithKline, a randomized doubleblind placebo controlled multi-center phase III study to evaluate the long-term safety of Alvimopan 0.5
126
mg twice daily for 12 months for the treatment of opioid-induced bowel dysfunction in adults taking
opioid therapy for persistent non-cancer pain. Protocol SB-767905/014; sub-investigator.
9/05 Site Initiation Florida Medical Research Institute SIMED, GlaxoSmithKline, a randomized doubleblind placebo controlled multi-center phase III study to evaluate the efficacy and safety of Alvimopan
0.5 mg once daily and 0.5 mg twice daily for 12 weeks for the treatment of opioid-induced bowel
dysfunction in adults taking opioid therapy for persistent non-cancer pain. Protocol SB-767905/012;
sub-investigator.
4/05 Site Initiation Florida Medical Research Institute SIMED, DOV, a multi-center standard of care
controlled study to evaluate the long-term safety of Bicifidine for treatment of chronic low back pain.
Protocol DOV-075-022-US; principle investigator
Thomas Jefferson University Hospital 1993-1994
Investigated reducing chest exposure time of cardiac patients wearing a body cast. The project was
inspired by a patient who had a myocardial arrest while wearing a body cast.
Massachusetts General Hospital 1986-1987
Solid phase polypeptide synthesis, directed at manufacturing fibrin specific antigens to elevate monoclonal antibodies. Coupled to plasminogen activators and clots dissolution these antibodies were
monitored in vivo.
Brandeis University 1985-1986 - Laboratory study of the in vivo metabolites of nicotine.
PUBLICATIONS
Lipnick, J.A. & Lee, T.H., Diabetic Neuropathy, American Family Physician, 12/96; 54 (8):24782484.
Lipnick, J.A., Jacobs, S.R., Cotler, J.M., Emergent Care in Patients Wearing a Body Cast, The Journal of
the American Paraplegia Society, 1994; 17: 124
Lipnick, J.A., Formal, C, Self-Mutilation in an Agitated Person with Paraplegia,” (abstract) The
Journal of the American Paraplegia Society, Submitted
Lipnick, J.A., Jacobs, S.R., Cotler, J.M., & Seliktar, R., Emergency Care in Patients Wearing Body Casts,
Archives of Physical Medicine and Rehabilitation, 7/96; 77, 7: 722-725.
Lipnick, Jesse A., The Aging Work Force - More Problems For Worker’s Comp in Worker’s Comp: Report
to the Industry of Florida Worker’s Compensation Institute, Inc., 8/02, S69-S70, Tallahassee, Fl.
COMMUNITY SERVICE
Gainesville Jewish Appeal
-Board of Directors 1997-1998
127
Congregation Beth Hillel Beth El
-Torah Reader - Weekly Torah Reading, High Holiday Torah Reader 1993 & 1994
-Adult Education Committee - Chairman, Scholar in Residence Lecture Series 1993-1995
-Men’s Club - Member
B’Nai Israel Day School
-School Board Member, Education Curriculum Sub-committee 1996-1997
-B’Nai Israel Congregation, Ritual Committee Member 1996-1997
-Fund Raising Committee Chairman 1996-1997
-Torah Program Chief Instructor
B’Nai Israel Congregation
-Elected Member, Board of Trustees 1996-1997, 2004 to present
-Board Member
-Chairman Adult Education 2004-2005
-Vice President 7/05
Florida Camp for Children & Youth With Diabetes
-Volunteer motivational speaker.
American Diabetes Association Bike-A-Thon Team, Washington University
-Team Captain 1989-1991
CONTINUING MEDICAL EDUCATION
11/4/09, 2 AMA/PRA Category I credits, American Association of Neuromuscular and Electrodiagnostic
Medicine, 2009, AANEM Training Program Self-Assessment Examination Review Session.
10/7/09 - 10/10/09, 22.5 AMA/PRA Category I credits, American Association of Neuromuscular and
Electrodiagnostic Medicine, AANEM Annual Meeting, San Diego, CA.
8/31/09, 20 AMA/PRA Category I credits, Electrodiagnosis and Clinical Neurophysiology: A High Intensity
Review, Northwestern University, Feinberg School of Medicine.
8/9/09, 8 AMA/PRA Category I credits for the Georgia Society of Interventional Pain in Lake Oconee,
Georgia.
7/25/09 and 7/26/09, 7.25 AMA/PRA Category I credits for the Florida Medical Association and Florida
Society of Interventional Pain Physicians, FSIPP, 2009 Annual Meeting and Conference, Boca Raton,
Fl.
1/29/09, 7 AMA/PRA Category I credits American College of Physician Executives, Accreditation Council
for Continuing Medical Education, Winter Institute Physician in Management Seminar, Negotiation
Linda Babcock, PhD, Orlando, Fl.
128
for Continuing Medical Education, Winter Institute Physician in Management, Increasing Your Influence, Charles Dwyer, Orlando, Fl.
1/27/09, 3.5 AMA/PRA Category I credits American College of Physician Executives, Accreditation
Council for Continuing Medical Education, Winter Institute Physician in Management Course, Valuable
Communication Skills, Tim Keogh, PhD, Orlando, Fl.
1/27/09, 3.5 AMA/PRA Category I credits American College of Physician Executives, Accreditation
Council for Continuing Medical Education, Winter Institute Physician in Management, Management
Skills for Physician Executives, Michael Guthrie, MD, MBA, FACPE, Orlando, Fl.
for Continuing Medical Education, Winter Institute Physician in Management, Marketing and Strategic
Planning, Eric Berkowitz, PhD, Orlando, Fl.
for Continuing Medical Education, Winter Institute Physician in Management, Finance in Health Care
Organizations, Hugh W. Long, MBA, JD, PhD, Orlando, Fl.
10/18/08, 8.5 AMA/PRA Category I credits Pri-Med/American Diabetes Association, Diabetes In-depth
Seminar, Tampa, Fl.
8/10/08, 9 AMA/PRA Category I credits Georgia Society of Interventional Pain Physicians, The Pain
Summit, Lake Oconee Annual Meeting, Lake Oconee, Georgia.
8/2/08, 9.5 AMA/PRA Category I credits Florida Academy of Pain Medicine 2008 Annual Meeting,
American Board of Quality Assurance and Utilization Review Physicians, Inc., Kissimmee, Fl.
4/22/08, AMA/PRA Category I credit, Cardiovascular Practice Symposium, 1st Year Experience, NFRMC,
Cardiac CT, Gainesville, Florida.
4/19/08 - 4/22/08, AMA/PRA Category I 4 credit hours, Cardiovascular Practice Symposium, NFRMC,
Gainesville, Florida.
3/18/08, 1.0 AMA/PRA Category I credit, Expanding the Understanding of the Treatment of Chronic
Angina, Florida Medical Association and Alachua County Medical Society with Dr. Richard Conti.
2/16/08, 1.5 hours of AMA/PRA Category 1 credits toward the AMA Physician’s Recognition Award,
Neurostimulation for Pain Patients with Failed Back Surgery Syndrome, Tallahassee, Fl.,
2/16/08, 17.5 AMA/PRA Category I Credits, American Academy of Pain Medicine for AAPM 24th Annual
Meeting at Gaylord Palms; Orlando Florida.
129
2008, 15 AMA/PRA Category I credits, SAE-P: Interventions in Chronic Pain Management, American
Academy of Physical Medicine and Rehabilitation.
2008, 15 AMA/PRA Category I credits, SAE-P: Congenital and Acquired Brain Injury, American Academy
of Physical Medicine and Rehabilitation.
11/18/07, 23.25 AMA/PRA Category I credits, American Society of Regional Anesthesia and Pain Medicine
2007 Annual Pain Medicine Meeting & Workshop; Boca Raton Hotel & Club; Boca Raton, Florida.
11/15/07, 1.5 AMA/PRA Category I credits, Program description is 2007 update: Poly-Analgesic Consensus Guidelines for Management of Chronic Severe Pain.
10/23/07, 1 AMA/PRA Category I credit, Cyberknife Center; 1st Year’s Experience, NFRMC, Gainesville,
Fl.
8/4/07, 8 AMA/PRA Category I credits, Buprenorphine and Office-Based Treatment of Opioid Dependence, Florida Psychiatric Society, Orlando, Florida.
7/29/07, 10 AMA/PRA Category I credit, for 2007 Florida Academy of Pain Medicine Annual Meeting,
Kissimmee, Florida.
2/10/07, 17 AMA/PRA Category I credits, American Academy of Pain Medicine 23rd Annual Meeting,
Ernest M. Morial Convention Center, New Orleans, Louisiana.
12/3/06, 15.75 AMA/PRA Category I credits, Interventional Techniques Review Course and a Comprehensive Intermediate/Advanced Cadaver Workshop, University of Louisville Health Science Center,
Memphis, Tennessee.
11/12/06, 8 AMA/PRA Category I credits, radio-frequency lesioning for chronic spinal joint pain,
Celebration Florida, Pfiedler, Enterprises.
9/2/06, 3 AMA/PRA Category I credits, Florida Medical Association, Inc., 2006 Annual Meeting, Gaylord
Palms Resort, Orlando, Florida.
5/24/06, 2.5 AMA/PRA Category I credits, Florida Medical Association and Alachua County Medical
Society, Electronic Medical Records, Best Western Gateway Grand, Thomas Beaver, M.D., Gainesville,
Florida.
2/2/06, 5 AMA/PRA Category I credits, Medical Errors, Aides in Florida Law, End-of Life Care, Domestic
Violence, University of Florida College of Medicine, Gainesville, Fl.
10/28/05, 10.5 AMA/PRA Category I credits, Evaluation of Focal Neuropathies, Myofascial Pain and the
Facilitated Segment: Understanding, General Session: Rehabilitation of the Combat Casualty, Update on
Osteopathic Fractures, A Pain in the Butt: Development of a Diagnostic and Treatment Regimen, American
Academy of Physical Medicine and Rehabilitation, Annual Scientific Assembly, Philadelphia, Pa.
130
10/27/05, 14.0 AMA/PRA Category I credits, Annual Scientific Assembly of the American Academy of
Physical Medicine and Rehabilitation, Philadelphia, Pa.
10/25/05, 1 AMA/PRA Category I credit, Low Back Pain.
7/6/05, 5 AMA/PRA Category I credits, What Health Care Professionals Should Know About Exercise,
CME Resource, Freda S. O’Brien and Erin K. Meinyer.
11/3/04 - 11/6/04, 29.75 AMA/PRA Category I credits, AANEM Scientific Meeting, Savannah International
Trade and Convention Center, Savannah, Georgia.
9/29/04, 2 AMA/PRA Category I credits, Florida Medical Association and Alachua County Medical
Society, Prevention of Medical Errors, Sovereign Restaurant, Gainesville, Fl.
7/18/04, 0.5 AMA/PRA Category I credit, Managing Anxiety and Sleep: A New Era for Gamma-Aminobutyric Acid, Newsletter I.
4/21/04, 1.0 AMA/PRA Category I credit, Novel Systems in Opioid Dosing: Applications in Breakthrough
Pain: Medicom Worldwide Inc., Chiefland, Fl.
3/4/04 - 3/7/04, 26.5 AMA/PRA Category I credits, AAPM 20th Annual Meeting, Royal Pacific Loews
Hotel at Universal Orlando, Orlando, Fl.
2/4/04, 1.5 AMA/PRA Category I credits, Association of Academic Physiatrists, American Journal of
PM&R, 2002/2003 Series.
11/20/03, 1 AMA/PRA Category I credit, Repairing the System: A New Look at Tracking Diagnostic
Results, Mag Mutual Insurance Co.
9/6//03 - 9/10/03, 43.75 AMA/PRA Category I credits, An Intensive Review of the Specialty of Pain
Medicine, Dannemiller Memorial Educational Foundation, Holiday Inn Chicago City Center, Chicago,
Illinois.
8/15/03, 5 AMA/PRA Category I credits, Peripheral and Cranial Nerve Block Techniques, Advancing
Knowledge in Health Care, Dr. Andrea Trescott, Orange Park, Fl.
8/8/03 - 8/10/03, 10 AMA/PRA Category I credits, The International Spinal Injection Society Workshop,
J.W. Marriott Grande Lakes Resort, Orlando, Fl.
7/10/03, 1 AMA/PRA Category I credit, Generalized Anxiety Disorder, Southern Medical Association.
5/31/03, 4.8 AMA/PRA Category I credits, Headache: Achieving Success in the Treatment of Headaches,
Primary Care Network, Jacksonville, Fl.
131
5/17/03 - 5/18/03, 9 AMA/PRA Category I credits, Annual Florida Academy of Pain Medicine Conference, Clearwater Beach, Fl.
2/20/03 - 2/23/03, 32.5 AMA/PRA Category I credits, AAPM 19th Annual Meeting, Fairmont Hotel,
New Orleans, La.
2/1/03 - 2/2/03, 19.0 AMA/PRA Category I credits, Interventional Pain Management Techniques, Joseph
Kreiger, course director, Orlando, Fl.
11/16/02 - 11/17/02, 15.0 AMA/PRA Category I credits, Interventional Pain Management Techniques,
Joseph Kreiger, course director, Boston, Massachusetts.
7/8/02, 1 AMA/PRA Category I credit, Reducing Non-Compliance Due to Side Effects in the Management of Depression and Anxiety, Dannemiller Memorial Educational Foundation, Alon P. Winnie, M.D.,
course director.
5/21/02, 1.0 AMA/PRA Category I credit, Advances in Migraine Prophylaxis Program: Current State of
the Art and Future Prospects, The Finch University of Health Sciences/Chicago Medical School.
5/18/02 - 5/19/02, 19.0 AMA/PRA Category I credits, Interventional Pain Management Techniques,
Joseph Kreiger, St. Louis, Missouri.
4/9/02, 2.0 AMA/PRA Category I credits, Immunologic Evaluation of Botulinum Toxins: Implications
to Therapy, Medical Education Resources, Inc., Stephen E. Mattingly, President, Medical Education
Resources.
2/2/02 - 2/3/02, 15 AMA/PRA Category I credits, Discogenic Therapies and Radio-Frequency Lesioning,
Maricopa Integrated Health System, Ft. Lauderdale, Fl.
ACTIVITIES, INTERESTS, MEMBERSHIPS
Recreational: Bicycling and Swimming
Cultural Events: Tae Kwon Do
American Diabetes Association
National Cystic Fibrosis Foundation
References - Available upon request
132
Forbes.com
http://www.forbes.com/2005/09/28/career-babyboomer-work-cx_sr_0929bizbasics_print.html
Business Basics
An Aging Workforce’s Effect On U.S. Employers
Scott Reeves, 09.29.05, 6:00 AM ET
NEW YORK The aging workforce creates a challenge for employers seeking to retain top-notch people, and an opportunity for
workers who may want to earn a few extra bucks in retirement.
About 76 million baby boomers, or those born between 1946 and 1964, are set to retire in large numbers by the
end of the decade. Boomers make up about one-third of the U.S. workforce, and there aren’t enough younger workers to replace them. Labor shortages in key industries will force a radical rethinking of recruitment, retention, flexible
work schedules and retirement.
“If properly engaged, mature workers will provide significant solutions and cost savings at a time when global
competition will exert a force the likes of which has never before been seen,” the Conference Board concluded in a
recent report. “Failure to investigate or recognize the issues surrounding the maturing workforce will pose a threat to
future growth and productivity.”
Researchers Lynne Morton, Lorrie Foster and Jeri Sedlar say industries now suffering from a skills shortage include energy and health care. The National Association of Manufacturers says the talent crunch soon will be felt in
technical and scientific fields. While some wouldn’t see this as a bad thing, half of the federal civilian workforce will be
eligible to retire within five years.
The U.S. workforce grew at a rate of 30% in the 1970s, and at 12% in the 1990s through the present. But it’s expected to slow to about 3% and to level off by 2010.
By 2010, the number of workers aged 35 to 44--or those typically moving into upper management--will decline
by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. The gray-haired demographics aren’t limited to the U.S., either. The number of workers aged 35 to 44 is
expected to decline by 27% in Germany, 19% in the U.K. and 9% in Italy. In Japan, that age group is expected to shrink
by 10%, and by 8% in China.
Many boomers say they plan to balance work and leisure in retirement. AARP and others report that 79% of baby
boomers say they don’t plan to stop working at age 65, creating a “working retirement.” The reasons are both financial and personal. Many baby boomers haven’t saved enough to kick back full time in retirement and will continue
to work to meet basic expenses. But others say they plan to continue working--even if it means cutting back on the
hours--because they want to be engaged in their fields. “Today’s linear life plan of distinct years for education, work
and leisure is becoming obsolete,” the researchers conclude. “In its place is emerging a cyclical and phased life plan
in which education, work and leisure exist in different proportions throughout life. Boomers want to work on their
terms, doing work customized to their needs.”
The researchers found that some corporate policies hinder efforts to adapt to the aging workforce. Still, most
companies say they hire for ability and willingness to work. A few employers say they’re “hiring wisdom” when hiring
older workers. Gray-haired workers are viewed as reliable, settled, compassionate and honest.
Some companies have set up a Casual Worker Program that allows them to hire or reemploy workers who would
receive limited benefits and no pension. Others invite grandparents to work in the company child-care center, and
some offer special health screenings pitched to older workers, such as bone density tests.
Many companies seek to develop ways for older workers to pass their knowledge and skills on to younger workers. Some make a concerted effort to integrate older and younger workers. Some financial-services companies have
discovered that prospective clients often feel more comfortable discussing money with an older representative and,
therefore, make an effort to retain and hire those with extensive experience. “IBM...has long been a leader in such
strategic workforce issues as diversity, flexibility and work/life balance,” the researchers say. “The company also wants
to maintain an on-demand workforce that mirrors its customers. For some, IBM has been concerned about the shortage of IT workers and has focused on how to address potential workforce and knowledge needs.”
133
Employers providing benefit programs must comply with three detailed and complex laws--the Employee Retirement Income Security Act, the Age Discrimination in Employment Act and the Tax Code. Future adjustments may be
needed. “Many pension plans are outdated for today’s changing demographics and may need to be restructured,” the
researchers say.
134
Live Surgery-Minimally
Invasive Lumbar Fusion
Surgery Performed by:
G. Grady McBride, MD
Orlando, FL
Moderator and Speaker:
Steven E. Weber, DO
Orlando, FL
151
G. Grady McBride, M.D.
Employment
_____________________________________________________________________
7/18/83 – Present Orlando Orthopaedic Center
25 West Crystal Lake Street, Suite 200
Orlando, FL 32806
(407) 254-4053
(407) 423-9512 (fax)
2699 Lee Road, Suite 100
Orlando, FL 32789
(407) 897-1363
(407) 897-1384 (Fax)
Education
_____________________________________________________________________
Undergraduate 6/1972 University of Oklahoma
Norman, OK
B.S. - Engineering Physics
Medical 6/1976 University of Oklahoma
Oklahoma City, OK
M.D.
Internship 7/76 – 6/77 University of Utah, Affiliated Hospitals
Salt Lake City, UT
Residency 7/77 – 7/82 University of Utah, Affiliated Hospitals,
Salt Lake City, UT
Fellowship 6/1/70 - 8/30/70 National Science Foundation Student
Research Fellow in Material Sciences
University of Oklahoma, Department of Chemical Engineering and Material Sciences
Norman, OK
7/1/78 - 6/30/79 Resident Research Year in Orthopedics
Principal areas of research: Intraoperative Forces During Scoliosis; Correction of Spine Stabilization Devices of Orthopaedic Surgery
University of Utah
Salt Lake City, UT
153
7/1/82 - 6/30/83 John H. Moe Scoliosis Fellow
Twin Cities Scoliosis Center
Minneapolis, MN
David S. Bradford, M.D., Director
Additional Studies Prosthetics and Rehabilitation
12/1979 UCLA, Los Angeles, CA
1/2-3/30/81 Medical Bioinstrumentation
University of Utah Graduate School, Department of Bioengineering
Salt Lake City, UT
Certifications/Licensure
_____________________________________________________________________
7/19/85 – Present American Board of Orthopaedic Surgery
No expiration
9/30/98 – Present American Board of Spine Surgery
Recertification 6/4/04 – 12/31/14
12/31/83 – Present State of Florida
#ME42321
(Active)
Staff
Appointments
_____________________________________________________________________
154
10/1/83 – Present Orlando Regional Medical Center
1414 Kuhl Avenue
Orlando, FL 32806-2093
(407) 841-5111
(Active Staff)
1988 – 1990 Chairman, Department of Orthopaedics
Humana Hospital Lucerne
1988 – 1990 Member, Executive Committee
1988 – 1990 Member, Pharmacy & Therapeutics Committee
Committee
Appointments and Elected Positions
_____________________________________________________________________
2000 – 2008 Agency for Health Care Administration
Medical Expert
1985 – 1990 Orange County Medical Society
Insurance Mediation Committee, Chairman
Medical - Legal Committee, Vice Chairman
Mini-Internship Program Committee
Property Committee
Executive Committee
Treasurer
Membership Committee Chairman
Board of Medical Society Services, Inc., Chairman
Orange County Medical Foundation Board, Chairman
Budget and Finance Committee
1990 – 1998 Florida Medical Association
Workers Compensation Committee, Chairman
Young Physicians Steering Committee, Secretary/Treasurer
Delegate to Annual Meeting
Professional
Associations
_____________________________________________________________________
Orange County Medical Society
Fellow, American Academy of Orthopaedic Surgeons
North American Spine Society
Association of Bone and Joint Surgeons
Continuing
Medical Education
_____________________________________________________________________
11/29/10 Preventing Multi-drug Resistant Organisms
Florida Hospital
Orlando, FL
.5 credits
11/29/10 Code of Professional Conduct
Florida Hospital
Orlando, FL
.5 credits
155
156
11/29/10 Preventing Bloodstream and Surgical Site Infections
Florida Hospital
Orlando, FL
.5 credits
12/6/10 Glycemic Management
Florida Hospital
Orlando, FL
.5 credits
12/6/10 Universal Protocol
Florida Hospital
Orlando, FL
.5 credits
10/5-9/10 25th Annual Meeting
Orlando, FL
27.25 credits
2/3-6/10 Selby Spine Meeting
Foundation for Orthopaedic Research and Education
Park City, UT
12.5 credits
12/3/09 Prevention of Medical Errors
Orlando Health
Orlando, FL
2 credits
1/28-31/09 Selby Spine Meeting
Foundation for Orthopaedic Research and Education
Park City, UT
7.5 credits
10/14-18/08 23rd Annual Meeting
28.25 credits
4/2-5/08 Preservation of Motion of the Spine
EXCEL Continuing Education
Duck Key, FL
15.25 credits
1/30-2/2/08 Selby Spine Meeting
Hotel Park City
EXCEL Continuing Education
8 credits
9/9-11/07 Nice Spine Course
Nice, France
15 credits
9/5-8/07 Scoliosis Research Society 42nd Annual Meeting
Medical Education Resources
Edinburgh, Scotland
18 credits
7/11-14/07 14th International Meeting on Advanced Spine Techniques
Medical Education Resources and the Scoliosis Research Society
Paradise Island, the Bahamas
10 credits
3/28-31/07 Preservation of Motion in the Spine
Cleveland Clinic Florida
Duck Key, FL
8.5 credits
2/14-18/07 2007 Annual Meeting
American Academy of Orthopaedic Surgeons
San Diego, CA
31 credits
9/14-16/06 Scoliosis Research Society 41st Annual Meeting
Medical Education Resources
12 credits
1/30/06 2005-2006 InforMed Physician Update
HIV/AIDS, Domestic Violence, Medical Errors
4 credits
7/31-8/3/05 World Spine III: An Interdisciplinary Congress on Spine Care
Intercontinental Rio, Rio de Janeiro
Brazil
22.5 credits
157
6/16-20/05 ABJS 56th Annual Meeting
AAOS
Nashville, TN
16 credits
5/20-23/04 2004 Annual Scientific Meeting
Key Largo, FL
13 credits
9/11 - 13/03 38th Annual Meeting
Scoliosis Research Society
Quebec City, Canada
15 credits
12/13/02 Risk Management Essentials for Physicians
Medical Risk Management
10.00 credits
5/26/02 Prevention of Medical Errors Course
The Florida Medical Association and First Professionals Insurance Company
3.0 credits
5/23/02 Scientific Annual Meeting, Current Controversies in Spine Surgery
4/19-21/02 Treatment of Low Back Pain in the Injured Worker
Workers Compensation Education and Training Program for Physicians
National Institute for Continuing Medical Education
Jacksonville, FL
13.5 credits
10/31 - 11/3/01 NASS 16th Annual Meeting
Seattle, WA
22.25 credits
10/18 - 21/00 158
35th Scoliosis Research Society Annual Meeting
Scoliosis Research Society
Cairns, Australia
14.5 credits
8/13/00 HIV/AIDS: The Florida Requirement for Physicians
Orlando Regional Healthcare Systems
Orlando, FL
2 credits
8/13/00 Florida Domestic Violence
Orlando, FL
1 credit
5/17 - 21/00 52nd Annual Meeting
Association of Bone and Joint Surgeons
San Antonio, TX
14 credits
12/30/99 RiskAware for Physicians, Risk Management Course
Med Risk
Orlando, FL
6 credits
10/20-23/99 14th Annual Meeting
24.5 credits
6/2/99 Domestic Violence
Orlando, FL
1 credit
9/16 - 20/98 SRS 33rd Annual Meeting
AAOS
New York, NY
14.5 credits
6/24 - 28/98 ABJS 50th annual Meeting
AAOS
Aspen, CO
14 credits
6/19/98 Florida Spine Study Group
University of South Florida School of Medicine
Tampa, FL
2 credits
159
4/3 - 4/98 Pediatric Spinal Surgery
Depuy - Motech
Coconut Grove, FL
8 credits
1/18 - 21/98 Surgical Management of Spinal Disorders
Colorado Medical Society
Beaver Creek, CO
16 credits
Publications
_____________________________________________________________________
“Cyclic Analysis of Power Velocity and fractional Rate of Change of Ventricular Power - Clinical Evaluation of Myocardial Contractility”
Clinical Research, 20(4):770 (October, 1972) (With W.A. Munter, P.D. Stein and E.F. Blick)
“Isovolumic Fractional Rate of Change of Ventricular Power: An Encompassing Indicator of Myocardial
Contractility”
Federation Proceedings 32(3):711 (March 1973) (With P.D. Stein and E.F. Blick)
“Assessment of Ventricular Performance Based Upon and Range of Power Transfer during Isovolumic
Contraction”
Clinical Research, 21:863 (1973) (With P.D. Stein, W.A. Munter, E.F. Blick and H.N. Sabbah)
“The Isolated Lateral Retinacular Release”
Orthop. Trans. 4:268 (1980) (With H.K. Dunn and S.J. Bigos)
“Comparative Assessment of Spine Stability Achieved with a New Anterior Spine Fixation System”
Transactions of the 25th Annual Orthopaedic Research Society, Vol. 5, (February 5-7, 1980) (With
H.K. Dunn and A. U. Daniels)
“Spine Fracture Stability Achieved with Harrington Distraction Rods at Various Fixation Levels”
Orthop. Trans. 5:90 (1981) (With H.K. Dunn and A.U. Daniels)
“Evaluation of the Mechanical Stability of Fractured Spines with Various Fixation Systems”
Transactions of the 27th Annual Orthopaedic Research Society, Vol. 6, (February 24-26, 1981)
(With H.K. Dunn, M.D. and A.U. Daniels, PH.D.)
