Thursday, February 28, 2019

Great Public Harm - and Social Media

The Florida Bar filed a Petition for Emergency Suspension recently in a case styled The Florida Bar v. Ashley Ann Krapacs. The Petition provides an illustration of some of the perils of social media. In it, there are thoughts about freedom of expression, as well as the Rules Regulating The Florida Bar. It is an interesting read. As an aside, I recently read a string on LinkedIn in which some seasoned attorneys were cautioning new attorneys about correspondence and email. Their theme was essentially to forgo quick responses, to allow moods to cool, and to respond without emotion. I agreed with their advice, and now think it may be good advice for the use of social media as well. 

The Bar alleges Ms. Krapacs:
"has caused, or is likely to cause, immediate and great harm to clients and/or the public and that immediate action must be taken for the protection of the Respondent's clients and the public."
It therefore asks the Florida Supreme Court to immediately suspend Ms. Krapacs' license to practice law in Florida. According to some information in the Petition, she is also concurrently licensed in other jurisdictions.

Ms. Krapacs was "admitted (to The Florida Bar) on April 25, 2016." The Bar explains "Ms. Krapacs was in a personal relationship with Gregory Knoop, a non-lawyer and resident of Texas." After moving to Florida, Ms. Krapacs "initiated a Petition for Domestic Violence Injunction against Knoop." She "alleged that Knoop had previously abused her and was in fear of future abuse." 

Mr. Knoop hired attorney Russell J. Williams. There were proceedings before Judge Kaplan. Following those proceedings, The Bar alleges that Ms. Krapacs made statements on social media regarding the attorney, the judge, and the judicial process. Thereafter, Mr. Williams hired an attorney of his own, Nisha Bacchus, about whom further social media statements were allegedly made. The Bar accuses Ms. Krapacs ("respondent") of thus having: 
"targeted these two members of The Florida Bar with a variety of vicious social media online continuous attacks and other conduct as a result of their representation of clients in litigation against this Respondent." 
The Bar alleges that Ms. Krapacs has also expressed an intent to "'connect' with Ms. Bacchus' former clients," in an effort "to destroy Ms. Bacchus." It alleges she has expressed an intent to file a Bar complaint against Ms. Bacchus, and to represent "several of her former clients in various bar complaints and potential malpractice cases." There are specific examples provided in the Petition. 

In response, Mr. Williams and Ms. Bacchus sought relief from the court system, according to the Petition. Ms. Bacchus obtained a "Temporary Injunction for Protection Against Stalking." And she filed a police report. More recently, "Ms. Bacchus' Request for a Permanent Injunction was granted." Mr. Williams filed a lawsuit "for Libel, Slander, Malicious Prosecution and Injunctive Relief." For clarity, The Bar notes it "is not concerned with the outcome of these (legal) proceedings," but cites their existence in explanation and support of the Petition. 

The Bar contends that Ms. Krapacs' actions on social media "strike at the heart of conduct prejudicial to the administration of justice." It alleges that her "attacks are solely because attorneys Williams and Bacchus represent or represented individuals adverse to the Respondent (her)." The Bar asserts that this social media effort has included "Facebook, Instagram, Linkedln, and . . . YouTube."

The Bar characterizes Ms. Krapacs' social media efforts as:
"a social media blitz."
"a personal and public war."
"an attack of massive and continuous proportions."
"unilateral uncivilized public attacks."
"terrorist legal tactics."
"guerrilla (w)arfare."
"outrageous conduct."
"egregious conduct."
"venom."
"attempts to crucify Ms. Bacchus."
The Bar further alleges that as regards incivility, The Bar "deems this Respondent's conduct to have exceeded any yet known boundaries." 

The Petition says that Ms. Krapacs contends (a "misguided belief") "that the First Amendment (freedom of expression) shields her from scrutiny and prosecution by The Florida Bar for egregious misconduct." It asserts, however, that "the First Amendment does not protect those who make harassing or threatening remarks about the judiciary or opposing counsel." Furthermore, that "lawyers are required to refrain from knowingly disparaging or humiliating other lawyers." (citations omitted). 

The Bar contends that such "outrageous conduct only serves to perpetuate the public's perception that lawyers are uncivilized."

Among the statements allegedly included in the social media postings were:
"Old White Male Attorney."
"opposing counsel blatantly, flat-out LIED."
"The Old Boy's Club is alive and well."
"sell out."
"traitor."
"piece of garbage."
"greedy, evil people."
There were allegedly also accusations made on social media that the judge was "biased and sexist." Ms. Krapacs allegedly also referred specifically to attorney Williams as a "bully," "a moron," and "a sexist."

In addition, there were words allegedly used on the social media platforms which some would perceive as insulting or vulgar, and which I will not repeat (another aside, I have made it a practice to block social media followers who use vulgarities, I simply do not care to read them).

In one, Ms. Krapacs allegedly suggested to Mr. Williams "just don't be a (anatomy reference deleted)." In another, she allegedly referred to a legal proceeding as a "completely frivolous (male bovine manure reference deleted) lawsuit." And in reference to Mr. Williams having hired Ms. Bacchus, Ms. Krapacs allegedly asserted "he is playing her like a (crass reference) fiddle." There are other uses of expletives alleged. In one alleged statement, an expletive colloquially known as the "f-word" was repeated over ten times. 

The Bar's Petition came to my attention when a story by Raychel Lean in the Daily Business Review caught my attention, believe it or not