“Intraoperative Force Measurements during Correction of Scoliosis”
Spine, Vol. 7, No. 5 (Sep - Oct 1982) (With H. K. Dunn, M.D. and A. U. Daniels, PH.D.)
“Vertebral Body Replacement with Femoral Neck Allograft and Vascularized Rib Strut Graft. A Technique
for Treating Post Traumatic Kyphosis with Neuroligic Deficit” , Spine, Vol. 8, No. 4 (May-June 1983)
(With David S. Bradford, M.D.)
160
“Severe Postlaminectomy Kyphosis Treatment by Total Vertebrectomy (Plus Late Recurrence of Childhood Spinal Cord Astrocytoma)”
Spine, Vol. 9, No. 7 (Oct. 1984) With Robert B. Winter, M.D.)
“Arthroscopic Partial Medial Meniscectomy on the Older Patient”
Journal of Bone and Joint Surgery, Vol. 66-A, No. 4 (April 1984) (With Ronald M. Constine, M.D.,
Aaron A. Hofmann, M.D. and Robert W. Carson, M.D.)
“Isolated Lateral Retinacular Release in the treatment of Patellofemoral Disorders”
Clinical Orthopaedics and Related Research, No. 186, (June 1984) (With S. J. Bigos, M.D.)
“Osteotomy of the First Cuneiform as Treatment of Residual Adduction of the Fore Part of the Foot in
Club Foot”
Journal of Bone and Joint Surgery, Vol. 66-A, No. 7 (September 1984) (With Aaron A. Hofmann, M.D.,
Ronald M. Constine, M.D. and Sherman S. Coleman, M.D.)
“Infected Total Knee Arthroplasties”
Clinical Orthopaedics and Related Research, No. 199 (October 1985) (With Donald G. Bliss, M.D.)
“Surgical Management of Thoracolumbar Spine Fractures with Incomplete Neurologic Deficits”
Clinical Orthopaedics and Related Research, No. 218 (May 1987) (With David S. Bradford, M.D.)
“Sternal Fractures Associated with Spinal Injury
The Journal of Trauma, Vol. 29, No. 3 (March 1989) (With H. Kevin Jones, M.D. and Robert C. Mumby,
M.D.)
Cotrel-Dubousset Rods in Spinal Fractures
Paraplegia 27:440, 1989, McBride, G.G.
Surgical Stabilization of Thoracolumbar Fractures Using Cotrel-Dubousset Rods
Seminars in Spine Surgery, Vol. 2, No. 1 (March) :24-30, 1990, McBride, G.G.
Treatment of Charcot Spinal Arthropathy Following Traumatic Paraplegia
Journal of Spinal Disorders, Vol. 4, No. 2, 1991, McBride, G.G., Greenberg, D.
Segmental Spinal Stabilization in the Treatment of Thoracolumbar Fractures
Seminars in Spine Surgery, Vol. 4, No. 3 (September) :207-213,1992, McBride, G.G.
Cotrel-Dubousset Rods in Surgical Stabilization of Spinal Fractures
Spine, Vol. 18, No. 4: 466-473, 1993, McBride, G.G.
161
Presentations
_____________________________________________________________________
162
2/5-7/80 “Comparative Assessment of Spine Stability Achieved with a New Anterior Spine Fixation System”
26th Annual Orthopaedic Research Society Meeting
Atlanta, GA
10/18-25/80 “Spine Fracture Stability Achieved with Harrington Distraction Rods”
Western Orthopaedic Association
Hawaii
2/24-26/81 “Evaluation of the Mechanical Stability of Fractured Spines with Various Fixation Systems”
27th Annual Orthopaedic Research Society Meeting
Las Vegas, NV
10/10-14/82 “Arthroscopic Medial Meniscectomy in the Older Patient”
46th Annual Meeting, Western Orthopaedic Association
Albuquerque, NM
9/19-22/84 “Spine Models for Implant Testing”
19th Annual Meeting, Scoliosis Research Society
Orlando, FL
11/18-21/87 “Cervical Fractures and Central Cord Syndrome”
41st Annual Fall Meeting, The Florida Orthopaedic Society
Hyatt Grand Cypress Regency, Lake Buena Vista, FL
5/2-4/88 “Cotrel - Dubousset Rods in Spinal Fractures”
1988 ASIA Meeting
San Diego, CA
5/5-8/88 “Cotrel - Dubousset Rods in Spinal Fractures”
Spring Meeting, Florida Orthopaedic Society
Key Largo, FL
6/17-18/88 “Techniques and Experience with CDI in Thoracolumbar Trauma”
Orlando Spine Trauma Symposium, Sponsored by Lucerne Spinal Center
Humana Hospital Lucerne, Orlando, FL
10/14/88 “Cervical Spine Injuries”
Primary Care Treatment for Orthopaedic Injuries Conference
Orlando Regional Medical Center
11/4-5/88 “Experience with Cotrel - Dubousset Instrumentation in Thoracolumbar Fractures”
“Interpretation of Initial X-rays in Cervical Spine Injuries”
“Cervical Spine Fractures and Central Cord Syndrome”
Columbia Orthopaedic Days
Sponsored by Columbia Orthopaedic Society and Richland Memorial Hospital
Columbia, SC
2/12/89 “Cotrel - Dubousset Rods in Spinal Fractures”
Federation of Spine Associations Meeting
Las Vegas, NV
4/15/89 “Charcot Spine Deformity”
Florida Spinal Deformity Study Group Annual Meeting
Orlando, FL
4/6-7/90 “Charcot Spine II”
Florida Spine Deformity Study Group Annual Meeting
Lake Buena Vista, FL
5/3-5/90 “All About Laminectomies”
44th Annual Florida Workers Compensation Educational Conference
Orlando, FL
5/3-5/90 “Charcot Spine Arthropathy after Posterior Spinal Fusion for Traumatic Paraplegia”
ASIA 1990 Meeting
5/6/90 “Posterior Stabilization for Thoracolumbar Fractures”
“Treatment of Late Spinal Deformity”
American Academy of Orthopaedic Surgeons One-Day Course
9/16-19/90 “Chemonucleolysis, Laminectomy and Percutaneous Discectomy When is Each Utilized?”
45th Annual Florida Workers’ Compensation Educational Conference
Orlando, FL
4/19/91 “Surgical and Nonsurgical Treatment of Herniated Discs”
FAARPS Meeting
Orlando, FL
163
164
11/14/91 “Nosocomial Aids Transmission and the Surgeon: Assessing the Risks, Preventative Procedures and Legal Climate”
Orlando, FL
4/21/92 Loss Prevention Panel
IDMA’s Workers’ Compensation Forum
Palm Beach, FL
11/6/92 “An Economic Comparison of Limited Stay Versus Inpatient Primary Lumbar Disc Surgery”
Palm Beach, FL
12/11-12/92 “Surgical Stabilization of Thoracolumbar Fractures Using CDI or TSRH Rods”
First Annual Symposium: Techniques in Spinal
New York, NY
5/1/95 Complete Spinal Cord Injury Lecture
Annual Meeting of ASIA
5/24-26/96 “Microendoscopic Discectomy, Early Outcomes and Technique”
With Mehrdad Ganjianpour, M.D.
1996 Annual Scientific Program of the Florida Orthopaedic Society
Palm Beach, FL
9/15/04 Spine Surgeries, Treatment, and Procedures
Presented to AIG WC
Lake Mary, FL
5/19/05 Endoscopic Discectomy and Fusions
SRS Hartford WC
Lake Mary, FL
5/08 Autograft/Allograft vs. PEEK cages for fusion in the cervical spine
Point CounterPoint Surgeon Meeting
Key West, FL
7/15/08 OOC Cocktails & Credits
Presented the XLIF procedure to Workers Comp Case Managers and Adjusters
12/2/09 TheXLIF procedure and MIS spine surgery
Presented to Workers Comp Case Manager and Adjusters at USIS, Inc
3/18/10 A Pacemaker for Pain: Spinal Cord Stimulation
PGCS Claim Services
Lake Mary FL
OOC Cocktails & Credits, Presented to the Orlando Orthopaedic Case Managers and Adjusters
Lake Mary FL
5/21/10 Interlaminar lumbar instrumented fusion
Point CounterPoint Surgeon Meeting
Key West, FL
SUA Insurance Services
Lake Mary FL
165
Steven E. Weber, D.O.
Employment
_____________________________________________________________________
9/1/01– Present Orlando Orthopaedic Center
25 West Crystal Lake Street, Suite 200
Orlando, FL 32806
(407) 254-2500
(407) 423-2789 (Fax)
7350 Sandlake Commons Boulevard, Suite 3315
Orlando, FL 32819
(407) 354-3700
(407) 345-1146 (Fax)
1000 West Broadway Street, Suite 200
Oviedo, FL 32765
(407) 977-3500
(407) 977-1128 (Fax)
8/00 – 7/01 University of Florida
Clinical Associate Instructor
Education
_____________________________________________________________________
Fellowship 8/1/00 – 7/31/01 Fellowship in Reconstructive Spinal Surgery
University of Florida, Glen R. Rechtine II, M.D.
Spinal Health Centers, Chester Sutterlin, III, M.D.
Gainesville, FL
Subspecialty in Spine Surgery
Residency 7/1/96 – 6/30/00 Michigan State University
Botsford General Hospital
Farmington Hills, MI
Orthopaedic Surgery
Internship 7/1/95 – 6/30/96 Michigan State University
Botsford General Hospital
Farmington Hills, MI
Transitional Internship
Chief Intern
167
Medical 1991 – 1995 Michigan State University
College of Osteopathic Medicine
Doctor of Osteopathic Medicine
Undergraduate 1987 – 1991 University of Michigan
Ann Arbor, MI
B.S. – Biology
Orthopaedic Subspecialty Rotation
_____________________________________________________________________
10/99-1/00 Pediatrics
Chad Price, M.D.
Nemours Children’s Clinic
Arnold Palmer Hospital for Children
Orlando, FL
4/99-7/99 Hand
Edward Burke, D.O.
Wayne State University
Detroit Medical Center
Detroit, MI
9/98-1/99 Trauma
Roy Sanders, M.D.
Tampa General Hospital
Tampa, FL
1/98-4/98 Spine
Harry Herkowitz, M.D.
Royal Oak, MI
Honors
& Awards
_____________________________________________________________________
6/00 6/00 2/00 1995-96 1992 1991-92 168
Alvin Yarrows Award for Excellence in Research Presentation
2000 Michigan State University Resident Research Award
Bravo Award, Botsford General Hospital
Chief Intern, Botsford General Hospital
Stephen J. Kobijak Award Finalist, Michigan State University
Sigma Sigma Phi, National
Certifications/Licensure
_____________________________________________________________________
9/16/03 American Osteopathic Board of Orthopaedic Surgery
Expiration 12/31/13
7/18/00 State of Florida Medical License
License #OS8211
(Active)
7/1/95 State of Michigan Medical License
License #5101012780
(Active)
Instructional
Courses
_____________________________________________________________________
AO Basic Resident Course
Anspach Course for Spinal Instrumentation
Medtronic Sofamor Danek Microendoscopic Discectomy
Medtronic Sofamor Danek Minimally Invasive Interbody Fusion Course
Professional
Associations
_____________________________________________________________________
AO Basic Resident Course
American Osteopathic Association
Michigan Association of Osteopathic Physicians and Surgeons
American Medical Association
Professional
Experience
_____________________________________________________________________
1999 Michigan Spine and Sports Institute Team Physician
1999 The Maccabi International Games Tournament Physician
1996-2000 Associate Clinical Instructor of Orthopaedic Surgery
Botsford General Hospital, Michigan State University
1992 Biochemistry Teaching Assistant
Michigan State University
1991-1994 Stanley H. Kaplan, MCAT/DAT/GRE Test Preparation Instructor
Ann Arbor, East Lansing and Detroit, MI
169
1991-1992 Anatomy Prosection Instructor
Michigan State University
Staff Appointments
_____________________________________________________________________
Orlando Regional Healthcare System (Orlando Health)
1414 S. Kuhl Avenue
Orlando, FL 32806
(321) 841-5111
(Active)
Continuing
Medical Education
_____________________________________________________________________
170
3/26-28/10 50th Annual Postgraduate Seminar
American Osteopathic Academy of Orthopaedics
Orlando, FL
18 credits
10/11/09 Oral Exam
American Osteopathic Board of Orthopaedic Surgery
10 credits
9/11-14/08 Annual Clinical Assembly of Osteopathic Specialists
American College of Osteopathic Surgeons
Boca Raton, FL
27 credits
Chicago, IL
20 credits
Atlanta, GA
20 credits
7/12-13/05 Charite Artificial Disk Training
Cincinnati, OH
5/18-21/05 106th Annual Postgraduate Convention
Michigan Osteopathic Association
Detroit, MI
30.5 credits
Washington, DC
19 credits
4/30-5/1/04 44th Annual Postgraduate Seminar
Cleveland, OH
15 credits
5/29-6/2/03 Interpore Cross
Orthopaedic Spine Solutions
Alaska
5/2-3/03 43rd Annual Postgraduate Seminar
Las Vegas, NV
16 credits
10/11-12/02 Unique Challenges in Spine Surgery
Palm Beach, FL
1/19-25/02 14th Annual Disorders of the Spine
University of South Florida
Whistler, Canada
31 credits
Research/Presentations
_____________________________________________________________________
2005 Non-operative Treatment of Cervical Disc Disease
Cervical Spine Research Society
Weber SE, Rechtine, GR
2005 Cervical Injury on the Playing Field
Orlando Orthopaedic Sports Medicine Symposium
University of Central Florida
2004 Current Concepts in Lumbar Disk Disease
American Osteopathic Academy of Orthopaedics Postgraduate Conference
Cleveland, Ohio
2004 ForidaL Current Hand and Upper Extremity Concepts
Athletic Trainers’ Association of Florida Annual Meeting
Altamonte Springs, FL
171
172
2004 “Cervical Spine Problems and when to Operate”
Liberty Mutual WC
Tampa, FL
2004 “Current Concepts in Disc Disease of the Lumbar Spine”
59th Annual Workers Compensation Educational Conference
Orlando, FL
2004 “Endoscopic Discectomy and Fusions”
Risk WC
Maitland, FL
2004 “Understanding the difference between M.D. vs. D.O.”
Presented to Corvel WC
Lake Mary, FL
2002 Lumbar Disk Disease: The Past, Present & Future
EBI Spinal Symposium
Tampa, FL
2001 Lumbar Disk Disease: Current Concepts
University of Florida Spine Conference
Department of Neurological Surgery
Laminectomy with Instrumented Arthrodesis for Degenerative Lumbar
Spondylolisthesis with Spinal Stenosis: A Long Term Outcome Study
Current investigation evaluating patient outcomes who are at least five years post-operative for instrumented arthrodesis; Herkowitz HN, Fischgrund JS, Weber SE, and Abraham DJ
Bone and Joint Infections
Rosen, P., Emergency Medicine. W. B. Saunders Company, Philadelphia, PA
2001, Zink, BJ, Weber JE, and Weber SE (Chapter written for next edition)
Fusions Utilizing Axis Plates
Long Term Outcomes for Occipitocervical Ongoing investigation for submission into the Journal of Spinal Disorders; Weber SE and Sutterlin CE
Loss of Somatosensory Evoked Potentials During Anterior and Posterior Fusion for Severe Scoliosis
Presented at the Michigan State University Resident Research Symposium, 2000
Weber SE and Knapp R
1999 Continuous versus Demand Only Morphine PCA in Total Knee Arthroplasty
A current investigation involving a randomized prospective evaluation of pain control in patients with unilateral total knee Arthroplasty; For submission into Arthroplasty
Presented at the American Osteopathic Academy of Orthopaedics, Seattle, WA
Weber SE and Hook J
1999 Staged, Sequential, and Simultaneous Bilateral Total Knee Arthroplasty, A Cost Analysis in a Community Hospital, A retrospective investigation evaluating cost differences among these various methods of performing total knee Arthroplasty, For submission in to Arthroplasty.
Presented at the American Osteopathic Academy of Orthopedics, Seattle, WA
Lindvall E, Weber SE
Dislocation of the Proximal Tibio-fibular Joint, A Case Report and Review
Submitted for publication to Orthopedics
Weber SE and Swienckowski JJ
June 1994 Predicting Knee Fractures
Presented at the American College of Emergency Physicians, Michigan Chapter
Weber JE and Weber SE
173
From Medicinenet.com
http://www.medicinenet.com/minimally_invasive_lumbar_spinal_fusion/article.htm
Minimally Invasive Lumbar Spinal Fusion
Introduction to lumbar spinal fusion
The lumbar spine is the lower portion of the spine found at the center of the curve of the low back. This area can
be a common source of pain. Low back pain is the second most common reason for visits to the family physician, behind only the common cold. As people become older, various changes occur in the lumbar spine that can cause pain.
In most cases these changes are normal degenerative arthritis (wear of cartilage over time). The physician must also
rule out other more serious conditions including tumor, infection, or fracture.
Fortunately, more than 90% of patients with low back pain will have improvement in their symptoms regardless of
treatment within six weeks. During that time the physician has various treatment options including medications, physical therapy, or injections that can help ease the symptoms. Some of those patients that do not improve during the first
six weeks may be candidates for surgery. The spine surgeon has different types of surgical options available based on
the specific cause of pain.
What is lumbar spinal fusion?
Lumbar spinal fusion is an operation that causes the bones of the spine in the lower back to grow together. The
goal of the lumbar fusion is to have the two vertebrae fuse (grow solidly together) so that there is no longer any motion
between them. Removing the intervertebral disc or bone spurs can reduce some of the pressure on the nerves, helping
to reduce pain. Additionally, by fusing the two vertebrae together this will stop the formation of bone spurs at that location, further reducing pain and potential nerve injury.
There are many different specific techniques to try to fuse the vertebrae together. The surgery can be performed
either through an incision in the back, the abdomen, or a combination of both. In many cases metal screws and rods
are placed from the back into the bones to hold them steady while the fusion occurs. During an interbody fusion, the
surgeon removes the intervertebral disc and places either a piece of bone or a metal or plastic cage in its place. The
decision on what type of fusion is best for each patient is based on their specific complaints and the cause of symptoms. Spinal fusion can be very effective in the properly selected patient.
What is minimally invasive lumbar spinal fusion?
Minimally invasive lumbar spinal fusion is similar to traditional lumbar spinal fusion, but it uses smaller incisions
and causes less damage to the surrounding tissues during surgery. As with traditional lumbar spinal fusion, there are
many specific techniques available to try to fuse the vertebrae together using minimally invasive techniques. This can
be done through the abdomen, from the back, from the side, or with any combination of these.
Minimally invasive lumbar fusion through the abdomen uses four small incisions, approximately ½ inch in length.
A fiber optic viewing camera is used, similar to other minimally invasive procedures including laparoscopic gallbladder or appendix removal.
Fusion with screws and rods can be performed through the back using several 1-2 inch incisions. In these cases
a series of increasingly larger dilators are inserted through the incisions to help spread the muscles apart. Once the
muscles have been moved away, the screws and rods can be placed through the dilator tubes. In some cases an operating microscope is used to help the surgeon see more clearly.
One of the most recent advances in minimally invasive lumbar spinal fusion is the ability to perform fusion surgery
through the patient’s side. There are several techniques that allow the surgeon to make a small incision, approximately
2 inches in the patient’s side, directly over the planned fusion site. The muscles are then carefully moved aside, and a
series of increasing larger dilators are inserted down to the lumbar spine. Specialized instruments can then be used
through the dilator tube to remove the intervertebral disc and place a bone graft or metal or plastic spacer in its place.
This technique is typically combined with a procedure from the back to place rods and screws for additional support.
175
What are the advantages of minimally invasive lumbar spinal fusion?
The major advantage of all of these minimally invasive techniques is that there is less damage caused to the surrounding tissues. Unfortunately, in traditional spinal surgery it is necessary to cut through muscles and move them out
of the way in order to reach the spine. This can cause a large amount of pain following surgery, and it can lengthen
the recovery time. Instead of cutting and moving muscles, the minimally invasive techniques can more gently spread
through the muscles to allow access to the spine. This is much less painful for the patient, and it does not require as
long of a recovery period for the muscle to heal.
Another benefit of less muscle damage is less blood loss and thus a reduced need for blood transfusions using the
minimally invasive techniques. There is often less need for narcotic pain medications following this form of surgery,
and a shorter hospital stay.
What is the disadvantage of minimally invasive lumbar spinal fusion?
As with any new technique, one of the major disadvantages is the additional time needed to perform the procedure.
While a surgeon may be very comfortable with the traditional surgical fusion techniques, it will take time to be able to
achieve the same outcome using these new methods. Surgeons with more experience can now perform lumbar spinal
fusion in equal or even less time than with the traditional techniques. Not all surgeons perform these techniques, so it
may not be available from your current surgeon or in your area.
How effective is minimally invasive lumbar spinal fusion?
The results for the minimally invasive lumbar spinal fusion through the abdomen have not been as good as the
traditional anterior fusion techniques. The success of the fusion has been less reliable, the operative times are longer
and there are increased risks of injury to the nerves using the minimally invasive techniques. Because of this, many
surgeons have stopped using this technique.
The results of the minimally invasive procedures through the back have been much more promising. Experienced
surgeons are able to perform lumbar spinal fusion through the back quicker, with similar fusion rates, less blood loss,
and quicker recovery times than using traditional techniques.
The newer minimally invasive lumbar spinal fusion techniques though the patient’s side are still being refined. The
initial techniques had some increased risk of damage to nerves, but more recent changes have made these even safer
and more effective. The results so far are very promising for this technique, but there have been a limited number of
studies. Additionally, since this was only recently developed, there are fewer surgeons performing this technique.
Am I a candidate for minimally lumbar invasive spinal fusion?
First, you and your doctor need to determine if you are a candidate for spinal fusion. Remember, the majority of
patients with low back pain recover within six weeks regardless of treatment. If you have had prolonged symptoms you
should see your physician. If it is decided you may need surgery you will be referred to a spinal surgeon for further
evaluation. If a fusion is thought to be potentially beneficial for you, the option of minimally invasive techniques can
then be discussed with your surgeon.
Minimally Invasive Lumbar Spinal Fusion At A Glance
• The majority of patients with low back problems improves within six weeks regardless of treatment and do
not need surgery.
• Minimally invasive lumbar spinal fusion attempts to achieve similar results to traditional techniques with less
blood loss, less pain, less muscle damage and shorter hospital stay.
• Minimally invasive lumbar spinal fusion through the abdomen has not been as effective and has increased risk
of nerve damage compared to traditional fusion techniques.
• Minimally invasive lumbar spinal fusion through the back has been shown to be as effective as traditional
techniques with less blood loss, less pain and shorter hospital stays.
176
From Spineuniverse.com
http://www.spineuniverse.com/exams-tests/devices/minimally-invasive-posterior-lumbar-interbody
Minimally Invasive Posterior Lumbar Interbody
Fusion (PLIF): A Beneficial Union
Written by Kevin T. Foley, MD
Introduction: PLIF
Posterior lumbar interbody fusion (PLIF) is a surgical technique for placing bone graft between adjacent vertebrae (interbody). Typically, screws and rods or other types of spinal instrumentation are used to hold the spine in
position while the bone heals. Indications for this procedure may include pain and spinal instability resulting from
spondylolisthesis, degenerative disc disease, or when a discectomy is performed to relieve nerve compression and the
patient has associated mechanical low back pain.
Spinal fusion uses bone graft to promote specific vertebrae to grow or fuse together into a solid and stable construct. Instrumentation, also called internal fixation, incorporates the use of rods, screws, cages, and other types of
medical hardware to provide immediate stability to the spine and facilitate fusion.
Minimal Access Spinal Technologies
Today, spinal surgery has advanced to a new level that utilizes Minimal Access Spinal Technologies (MAST). These
technologies replace traditional open surgical procedures with innovative minimally invasive techniques and tools. To
grasp the importance and benefits of minimally invasive spine surgery, review the following comparison:
Open Approach
A longer incision along the middle of the back is necessary. Large bands of muscle tissue are stripped from the
underlying spinal elements including the spinous process, lamina, and facets. These tissues are pulled aside (retracted) during surgery to provide the surgeon a good view of the spine and room for performing the procedure. During
complex spine surgeries, these surrounding tissues (paraspinous) may need to be retracted for long periods of time.
Stripping the paraspinous tissues and retracting them can contribute to post-operative pain and prolong the patient’s
recovery.
Minimally Invasive Approach
In minimally invasive procedures, the surgical incisions are small, there is no need (or minimal need) for muscle
stripping, there is less tissue retraction, and blood loss is minimized. Special surgical tools allow the surgeon to
achieve the same goals and objectives as the open surgery while minimizing cutting and retracting of the paraspinous
muscles. Therefore, tissue trauma (injury) and post-operative pain are reduced, hospital stays are shorter, and patients can recover more quickly.
Open PLIF Procedure
A typical PLIF procedure involves an open incision (approximately 6 inches long) in the middle of the lower back
followed by stripping the paraspinous muscles away from the spine. Bone removal (laminectomy) and lumbar discectomy are performed to remove pressure from affected spinal nerve roots. When the offending disc is removed an
empty space is left between the upper and lower vertebrae (interbody). This is filled with bone graft. Implants made of
bone, metal, or other materials are typically inserted into the interbody space. Finally, pedicle screws are placed into
the upper and lower vertebrae and connected with rods or plates.
177
MAST PLIF Procedure
Now spine surgeons can combine three innovative spinal surgical “systems” with Minimal Access Spinal Technologies (MAST). The combination of these systems allows a PLIF to be performed through two one-inch incisions on
either side of the low back. The paraspinous muscles do not need to be stripped from the spine. The spine surgeon
can perform bone removal, a discectomy, an interbody fusion, and pedicle screw insertion through the same small
incisions!
METRx? is a microsurgical system that uses tubes inserted via small skin incisions to work through the normal
tissue spaces that separate muscle fibers. These tubes are made to dilate the tissue spaces sequentially, thereby
eliminating or minimizing the need for muscle stripping or cutting. The PLIF procedural steps of bone removal,
discectomy, and bone graft / interbody implant placement are carried out through the METRx tubes.
TANGENT? is an implant and instrument system used to prepare the interbody space for insertion of precisionmachined wedges of cortical bone (bone graft implants).
CD HORIZON® SEXTANT? is a “percutaneous” (through the skin) pedicle screw and rod insertion system. It
enables the surgeon to precisely implant the screws and rods in a minimally invasive fashion. Once the METRx
tubes have been removed, the SEXTANT? screws are placed through the same small (one-inch) incisions. The
rods are percutaneously inserted through tiny openings (approximately one-fourth of an inch long) in the skin.
This system helps to immobilize the spine (internal fixation) so the bone grafts can heal and fuse the vertebrae
together.
Conclusion
Advancements in spine surgery continue to evolve, providing surgeons with better tools and techniques to treat
patients with spinal disorders. We can only expect further improvements as spine specialists continue to adopt and
develop emerging technologies and integrate them into their practices.
178
Evidence, The Command
Performance
Frankfort, KY
Charles W. Ehrhardt
Emeritus Professor
Florida State University College of Law
Tallahassee, FL
179
Michael W. Alvey
CHAIRMAN
KENTUCKY WORKERS’COMPENSATION BOARD
Chairman Michael W. Alvey received his Bachelor’s degree from Western Kentucky University, and his
J.D. from the University of Kentucky College of Law. Admitted to the Kentucky Bar in 1988, Chairman
Alvey practiced primarily defending workers’ compensation, federal black lung and personal injury
claims. On November 13, 2009 Chairman Alvey was appointed to serve as Chairman of the Kentucky
Workers’ Compensation Board effective January 5, 2010. Chairman Alvey was recently appointed to
the board of directors of the National Association of Workers’ Compensation Judiciary, Inc.
Chairman Alvey retired from the Kentucky Army National Guard in 2000 where he served nearly 21
years as an armor officer and is a graduate of the Armor Officer Basic Course and Armor Office Advanced Course.
Chairman Alvey resides in Owensboro, Kentucky where he has been involved in various church and
civic activities as well as working with youth sports including both coaching and officiating.
181
Charles W. Ehrhardt
Florida State University
College of Law
B.K. Roberts Hall, Room 320
Phone: 850.644.5240
Fax: 850. 644.5487
[email protected]
Emeritus Professor
Education
J.D., University of Iowa, 1964
B.S., Iowa State University, 1962
Author of Florida Evidence (West 2009), the leading treatise on the topic, and Florida Trial Objections (West 4th ed. 2007), Professor Ehrhardt has been cited as an authority by appellate courts more
than 500 times. He taught Torts, Evidence, Trial Practice and Trial Evidence Seminar, and was named
Outstanding Professor seven times. After serving as the Ladd Professor of Evidence for 35 years, he
earned emeritus status in 2007. He continues to teach Evidence at the law school.
Professor Ehrhardt served as a commissioner to the National Conference of Commissioners on Uniform
State Laws from 1996-2005. He was a member of the faculties of both the National Judicial College in
Reno, Nevada, and the Federal Judicial Center in Washington, D.C. He has been a visiting professor
at University of Georgia and Wake Forest. Professor Ehrhardt received the Selig I. Goldin Award from
the Criminal Law Section of The Florida Bar and the President’s Award from the Florida Board of Trial
Advocates. He clerked for the Honorable M.D. Oosterhout of the U.S. Court of Appeals for the Eighth
Circuit and joined Florida State University College of Law’s faculty in 1967.
For almost 20 years, he served as the university’s representative to the NCAA and the ACC. In 2007, he
was inducted into the Florida State Sports Hall of Fame.
183
Emerging Issues In
Workers Compensation Litigation
CHARLES W. EHRHARDT
LADD PROFESSOR EMERITUS
FLORIDA STATE UNIVERSITY COLLEGE OF LAW
I. Expert Witnesses.
A. Reliance on Inadmissible Evidence.
Federal Rules of Evidence (FRE) 703
Florida Evidence Code (FEC) 90.704
B. Discussing Contents of Inadmissible Evidence on Direct Examination.
FRE 703
FEC 90.704
C. Opinions re: Legal Conclusions.
FRE 704
FEC 90.703
D. Attacking Credibility of Experts.
II. Attacking Credibility and Impeachment of Witnesses.
A. Who can Impeach?
FRE 607
FEC 90.608
B. Prior Inconsistent Statements.
1. Laying the Foundation.
FRE 613
FEC 90.614
C. Criminal Convictions.
FEC 609
FEC 90.610
D. Prior Acts of Misconduct.
FEC 608(b)
E. Bias.
F. Defects in Mental or Physical Capacity.
185
III. Electronic Evidence - (Records, Texts, E-Mails, Social Media).
A. Authentication
(Not Self-authenticating)
1. Design or Process
FRE 901(9)
2. Circumstantial Evidence
FRE 901(4)
3. Person with Knowledge
FRE 901(1)
B. Hearsay
1. Admissions—Statement by Adverse Party
FRE 801(d) (2)
FEC 90.803(18)
2. Business Record
FRE 803(6)
FEC 90.803(6)
3. Public Record
FRE 803(8)
FEC 90.803(8)
Goode, The Admissibility of Electronic Evidence, 29 Review of Litigation 1 (2009)
Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md. 2007)
186
Oral Argument
Presented by the Florida First District Court of Appeal
Chief Judge Robert T. Benton, III
Tallahassee, FL
Honorable Marguerite H. Davis
Tallahassee, FL
Honorable Philip J. Padovano
Tallahassee, FL
Honorable Joseph Lewis, Jr.
Tallahassee, FL
Tallahassee, FL
Honorable Bradford L. Thomas
Tallahassee, FL
Honorable Simone Marstiller
Tallahassee, FL
Jon S. Wheeler, Clerk
Tallahassee, FL
Stephen Nevels, Marshal
Tallahassee, FL
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Chief Judge Robert T. Benton, II
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Birthdate: January 16, 1946
Birthplace: Indianapolis, Indiana
Spouse: Wings Slocum Benton
Children: Two
Degrees: LL.M. 1971, Harvard Law School J.D. with Honors 1970; University of Florida B.A. 1967;
The Johns Hopkins University
Offices and Positions: Judge, District Court of Appeal, First District, 1994-present; Hearing
Officer, Florida Division of Administrative Hearings, 1977- 1994; Research Aide (Law Clerk) to
Justice Joseph W. Hatchett, Supreme Court of Florida, 1975-1977; Assistant Public Defender, Twelfth
Judicial Circuit of Florida, 1974-1975; Interim Assistant Professor, University of Florida College
of Law, 1972-1973; Law Clerk to Chief Judge William A. McRae, Jr., United States District Court,
Middle District of Florida, 1972; Staff Attorney, Florida Rural Legal Services, 1971; Instructor,
Boston University School of Law, 1970-1971.
Bar Office and Activites: Member, Supreme Court Local Rules Advisory Committee (2010-present); Member, Judicial Ethics Advisory Committee (2003 to present, Chair 2006 to 2007); Member,
Juvenile Court Rules Committee (2003 to 2006), Rules of Judicial Administration Committee (2004
to present, Chair 2007 to 2008), Committee on Appellate Rules (1987 to 1988, 1996 to 2003),
and Code and Rules of Evidence Committee (1995 to 2003); At-Large Member for the Appellate
Bench, Florida Court Education Council, (2001 to 2004); Member, Rules Committee, Florida Bar
Administrative Law Section (Chair 1984 to 1986); Editor, Florida Bar Journal Administrative Law
Column (1987 to 1989); Member, Executive Committee (1995 to 1996) and Committee on Designation, Administrative Law Section; Faculty Advisor, National Judicial College; Member, Florida
Bar Association, since 1970; Member, William H. Stafford Inn of Court (2003 to present); Member,
Tallahassee Bar Association, since 1976.
Honors and Awards: J.D. with Honors, University of Florida; Order of the Coif; Birch Award; Phi
Kappa Phi; Honorary University of Florida Law Center Scholarship; American Jurisprudence or other
“book” Awards: Jurisprudence, Law and Medicine, Commercial Paper, Evidence, Constitutional
Law, State and Local Taxation.
Publications: “Administrative Adjudication,” Florida Administrative Practice, Rev. 1981, 1990,
1993, Co-author; “Attorneys’ Fees and Costs Awards,” Florida Administrative Practice, 1993; “Formal
Hearings Under Florida’s Human Rights Act,” Florida Bar Journal, October 1989; “Exhaustion of
Administrative Remedies in Florida,” Florida Bar Journal, June 1989, Co-author; “Highlights of
the New DOAH Rules,” Florida Bar Journal, March 1986, Co-author; “Retroactivity in Licensing
Cases,” Florida Bar Journal, June 1985; “Search and Seizure: Procedures, Suppression Motions
and Appellate Review,” Florida Bar Journal, October 1975; “Criteria in Civil Commitment Proceedings,” University of Miami Law Review, 1973.
Religious and Civic Associations: Habitat for Humanity, Tallahassee Construction, Design and
Site Selection Committee (1984-84, 1992); Member, St. John’s Episcopal Church (Vestry 199699, 2005 to present); Member, Rotary Club of Tallahassee (Board, 1997-99); Member, Florida
Committee of the Hurricane Island Outward Bound School; Member of Board, Holy Comforter
Episcopal Day School, 1984-1986; Board Member, Florida Arts Community Enrichment (19952003).
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Judge Marguerite H. Davis
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Birthdate: November 12, 1947
Birthplace: Washington D.C.
Spouse: J. Riley Davis
Children: Two
Degrees: J.D. with Honors 1971, Florida State University; B.A. with Honors 1968, University of
South Florida.
Offices and Positions: Judge, First District Court of Appeal, 1993-present; private law practice,
Partner, Katz, Kutter, Haigler, Alderman, Davis & Marks, 1987-1993; Swann & Haddock, 19851987; Senior Legal Aid, Florida Supreme Court, 1971-1985, Executive Assistant to Chief Justice,
1982-1984.
Bar Offices and Activities: Florida State Federal Judicial Council, Executive Director, 1985present; Supreme Court Local Rules Advisory Committee, Chairperson, 1988-present; Florida
Bar Appellate Court Rules Committee, 1988-present, Vice-Chair 1995; Chair, 1995-1997; Rules
of Judicial Administration, 1995-present, Chairperson 1997-1998; Judicial Evaluation Committee, 1995-present, Chairperson 1999-2000; Executive Council, Appellate Advocacy Section of
the Florida Bar; Florida Bar Second Judicial Circuit Grievance Committee, 1990-1992; Supreme
Court Special Disciplinary Rule Committee, 1977-1978; Florida Bar Disciplinary Rule Committee,
1985-1987; Standards for Appellate Practice Certification Ad Hoc Committee, 1992-1993; Florida
Bar since 1971, American Bar Association, 1975-present; U.S. District Court, Northern and Middle
Districts, since 1971; Supreme Court of the United States; Florida Supreme Court Historical Society,
Board of Directors, 1985-present; Florida Supreme Court Restructure Commission, Reporter,
1971-1980, 1984-1986; American Arbitration Association, 1991-present; Judicial Management
Council Committee on Appellate Workload & Jurisdiction, 1996-1998; Appellate Practice & Advocacy Section, Appellate Rules Liason Commitee, Chair, 1996-1998; Arts in the Court Committee,
Chair 1999-present; Faculty Member for the 1999 and 2000 Florida College of Advanced Judicial
Studies.
Honors and Awards: J.D. with Honors; Valedictorian speaker--Florida Bar exam 1971; Gold Key
Honor Society (U.S.F. equivalent to Phi Beta Kappa); American Jurisprudence Awards for Excellence
in Remedies, Land Finance, Family Law, Creditors’ Rights and Debtors’ Remedies, Trial Practice,
Labor Law, Mass Communications Law; U.S.F. Honor Court and Board of Discipline and Review;
Recognized at U.S.F. Honors Convocation.
Publications: “Impeachment in Florida,” 6 Florida State University Law Review 2 (1978). “Attorney’s
Fees: Draft Your Contract Cautiously,” Volume LXIII, No. 5 The Florida Bar Journal (May 1989).
“A Plea for Uniformity,” Volume LXIV, N. 4, April 1990. Court Awarded Attorney Fees, Matthew
Bender, three-volume federal treatise--revise and supplement every six months. “Attorneys Fees
and Costs in Administrative Proceedings,” Administrative Law Section Newsletter, Vol. XIII, No.
3, March 1991.
Civic Associations: Member, Trinity Methodist Church; Alumni, Florida State University Law
School, Alumni Association; University of South Florida Alumni Association Board of Directors,
1999-present.
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Judge Philip J. Padovano
Birthdate: January 28, 1947.
Birthplace: Hackensack, New Jersey.
Spouse: Janet E. Ferris.
Degrees: J.D. Stetson University College of Law, 1973; B.S. Florida State University, 1969.
Legal Offices and Positions: Judge, District Court of Appeal, First District, 1996-Present; Circuit
Judge, Second Judicial Circuit, 1988-1996; Chief Judge Second Judicial Circuit, 1993-1996; Adjunct
Professor of Law, Florida State University College of Law, 1992; Private Practice, 1973-1988.
• Bar Offices and Positions: Chair, Committee on Florida Standard Jury Instructions in Criminal
Cases, 1997-Present; Chair, Committee to Recommend Minimum Standards for Lawyers in Capital
Cases, 1997-Present; Court Users Technology Committee, 1996-Present; Rules Subcommittee of
the Judicial Management Council, 1996-Present.
• Honors and Awards: Florida Bar Outstanding Jurist Award, Orlando, June 28, 1991; Tobias Simon Pro Bono Service Award, Tallahassee, March 16, 1983; Nelson Poynter Civil Liberties Award,
St. Petersburg, December 4, 1982; Leon Association for Retarded Citizens, Volunteer of the Year
Award, 1986; various academic awards including Stetson University College of Law Honor Roll,
1972, and Stetson Law Review, 1973.
• Publications: Florida Appellate Practice, West Publishing Company, 1988; Florida Appellate
Practice Second Edition, West Publishing Company, 1997; Postconviction Relief in Capital Cases,
Benchbook of the National Judicial College; Due Process Defense in Reverse Sting Cases, FLA. BAR
J. October 1984; Florida Theft and RICO (CLE Book) Chapter 6: Entrapment; Prejudicial Comments
of the Prosecutor During Closing Arguments - A Survey of Florida Law, FLA. BAR J. March 1977;
Florida Criminal Rules and Practice (CLE Book) Chapter 8: Immunity; Criminal Law - Constitutional
Law - Right to Counsel for Misdemeanants, 3 STETSON L. REV. 191 (1973); Criminal Law - Jury
Instructions on Lesser Included Offenses, 3 STETSON L. REV. 91 (1972).
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Judge Joseph Lewis, Jr.
BIRTHDATE: January 6, 1953
BIRTHPLACE: Tallahassee, Florida
CHILDREN: Two
DEGREES: J.D., Florida State University College of Law, 1977; B.S., University of Montana, 1974.
LEGAL OFFICES & POSITIONS: Judge, First District Court of Appeal, 2001-present; Bureau Chief,
Employment Litigation/Civil Litigation Section, Office of the Attorney General, 1995-2000; Senior Attorney, General Civil Litigation Section, Office of the Attorney General, 1981-1995; Assistant Public
Defender, Second Judicial Circuit, 1978-1981; Judicial Research Aide, Florida Industrial Relations
Commission, 1977-1978.
BAR OFFICES & ACTIVITIES: Supreme Court: Post Conviction Subcommittee of the Criminal Court
Steering Committee, 2007-present; The Florida Bar: Rules of Judicial Administration Committee, 2007present (Representative, 2003-2005); Criminal Law Section, 2002-present (Executive Council, 2002present); Appellate Court Rules Committee, 2001-2007 (Vice Chair, 2004-2005); Government Lawyer
Section, 1997-present (Treasurer, 2002-2004, Secretary, 2001-2002, Executive Council, 1998-2001,
At-large Representative, 1997-2001); Labor and Employment Law Section, 1999-2000; Federal Court
Practice Committee, 1997-2002 (Vice Chair, 2000-2001); Second Circuit Fee Arbitration Committee,
1998- 2000 (Vice Chair, 1999-2000); Tallahassee Bar Association, 1996-present (Board of Directors,
1999-2001); Master of the Bench, William H. Stafford American Inn of Court, 2002-2005; Government
Bar Association, 1991-present (President, 1995-1996, Vice President, 1994-1995);Virgil Hawkins Florida
Chapter, National Bar Association, 1995-present; Tallahassee Barristers Association, 1980-present.
Admitted to practice before: U.S. District Court, Northern, Middle, and Southern Districts of Florida;
Trial Bar, U.S. District Court for the Southern District of Florida; U.S. District Court for the District of
Arizona; U.S. Circuit Court of Appeals for the Ninth, Tenth and Eleventh Circuits; U.S. Supreme Court.
OTHER CIVIC ACTIVITIES: Current Activities: Mentor, Leon County Public Schools; Tallahassee
Urban League. Past Activities: Boys and Girls Club of the Big Bend, Board of Directors; Rickards High
School Foundation Bylaws Committee member; Lincoln High School Quarterback Club; C.K. Steele
Memorial Jaycees, charter member; PGA Junior Golf Association, parent-volunteer; Tallahassee Little
League, coach; provided pro bono legal services and counseling through the Legal Aid Foundation of
the Tallahassee Bar Association and Legal Services of North Florida, Inc.
HONORS & AWARDS: Florida Bar Meritorious Public Service Award, 2000; “AV” rating, MartindaleHubbell Law Directory, 1998;Community Service Award for Outstanding Contributions in the Delivery
of Pro Bono Legal Services, Neighborhood Justice Center and Legal Services of North Florida, Inc.,
1997; Florida Government Bar Association Award for Complete Dedication to the Advancement of the
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Organization, 1996; Claude Pepper Outstanding Government Lawyer Award of The Florida Bar for
Exemplifying the Highest Ideals of Dedication, Professionalism, and Ethics in Serving the Public as
a Government Lawyer, 1995; Certificate of Appreciation, Boys and Girls Club of the Big Bend, 1995;
Community Service Award for Outstanding Contributions in the Delivery of Pro Bono Legal Services,
Legal Services of North Florida, Inc., and the Second Judicial Circuit, 1994. Various undergraduate
academic awards including: Dean’s List, University of Montana, 1974.
PUBLICATIONS: CLE Materials on Prosecutorial Immunity.
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Judge Paul M. Hawkes
Appointed: By Governor Jeb Bush on January 2, 2003
Born: March 6, 1957 in New London, Connecticut
Married: Leslie K. Greer in 1975
Five sons: Jeremiah, Benjamin, Joshua, Jacob and Caleb
Military: USAF 1975 - 1978.
Education: High School Diploma, Cumberland, ME, University of South Florida, 1983 BS Cum
Laude, Florida State University 1985 JD with honors
• Legal Practice: Rumberger Kirk Caldwell Cabinas & Burke PA (1986), Private practice, Crystal
River Florida (1988-2000)
• Government: Assistant State Attorney, 5th Judicial Circuit, State of Florida (1986-1988), State
Representative, Florida House District 26 and District 43 (1990-1994), Constitutional Revision
Commission (1997/1998), Office of Policy & Budget, Executive Office of the Governor (2000),
Chief of Policy, Florida House of Representatives (2000-2002).
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Judge Brad L. Thomas
Birthdate:
January 11, 1954
Birthplace:
Jacksonville, Florida
Spouse:
Susan Ann Cox, Gainesville, married 1982
Children: One (Nancy Anastasia)
Education:
J.D. (with Honors), University of Florida College of Law, 1982;
B.A., Florida State University, 1977
Offices and Positions:
Judge, First District Court of Appeal, 2005 - present
Public Safety Policy Coordinator, Executive Office of the Governor, 1999-2005
Council Director, Florida House of Representatives Justice Council, 1997-1999
Staff Director, Florida Senate Criminal Justice Committee, 1996-1997
Assistant State Attorney, Second Judicial Circuit, State of Florida, 1991-1996
Assistant General Counsel, Florida Parole Commission, 1989-1991
Assistant Attorney General, Criminal Appeals Division, 1987-1989
Assistant General Counsel, Florida Department of Environmental Regulation, 1984-1987
Private practice, Big Pine Key, FL, 1984
Assistant Director, Appellate Advocacy Program, University of Florida College of Law, 1982-1984
Committees:
Member, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, 2005-
2010
Member, Appellate Education Committee, 2007-present
Legal Publications:
“Restricting State Prisoners’ Due Process Rights: The Supreme Court Demonstrates Its Loyalty to Judicial Restraint,” Cumberland Law Review, 1991.
“The Proper Standard of Appellate Review of Circumstantial Criminal Convictions,” Florida Bar Journal, June, 1988.
Associations and Affiliations:
The Florida Bar; William Stafford Tallahassee Inn of Court (1995-2008); First District Appellate American
Inn of Court (2008-present); Capital Rotary Club; Blessed Sacrament Catholic Church.
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Judge Simone Marstiller
Judge Marstiller was appointed to the First District Court of Appeal in 2010 by Governor Charlie Crist.
Her varied legal career, which began in 1996, has been exclusively in service to the State of Florida.
She spent her first five years as a lawyer in the appellate arena, serving initially as a judicial law clerk in
the Fifth District Court of Appeal and then as appellate counsel for the Agency for Health Care Administration (AHCA). As Senior Appellate Attorney and Chief Appellate Counsel for AHCA, she represented
the agency in the district courts of appeal defending disciplinary action taken against the licenses of
health care practitioners. Her appellate cases also included issues relating to rule challenges, Medicaid
provider contracts and reimbursements, and other agency decisions.
In 2001, Judge Marstiller became Assistant General Counsel to the Governor of Florida. In that position,
she assisted the General Counsel in overseeing the legal operations of the Governor’s agencies and
advising the Governor on a wide variety of legal and policy issues. Her work included managing trial
and appellate litigation initiated and defended by executive agencies in both state and federal court,
and providing guidance to agencies on substantive legal matters.
Judge Marstiller was selected in 2002 to serve as General Counsel for the Department of Management
Services (DMS), the administrative agency for state government. There, she managed all legal affairs
for the agency, including matters related to government procurement, outsourcing, state facility management, and collective bargaining. While serving in this capacity, the Governor appointed her Interim
Secretary of the agency.
From DMS, Judge Marstiller returned to the Governor’s Office in 2003 to serve as Deputy Chief of Staff
to the Governor. In 2004, the Governor appointed her State Chief Information Officer to head state
government’s central technology planning and policy organization, and in 2005 she became Secretary
of the Department Business and Professional Regulation, the state’s largest regulatory agency.
In 2007, Attorney General Bill McCollum appointed Judge Marstiller Associate Deputy Attorney General
for the State of Florida. In addition to serving on the executive management team for the Office of the
Attorney General, she was the agency’s General Counsel and was responsible for overseeing four agency
divisions, including the Civil Rights and Opinions Divisions.
When appointed to the appellate court in 2010, Judge Marstiller was serving as Executive Director for
the Florida Elections Commission. There she oversaw the investigation and prosecution of complaints
filed with the Commission and was the chief administrative officer for the agency.
Judge Marstiller was born in Monrovia, Liberia, and grew up in St. Petersburg, Florida. She earned
her Bachelor of Business Administration degree from Stetson University in DeLand, Florida, and her
Juris Doctor, cum laude, from Stetson College of Law in Gulfport, Florida.
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Jon S. Wheeler, Clerk of the Court.
Jon S. Wheeler has served as Clerk of the Court for Florida’s District Court of Appeal, First District,
since December 31, 1990. The First District Court of Appeal is one of the largest appellate courts in
the country both in terms of number of judges and number of cases filed and disposed annually. The
court’s geographical jurisdiction is the largest in the state of Florida and consists of 32 counties including all counties from Alachua County (Gainesville) north and from Jacksonville to Pensacola. It also
has exclusive statewide jurisdiction to review all workers’ compensation appeals.
Mr. Wheeler was a member of the charter class of Florida State University’s College of Law and received
his Juris Doctorate degree in December 1968. He also received his B.S. degree in business from Florida
State University (1966). He is licensed to practice law in Florida and before the U.S. Supreme Court
and the U.S. Court of Military Appeals.
Mr. Wheeler has been a member of the National Association of Appellate Court Clerks (NCACC) since
1991. He served on the Executive Committee from 1996 through 1998. He has also served on the
Program and Publicity Committees and chaired the Nominating Committee in 1999. Mr. Wheeler has
been a regular presenter at the NCACC’s annual conferences. His presentations have included “The
Use of Video Teleconferencing for Appellate Oral Argument” in 1995, “Handling Pro Se Litigants in
the Appellate Courts” in 1996, “Hiring and Retaining Deputy Clerks” in 1998, and in 1999 “Florida’s
Court’s Performance and Accountability Study” and Florida’s Appellate Courts’ Case Management
System.” Mr. Wheeler is a contributing editor to The Florida Bar Continuing Legal Education book,
Florida Appellate Practice. He has also participated in national programs to improve efficiency of
appellate court processing including a by-invitation seminar by the National Center for State Courts
(NCSC) program in Portland, Maine, in June 1994 to address “Procedural Innovations for Appellate
Courts: Criminal Appeals.”
Mr. Wheeler has been appointed by the Florida Supreme Court to participate in numerous commissions
and committees having impact on the Florida Judiciary including the Study Committee on Confidentiality of Records of the Judicial Branch and the Florida Judicial Management Council’s project on Long
Range Planning, the Appellate Court Focus Group in February 1996 and March 2000.
Mr. Wheeler, before being appointed as the third Clerk of the Court for the First District Court of Appeal, served over 21 years as a judge advocate in the United States Air Force. Before retiring at the rank
of colonel, his positions included serving as Legal Advisor and Legislative Assistant to the Chairman,
Joint Chiefs of Staff (1984-1988) and Staff Judge Advocate of the Air Force District of Washington
(1988-1990).
Mr. Wheeler is married to the former Marylynn Kennedy, and they have three adult children.
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Stephen M. Nevels
Present Position: 5/26/2009 First District Court of Appeal
Marshal
Tallahassee, Florida 32399
July 1, 2005 – May 26, 2009
Georgia Public Defender Standards Council
• Director of Administration-Georgia Capital Defender’s Office -10/1/2008 to 5/25/2009
• Statewide Conflict Program Director – 7/1/2005 to 10/1/2008
All Administration Responsibilities for these two Departments - Atlanta, Georgia
December 1, 2004 – June 30, 2005
Georgia Administrative Office of the Courts
• Assistant Director for Judicial Liaison
Liaison for Supreme Court of Georgia to Superior Court Judges, State Court Judges, Magistrate Court
Judges, Probate Court Judges, and Municipal Court Judges - Atlanta, Georgia 30303
July 2000 – December 2004
Superior Court of Fulton County – Atlanta District
• District Court Administrator and Deputy Superior Court Administrator
All Court Management and Program Administration -Atlanta, Georgia 30303
January 1, 1986 – July 2000
Florida Supreme Court Office of the State Courts Administrator
• Senior Court Analyst/Court Consultant
Jury Management, Court Statistics and Caseload Management, Certification of Judgeships, Indigent Defense, Statewide Grand Jury
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_____________________________________________________________________
Education:
1982-1985
California State University
Turlock, California
M.P.A., Public Administration and Judicial Administration
1974- 1978
University of Georgia
Athens, Georgia
B.A., Pre-Law Political Science
1972-1974
Abraham Baldwin College
Tifton, Georgia
Associate Degree in Criminal Justice
• Member of the National Association for Court Management
• Board Member for the Alumni Board –Abraham Baldwin College
Married: Nancy R. Nevels - Three Children and Five Grandchildren
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Neuroscience and
Psychology of Judicial
Decision-Making For
Adjudicators
Atlanta, GA
Kimberly Papillon
San Francisco, CA
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Melodie Belcher
After ten years as a flight attendant for Eastern Airlines, Melodie Belcher needed a new career. She
attended Georgia State University College of Law where she was an editor on the law review, graduating cum laude in 1992. She then worked as an associate for Swift Currie McGhee & Hiers, where she
represented employers and insurers in workers’ compensation claims. In 1999, she joined the State
Board of Workers’ Compensation as a mediator in the Columbus office. She was appointed administrative law judge in 2002, and in October of 2009, she became the chief judge, moving to the Atlanta
office. Melodie is the Chair of the Administration and Procedures Committee for the Southern Association of Workers’ Compensation Administrators and is the Secretary for the National Association of
Workers’ Compensation Judiciary. She speaks regularly on a variety of workers’ compensation issues.
Melodie has two grown children (one lawyer and one in law school), and a cocker spaniel and lives
in LaGrange, Georgia with her husband, Bill (who is not a lawyer).
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A. Kimberly Papillon, Esq.
12 Thunderbird Court
Oakland, California 94605
1 (510) 333-6622
[email protected]
EDUCATION Columbia University School of Law
New York, NY
Juris Doctor May 1994
Member: Columbia University School of Law Journal of Gender and Law
University of California, Berkeley
Berkeley, CA
Bachelor of Arts, 1991 Philosophy Honors Program
PUBLICATIONS AND TELEVISION PROGRAMS (A Partial Listing)
The National Center for State Courts’ publication, “Implicit Bias a Primer for Courts”
by Jerry Kang (2009).
Reviewer and Contributor: http://www.ncsc.org/Web%20Documents/ImplicitBiasPrimer.pdf
Continuing the Dialogue: The Neuroscience and Psychology of Decision-
Making Part 1 (October 2009)
Produced, wrote and hosted documentary for the California Judicial Council’s Administrative Office
of the Courts’ television channel. The documentary was funded with a grant from the National Center
for State Courts and is being distributed to every state court in the nation. In the documentary the
producer/host and 12 luminaries from across the nation including neuroscientists and research
psychologists provide a model for identifying and addressing implicit bias in the justice system.
Show is available for viewing over the AOC cable channel and through webcasts to the over 20,000
judges and employees of the California Courts and to the state court members of NCSC.
Making Part 2: The Origins of Implicit Bias (May 2010)
Produced, wrote and hosted documentary for the California Judicial Council’s Administrative Office
of the Courts’ television channel. In the documentary the producer/host and 12 luminaries from
across the nation including neuroscientists and research psychologists provide critical information
on the development of implicit bias in our society. The show is available for viewing over the AOC
cable channel and through webcasts to the over 20,000 judges and employees of the California
Courts and to the state court members of NCSC.
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Continuing the Dialogue: Linked Histories (June 2009)
Produced, wrote and hosted documentary television show for the California Judicial Council’s
Administrative Office of the Courts’ television channel discussing the implications of the Indian
Child Welfare Act and its application in the California State Courts. Show is available for viewing
over the AOC cable channel and through webcasts to the over 20,000 judges and employees of
the California Courts.
Continuing the Dialogue: From the Headlines to the Courtroom (July 2008)
Produced, wrote and hosted television show for the California Judicial Council’s Administrative
Office of the Courts’ television channel showing the synergy between the court decisions in California legalizing interracial marriage and the In re Marriage decision legalizing same-sex marriage.
Show is available for viewing over the AOC cable channel and through webcasts to the over 20,000
judges and employees of the California Courts.
Continuing the Dialogue: Cultural Competency Non-Verbal Communication (March
2008)
Office of the Courts’ television channel analyzing cultural and gender differences in nonverbal
communication, as part of continuing series on cultural competency in the courts. Show is available for viewing over the AOC cable channel and through webcasts to the over 20,000 judges and
employees of the California Courts.
Continuing the Dialogue: The California Civil Rights Movement (January 2008)
Produced, wrote and hosted television show for the California Judicial Council’s Administrative Office of the Courts’ television channel discussing the historical impact of California Court decisions
in the nation’s civil rights movement. Show is available for viewing over the AOC cable channel
and through webcasts to the over 20,000 judges and employees of the California Courts.
Continuing the Dialogue: Cultural Competency Non-Verbal Communication (October
2007)
Office of the Courts’ television channel analyzing cultural and gender differences in nonverbal
communication, as part of continuing series on cultural competency in the courts. Show is available for viewing over the AOC cable channel and through webcasts to the over 20,000 judges and
employees of the California Courts.
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Making Part 3: The Dismantling and Overriding of Implicit Bias (November 2010)
Produced, wrote and hosted documentary for the California Judicial Council’s Administrative Office of the Courts’ television channel. This is the first known documentary to explore the proven
methods for successfully dismantling and overriding implicit bias and the applications of these
methods to the judicial system. The show is available for viewing over the AOC cable channel and
through webcasts to the over 20,000 judges and employees of the California Courts and to the
state court members of NCSC.
Independence and Impartiality: Assessing Credibility in a Culturally Competent Context
(October 2007)
Office of the Courts’ television channel, providing analysis for judges on how to assess credibility
in witnesses and parties in a culturally competent context based on nonverbal behavior and verbal
timing. Show is available for viewing over the AOC cable channel and through webcasts to the
over 20,000 judges and employees of the California Courts.
Labor and Employment Law Quarterly
Columnist: Wrote a regular column entitled “The Cutting Edge of Liability: Technology in Labor
and Employment Law” for the publication of the State Bar of California’s Labor and Employment
Law Section.
American Bar Association’s Annual Report on Family Medical Leave Act Developments
Contributing writer: Wrote updates analyzing case law on the Family Medical Leave Act for the
year 2000.
MEMBERSHIPS AND SERVICE
Member: National Center for State Courts, National Training Team for Project on Implicit Bias in the
Courts (2009-2010). Selected to serve on the “think tank” as an expert on judicial education and implicit bias. Team members consult on and review the judicial education initiatives of courts throughout
the nation and provide vital information, instruction and revisions to the implicit bias curricula.
Vice-Chair: California State Bar Committee on Ethnic and Minority Relations (EMRC)
Liaison: California State Bar EMRC’s Liaison to the California Judicial Council’s Access and Fairness
Advisory Committee
Member: California State Bar Labor and Employment Law Section
Instructor: Charles Houston Bar Association Annual Moot Court Competition, 1998
PANELS AND PRESENTATIONS (A Partial Listing)
Faculty: Commission on Judicial Nominees Evaluation of the State Bar of California (JNE Commission),
“Neuroscience and Psychology of the Evaluative Process” (Parts I to VIII) (October 2007, February
2008, June 2008, February 2009, July 2009, February 2010, November 2010). Next lecture scheduled
for February 2011. Invited repeatedly to present semi-annually to the JNE Commission for over 3 years.
Provided different and more advanced course for the Commissioners on each occasion, including
preference affecting judicial candidate ratings invoked by gender, sexual orientation, age, ethnicity,
disability, name, writing style, nonverbal behavior, accent, group think, and numerous other categories.
Invited back to provide Commissioners with courses on fairness and how implicit associations may
affect the judicial candidates and the rating process. MCLE Credit for Elimination of Bias provided.
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Faculty: National Consortium of Race and Ethnic Fairness in the Courts (April 2011). Confirmed to
present course on “The Judges Role and Impartiality in the Voir Dire Process.”
Faculty: Keynote speaker, United States Federal Court, Ninth Circuit Court of Appeals, Judicial PreRetirement Seminar (April 2011). Confirmed to present on “Neuroscience, Aging and Judicial Decision-Making.”
Faculty: Plenary Speaker, Court of Appeal for the District of Columbia, Annual Conference (June 2011).
Confirmed to present plenary session linking neuroscience and psychology to legal decision-making.
Appellate court justices, trial court judges, legislators and invited members of the legal community
will attend.
Faculty: Keynote speaker, United States District Court, Eastern District of California Annual Conference,
“Neuroscience and Empirical Psychology of Decision-Making in the Courts” (2010).
Faculty: Regular faculty, National Judicial College, “Judicial Ethics and Fairness in the Courtroom”
(2010). Extensive course on ethics and the elimination of bias in the courtroom. Judges from across
the nation and in the U.S. territories attend this 4-day course.
Faculty: California State Bar Annual Meeting (2010). Presented course on “The Neuroscience and
Psychology of Implicit Bias in the Courtroom and the Law Firm.” MCLE Credit for Elimination of Bias
provided.
Faculty: California Statewide Conference on Child Support (2010). Provided presentation on the
brain’s reward system and the perception of unfairness in the context of computer generated verses
judicially generated child support allocations. “Neuroscience, Psychology, Reward, and Child Support
in California.”
Faculty: Orrick, Herrington & Sutcliffe LLP, San Francisco Office. Presented course entitled “Neuroscience and Empirical Psychology of Decision-Making for Attorneys” (2010). MCLE Credit for Elimination
of Bias provided.
Faculty: Orrick, Herrington & Sutcliffe LLP, Sacramento Office. Presented course entitled “Neuroscience and Empirical Psychology of Decision-Making for Attorneys” (2010). MCLE Credit for Elimination
of Bias provided.
Full-Time Faculty for California Judges: Judicial educator. California Judicial Council’s Administrative
Office of the Courts, consistently provide courses on the “Neuroscience and Psychology of Judicial
Decision-Making”, the “Neuroscience of Psychology of Credibility Assessment, Decision-Making and
Demeanor” and the “Micro-Aggressions in the Courtroom” to the judges for the State of California.
Judicial Ethics credit provided.
Faculty: Plenary Speaker, Appellate Attorney’s Statewide Conference, California Judicial Council’s
Administrative Office of the Courts, “Neuroscience and Empirical Psychology of Decision-Making for
Appellate Attorneys” (2009). Judicial Ethics credit provided.
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Faculty: Orange County Bar Association’s MCLE Last Dash Marathon, “Neuroscience and Empirical Psychology of Decision-Making for Attorneys” (2009). MCLE Credit for Elimination of Bias provided.
Faculty: California Judicial Council’s Administrative Office of the Courts, “Indian Child Welfare Act and
the Juvenile Delinquency System” (2009). MCLE Credit for Elimination of Bias provided.
Faculty: California Judicial Council’s Administrative Office of the Courts, “Indian Child Welfare Act and
the Juvenile Dependency and Family Courts” (2009). MCLE Credit for Elimination of Bias provided.
Faculty: Plenary speaker, Appellate Attorneys, Supervisors and Managers Statewide Conference, California Judicial Council’s Administrative Office of the Courts, Plenary Session, “Age: Neuroscience and
Fairness in Intergenerational Management” (2009). MCLE Credit for Elimination of Bias provided.
Faculty: Plenary speaker, Appellate Attorneys, Supervisors and Managers Statewide Conference, California Judicial Council’s Administrative Office of the Courts, Plenary Session, “Conflict Management in
the Appellate Court” (2009). MCLE Credit for Elimination of Bias provided.
Faculty: National Association of Judicial Educators Annual Conference, “Neuroscience and Psychology
of Decision-Making” (2009). Presented with neuroscientist to explain how a new approach to fairness education can be integrated into multiple judicial education courses including substantive law
courses. Focused on the neuroscientific research and empirical psychology studies regarding implicit
and unconscious reactions between individuals in stressful environments.
Faculty: Superior Court of California, County of San Francisco, Dependency Attorney Panel, “Fairness
and Dependency Practice” (2009). MCLE Credit for Elimination of Bias provided.
Faculty: California Judicial Council’s Administrative Office of the Courts, “Temporary Judges Bench
Conduct and Demeanor Faculty Development” (2009). Led the design of curriculum for the course,
and team taught the 6 hour course with judicial officers and attorneys. The Course is mandatory for
all attorneys who will serve as temporary (pro tem) judges in the state of California and provides both
ethics and elimination of bias MCLE credit.
Faculty: California Judicial Council’s Administrative Office of the Courts, Juvenile Delinquency Judicial
Overview Course, “Neuroscience and Decision-Making in Juvenile Delinquency” (2009).
Faculty: Plenary Speaker, Probate Investigators Statewide Conference, “Neuroscience and Psychology
of Decision-Making, Social Interaction and Cultural Competency” (2009).
Faculty: Superior Court of California, County of Los Angeles, Family Court Mediators and Probate
Investigators, “Cultural Competency and the Science of Communication” (2008 and 2009). MCLE
Credit for Elimination of Bias provided.
Faculty: National Judicial College, “Building a Bias Free Environment in Your Court” (October 2008
and continuing faculty member for this yearly 2-day course). Judges from across the nation attend
the course.
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Faculty: Plenary Speaker, Appellate Justices Statewide Conference, “Neuroscience and Empirical
Psychology of Decision-Making in the Court of Appeals” (2008).
Faculty: California Judicial Council’s Administrative Office of the Courts, California Judicial College,
“Faculty Development” (2008 and 2009).
Faculty: California Judicial Council’s Administrative Office of the Courts, “Faculty Development” for
judicial officers, attorneys, managers and court staff (2008 to present).
Faculty: Court Appointed Special Advocates (CASA) Directors Statewide Training with the Center for
Families Children and the Courts, “Best Practices for Achieving Workplace Diversity: Retention and
Recruitment” (2008).
Faculty: University of California Berkeley, Department of Social Work, California Social Work Education
Center Annual Symposium, “Incorporating Fairness & Equity Issues in Curriculum Design: Examining the Intersection and Interrelationship between the Core Curricula and Fairness in Social Work
Education” (2008). Provided an interactive course on how to assess fairness and demeanor issues
in individual one-to-one interactions between social workers and members of the public. Provided
cultural competency concepts. Demonstrated how to integrate cultural competency, demeanor and
fairness issues into the core curricula.
Faculty: National Judicial College, “Racial Profiling in Traffic Issues in the 21st Century” (June
2005).
Faculty: Plenary Speaker, California Judicial Council Access and Fairness Advisory Committee, Statewide Conference on Race and Ethnic Bias in the California Courts, “Point-Counterpoint on Race in the
Justice System, Plenary Session” (May 2005).
Moderator and Course Designer: California State Bar Annual Conference, “The Road to Success for
Minority Attorneys: Definitive Training for Real Life Situations”. Designed and moderated course on
micro-aggressions and response mechanisms. Committee on Ethnic and Minority Relations, Approved
for California Mandatory Continuing Legal Education (September 2005).
EXPERIENCE
San Francisco, CA
Senior Education Specialist
2007 to present
Project manager for statewide judicial education on fairness and bias. Lead staff to the statewide
Fairness Education Committee which developed the Mandatory Qualifying Ethics Course for Judges.
Regularly taught judges, appellate justices, appellate attorneys, panel attorneys, mediators, probate
investigators, and court employees throughout the California Court theories of ethics, neuroscience,
social cognition, implicit bias and cultural competency and their direct relation to the application
of legal principles and bench conduct. Taught in substantive law courses for judges with particular
emphasis on juvenile delinquency dispositions and criminal law sentencing and the decision-making
process in both contexts. Taught judges on the evaluation of evidence. Taught court staff the impact of
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unconscious bias and cultural difference on the public’s trust and confidence in the court. Produced
television shows for the statewide court television channel with the potential to reach the over 20,000
judges and court staff in the California court system. Taught advanced courses on judicial education.
Education Division liaison to the California Judicial Council’s Committee on Access and Fairness.
California State University, Hayward
Hayward, CA
Lecturer
2000 to 2005
Lectured in law related courses. Courses include History of Civil Rights, African Americans in the
Criminal Justice System and Human Development. Received exemplary student reviews. Invited to
return on multiple occasions.
History of Civil Rights Course
Sole responsibility for creating syllabus and delivering lectures for entire courses of more than 40
students. Taught case analysis using Brown v. Board of Education, 347 U.S. 483 (1954), Plessy v.
Ferguson, 163 U.S. 537 (1896) and related cases. Required students to write closing arguments to
mock set of facts using legal reasoning skills and supporting their position with case law. Received
exemplary student reviews.
Criminal Justice System Course
Taught course on criminal justice system for multiple semesters. Taught cases and case analysis to
undergraduate students including Batson v. Kentucky, 476 U.S. 79 (1986). Required students to
choose position on controversial issues and argue case law to support their position.
Ethnic Minorities in Public Policy and Political Science
Taught online course that delved into the concerns of ethnic minorities with regard to health care,
voting rights, economic opportunities, education and housing.
Seyfarth Shaw
San Francisco, CA
Associate
1997 to 2003
Primary practice in the areas of labor and employment law, age, race, national origin, and sex discrimination including sexual orientation discrimination and sex harassment, wage and hour law, occupational
safety and health, and traditional labor law. Provided extensive counseling for clients grappling with
disputes with union employees and revised collective bargaining agreements. Represented management in judicial arbitration with union employee. Held positions of primary responsibility on litigation
matters, took and defended depositions, presented oral argument in both federal and state courts,
engaged in successful settlement negotiations and mediations, wrote legal memoranda, conducted
investigations, wrote position statements to administrative agencies including the EEOC and DFEH,
second-chaired trial.
Sheppard Mullin Richter and Hampton LLP Los Angeles, CA
Associate
1995 to 1997
Practiced in the areas of complex commercial litigation and employment law. Presented oral argument,
wrote legal briefs and memoranda, prepared for trial including preparation of motions in limine,
exhibits, jury instructions, and verdict forms. 271
Summer Associate Summer, 1994
Prepared memoranda and portions of legal briefs, and researched in wide range of practice areas.
Howard Rice Nemorovski Canady Robinson & Falk San Francisco, CA
Summer Associate
Summer, 1993
Prepared memoranda and portions of legal briefs, and researched in wide range of practice areas.
Supreme Court of the State of New York
New York, NY Judicial Clerk
Summer, 1992
Selected as one of seven summer clerks to serve in New York’s Supreme Court based upon a demonstration of commitment to public service and the justice system. Wrote memoranda and drafted opinions
for the Honorable Antonio I. Brandveen.
ADDITIONAL TEACHING EXPERIENCE
Charles Houston Bar Association Moot Court Competition
Oakland, CA
Instructor/Coach
1998
Coached 30 inner city high school students on legal reasoning, case analysis, legal writing and oral
argument in preparation for moot court competition. Presented lectures and provided intense individual instruction to students. Demonstrated how to apply legal reasoning principles to more familiar
concepts in the students’ lives.
University California, Berkeley
Berkeley, CA
Instructor
1990
Initiated, designed and taught course as a student which trained UC Berkeley students to enter inner
city high schools and inspire youth to higher education. Trained college students to work individually
with high school students on writing effective personal statements for college admissions and how to
complete college applications. Gave presentations to classrooms of inner city youth on higher education. Provided individual mentoring and instruction on writing style and essay development.
University California, Berkeley
Berkeley, CA
Instructor
1990
Initiated, designed and taught course to graduate and undergraduate students, as a student, which
analyzed the differential approach of mainstream media toward communities of color.
Columbia University School of Law
New York, NY
Mentor/Instructor
1993
Instructed high school students in Harlem Connections program on methods for success in higher
education. Provided introduction to legal reasoning and case analysis including IRAC method.
References available upon request.
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The 6 Stages of Cultural Competence in Lawyers
By: Jatrine Bentsi-Enchill, Esq. (2005)
http://esqdevelopmentinstitute.blogspot.com/2005/11/6-stages-of-cultural-competence-in.html
How culturally competent are you?
The most effective way to determine your level of cultural competence is to take an assessment. Absent such an assessment, Dr. Milton Bennett, who developed the Developmental Model of Intercultural Sensitivity provides a good starting
place to review current perspectives around culture and difference. The model outlines 6 stages that give insight into
an individual’s level of intercultural sensitivity and cultural competence.
THE 6 STAGES OF CULTURAL COMPETENCE
STAGE ONE: Denial
Lawyers in this stage are acutely unaware of cultural difference. The prevailing attitude is likely to be: “business is business the world over” or “everyone would respond this way”. Lawyers in this stage of development might be so intent
on the tasks at hand that they fail to notice the cultural aspects of business relationships with clients and colleagues. In
this stage, there is a general lack of awareness about difference.
However, awareness is a key element in cross cultural communication. Effective cross cultural communication requires that individuals have some awareness and appreciation of difference. A lawyer in denial would be completely
insensitive to their client’s cultural taboos, expectations, family norms, communication and conflict styles.
While in the denial stage, lawyers will be ineffective in establishing trust and good client relations with clients from
other cultures. The failure to understand the significance of cultural differences may lead lawyers to implement ineffective case strategies due to the misinterpretation of client behavior.
For lawyers in this stage, unnecessary conflicts and misunderstandings, along with an overall lack of understanding of
the importance of cross-cultural communication are common.
STAGE TWO: Defense
Lawyers in this stage will 1) recognize some cultural differences and 2) view such differences negatively.
Instead of striving to understand or interpret the patterns of conduct or communication that differ from their own
culture, lawyers in defense are likely to mislabel such conduct as “wrong” “unintelligent, “dishonest” etc. In this stage,
the greater the difference, the more negatively it is perceived.
A criminal defense lawyer in the denial stage will most likely be frustrated by a female murder defendant from China,
who is more committed to preserving family honor than asserting a claim of self defense in the murder of her husband. (For many Chinese, issues of honor, shame and commitment to family take precedence over individual goals
and objectives.) How effectively could a lawyer in the denial stage represent this client? How might the difference in
cultural worldviews and behaviors affect the lawyers’ relationship with her client?
Clearly, lawyers in this stage will struggle to communicate and work effectively with clients they perceive as different.
This perception may cause otherwise well-meaning lawyers to misjudge or stereotype a client. Negative attitudes and
perceptions held about people from other cultures serve to diminish cross-cultural understanding and communication, ultimately undermining a lawyer’s ability to establish a healthy and respectful relationship with his or her client.
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STAGE THREE: Minimization of Difference
It’s common for lawyers in this stage to avoid stereotypes and even appreciate differences in language and culture.
However, many will still view their own values as universal and superior, rather than viewing them simply as part of
their own ethnicity and culture. Consequently, it’s common for lawyers in minimization to believe that everyone else
shares their ideals, goals and values with regard to family, work, professionalism, humor, communication etc. In dealing with clients, the lawyer is likely to misinterpret the client’s behavior, opinions and reactions because the lawyer will
misperceive that the client shares his or her cultural values.
For example, in American culture when assessing credibility, lawyers may read a client or witnesses failure to maintain eye contact as a sign of dishonesty. However, in many cultures averting the eyes is a sign of respect to someone in
authority. How will an inaccurate read on behavior impact the lawyer’s ability to make an accurate assessment of the
credibility of a client or witness?
Lawyers in this stage focus on minimizing difference and in so doing they misread relevant behavioral and communication cues that are based on culture. Assuming similarity when none exists serves as a barrier to successful cross
cultural communication.
STAGE FOUR: Acceptance of Difference
Lawyers in this stage acknowledge that identifying significant cultural differences is crucial to understanding and improving their interactions with individuals from other cultures. There is an awareness of one’s own culture and an understanding that although individuals from other cultures communicate differently, have different ideas and customs;
they are neither superior nor inferior. Lawyers in this stage are beginning to interpret culture through a culturally
unbiased lens.
Lawyers who are able to accept cultural differences have the ability to shift perspectives to understand that behavior
typically defined as “ordinary” in one’s own culture can have different meanings in different cultures.
Flexibility, adaptability and open-mindedness are the route to successful cross cultural lawyering and communication.
Understanding, embracing and addressing cultural differences leads to the breaking of cultural barriers, and the decrease of “culture clashes”. These skills lead to better lines of communication, stronger interpersonal relationships,
mutual trust and enhanced client service.
It’s important for lawyers to have the ability to properly analyze and respond to clients as a basis for establishing effective attorney client relations.
The following situation was recently shared with me by an immigration lawyer. It provides a great example of effective
cross cultural communication and lawyering:
The lawyer was representing a client eager to obtain his permanent residence status so he could take a long awaited
trip home to visit family and friends. The lawyer reported that his client is from a culture where it is customary to pay
officials bribes in order to expedite certain processes. In fact, in the client’s culture, such bribes are often expected.
During a discussion about time frame for the permanent resident process, the lawyer gently explained to the client why
his expectations regarding processing time lines were unreasonable and simply impossible to meet. In an attempt to
“expedite” the process the client responded by offering the lawyer a bribe. In this situation, the immigration lawyer
was aware of his client’s cultural background and was able to respond in an appropriately sensitive and informative
manner. Additionally, since the lawyer approached the situation with understanding instead of judgment, the attorney
client relationship was preserved. This lawyer reported that his opinion of his client’s integrity was not adversely affected. Instead, he interpreted the bribe as an indication of his client’s desire and perhaps desperation to visit his family.
This example speaks to the heart of the significance of cultural awareness and competence required to develop and
sustain successful attorney client relationships.
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STAGE FIVE: Adaptation to Difference
In this stage of development, lawyers are able to take the perspective of another culture and operate successfully
within that culture.
Lawyers in this stage, are likely to have developed solid skills in cross-cultural communication. Their increased awareness, acceptance and ability to adapt to other cultures makes such communication possible. They are more likely to
independently strive to understand the nuances of other cultures which most often leads to openness and ability to
connect with others.
STAGE SIX: Integration of Difference
In this stage, lawyers have the ability to evaluate another individual’s behavior in the frame of reference of their client,
opponent, colleague or staff member.
They will be able to establish rapport and read the verbal and non-verbal cues of an individual from another culture.
This skill is useful in learning how to “read” people in relevant ways that are accurate vs. stereotypical. Lawyers in
the integration stage become adept at evaluating any situation from multiple cultural frames of reference. Additionally,
lawyers in leadership roles within organizations will define their roles by demanding intercultural competence and encouraging educational training in those skills. They strive to ensure that there is respect for cultural diversity that leads
to a highly diverse workforce and client base. Organizations that have successfully embraced diversity and inclusion
possess a significant advantage over other organizations when dealing with diverse clientele.
These stages clearly reflect that the further along a lawyer is on the continuum of cultural competence, the more effectively he or she will be able to communicate with clients and others cross-culturally.
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Implicit Bias
A Primer for Courts
Jerry Kang
Prepared for the National Campaign to Ensure the Racial and
Ethnic Fairness of America’s State Courts
August 2009
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ABOUT THE PRIMER
This Primer was produced as part of the
National Campaign to Ensure the Racial
and Ethnic Fairness of America’s State
Courts. The Campaign seeks to mobilize
the significant expertise, experience, and
commitment of state court judges and
court officers to ensure both the
perception and reality of racial and ethnic
fairness across the nation's state courts.
The Campaign is funded by the Open
Society Institute, the State Justice
Institute, and the National Center for
State Courts. Points of view or opinions
expressed in the Primer are those of the
author and do not represent the official
position of the funding agencies. To learn
more about the Campaign, visit
www.ncsconline.org/ref.
ABOUT THE AUTHOR & REVIEWERS
Jerry Kang is Professor of Law at UCLA
School of Law. He has written and
lectured extensively on the role of
implicit bias in the law. For more
information on Professor Kang, please
visit jerrykang.net. The Primer benefited
from the review and comments of several
individuals working with the National
Campaign, including Dr. Pamela Casey,
Dr. Fred Cheesman, Hon. Ken M.
Kawaichi, Hon. Robert Lowenbach, Dr.
Shawn Marsh, Hon. Patricia M. Martin,
Ms. Kimberly Papillon, Hon. Louis Trosch,
and Hon. Roger K. Warren.
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Table of Contents
Implicit Bias: A Primer ................................. 1
Schemas and Implicit Cognitions ................ 1
Implicit Social Cognitions ............................ 1
Asking about Bias ........................................ 2
Implicit measurement devices .................... 2
Pervasive implicit bias................................. 3
Real-world consequences ........................... 4
Malleability ................................................. 4
The big picture ............................................ 5
Glossary....................................................... 7
Bibliography .............................................. 10
These schemas are helpful because they allow
us to operate without expending valuable
mental resources. In fact, unless something
goes wrong, these thoughts take place
automatically without our awareness or
conscious direction. In this way, most cognitions
are implicit.
Implicit Bias: A Primer
Schemas and Implicit Cognitions (or
“mental shortcuts”)
Stop for a moment and consider what
bombards your senses every day. Think about
everything you see, both still and moving, with
all their color, detail, and depth. Think about
what you hear in the background, perhaps a
song on the radio, as you decode lyrics and
musical notes. Think about touch, smell, and
even taste. And while all that’s happening, you
might be walking or driving down the street,
avoiding pedestrians and cars, chewing gum,
digesting your breakfast, flipping through email
on your smartphone. How does your brain do
all this simultaneously?
Implicit Social Cognitions (or “thoughts
about people you didn’t know you
had”)
What is interesting is that schemas apply not
only to objects (e.g., “chairs”) or behaviors (e.g.,
“ordering food”) but also to human beings (e.g.,
“the elderly”). We naturally assign people into
various social categories divided by salient and
chronically accessible traits, such as age,
gender, race, and role. And just as we might
have implicit cognitions that help us walk and
drive, we have implicit social cognitions that
guide our thinking about social categories.
Where do these schemas come from? They
come from our experiences with other people,
some of them direct (i.e., real-world
encounters) but most of them vicarious (i.e.,
relayed to us through stories, books, movies,
media, and culture).
It does so by processing through schemas,
which are templates of knowledge that help us
organize specific examples into broader
categories. When we see, for example,
something with a flat seat, a back, and some
legs, we recognize it as a “chair.” Regardless of
whether it is plush or wooden, with wheels or
bolted down, we know what to do with an
object that fits into the category “chair.”
Without spending a lot of mental energy, we
simply sit. Of course, if for some reason we
have to study the chair carefully--because we
like the style or think it might collapse--we can
and will do so. But typically, we just sit down.
If we unpack these schemas further, we see
that some of the underlying cognitions include
stereotypes, which are simply traits that we
associate with a category. For instance, if we
think that a particular category of human beings
is frail--such as the elderly--we will not raise our
guard. If we think that another category is
foreign--such as Asians--we will be surprised by
their fluent English. These cognitions also
include attitudes, which are overall, evaluative
feelings that are positive or negative. For
instance, if we identify someone as having
graduated from our beloved alma mater, we
will feel more at ease. The term “implicit bias”
We have schemas not only for objects, but also
processes, such as how to order food at a
restaurant. Without much explanation, we
know what it means when a smiling person
hands us laminated paper with detailed
descriptions of food and prices. Even when we
land in a foreign airport, we know how to follow
the crazy mess of arrows and baggage icons
toward ground transportation.
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includes both implicit stereotypes and implicit
attitudes.
experiments go on and on. And recall that by
definition, implicit biases are those that we
carry without awareness or conscious direction.
So how do we know whether we are being
biased or fair-and-square?
Though our shorthand schemas of people may
be helpful in some situations, they also can lead
to discriminatory behaviors if we are not
careful. Given the critical importance of
exercising fairness and equality in the court
system, lawyers, judges, jurors, and staff should
be particularly concerned about identifying such
possibilities. Do we, for instance, associate
aggressiveness with Black men, such that we
see them as more likely to have started the
fight than to have responded in self-defense?
Or have we already internalized the lessons of
Martin Luther King, Jr. and navigate life in a
perfectly “colorblind” (or gender-blind,
ethnicity-blind, class-blind, etc.) way?
Implicit measurement devices (or
“don’t tell me how much you weigh,
just get on the scale”)
In response, social and cognitive psychologists
with neuroscientists have tried to develop
instruments that measure stereotypes and
attitudes, without having to rely on potentially
untrustworthy self-reports. Some instruments
have been linguistic, asking folks to write out
sentences to describe a certain scene from a
newspaper article. It turns out that if someone
engages in stereotypical behavior, we just
describe what happened. If it is counter-typical,
we feel a need to explain what happened. (Von
Hippel 1997; Sekaquaptewa 2003).
Asking about Bias (or “it’s murky in
here”)
One way to find out about implicit bias is simply
to ask people. However, in a post-civil rights
environment, it has become much less useful to
ask explicit questions on sensitive topics. We
run into a “willing and able” problem.
Others are physiological, measuring how much
we sweat, how our blood pressure changes, or
even which regions of our brain light up on an
fMRI (functional magnetic resonance imaging)
scan. (Phelps 2000).
First, people may not be willing to tell pollsters
and researchers what they really feel. They may
be chilled by an air of political correctness.
Still other techniques borrow from marketers.
For instance, conjoint analysis asks people to
give an overall evaluation to slightly different
product bundles (e.g., how do you compare a
17” screen laptop with 2GB memory and 3 USB
ports, versus a 15” laptop with 3 GB of memory
and 2 USB ports). By offering multiple rounds of
choices, one can get a measure of how
important each feature is to a person even if
she had no clue to the question “How much
would you pay for an extra USB port?” Recently,
social cognitionists have adapted this
methodology by creating “bundles” that include
demographic attributes. For instance, how
Second, and more important, people may not
know what is inside their heads. Indeed, a
wealth of cognitive psychology has
demonstrated that we are lousy at
introspection. For example, slight
environmental changes alter our judgments and
behavior without our realizing. If the room
smells of Lysol, people eat more neatly. People
holding a warm cup of coffee (versus a cold cup)
ascribe warmer (versus cooler) personality traits
to a stranger described in a vignette. The
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would you rank a job with the title Assistant
Manager that paid $160,000 in Miami working
for Ms. Smith, as compared to another job with
the title Vice President that paid $150,000 in
Chicago for Mr. Jones? (Caruso 2009).
Pervasive implicit bias (or “it ain’t no
accident”)
It may seem silly to measure bias by playing a
sorting game (i.e. the IAT). But, a decade of
research using the IAT reveals pervasive
reaction time differences in every country
tested, in the direction consistent with the
general social hierarchies: German over Turk (in
Germany), Japanese over Korean (for Japanese),
White over Black, men over women (on the
stereotype of “career” versus “family”), lightskinned over dark skin, youth over elderly,
straight over gay, etc. These time differentials,
which are taken to be a measure of implicit
bias, are systematic and pervasive. They are
statistically significant and not due to random
chance variations in measurements.
Scientists have been endlessly creative, but so
far, the most widely accepted instruments have
used reaction times--some variant of which has
been used for over a century to study
psychological phenomena. These instruments
draw on the basic insight that any two concepts
that are closely associated in our minds should
be easier to sort together. If you hear the word
“moon,” and I then ask you to think of a laundry
detergent, then “Tide” might come more
quickly to mind. If the word “RED” is painted in
the color red, we will be faster in stating its
color than the case when the word “GREEN” is
painted in red.
These pervasive results do not mean that
everyone has the exact same bias scores.
Instead, there is wide variability among
individuals. Further, the social category you
belong to can influence what sorts of biases you
are likely to have. For example, although most
Whites (and Asians, Latinos, and American
Indians) show an implicit attitude in favor of
Whites over Blacks, African Americans show no
such preference on average. (This means, of
course, that about half of African Americans do
prefer Whites, but the other half prefer Blacks.)
Although there are various reaction time
measures, the most thoroughly tested one is
the Implicit Association Test (IAT). It is a sort of
video game you play, typically on a computer,
where you are asked to sort categories of
pictures and words. For example, in the BlackWhite race attitude test, you sort pictures of
European American faces and African American
faces, Good words and Bad words in front of a
computer. It turns out that most of us respond
more quickly when the European American face
and Good words are assigned to the same key
(and African American face and Bad words are
assigned to the other key), as compared to
when the European American face and Bad
words are assigned to the same key (and
African American face and Good words are
assigned to the other key). This average time
differential is the measure of implicit bias. [If
the description is hard to follow, try an IAT
yourself at Project Implicit.]
Interestingly, implicit biases are dissociated
from explicit biases. In other words, they are
related to but differ sometimes substantially
from explicit biases--those stereotypes and
attitudes that we expressly self-report on
surveys. The best understanding is that implicit
and explicit biases are related but different
mental constructs. Neither kind should be
viewed as the solely “accurate” or “authentic”
measure of bias. Both measures tell us
something important.
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Real-world consequences (or “why
should we care?”)
implicit bias predicts the amount of shooter
bias--how much easier it is to shoot African
Americans compared to Whites in a
videogame simulation (Glaser & Knowles
2008);
implicit bias predicts voting behavior in Italy
(Arcari 2008);
implicit bias predicts binge-drinking (Ostafin
& Palfai 2006), suicide ideation (Nock &
Banaji 2007), and sexual attraction to
children (Gray 2005).
All these scientific measures are intellectually
interesting, but lawyers care most about realworld consequences. Do these measures of
implicit bias predict an individual’s behaviors or
decisions? Do milliseconds really matter>?
(Chugh 2004). If, for example, well-intentioned
people committed to being “fair and square”
are not influenced by these implicit biases, then
who cares about silly video game results?
With any new scientific field, there remain
questions and criticisms--sometimes strident.
(Arkes & Tetlock 2004; Mitchell & Tetlock 2006).
And on-the-merits skepticism should be
encouraged as the hallmark of good, rigorous
science. But most scientists studying implicit
bias find the accumulating evidence persuasive.
For instance, a recent meta-analysis of 122
research reports, involving a total of14,900
subjects, revealed that in the sensitive domains
of stereotyping and prejudice, implicit bias IAT
scores better predict behavior than explicit selfreports. (Greenwald et al. 2009).
There is increasing evidence that implicit biases,
as measured by the IAT, do predict behavior in
the real world--in ways that can have real
effects on real lives. Prof. John Jost (NYU,
psychology) and colleagues have provided a
recent literature review (in press) of ten studies
that managers should not ignore. Among the
findings from various laboratories are:
implicit bias predicts the rate of callback
interviews (Rooth 2007, based on implicit
stereotype in Sweden that Arabs are lazy);
implicit bias predicts awkward body
language (McConnell & Leibold 2001),
which could influence whether folks feel
that they are being treated fairly or
courteously;
implicit bias predicts how we read the
friendliness of facial expressions
(Hugenberg & Bodenhausen 2003);
implicit bias predicts more negative
evaluations of ambiguous actions by an
African American (Rudman & Lee 2002),
which could influence decisionmaking in
hard cases;
implicit bias predicts more negative
evaluations of agentic (i.e. confident,
aggressive, ambitious) women in certain
hiring conditions (Rudman & Glick 2001);
And again, even though much of the recent
research focus is on the IAT, other instruments
and experimental methods have corroborated
the existence of implicit biases with real world
consequences. For example, a few studies have
demonstrated that criminal defendants with
more Afro-centric facial features receive in
certain contexts more severe criminal
punishment (Banks et al. 2006; Blair 2004).
Malleability (or “is there any good news?”)
The findings of real-world consequence are
disturbing for all of us who sincerely believe
that we do not let biases prevalent in our
culture infect our individual decisionmaking.
Even a little bit. Fortunately, there is evidence
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that implicit biases are malleable and can be
changed.
o
An individual’s motivation to be fair does
matter. But we must first believe that
there’s a potential problem before we try to
fix it.
The environment seems to matter. Social
contact across social groups seems to have
a positive effect not only on explicit
attitudes but also implicit ones.
Third, environmental exposure to
countertypical exemplars who function as
“debiasing agents” seems to decrease our
bias.
o In one study, a mental imagery exercise
of imagining a professional business
woman (versus a Caribbean vacation)
decreased implicit stereotypes of
women. (Blair et al. 2001).
o Exposure to “positive” exemplars, such
as Tiger Woods and Martin Luther King
in a history questionnaire, decreased
implicit bias against Blacks. (Dasgupta &
Greenwald 2001).
o Contact with female professors and
deans decreased implicit bias against
women for college-aged women.
(Dasgupta & Asgari 2004).
Fourth, various procedural changes can
disrupt the link between implicit bias and
discriminatory behavior.
o In a simple example, orchestras started
using a blind screen in auditioning new
musicians; afterwards women had
much greater success. (Goldin & Rouse
2000).
o In another example, by committing
beforehand to merit criteria (is book
smarts or street smarts more
important?), there was less gender
discrimination in hiring a police chief.
(Uhlmann & Cohen 2005).
In order to check against bias in any
particular situation, we must often
recognize that race, gender, sexual
orientation, and other social categories
may be influencing decisionmaking. This
recognition is the opposite of various
forms of “blindness” (e.g., colorblindness).
In outlining these findings of malleability, we do
not mean to be Pollyanish. For example, mere
social contact is not a panacea since
psychologists have emphasized that certain
conditions are important to decreasing
prejudice (e.g., interaction on equal terms;
repeated, non-trivial cooperation). Also, fleeting
exposure to countertypical exemplars may be
drowned out by repeated exposure to more
typical stereotypes from the media (Kang 2005).
Even if we are skeptical, the bottom line is that
there’s no justification for throwing our hands
up in resignation. Certainly the science doesn't
require us to. Although the task is challenging,
we can make real improvements in our goal
toward justice and fairness.
The big picture (or “what it means to
be a faithful steward of the judicial
system”)
It’s important to keep an eye on the big picture.
The focus on implicit bias does not address the
existence and impact of explicit bias--the
stereotypes and attitudes that folks recognize
and embrace. Also, the past has an inertia that
has not dissipated. Even if all explicit and
implicit biases were wiped away through some
magical wand, life today would still bear the
burdens of an unjust yesterday. That said, as
careful stewards of the justice system, we
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should still strive to take all forms of bias
seriously, including implicit bias.
After all, Americans view the court system as
the single institution that is most unbiased,
impartial, fair, and just. Yet, a typical trial
courtroom setting mixes together many people,
often strangers, from different social
backgrounds, in intense, stressful, emotional,
and sometimes hostile contexts. In such
environments, a complex jumble of implicit and
explicit biases will inevitably be at play. It is the
primary responsibility of the judge and other
court staff to manage this complex and bias-rich
social situation to the end that fairness and
justice be done--and be seen to be done.
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Note: Many of these definitions draw from Jerry
Kang & Kristin Lane, A Future History of Law and
Implicit Social Cognition (unpublished
manuscript 2009)
transparent explanation of “the prudential,
economic, political, or religious reasons for
retaining a less accurate and outdated view.”
Kristin Lane, Jerry Kang, & Mahzarin Banaji,
Implicit Social Cognition and the Law, 3 ANNU.
REV. LAW SOC. SCI. 19.1-19.25 (2007)
Attitude
Dissociation
Glossary
An attitude is “an association between a given
object and a given evaluative category.” R.H.
Fazio, et al., Attitude accessibility, attitudebehavior consistency, and the strength of the
object-evaluation association, 18 J.
EXPERIMENTAL SOCIAL PSYCHOLOGY 339, 341
(1982). Evaluative categories are either positive
or negative, and as such, attitudes reflect what
we like and dislike, favor and disfavor, approach
and avoid. See also stereotype.
Dissociation is the gap between explicit and
implicit biases. Typically, implicit biases are
larger, as measured in standardized units, than
explicit biases. Often, our explicit biases may be
close to zero even though our implicit biases are
larger.
There seems to be some moderate-strength
relation between explicit and implicit biases.
See Wilhelm Hofmann, A Meta-Analysis on the
Correlation Between the Implicit Association
Test and Explicit Self-Report Measures, 31
PERSONALITY & SOC. PSYCH. BULL. 1369 (2005)
(reporting mean population correlation r=0.24
after analyzing 126 correlations). Most
scientists reject the idea that implicit biases are
the only “true” or “authentic” measure; both
explicit and implicit biases contribute to a full
understanding of bias.
Behavioral realism
A school of thought within legal scholarship that
calls for more accurate and realistic models of
human decision-making and behavior to be
incorporated into law and policy. It involves a
three step process:
First, identify advances in the mind and
behavioral sciences that provide a more
accurate model of human cognition and
behavior.
Explicit
Explicit means that we are aware that we have
a particular thought or feeling. The term
sometimes also connotes that we have an
accurate understanding of the source of that
thought or feeling. Finally, the term often
connotes conscious endorsement of the
thought or feeling. For example, if one has an
explicitly positive attitude toward chocolate,
then one has a positive attitude, knows that
one has a positive attitude, and consciously
endorses and celebrates that preference. See
also implicit.
Second, compare that new model with the
latent theories of human behavior and decisionmaking embedded within the law. These latent
theories typically reflect “common sense” based
on naïve psychological theories.
Third, when the new model and the latent
theories are discrepant, ask lawmakers and
legal institutions to account for this disparity.
An accounting requires either altering the
law to comport with more accurate models
of thinking and behavior or providing a
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unfavorable feeling, thought, or action toward
social objects.” Anthony Greenwald & Mahzarin
Banaji, Implicit social cognition: attitudes, selfesteem, and stereotypes, 102 Psychol. Rev. 4, 8
(1995). Generally, we are unaware of our
implicit attitudes and may not endorse them
upon self-reflection. See also attitude; implicit.
Implicit
Implicit means that we are either unaware of or
mistaken about the source of the thought or
feeling. R. Zajonc, Feeling and thinking:
Preferences need no inferences, 35 AMERICAN
PSYCHOLOGIST 151 (1980). If we are unaware
of a thought or feeling, then we cannot report it
when asked. See also explicit.
Implicit Biases
A bias is a departure from some point that has
been marked as “neutral.” Biases in implicit
stereotypes and implicit attitudes are called
“implicit biases.”
Implicit Association Test
The IAT requires participants to classify rapidly
individual stimuli into one of four distinct
categories using only two responses (for
example, in a the traditional computerized IAT,
participants might respond using only the “E”
key on the left side of the keyboard, or “I” on
the right side). For instance, in an age attitude
IAT, there are two social categories, YOUNG and
OLD, and two attitudinal categories, GOOD and
BAD. YOUNG and OLD might be represented by
black-and-white photographs of the faces of
young and old people. GOOD and BAD could be
represented by words that are easily identified
as being linked to positive or negative affect,
such as “joy” or “agony”. A person with a
negative implicit attitude toward OLD would be
expected to go more quickly when OLD and
BAD share one key, and YOUNG and GOOD the
other, than when the pairings of good and bad
are switched.
Implicit Stereotypes
“Implicit stereotypes are the introspectively
unidentified (or inaccurately identified) traces
of past experience that mediate attributions of
qualities to members of a social category”
Anthony Greenwald & Mahzarin Banaji, Implicit
social cognition: attitudes, self-esteem, and
stereotypes, 102 Psychol. Rev. 4, 8 (1995).
Generally, we are unaware of our implicit
stereotypes and may not endorse them upon
self-reflection. See also stereotype; implicit.
Implicit Social Cognitions
Social cognitions are stereotypes and attitudes
about social categories (e.g., Whites, youths,
women). Implicit social cognitions are implicit
stereotypes and implicit attitudes about social
categories.
The IAT was invented by Anthony Greenwald
and colleagues in the mid 1990s. Project
Implicit, which allows individuals to take these
tests online, is maintained by Anthony
Greenwald (Washington), Mahzarin Banaji
(Harvard), and Brian Nosek (Virginia).
Stereotype
A stereotype is an association between a given
object and a specific attribute. An example is
“Norwegians are tall.” Stereotypes may support
an overall attitude. For instance, if one likes tall
people and Norwegians are tall, it is likely that
this attribute will contribute toward a positive
orientation toward Norwegians. See also
attitude.
Implicit Attitudes
“Implicit attitudes are introspectively
unidentified (or inaccurately identified) traces
of past experience that mediate favorable or
8
286
Validities
To decide whether some new instrument and
findings are valid, scientists often look for
various validities, such as statistical conclusion
validity, internal validity, construct validity, and
predictive validity.
Statistical conclusion validity asks whether
the correlation is found between
independent and dependent variables have
been correctly computed.
Internal validity examines whether in
addition to correlation, there has been a
demonstration of causation. In particular,
could there be potential confounds that
produced the correlation?
Construct validity examines whether the
concrete observables (the scores registered
by some instrument) actually represent the
abstract mental construct that we are
interested in. As applied to the IAT, one
could ask whether the test actually
measures the strength of mental
associations held by an individual between
the social category and an attitude or
stereotype
Predictive validity examines whether some
test predicts behavior, for example, in the
form of evaluation, judgment, physical
movement or response. If predictive validity
is demonstrated in realistic settings, there is
greater reason to take the measures
seriously.
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287
Eric Luis Uhlmann & Geoffrey L. Cohen,
Constructed Criteria: Redefining Merit to Justify
Discrimination, 16 Psychol. Sci. 474 (2005)
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289
Studying the Art of Judicial Decision-Making
Chicago Daily Law Bulletin
June 12, 2009 Volume: 155 Issue: 115
Criminal Procedure
By Timothy P. O’Neill
The composer Richard Rodgers was once asked “Which comes first, the music or the lyrics?” Rodgers famously
replied, “The contract.” (This just goes to prove that even an artist can think like a lawyer.)
There is a similar question posed about deciding cases on the U.S. Supreme Court: “Which comes first: the theory
or the decision?”
Legal realists - from Richard A. Posner and Stanley Fish in the present all the way back to Jerome Frank in the
1930s - contend that the answer is clear: the decision. They assert that the use of theory does not actually result in a
decision in a particular case; rather, theory is only used after the fact to support a decision that the judge has already
reached.
Whether or not this is accurate has always been the domain of political scientists and law professors. Yet new
research in neuroscience on the workings of the brain now lends support to the legal realists’ claims that “decision
precedes theory.”
First, let’s take a look at some empirical evidence. Ward Farnsworth, a professor at Boston University School of
Law, has examined patterns in the U.S. Supreme Court’s criminal law decisions. In one study he compared decisions
in two kinds of non-unanimously decided criminal cases: those involving constitutional issues and those involving
non-constitutional issues, such as statutory construction. Considering the variety of theories used in interpreting the
Constitution - e.g., originalism, textualism, minimalism - he posited that there should be no necessary correlation between a justice’s decisions in these two very different types of criminal cases. Instead, he found an amazing degree of
congruence: justices tended to be either pro-prosecution or pro-defense regardless of the kind of issue in the criminal
case. Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court’s Criminal Docket, 104 Michigan Law
Review 67 (2005).
Farnsworth posits that theory does not drive a justice’s decisions. Rather, a decision is the result of what he refers
to as a justice’s “priors,” i.e., the policy preferences, values, and empirical views that a justice brings to the table.
Theory is then used to justify the decision previously made.
The consistency of justices’ positions in criminal cases can be rather astonishing. For example, Chief Justice
William H. Rehnquist spent 33 years on the Supreme Court - one-third of a century. He participated in more than a
thousand criminal cases. Yet during his tenure on the court, he never once wrote or joined a dissent in favor of a defendant on a point of constitutional law. Similarly, Chief Justice Warren Burger in his 17 years on the court never once
supported a defendant in a dissent in a constitutional criminal case.
What about pro-defense justices? Justice Thurgood Marshall in 24 years on the court never once dissented in favor
of the government in a constitutional criminal case. Justice William Brennan in 34 years on the court only once dissented for the government in a constitutional criminal case. Ward Farnsworth, Dissents Against Type (paper available
for free download at www.ssrn.com).
Or take a series of cases from the Supreme Court’s 2006 term. The court decided eight death penalty cases from
state courts. The cases came to the court both through direct appeal and through federal habeas corpus. The issues
were wide-ranging: from the propriety of jury instructions to competence of the defendant to be executed; from ineffective assistance of counsel to improper removal of a juror.
What did the cases have in common? Every single case was decided 5-4. Justice Anthony M. Kennedy cast the deciding vote in each case, four times for the prosecution and four times for the defense. Yet every single case had Chief
Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. holding for the prosecution. And every single case had Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg
holding for the defense.
How can this kind of mind-numbing consistency be explained? Judge Posner notes that, almost by definition, the
Supreme Court’s docket is comprised of cases that fall between the cracks of existing law. Thus, the court decides
cases within “an ocean of discretion.” Richard A. Posner, Foreword: A Political Court, 119 Harvard Law Rev. 32, 41
291
(2005). So how does a justice decide a case? She must rely on what Posner refers to as “preconceptions” or “Bayesian
priors.” Richard A. Posner, How Judges Think, 269-323 (2008). In the area of criminal law, it may turn on whether or
not the justice believes that public safety is more important than the rights of criminal defendants - or vice versa.
And, according to Stanley Fish, only at this point does theory enter the picture. For after the justice has already
made the decision, she must now use theory “to construct a certain kind of story in which [her] decision is more or
less dictated by the inexorable laws of the judicial process.” Stanley Fish, Dennis Martinez and the Uses of Theory, 96
Yale Law Journal 1773, 1791 (1987).
In other words, theory does not produce a result; it merely justifies a result that has already been reached.
Is this type of legal realism, as some observers would say, a cynical way of looking at judicial decision-making?
On the contrary, new evidence from neuroscience seems to indicate that this account may accurately describe how the
human brain actually makes decisions of many kinds. Two recent books have shed fascinating light on this issue: Jonah
Lehrer’s How We Decide (2009) and Jonathan Haidt’s The Happiness Hypothesis (2006).
Philosophers going back to Plato have described the human mind as being torn between reason and emotion. The
conventional view is that man’s reason must rein in his unruly emotions. If reason could only function undisturbed by
emotion, man could be an ideal “reasoning machine” - i.e., Mr. Spock of “Star Trek.”
Indeed, neuroscientists have recently been able to observe people with a type of brain damage that deprives them
of emotions, but leaves their reasoning intact. Yet the result is not that they make better decisions; rather, they are incapable of making even the simplest decision.
Why? Because damage to the orbitofrontal cortex deprives the brain of the ability to integrate emotions into the
decision-making process. And, according to Lehrer, “Reason without emotion is impotent.”
This is true because the part of our brain that deals with emotions has had a much longer time to evolve than the
part of our brain that deals with reason. The emotional brain has had several hundred million years to refine itself. The
reasoning part of our brain, on the other hand, is a mere two hundred thousand years old.
The emotional part of our brain is so efficient that it works automatically without our being conscious of its processes. The less-evolved reasoning part of our brain is much slower, because it has “lots of design flaws and software
bugs.” (Lehrer, 24) This is why, in a pure reasoning activity, “a cheap calculator can do arithmetic better than a professional mathematician.” Yet in a skill such as hitting a baseball - which requires complex coordination between all
parts of the brain with decisions reached in milliseconds - no robot can do it. According to Lehrer, “The process of
thinking requires feeling, for feelings let us understand all the information that we can’t directly comprehend. Reason
without emotion is impotent.” (26)
What Jonathan Haidt says about moral judgments could be applied to legal decision-making: “[M]oral judgment
is like aesthetic judgment. When you see a painting, you usually know instantly and automatically whether you like it. If
someone asks you to explain your judgment, you confabulate.... When you refute a person’s [moral] argument, does
she generally change her mind and agree with you? Of course not, because the argument you defeated was not the
cause of her position; it was made up after the judgment was already made.... In moral arguments ... [the reasoning
part of the brain] becomes a lawyer, fighting in the court of public opinion to persuade others of the [emotional part
of the brain’s] point of view.” (Haidt, 21-22).
George Orwell said much the same thing about literature: “[E]very literary judgment consists in trumping up a set
of rules to justify an instinctive preference. One’s real reaction ... is usually ‘I like this book’ or ‘I don’t like it’ and what
follows is a rationalization.” George Orwell, “Writers and Leviathan” (1948) in All Art Is Propaganda: Critical Essays
(2008).
Thus, when Scalia and Stevens voted on opposite sides in all eight death penalty cases decided during the 2006
term, my hunch is that their decisions were based a lot more on their visceral feelings about capital punishment rather
than on the closely reasoned discourses on issues such as jury instructions and competence of counsel that comprise
the ostensible reasons for their majority and dissenting opinions in the cases.
The relation between neuroscience and judicial decision making has the potential to become one of the most intriguing issues legal scholars will face in the 21st century.
292
Code of Judicial Conduct
for Workers’ Compensation
Adjudicators
Austin, TX
Honorable Rick Thompson
Atlanta, GA
Honorable David Langham
Pensacola, FL
293
270 Peachtree Street, NW
Atlanta, GA 30303-1299
Richard S. Thompson
_____________________________________________________________________
• Mercer University
Bachelor of Arts, Business
1979
• Mercer University
Juris Doctor
1982
• Private Practice
Reidsville, Georgia
1983
• Assistant District Attorney Douglas County
1983 – 1986
• Assistant Attorney General
Georgia Department of Law
1986 – 1988
Statesboro, Georgia and Vidalia, Georgia
1989 – 2001
• United States Attorney
Southern District of Georgia
2001 – 2004
Clarkesville, Georgia
2004 – 2005
• Administrative Law Judge
2005 – 2007
• Drew, Eckl & Farnham, LLP
Partner
2007 – 2009
• Chairman
2009 – Present
295
Jennifer Hopens received her undergraduate and law degrees from the University of Texas at Austin. She
was licensed to practice law in Texas in 2002. In 2007, she joined the Texas Department of Insurance,
Division of Workers’ Compensation as a Hearing Officer. She has traveled extensively for the Division,
holding contested case hearings in workers’ compensation matters in the Austin, Bryan/College Station, Dallas, Fort Worth, Lufkin, Missouri City, Houston East, Houston West, San Antonio, and El Paso
Field Offices of TDI-DWC. She attended the Judicial College of the National Association of Workers’
Compensation Judiciary (NAWCJ) in Orlando, Florida in 2009 and 2010. In 2010, she was chosen to
serve on the NAWCJ Board of Directors. She was previously a Hearing Officer for the Texas Workforce
Commission.
In her free time, she enjoys photography, genealogy, and traveling. In September 2010, she enjoyed a
2-week tour of Scandinavia with her family.
297
David W. Langham
David W. Langham was admitted to the Florida Bar in 1991, after graduating with distinction from
Mississippi College School of Law that same year. In November 2001 he was appointed Judge of Compensation Claims in Pensacola by Governor Bush. In 2005, he was re-appointed by Governor Bush as
the Pensacola JCC. He was appointed Deputy Chief Judge of Compensation Claims by Governor Bush
in May 2006 and reappointed to that position by Governor Crist in May 2010. He previously practiced
as an associate and then partner in a small Jacksonville law firm, then as a sole practitioner, and later
as a partner in Langham and Langham, P.A. with his wife. His practice included workers compensation,
employment related civil litigation, and medical malpractice. He has lectured at over one hundred
seminars regarding workers’ compensation issues, including the Florida Workers’ Compensation
Institute, the Florida Workers’ Advocates, the Florida Bar Forum, Workers’ Compensation Claims
Professionals, the Florida Association of Self Insured. He has been an instructor at the University of
North Florida and Pensacola Junior College, and a periodic instructor with the Florida State University
Extension Education Program and University of North Florida’s Extension Program. David has written
several articles, regarding workers compensation issues, which have been published in such publications as The Florida Bar Journal, The News and Four-Forty Report, the Trial Advocate Quarterly, Florida
Comp, Florida Medical Magazine, Lee County Bar Res Gestae, Volusia Bar Communicator, Escambia
Santa-Rosa County Bar Summation, Hillsborough County Bar News, Dade County Bar Bulletin, The
Work Comp Reporter, and the Melbourne Bar News.
299
Code of Judicial Conduct
Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply
the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic
to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter
of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.
The Code of Judicial Conduct establishes standards for ethical conduct of judges. It consists of broad statements called
Canons, specific rules set forth in Sections under each Canon, a Definitions Section, an Application Section and Commentary. The text of the Canons and the Sections, including the Definitions and Application Sections, is authoritative.
The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the
Canons and Sections. The Commentary is not intended as a statement of additional rules. When the text uses “shall”
or “shall not,” it is intended to impose binding obligations the violation of which, if proven, can result in disciplinary
action. When “should” or “should not” is used, the text is intended as hortatory and as a statement of what is or is not
appropriate conduct but not as a binding rule under which a judge may be disciplined. When “may” is used, it denotes
permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions.
The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements,
statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is not to be
construed to impinge on the essential independence of judges in making judicial decisions.
The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for
regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal
prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere
tactical advantage in a proceeding.
The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not
intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application
of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of
improper activity and the effect of the improper activity on others or on the judicial system.
The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be
governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state
basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing
and maintaining high standards of judicial and personal conduct.
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Canon 1.
A Judge Shall Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the
integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and
applied to further that objective.
Canon 2.
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of
the Judge’s Activities
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or
judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
C. A judge should not hold membership in an organization that practices invidious discrimination on the basis of
race, sex, religion, or national origin. Membership in a fraternal, sororal, religious, or ethnic heritage organization shall not be deemed to be a violation of this provision.
Canon 3.
A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
A. Judicial Duties in General.
The judicial duties of a judge take precedence over all the judge’s other activities. The judge’s judicial duties
include all the duties of the judge’s office prescribed by law. In the performance of these duties, the specific standards set forth in the following sections apply.
B. Adjudicative Responsibilities.
(1)A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by
partisan interests, public clamor, or fear of criticism.
(3) A judge shall require order and decorum in proceedings before the judge.
(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with
whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court
officials, and others subject to the judge’s direction and control.
(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice
based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status,
and shall not permit staff, court officials, and others subject to the judge’s direction and control to do so. This
section does not preclude the consideration of race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors when they are issues in the proceeding.
(6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words, gestures,
or other conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual
orientation, or socioeconomic status, against parties, witnesses, counsel, or others. This Section 3B(6) does
not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation,
socioeconomic status, or other similar factors are issues in the proceeding.
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the
right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or
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consider other communications made to the judge outside the presence of the parties concerning a pending
or impending proceeding except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or
emergencies that do not deal with substantive matters or issues on the merits are authorized, provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of
the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the
judge if the judge gives notice to the parties of the person consulted and the substance of the advice and
affords the parties reasonable opportunity to respond.
(c) A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do
so.
(8) A judge shall dispose of all judicial matters promptly, efficiently, and fairly.
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that
might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment
that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the
part of court personnel subject to the judge’s direction and control. This Section does not prohibit judges
from making public statements in the course of their official duties or from explaining for public information
the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a
personal capacity.
(10)A judge shall not, with respect to parties or classes of parties, cases, controversies or issues likely to come
before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
(11)A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.
(12)A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.
C. Administrative Responsibilities.
(1) A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and
maintain professional competence in judicial administration, and should cooperate with other judges and
court officials in the administration of court business.
(2) A judge shall require staff, court officials, and others subject to the judge’s direction and control to observe
the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice
in the performance of their official duties.
(3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other
judicial responsibilities.
(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
D. Disciplinary Responsibilities.
(1) A judge who receives information or has actual knowledge that substantial likelihood exists that another judge
has committed a violation of this Code shall take appropriate action.
(2) A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has
committed a violation of the Rules Regulating The Florida Bar shall take appropriate action.
(3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and
3D(2) are part of a judge’s judicial duties and shall be absolutely privileged, and no civil action predicated
thereon may be instituted against the judge.
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E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably
be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge
of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with
whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;
(c) the judge knows that he or she individually or as a fiduciary, or the judge’s spouse, parent, or child
wherever residing, or any other member of the judge’s family residing in the judge’s household has an
economic interest in the subject matter in controversy or in a party to the proceeding or has any other
more than de minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or
the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii)is known by the judge to have a more than de minimus interest that could be substantially affected by
the proceeding;
(iv)is to the judge’s knowledge likely to be a material witness in the proceeding;
(e) the judge’s spouse or a person within the third degree of relationship to the judge participated as a lower
court judge in a decision to be reviewed by the judge.
(f) the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or
appears to commit, the judge with respect to:
(i) parties or classes of parties in the proceeding;
(ii)an issue in the proceeding; or
(iii)the controversy in the proceeding.
(2) A judge should keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the economic interests of the judge’s spouse and minor children residing in the judge’s household.
F. Remittal of Disqualification.
A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification
and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning
a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified,
and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be
incorporated in the record of the proceeding.
Canon 4.
A Judge Is Encouraged to Engage in Activities to Improve the Law, the Legal
System, and the Administration of Justice
A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:
(1)cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2)undermine the judge’s independence, integrity, or impartiality;
(3)demean the judicial office;
(4)interfere with the proper performance of judicial duties;
(5)lead to frequent disqualification of the judge; or
(6)appear to a reasonable person to be coercive.
B. A judge is encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities concerning
the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch
within our system of government, subject to the requirements of this Code.
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C. A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or
official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.
D. A judge is encouraged to serve as a member, officer, director, trustee or non-legal advisor of an organization or
governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, subject to the following limitations and the other requirements of this Code.
(1) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization
(a) will be engaged in proceedings that would ordinarily come before the judge, or
(b) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any
court subject to the appellate jurisdiction of the court of which the judge is a member.
(2) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(a) may assist such an organization in planning fund-raising and may participate in the management and
investment of the organization’s funds, but shall not personally or directly participate in the solicitation
of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise
supervisory or appellate authority;
(b)may appear or speak at, receive an award or other recognition at, be featured on the program of, and
permit the judge’s title to be used in conjunction with an event of such an organization or entity, but if the
event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal
system, or the administration of justice and the funds raised will be used for a law related purpose(s);
(c) may make recommendations to public and private fund-granting organizations on projects and programs
concerning the law, the legal system or the administration of justice;
(d) shall not personally or directly participate in membership solicitation if the solicitation might reasonably
be perceived as coercive;
(e) shall not make use of court premises, staff, stationery, equipment, or other resources for fund-raising
purposes, except for incidental use for activities that concern the law, the legal system, or the administration of justice, subject to the requirements of this Code.
Canon 5.
A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict
with Judicial Duties
A. Extrajudicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do
not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) undermine the judge’s independence, integrity, or impartiality;
(3) demean the judicial office;
(4) interfere with the proper performance of judicial duties;
(5) lead to frequent disqualification of the judge; or
(6) appear to a reasonable person to be coercive.
B. Avocational Activities. A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial
activities concerning non-legal subjects, subject to the requirements of this Code.
C. Governmental, Civic or Charitable Activities.
(1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body
or official except on matters concerning the law, the legal system or the administration of justice or except
when acting pro se in a matter involving the judge or the judge’s interests.
(2) A judge shall not accept appointment to a governmental committee or commission or other governmental
position that is concerned with issues of fact or policy on matters other than the improvement of the law, the
legal system, the judicial branch, or the administration of justice. A judge may, however, represent a country,
state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable,
fraternal, sororal or civic organization not conducted for profit, subject to the following limitations and the
other requirements of this Code.
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(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization
(i) will be engaged in proceedings that would ordinarily come before the judge, or
(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or
in any court subject to the appellate jurisdiction of the court of which the judge is a member.
(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(i) may assist such an organization in planning fund-raising and may participate in the management and
investment of the organization’s funds, but shall not personally or directly participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not
exercise supervisory or appellate authority;
(ii) shall not personally or directly participate in membership solicitation if the solicitation might reasonably be perceived as coercive;
(iii)shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.
D. Financial Activities.
(1) A judge shall not engage in financial and business dealings that
(a) may reasonably be perceived to exploit the judge’s judicial position, or
(b)involve the judge in frequent transactions or continuing business relationships with those lawyers or
other persons likely to come before the court on which the judge serves.
(2)A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge’s family, including real estate, and engage in other remunerative activity.
(3)A judge shall not serve as an officer, director, manager, general partner, advisor or employee of any business
entity except that a judge may, subject to the requirements of this Code, manage and participate in:
(a) a business closely held by the judge or members of the judge’s family, or
(b)a business entity primarily engaged in investment of the financial resources of the judge or members of
the judge’s family.
(4) A judge shall manage the judge’s investments and other financial interests to minimize the number of cases in
which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge
shall divest himself or herself of investments and other financial interests that might require frequent disqualification.
(5) A judge shall not accept, and shall urge members of the judge’s family residing in the judge’s household not to
accept, a gift, bequest, favor or loan from anyone except for:
(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers
on a complimentary basis for official use, or an invitation to the judge and the judge’s spouse or guest to
attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the
administration of justice;
(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other
family member of a judge residing in the judge’s household, including gifts, awards and benefits for the
use of both the spouse or other family member and the judge (as spouse or family member), provided
the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;
(c) ordinary social hospitality;
(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the
gift is fairly commensurate with the occasion and the relationship;
(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a
case would in any event require disqualification under Canon 3E;
(f) a loan from a lending institution in its regular course of business on the same terms generally available to
persons who are not judges;
(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other
applicants; or
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or
is likely to come or whose interests have come or are likely to come before the judge; and, if its value,
or the aggregate value in a calendar year of such gifts, bequests, favors, or loans from a single source,
exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Canon 6B(2).
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E. Fiduciary Activities.
(1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney
in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family, and then only
if such service will not interfere with the proper performance of judicial duties.
(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings
that would ordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary
proceedings in the court on which the judge serves or one under its appellate jurisdiction.
(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.
F. Service as Arbitrator or Mediator.
(1) A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity
unless expressly authorized by law or Court rule. A judge may, however, take the necessary educational and
training courses required to be a qualified and certified arbitrator or mediator, and may fulfill the requirements of observing and conducting actual arbitration or mediation proceedings as part of the certification
process, provided such program does not, in any way, interfere with the performance of the judge’s judicial
duties.
(2) A senior judge may serve as a mediator in a case in which the senior judge is not presiding only if the senior
judge is certified pursuant to rule 10.100, Florida Rules for Certified and Court-Appointed Mediators. Such
senior judge may be associated with entities that are solely engaged in offering mediation or other alternative
dispute resolution services but that are not otherwise engaged in the practice of law. However, such senior
judge may in no other way advertise, solicit business, associate with a law firm, or participate in any other
activity that directly or indirectly promotes his or her mediation services. A senior judge shall not serve as
a mediator in any case in which the judge is currently presiding. A senior judge who provides mediation
services shall not preside over the same type of case the judge mediates in the circuit where the mediation
services are provided; however, a senior judge may preside over other types of cases (e.g., criminal, juvenile,
family law, probate) in the same circuit and may preside over cases in circuits in which the judge does not
provide mediation services. A senior judge shall disclose if the judge is being utilized or has been utilized as
a mediator by any party, attorney, or law firm involved in the case pending before the senior judge. Absent
express consent of all parties, a senior judge is prohibited from presiding over any case involving any party,
attorney, or law firm that is utilizing or has utilized the judge as a mediator within the previous three years. A
senior judge shall disclose any negotiations or agreements for the provision of mediation services between the
senior judge and any of the parties or counsel to the case.
G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may,
without compensation, give legal advice to and draft or review documents for a member of the judge’s family.
Canon 6.
Fiscal Matters of a Judge Shall be Conducted in a Manner That Does Not Give
the Appearance of Influence or Impropriety; a Judge Shall Regularly File
Public Reports as Required by Article II, Section 8, of the Constitution of
Florida, and Shall Publicly Report Gifts; Additional Financial Information
Shall be Filed With the Judicial Qualifications Commission to Ensure Full
Financial Disclosure
A. Compensation for Quasi-Judicial and Extrajudicial Services and Reimbursement of Expenses.
A judge may receive compensation and reimbursement of expenses for the quasi-judicial and extrajudicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge
in the performance of judicial duties or otherwise give the appearance of impropriety, subject to the following
restrictions:
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(1) Compensation. Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is
not a judge would receive for the same activity.
(2) Expense Reimbursement. Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, to the judge’s spouse. Any payment in excess of such an amount is compensation.
B. Public Financial Reporting.
(1) Income and Assets. A judge shall file such public report as may be required by law for all public officials to
comply fully with the provisions of Article II, Section 8, of the Constitution of Florida. The form for public
financial disclosure shall be that recommended or adopted by the Florida Commission on Ethics for use by all
public officials. The form shall be filed with the Florida Commission on Ethics on the date prescribed by law,
and a copy shall be filed simultaneously with the Judicial Qualifications Commission.
(2) Gifts. A judge shall file a public report of all gifts which are required to be disclosed under Canon 5D(5)(h)
of the Code of Judicial Conduct. The report of gifts received in the preceding calendar year shall be filed with
the Florida Commission on Ethics on or before July 1 of each year. A copy shall be filed simultaneously with
the Judicial Qualifications Commission.
(3) Disclosure of Financial Interests Upon Leaving Office. A judge shall file a final disclosure statement within
60 days after leaving office, which report shall cover the period between January 1 of the year in which the
judge leaves office and his or her last day of office, unless, within the 60-day period, the judge takes another
public position requiring financial disclosure under Article II, Section 8, of the Constitution of Florida, or is
otherwise required to file full and public disclosure for the final disclosure period. The form for disclosure of
financial interests upon leaving office shall be that recommended or adopted by the Florida Commission on
Ethics for use by all public officials. The form shall be filed with the Florida Commission on Ethics and a copy
shall be filed simultaneously with the Judicial Qualifications Commission.
C. Confidential Financial Reporting to the Judicial Qualifications Commission.
To ensure that complete financial information is available for all judicial officers, there shall be filed with the Judicial Qualifications Commission on or before July 1 of each year, if not already included in the public report to
be filed under Canon 6B(1) and (2), a verified list of the names of the corporations and other business entities
in which the judge has a financial interest as of December 31 of the preceding year, which shall be transmitted in
a separate sealed envelope, placed by the Commission in safekeeping, and not be opened or the contents thereof
disclosed except in the manner hereinafter provided.
At any time during or after the pendency of a cause, any party may request information as to whether the most
recent list filed by the judge or judges before whom the cause is or was pending contains the name of any specific
person or corporation or other business entity which is a party to the cause or which has a substantial direct or
indirect financial interest in its outcome. Neither the making of the request nor the contents thereof shall be revealed by the chair to any judge or other person except at the instance of the individual making the request. If the
request meets the requirements hereinabove set forth, the chair shall render a prompt answer thereto and thereupon return the report to safekeeping for retention in accordance with the provisions hereinabove stated. All such
requests shall be verified and transmitted to the chair of the Commission on forms to be approved by it.
D. Limitation of Disclosure.
Disclosure of a judge’s income, debts, investments or other assets is required only to the extent provided in this
Canon and in Sections 3E and 3F, or as otherwise required by law.
Canon 7
A Judge or Candidate for Judicial Office
Shall Refrain From Inappropriate Political Activity
A. All judges and Candidates.
(1) Except as authorized in Sections 7B(2), 7C(2) and 7C(3), a judge or a candidate for election or appointment
to judicial office shall not:
(a) act as a leader or hold an office in a political organization;
(b) publicly endorse or publicly oppose another candidate for public office;
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(c) make speeches on behalf of a political organization;
(d) attend political party functions; or
(e) solicit funds for, pay an assessment to or make a contribution to a political organization or candidate, or
purchase tickets for political party dinners or other functions.
(2) A judge shall resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate
for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted
by law to do so.
(3) A candidate for a judicial office:
(a) shall be faithful to the law and maintain professional competence in it, and shall not be swayed by partisan interests, public clamor, or fear of criticism;
(b) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity, and independence of the judiciary, and shall encourage members of the candidate’s family to
adhere to the same standards of political conduct in support of the candidate as apply to the candidate;
(c) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage
other employees and officials subject to the candidate’s direction and control from doing on the candidate’s behalf what the candidate is prohibited from doing under the Sections of this Canon;
(d) except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit any other person
to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;
(e) shall not:
(i) with respect to parties or classes of parties, cases, controversies, or issues that are likely to come
before the court, make pledges, promises, or commitments that are inconsistent with the impartial
performance of the adjudicative duties of the office; or
(ii)knowingly misrepresent the identity, qualifications, present position or other fact concerning the
candidate or an opponent;
(iii)while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that
might substantially interfere with a fair trial or hearing. This section does not apply to proceedings in
which the judicial candidate is a litigant in a personal capacity.
(iv)commend or criticize jurors for their verdict, other than in a court pleading, filing, or hearing in
which the candidate represents a party in the proceeding in which the verdict was rendered.
(f) may respond to personal attacks or attacks on the candidate’s record as long as the response does not
violate Section 7A(3)(e).
B. Candidates Seeking Appointment to Judicial or Other Governmental Office.
(1) A candidate for appointment to judicial office or a judge seeking other governmental office shall not solicit or
accept funds, personally or through a committee or otherwise, to support his or her candidacy.
(2) A candidate for appointment to judicial office or a judge seeking other governmental office shall not engage in
any political activity to secure the appointment except that:
(a) such persons may:
(i) communicate with the appointing authority, including any selection or nominating commission or
other agency designated to screen candidates;
(ii)seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals; and
(iii)provide to those specified in Sections 7B(2)(a)(i) and 7B(2)(a)(ii) information as to his or her
qualifications for the office;
(b) a non-judge candidate for appointment to judicial office may, in addition, unless otherwise prohibited by
law:
(i) retain an office in a political organization,
(ii)attend political gatherings, and
(iii)continue to pay ordinary assessments and ordinary contributions to a political organization or candidate and purchase tickets for political party dinners or other functions.
C. Judges and Candidates Subject to Public Election.
(1) A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support,
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but may establish committees of responsible persons to secure and manage the expenditure of funds for the
candidate’s campaign and to obtain public statements of support for his or her candidacy. Such committees
are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. A candidate shall not use or permit the use of campaign contributions for the private
benefit of the candidate or members of the candidate’s family.
(2) A candidate for merit retention in office may conduct only limited campaign activities until such time as the
judge certifies that the judge’s candidacy has drawn active opposition. Limited campaign activities shall only
include the conduct authorized by subsection C(1), interviews with reporters and editors of the print, audio
and visual media, and appearances and speaking engagements before public gatherings and organizations.
Upon mailing a certificate in writing to the Secretary of State, Division of Elections, with a copy to the Judicial
Qualifications Commission, that the judge’s candidacy has drawn active opposition, and specifying the nature
thereof, a judge may thereafter campaign in any manner authorized by law, subject to the restrictions of subsection A(3).
(3) A judicial candidate involved in an election or re-election, or a merit retention candidate who has certified
that he or she has active opposition, may attend a political party function to speak in behalf of his or her
candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of
justice. The function must not be a fund raiser, and the invitation to speak must also include the other candidates, if any, for that office. The candidate should refrain from commenting on the candidate’s affiliation with
any political party or other candidate, and should avoid expressing a position on any political issue. A judicial
candidate attending a political party function must avoid conduct that suggests or appears to suggest support
of or opposition to a political party, a political issue, or another candidate. Conduct limited to that described
above does not constitute participation in a partisan political party activity.
D. Incumbent Judges. A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice,
or (iii) as expressly authorized by law.
E. Applicability. Canon 7 generally applies to all incumbent judges and judicial candidates. A successful candidate,
whether or not an incumbent, is subject to judicial discipline for his or her campaign conduct; an unsuccessful
candidate who is a lawyer is subject to lawyer discipline for his or her campaign conduct. A lawyer who is a candidate for judicial office is subject to Rule 4-8.2(b) of the Rules Regulating The Florida Bar.
F. Statement of Candidate for Judicial Office. Each candidate for a judicial office, including an incumbent judge, shall
file a statement with the qualifying officer within 10 days after filing the appointment of campaign treasurer and
designation of campaign depository, stating that the candidate has read and understands the requirements of the
Florida Code of Judicial Conduct. Such statement shall be in substantially the following form:
STATEMENT OF CANDIDATE FOR JUDICIAL OFFICE
I, ___________________________, the judicial candidate, have received, have read, and understand the
requirements of the Florida Code of Judicial Conduct.
___ Signature of Candidate ___
___ Date ___
310
From CQ
http://public.cq.com/docs/weeklyreport/weeklyreport-000003909580.html
Recusal of Fortune: Gaming the Bench
By Seth Stern, CQ Staff
Justices Elena Kagan and Clarence Thomas are being targeted by members of Congress who say they should recuse
themselves from challenges to the health care law heading toward the Supreme Court because of potential conflicts of
interest.
Democratic lawmakers point to work by Thomas’ wife, Virginia, as a lobbyist and founder of a tea party-affiliated
organization working to defeat the law. Republican lawmakers say newly released emails from Kagan’s tenure as solicitor general suggest she may have been more involved in formulating the defense of the law than she revealed at the
time of her confirmation last year.
Given the enormous stakes in the highest-profile challenge to a federal law in decades, it is no surprise that advocates looking for every advantage have seized upon recusal as a potential weapon in a case the Supreme Court could
take up as early as this fall.
Recusal motions are a litigation tool frequently used by lawyers seeking to knock out judges they view as unsympathetic to their clients. They have also become a weapon in the broader political war over the health care law now playing out in Congress, regulatory agencies and the courts. So far, all but one of the lower court decisions have mirrored
the political affiliations of the judges involved, reinforcing the sense that the judicial process may be as partisan as are
other branches of government and encouraging advocates to try to remove those who may not share their views.
A recusal is potentially even more potent in the Supreme Court, where — unlike on lower tribunals — justices
can’t be replaced, and one absence could swing the outcome. Nor is there any mechanism to review or appeal a
justice’s decision on withdrawal, meaning the justice alone is the final arbiter about staying in a case.
Legal experts say it’s not at all clear whether Kagan or Thomas should remove themselves from the case based
on what’s known thus far, but those on both sides of the ideological divide express concern that public faith in judges
is undermined when partisans seek recusal to achieve political ends. “What we have here are huge stakes in one of
the biggest ideological battles in the country, and recusal is being used as just one arrow in the quiver, even though it
doesn’t particularly fit,” says James Sample, a law professor at Hofstra University on Long Island, N.Y.
The health care case certainly isn’t the first time outside parties have tried to pressure a Supreme Court justice or
lower federal court judge into removing him or herself from a high-profile case.
In 2004, Antonin Scalia rejected a motion filed by the Sierra Club, which argued he should withdraw from a case
in which Vice President Dick Cheney was a named party, on grounds that they had previously gone on a duck-hunting
trip together.
More recently, defenders of a California state ballot measure banning gay marriage argued that the federal district
court judge who struck it down should have removed himself because he had not disclosed his own long-term samesex relationship. Since that judge, Vaughn R. Walker, subsequently retired, the challenge to the ruling was heard by
another judge, who rejected it last month.
Defenders of the ballot measure also filed a recusal motion against Stephen Reinhardt, one of the federal appellate
judges hearing the appeal, because his wife headed a local branch of the American Civil Liberties Union, which had
advocated against the ban.
What makes the recusal calls on Capitol Hill in the health care case particularly notable is that each side in the
debate is targeting a justice it thinks will rule against its party months before any lower federal appeals court had even
heard the case.
The issue was first raised during Kagan’s confirmation last year. Republicans questioned whether her work as
solicitor general during enactment of the health care law should disqualify her from ruling on its constitutionality as a
justice.
In answers to their written questions, Kagan acknowledged attending “at least one meeting where the existence of
the litigation was briefly mentioned,” but she said she hadn’t participated in any substantive discussions.
That answer didn’t satisfy Orrin G. Hatch, R-Utah, former chairman of the Senate Judiciary Committee, who insisted during a Feb. 2 appearance on Fox News Channel that Kagan should recuse herself from the health care case.
311
One week later, 76 House Democrats signed a letter to Thomas asking that he recuse himself from any health law
challenges due to his wife’s work on behalf of Liberty Central, a tea party group seeking to overturn the law, and also
for the Heritage Foundation, which opposed the law. “Given these facts, there is a strong conflict between the Thomas
household’s financial gain through your spouse’s activities and your role as an Associate Justice of the United States
Supreme Court,” read the letter, organized by New York Rep. Anthony Weiner. (In May, Thomas released an amended
financial disclosure form for 2010 noting that his wife had earned income from Liberty Central, as well as from a lobbying firm she started that has worked against the law.)
Discord on the Rise
The recusal calls have intensified more recently as the first of three federal appeals courts that have heard challenges to the law issued rulings. Jeffrey S. Sutton, a former Scalia clerk appointed by President George W. Bush, became the first Republican appointee to decide in favor of the law when the U.S. Court of Appeals for the 6th Circuit
upheld it last month.
Five days earlier, 49 House Republicans sent a letter to the House Judiciary Committee citing newly released emails
from Kagan’s tenure as solicitor general as raising “serious questions about Justice Kagan’s ability to exercise objectivity” in this case. “It’s still an open question, but the email traffic certainly suggested strongly that Kagan was involved
in crafting a defense for ‘Obamacare’ against a constitutional challenge,” says John Fleming, R-La., who circulated the
letter.
But the 24 pages of emails obtained by Judicial Watch via a Freedom of Information Act request also suggest Kagan
may have walled herself off from the issue, perhaps in anticipation of a future Supreme Court nomination.
House Judiciary Chairman Lamar Smith, R-Texas, subsequently wrote Attorney General Eric H. Holder Jr. requesting all documents related to any meetings or conversations involving Kagan on the health care law and requesting
interviews with key Justice Department staff who communicated with her about the issue.
Smith said last week “it would be premature” to say what further steps the committee might take to investigate, or
whether Kagan should remove herself, since the case hasn’t reached the Supreme Court.
Supreme Court justices theoretically are bound by a statute that dictates when all federal judges are supposed to
disqualify themselves. (Congress established guidelines in 1974, after Justice William H. Rehnquist participated in a
case involving a matter which he had previously testified about before Congress while serving in the Nixon Justice Department.)
For the current cases, the relevant provisions require disqualification in instances where a judge previously has
“expressed an opinion concerning the merits of the particular case in controversy” while serving as a government
lawyer, or has a spouse who “is known to have an interest that could be substantially affected by the outcome of the
proceeding.”
But legal experts say the statute itself is vague and that there is little case law, particularly from the Supreme Court,
that provides guidance. And unlike at the lower court level, where cases are subject to appeal, there is no recourse
should a justice opt to participate. “In reality, they decide whether or not those statutes apply to them and whether
they should take themselves off the case, and there’s really not much of a mechanism to do anything about it,” says
Richard E. Flamm, a California attorney and author of a treatise on judicial disqualification.
The result, says Indiana University law professor Charles Geyh, is that recusal motions filed against Supreme Court
justices often become “a political game.” That pressure can be useful in instances when a judge ought to disqualify
herself or himself, but when applied against judges who shouldn’t, “it casts doubt on the legitimacy of the court.”
What particularly troubles Richard W. Painter, a University of Minnesota law professor and former counsel to Bush,
is the selective outrage by partisans. The same critics who raised concerns about Judge Reinhardt in the gay-marriage
case are mostly silent regarding the potential conflict of interest posed by Justice Thomas’ wife, and vice versa. “It’s
always so predictable where people come out, and judicial ethics shouldn’t be that way,” Painter says. He blames the
justices for their willingness to insert themselves into highly politicized cases that can strike down laws ranging from
gun control to gay marriage and election law. “Judging has become highly political in an environment where judges
aren’t willing to defer to Congress,” Painter says.
Legal experts say the Supreme Court could help defuse the issue by having a justice’s colleagues review a decision
to stay in a case, a procedure used on several states’ high courts.
Rep. Christopher S. Murphy, D-Conn., introduced legislation earlier this year to require justices to explain such
decisions in writing and direct federal judges to develop a review procedure.
While he singled out only conservative justices for criticism in a draft letter to the House Judiciary Committee
requesting a hearing on the bill, he concedes that “this certainly seems to have become a pretty partisan issue in Congress where Democrats are picking out conservative justices and Republicans are picking out liberal judges.”
312
Regardless of ideology, he says, “I think anybody appearing before the Supreme Court should have an opportunity
to make a claim of conflict of interest.”
The Republican-controlled House Judiciary Committee has no plans to consider the bill. And given the insular
culture of the Supreme Court, Sample, the Hofstra law professor, predicts the chances of ever convincing the justices
of adopting such a procedure are “somewhere between slim and none.”
FOR FURTHER READING: Health care law litigation, CQ Weekly, p. 292; justices’ public profiles, p. 241; Kagan
confirmation, 2010 Almanac, p. 10-3; 1974 recusal law (PL 93-512), 1974 Almanac, p. 301.
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THE ROLE OF PUBLIC OPINION IN THE
DEBATE OVER RECUSAL REFORM
Bert Brandenburg*
TABLE OF CONTENTS
I. Introduction ...........................................................................................737
II. Emergence of and Resistance to the Use of Public Opinion in the
Recusal Reform Debate.......................................................................738
A. The Growing Role of Public Opinion in Discussions of
Recusal and Disqualification........................................................738
B. More Recent Treatment of Public Opinion in Litigation and
Judicial Discussions .......................................................................740
C. The Backlash Against References to Public Opinion ...............745
III. Proposals for Further Research...........................................................747
IV. Conclusion..............................................................................................748
I. INTRODUCTION
What role should the views of the public play in a judge’s decision to
recuse, and in the growing debate over recusal and disqualification of
judges? In the past two years, public opinion has been taken increasingly
seriously in the debate over recusal reform, in large part due to Supreme
Court rulings in Caperton v. A.T. Massey Coal Co. 1 and Citizens United v.
Federal Election Commission. 2 In Caperton, 3 a 2009 decision dealing with
whether a West Virginia Supreme Court justice had a duty to recuse
himself from a case in which one party had spent over three million dollars
to help elect him, the Supreme Court held for the first time that
expenditures in a judicial campaign could result in a Fourteenth
Amendment due process violation, even if actual bias could not be proved. 4
Prior to Caperton, the role of public opinion in the debate over recusal and
*
1.
2.
3.
4.
Executive Director, Justice at Stake Campaign.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).
Citizens United v. FEC, 130 S. Ct. 876 (2010).
Caperton, 129 S. Ct. at 2256–57.
Id. at 2265.
737
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disqualification issues had been growing gradually. Caperton helped
trigger a marked increase in references to public opinion research as part
of discussions and debates about amending state recusal codes in places
such as Michigan and Wisconsin. 5
This emergence of public opinion in the debate over recusal is likely
to grow stronger following the Supreme Court’s decision in Citizens United,
in which the Court found that corporations have a First Amendment right
to make expenditures expressly advocating for or against candidates,
including those running for judicial office. 6 Many states that previously
banned corporate expenditures in judicial races must now deal with
revisions to their election laws, and perhaps their recusal codes, to account
for corporate expenditures in judicial elections. The public’s views should
be given greater weight in situations involving the appearance of bias or
impropriety in cases involving a judge and big-money supporters.
II. EMERGENCE OF AND RESISTANCE TO THE USE OF PUBLIC OPINION IN
THE RECUSAL REFORM DEBATE
A. The Growing Role of Public Opinion in Discussions of Recusal and
Disqualification
Although the right to disqualify a judge dates back to early Roman
law, common law in England was hostile to judges stepping aside from
7
5.
See Amendment of Rule 2.003 of the Michigan Court Rules, ADM File
No. 2009-04, at 1–2 (2009), available at http://courts.michigan.gov/supremecourt/Resour
ces/Administrative/2009-04-112509.pdf (“A judge is disqualified when the judge cannot
impartially hear a case, including but not limited to instances in which: . . . (b) The
judge, based on objective and reasonable perceptions, has either (i) a serious risk of
actual bias impacting the due process rights of a party as enunciated in Caperton v.
Massey . . . or (ii) has failed to adhere to the appearance of impropriety standard set
forth in Canon 2 of the Michigan Code of Judicial Conduct.”); see also JUSTICE AT
STAKE, JANUARY 2008 WISCONSIN SURVEY HIGHLIGHTS: NEW POLL OF WISCONSIN
VOTERS SHOWS STRONG BIPARTISAN SUPPORT FOR SUPREME COURT CAMPAIGN
REFORM, http://staging.justiceatstake.sitevizenterprise.com/newsroom/press_releases.c
f/new_poll_of_wisconsin_voters_shows_strong_bipartisan_support_for_supreme_court
_campaign_reform?show=news&newsID=5715 (noting that seventy-eight percent of
the poll’s respondents “believe that campaign contributions made to judges . . . have ‘a
great deal’ or ‘some’ influence” on the decisions made by judges in the context of the
courtroom”).
6.
See Citizens United, 130 S. Ct. at 909.
7.
See Harrington Putnam, Recusation, 9 CORNELL L. REV. 1, 3 & n.10
(1923) (“‘Although a judge has been appointed by imperial power yet because it is our
pleasure that all litigations should proceed without suspicion, let it be permitted to him,
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Public Opinion in the Debate over Recusal Reform
739
cases. William Blackstone wrote of a presumption of fairness, 8 and there
was no recusal for bias under English common law. 9 But since America’s
earliest years, Congress and the Supreme Court have gradually broadened
the scope of the standard for judicial recusal to assure litigants and the
public that hearings will be fair and impartial.
Since 1927, the Court has on multiple occasions required recusal by
state and local judges under the Fourteenth Amendment Due Process
Clause in order to ensure fairness. In Tumey v. Ohio, the Supreme Court
held that paying judges for convictions but not acquittals violated the Due
Process Clause of the Fourteenth Amendment. 10 In 1955, the Court held in
In re Murchison that a judge cannot try a case in which he served as a
“‘one-man grand jury.’” 11 In the 1972 case of Ward v. Village of
Monroeville, the Court held that “[p]etitioner is entitled to a neutral and
detached judge.” 12 However, public opinion and public confidence in the
judiciary were not primary rationales for the Court’s reasoning in any of
those cases. Indeed, the movement towards broadening the availability of
recusal was slowed in 1972, when Justice William Rehnquist affirmed a
“duty to sit” in Laird v. Tatum. 13
Over much of the same period, however, model rules were adopted in
almost every state requiring that judges should avoid even the appearance
of bias—a standard that necessitates analysis of how a reasonable observer
might see an ethics challenge against a judge. 14 An important catalyst was
a provision of the American Bar Association’s Model Code of Judicial
Conduct, adopted in 1972, which says that a judge should not participate
“in a proceeding in which the judge’s impartiality might reasonably be
questioned.” 15 The reasonableness standard, which references public
opinion by invoking public norms, has now been adopted in forty-eight
who thinks the judge under suspicion to recuse him before issue joined, so that the
cause go to another . . . .’” (quoting Code Just. 3.1.16 (Justinian I 530))).
8.
3 WILLIAM BLACKSTONE, COMMENTARIES *361.
9.
Dr. Bonham’s Case, (1610) 77 Eng. Rep. 646, 652 (K.B.).
10.
Tumey v. Ohio, 273 U.S. 510, 531 (1927).
11.
In re Murchison, 349 U.S. 133, 135–39 (1955) (quoting MICH. COMP. LAWS
§§ 767.3, 767.4 (1948)).
12.
Ward v. Vill. of Monroeville, 409 U.S. 57, 61–62 (1972).
13.
Laird v. Tatum, 409 U.S. 824, 837 (1972) (citation omitted).
14.
See JAMES SAMPLE ET AL., FAIR COURTS: SETTING RECUSAL STANDARDS
17 (2008), available at http://www.brennancenter.org/content/resource/fair_courts_setti
ng_recusal_standards/.
15.
See MODEL CODE OF JUDICIAL CONDUCT Canon 3(E)(1) (1991).
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states.
Caperton gave new legitimacy to the consideration of public opinion
in assessing recusal. In Caperton, the Supreme Court did not rule on
whether there was actual bias, but rather held that there was a serious risk
of bias “based on objective and reasonable perceptions.” 16 For the first
time, the Court held that there could be a Fourteenth Amendment due
process violation when a litigant had a reasonable perception that he or she
could not receive justice because of campaign contributions or
expenditures made on behalf of the judge—even if actual bias could not be
proved. 17
Scholars had been examining the effect of campaign contributions
and support on public opinion surrounding judicial decision-making before
Caperton. For example, Professors James Gibson and Gregory Caldeira
surveyed residents of West Virginia to examine how controversies such as
those in Caperton “create[] the appearance of bias and partiality, thereby
undermining public confidence in the judiciary.” 18 Their study found that
“campaign contributions to judges do indeed threaten perceptions of
judicial impartiality,” adding that “recusal is only a weak palliative for
conflicts of interests created by contributions; and the mere offering of
campaign contributions, even when rejected by the candidate, seems to
create perceptions of bias and partiality.” 19
B. More Recent Treatment of Public Opinion in Litigation and Judicial
Discussions
As public opinion is taken more seriously in recusal analyses, it is
worth exploring its treatment during the Caperton litigation in greater
detail. Polling data were important to the litigation. When Harman
Mining Corporation filed a motion in Caperton calling for West Virginia
Supreme Court Judge Brent Benjamin’s recusal, it cited a survey of West
Virginia residents showing that more than two-thirds of West Virginians
doubted that Justice Benjamin could be fair and impartial regarding the
16.
17.
18.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2263 (2009).
Id. at 2263–64.
James L. Gibson & Gregory A. Caldeira, Campaign Support, Conflicts of
Interest, and Judicial Impartiality: Can the Legitimacy of Courts Be Rescued by
Recusals? 3 (Chi. Area Pol. and Soc. Behav. Workshop, Paper No. 32, 2009), available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1428723.
19.
Id.
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741
case, compared to only fifteen percent who thought he could be. 20 The
motion included an affidavit from Robert Drake, senior vice president of
Talmey–Drake Research and Strategy Incorporated, which conducted the
research. 21
During oral arguments in Caperton, Justice Antonin Scalia pushed
back against the use of a reasonable person standard, saying that the Court
was “being urged to adopt out of nowhere a new standard of probability of
bias. That’s not in the Constitution.” 22 Ted Olson, counsel for Caperton,
replied that there was precedent for using a reasonable person standard
throughout constitutional law, saying “Justice Scalia, you mentioned that
the words ‘reasonable search and seizure’ are in the Constitution. The
words ‘due process’ are in the Constitution, and that is what we’re talking
about today.” 23
Justice John Paul Stevens challenged the argument against using a
reasonable person standard in deciding whether recusal was necessary,
asking if “just appearance [of impropriety] . . . could ever raise a due
process issue?” 24 Andrew Frey, counsel for Massey Coal, replied by saying
“[n]o, I don’t think just appearance could ever raise a due process issue.” 25
Frey also argued “that the Due Process Clause does not exist to protect the
integrity or reputation of the state judicial systems.” 26 The Court rejected
this argument. As Justice Anthony Kennedy put it, “our whole system is
designed to ensure confidence in our judgments.” 27
My organization, the Justice at Stake Campaign (Justice at Stake) 28,
also sought to call the Court’s attention to public attitudes about
disqualification and recusal. Justice at Stake, along with twenty-seven
other groups, filed an amicus brief that noted that “[j]udicial elections have
created a crisis of confidence. National surveys from 2001 and 2004 found
that over 70% of Americans believe that campaign contributions have at
20.
21.
22.
23.
24.
25.
26.
27.
Joint Appendix at 467a, Caperton, 129 S. Ct. 2252 (No. 08-22).
Id. at 469a.
Transcript of Oral Argument at 44, Caperton, 129 S. Ct. 2252 (No. 08-22).
Id. at 53.
Id. at 29.
Id.
Id. at 28.
Id. at 37.
28.
“Justice at Stake is a nonpartisan campaign with more than 50 national
partners working to keep state and federal courts fair and impartial.” Justice at Stake,
Justice at Stake’s Mission, http://www.justiceatstake.org/about/index.cfm (last visited
Apr. 1, 2010).
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least some influence on judges’ decisions . . . .” 29 The brief referenced a
2001 poll conducted for Justice at Stake by Greenberg Quinlan Rosner and
American Viewpoint, which found that seventy-six percent of voters
believed “campaign contributions made to judges” have a “great deal of
influence” or “some influence” on their decisions. 30 A 2004 national poll
conducted for Justice at Stake by Zogby International found that seventyone percent of adults “believe that campaign contributions from interest
groups have at least some influence on judges’ decisions in the
courtroom.” 31 This belief was held especially strongly by AfricanAmericans, over eighty percent of whom believed campaign contributions
had influence on judicial decisions. 32
National polling taken around the time of the Caperton case showed
similar results. In February 2009, a USA Today–Gallup Poll showed that
“89% of those surveyed believe[d] the influence of campaign contributions
on judges’ rulings is a problem . . . . More than 90% of the 1,027 adults
surveyed said judges should be removed from a case if it involves an
individual or group that contributed to the judge’s election campaign.” 33
Harris Interactive also conducted a national poll in February of 2009 for
Justice at Stake and found that eighty-one percent of adults say that judges
should not themselves determine whether they can fairly hear a case and
that “another judge should weigh the facts when a judge’s neutrality is
challenged.” 34
The public’s instincts are gaining professional validation. In a recent
study published by the American Psychological Association, Dr. Jennifer
K. Robbennolt and Matthew Taksin sought to understand whether judges
29.
Brief for Justice at Stake et al. as Amici Curiae Supporting Petitioner,
Caperton, 129 S. Ct. 2252 (No. 08-22).
30.
JUSTICE AT STAKE, FREQUENCY QUESTIONNAIRE (2001), available at
http://www.justiceatstake.org/media/cms/JASNationalSurveyResults_6F537F99272D4.
pdf.
31.
JUSTICE AT STAKE, MARCH 2004 SURVEY HIGHLIGHTS: AMERICANS
SPEAK OUT ON JUDICIAL ELECTIONS (2004), available at http://www.justiceatstake.org/
media/cms/ZogbyPollFactSheet_54663DAB970C6.pdf.
32.
Id.
33.
Joan Biskupic, Supreme Court Case with the Feel of a Best Seller, USA
TODAY, Feb. 16, 2009, http://www.usatoday.com/news/washington/2009-02-16-grishamcourt_N.htm.
34.
Press Release, Justice at Stake, Poll: Huge Majority Wants Firewall
Between Judges, Election Backers (Feb. 22, 2009), http://www.justiceatstake.org/newsr
oom/press_releases.cfm/poll_huge_majority_wants_firewall_between_judges_election_
backers?show=news&newsID=5677.
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could determine their own impartiality. 35 They highlighted what they
called “the limitations inherent in judging one’s own biases.” 36
Psychologists have shown that individuals experience an illusion of
objectivity:
People believe they are objective, . . . see themselves as more ethical
and fair than others, . . . and experience a “bias blind spot,” the
tendency to see bias in others but not in themselves. . . . These
tendencies make it difficult for judges to identify their own biases. 37
They cite Judge Richard A. Posner, who wrote that “‘[w]e use
introspection to acquit ourselves of accusations of bias, while using realistic
notions of human behavior to identify bias in others.’” 38 The authors
conclude that “[a]s states contemplate revisions to their judicial codes, they
might consider using objective triggers for recusal and avoid leaving the
recusal decision solely to the discretion of the challenged judge” 39 adding
that “[s]tates might also consider rules that make it easier for judges to
recuse themselves by framing the recusal decision in terms of the
appearance of impropriety, rather than asking a challenged judge to
evaluate his or her actual biases.” 40
Ultimately, in Caperton the Court did not go so far as to adopt a
uniform reasonable person standard to determine when a campaign
contribution or expenditure could lead to the kind of appearance of
impropriety that would trigger a Fourteenth Amendment due process
violation. 41 Instead, the Court left to the states the decision of whether to
amend their recusal standards to employ such a test. 42 As the Court put it,
“[b]ecause the codes of judicial conduct provide more protection than due
process requires, most disputes over disqualification will be resolved
without resort to the Constitution.” 43
Although public opinion does not and should not decide questions of
35.
Jennifer Robbennolt & Matthew Taksin, Can Judges Determine Their
Own Impartiality?, 41 MONITOR ON PSYCHOL. 24, 24 (2010) (citation omitted).
36.
Id.
37.
Id.
38.
Id. (quoting RICHARD A. POSNER, HOW JUDGES THINK 121 (2008)).
39.
Id.
40.
Id.
41.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266–67 (2009).
42.
Id.
43.
Id.
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law, there is no novelty in invoking a reasonable person standard in the
weighing of legal principles. For example, reference to a reasonable person
standard has been long-settled doctrine in a number of areas of law,
including criminal law tests like those assessing the legality of search and
seizure, 44 and the test for determining negligence in tort law. 45
In the wake of Caperton, as state courts have begun to assess how to
respond, there has been more discussion of the role of public opinion data
in assessing how the average person views the effects of campaign
donations on judicial decision making. One of these states is Michigan,
which adopted new recusal standards after taking recent statewide publicopinion research into account. In a letter urging the Michigan Supreme
Court to amend its recusal standards, Justice at Stake cited the 2009
national Harris Interactive poll. 46 The poll asked voters if a judge should
step aside from cases involving a party who spent $50,000 or $1 million to
elect the judge. “In both cases, about 85 percent felt a judge should step
aside, and only about 10 percent felt the judge should stay.” 47
The Michigan Campaign Finance Network supplemented the national
survey results with a poll of Michigan voters. 48 The poll, conducted by
Denno–Noor Research, showed that eighty-five percent of state voters
believed a judge should recuse himself from a case that involves a
campaign backer who spent $50,000 to support the judge’s election. 49 The
poll went on to show that when a
judge is asked to disqualify himself from a case for reasons of
perceived bias, only seven percent said that the judge in question
should have the final say as to whether or not to disqualify himself. 86
percent said that another judge should make the final determination
44.
Katz v. United States, 389 U.S. 347, 362–63 (1967) (Harlan, J.,
concurring).
45.
United States v. Carroll Towing Co., 159 F.2d 169, 174 (2d Cir. 1947).
46.
Letter from J. Adam Skaggs, Counsel, Brennan Center for Justice & Bert
Brandenburg, Executive Director, Justice at Stake Campaign, to Mr. Corbin Davis,
Clerk, Michigan Supreme Court (July 31, 2009), available at http://brennan.3cdn.net/b0
60001c454522fab7_xwm6bnp30.pdf.
47.
Press Release, supra note 34.
48.
Press Release, Michigan Campaign Finance Network, Poll: Michiganders
Want a Firewall Between Judges and Campaign Supporters (Mar. 17, 2009),
http://www.mcfn.org/press.php?prId=80.
49.
Id.
322
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on whether the original judge should be disqualified. 50
Public polling in Wisconsin has also echoed national surveys looking
at public attitudes towards the effect of money on judicial decisions. 51 A
2008 American Viewpoint poll of Wisconsin voters showed that “only 5
percent of respondents believe that campaign contributions made to judges
have no influence at all on decisions judges make in the courtroom, while
78 percent say they have a great deal or some influence.” 52 This data was
provided to the Wisconsin Supreme Court and considered during its
deliberations, 53 but was rejected by a majority of the court, which voted
instead to loosen the state’s recusal standards. 54
C. The Backlash Against References to Public Opinion
The debate in Wisconsin demonstrated that injecting public opinion
into the debate over recusal, even when there is overwhelming evidence
that the public believes that judges should recuse themselves in cases
involving campaign contributors, can bring a strong personal backlash
among judges and others who disagree. Wisconsin Deputy Attorney
General Raymond Taffora dismissed polling data showing that most
Wisconsin residents saw a problem with a judge ruling in a case involving a
campaign contributor or a party who made expenditures in support of the
judge. 55 He sought to shift the debate away from public sentiments, writing
that “[m]ost significantly, there is simply no evidence to suggest that
judicial bias has been a problem in Wisconsin courts.” 56 He went on to
stress that Wisconsin’s recusal laws could allow for due process even
50.
51.
Id.
See JUSTICE AT STAKE CAMPAIGN, JANUARY 2008 WISCONSIN SURVEY
HIGHLIGHTS:
WISCONSIN VOTERS SHOW STRONG BIPARTISAN SUPPORT FOR
SUPREME COURT CAMPAIGN REFORM (2008), http://www.justiceatstake.org/media/cms
/AmViewWIPollFactSheet_76C0015493CD4.pdf.
52.
Id.
53.
Testimony in the Matter of Amendment of the Judicial Code of Conduct’s
Rules on Recusal (filed Oct. 28, 2009), available at http://www.wicourts.gov/
supreme/docs/recusalresp11.pdf (testimony of Mike McCabe filed with the Wisconsin
Supreme Court).
54.
See Patrick Marley, Court Adopts New Campaign Donations Rules,
MILWAUKEE J. SENTINEL, Jan. 21, 2010, http://www.jsonline.com/news/statepolitics/823
19592.html.
55.
John O’Brien, Wis. SC: Contributions Shouldn’t Spark Judicial Recusal,
W. VA. REC., Nov. 10, 2009, available at http://www.wvrecord.com/news/222135-wis.-sccontributions-shouldnt-spark-judicial-recusal.
56.
Id.
323
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without adopting rules calling for recusal in cases of campaign
contributions, stating that “disappointed litigants may naturally tend to
question a judge’s commitment to fairness and the rule of law, [but] the
proponents of (the League of Women Voters’ petition) have not shown
that our courts have failed to provide a fair process consistent with due
process.” 57
When the Michigan Supreme Court voted to adopt new recusal
standards, Justice Corrigan, in her dissent, argued that giving weight to
public perceptions could lead litigants to justice-shop. 58 She also pressed a
line of reasoning, rejected by the Supreme Court in Caperton, that a
litigant has a First Amendment right to a judge of his or her choice, arguing
that by allowing recusal because of public perception, the Michigan
Supreme Court “seem[ed] willing to entertain ploys to remake the elected
composition of this Court to fit the ideological or partisan preferences of
certain parties or lawyers.” 59
In late 2009, a subcommittee of the House Judiciary Committee held
hearings on recusal, which included discussion of, and resistance to, the use
of public opinion in recusal discussions. In his testimony, Indiana
University Law Professor Charles Geyh argued in favor of allowing a
second judge to rule on disqualification motions. 60 Geyh asked: “If it
becomes a contested matter, why not transfer it to another judge and
increase the confidence level in the process?” 61 United States District
Court Judge Reggie Walton pushed back against Geyh’s argument, saying:
“I think, by and large, our system works fairly well.” 62 He argued that
Geyh’s proposal could leave the door open for overzealous litigants
looking to gain an advantage, which “becomes particularly problematic,
because you don’t want parties to judge-shop.” 63
57.
58.
Id.
Amendment of Rule 2.003 of the Michigan Court Rules, ADM File No.
2009-04, at 15 (2009), available at http://courts.michigan.gov/supremecourt/Resources/
Administrative/2009-04-112509.pdf (Corrigan, J., dissenting).
59.
Id. at 16.
60.
David Ingram, Congress Set to Take Aim at Judicial Recusals: House
Judiciary Committee’s Interest Marks the First Time Congress Has Flirted with Recusal
Guidelines Since a 2004 Scrap Between Congressional Democrats and Justice Scalia,
NAT’L. L.J. Nov. 2, 2009, available at http://www.law.com/jsp/article.jsp?id=12024350
99939.
61.
Id.
62.
Id.
63.
Id.
324
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Legal scholarship has also taken note of this backlash. For example,
Alex Kozinski noted that opponents of recusal reform argue that
disqualification rules concerned with minimizing the appearance of bias
will distract attention from more pressing issues of actual bias by elevating
appearance over reality. 64
But the consideration of public attitudes and the appearance of
fairness has gained support from the Conference of Chief Justices, a body
that comprises the top jurists from every state and territory in the United
States. In its amicus brief filed in Caperton, the Conference cited two
national polls and eight single-state surveys that suggested “public
skepticism about the effect of contributions on judicial outcomes.” 65 The
Conference’s brief directly linked recusal to the impact of campaign
spending on public confidence in the courts: “As judicial election
campaigns become costlier and more politicized, public confidence in the
fairness and integrity of the nation’s elected judges may be imperiled.
Disqualification is an increasingly important tool for assuring litigants that
they will receive a fair hearing before an impartial tribunal . . . .” 66
III. PROPOSALS FOR FURTHER RESEARCH
If public opinion is going to be properly accounted for in recusal
decisions, and in the debate over recusal, more remains to be done. Most
public-opinion research on issues surrounding recusal, like Gibson’s and
Caldeira’s, focuses on the public’s views as to whether campaign
contributors can affect judicial decisions, and whether a judge should
recuse herself in cases involving campaign contributors. However, there
has been little research into the public’s views on how third-party groups
affect judicial decisions, and whether a judge should recuse herself from a
case involving a third-party group that has spent significant amounts of
money to advertise during the judge’s campaign.
There is also a need for public-opinion research into whether there is
higher confidence in the judiciary—and thus, less need for recusal reform—
in states that have stronger disclosure rules for judicial campaigns. In
addition, there is little comparative research into the actual effects of
64.
Alex Kozinski, The Real Issues of Judicial Ethics, 32 HOFSTRA L. REV.
1095, 1096 (2004).
65.
Brief of the Conference of Chief Justices as Amici Curiae Support of
Neither Party at 24, Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009) (No. 0822).
66.
Id. at 4.
325
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different recusal policies and procedures for hearing recusal motions, and
their effects on public confidence in the judiciary.
IV. CONCLUSION
What role should public opinion play in a judge’s decision to recuse
herself from litigation? At a case-by-case level, it would be wrong for
judges to consult a poll to make that decision. But since recusal decisions
are deeply rooted in considerations of reasonableness, there is no getting
around the fact that the views of ordinary Americans matter—both in
setting recusal policies, and in implementing them.
A traditional reason for citing public opinion as a check on judicial
behavior is as a function of judicial accountability. Certainly, to the degree
that public opinion parallels ethics requirements—like the requirement
that judges recuse themselves from cases involving relatives—
accountability pressures reinforce the real and perceived fairness of courts.
Another well-established reason for weighing public opinion is that
courts need the confidence of the public to carry out their mission. Public
confidence is necessary for the health and legitimacy of the judiciary. But
as with considerations of accountability, it would be troubling if judges
cited public confidence in making their decisions.
The most compelling reason for considering public opinion in setting
and executing recusal policy is the most paradoxical: it reinforces decisional
independence. The 2005 Terri Schiavo episode, in which national interest
groups got involved in a family’s end-of-life ordeal, is instructive. 67 At the
behest of a small but well-organized network of organizations, Congress
passed a law seeking to tamper with a single case. 68 But after watching the
case on cable news for several weeks, and learning that the court system
was operating as it was supposed to in the Schiavo case, Americans of all
parties and ideologies rejected political interference—even many who
disagreed with the Florida court’s ruling. 69 Political elites in Washington
listened: After the Florida appellate courts upheld the lower court
rulings, 70 Congress took no further action and ignored calls to investigate
67.
See Gary Langer, ABC News, Poll: No Role for Government in Schiavo
Case: Federal Intervention in Schiavo Case Prompts Broad Public Disapproval (Mar.
21, 2005), http://abcnews.go.com/Politics/PollVault/story?id=599622&page=1.
68.
Relief of the Parents of Theresa Marie Schiavo, Pub. L. No. 109-3, 119
Stat. 686 (2005).
69.
See Langer, supra note 67.
70.
See Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004), cert. denied, 543 U.S. 1121
326
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or impeach the judges handling the case. The crisis subsided because
Americans reacted to this educational moment.
If judges are under pressure to deliver results for campaign
supporters, which is the whole reason political actors spend big money,
then public pressure for recusal can act as a counterweight on behalf of
judicial independence. The fact that the public may be ahead of judges in
demanding more frequent recusal is not all that surprising, since
institutions like the judiciary do not typically embrace with gusto changes
to the status quo. But Americans, who have pretty good instincts regarding
the rule of law, and who become angry when they believe justice is being
thwarted, are likely to demand that judges be more willing to step aside in
the name of justice.
(2005).
327

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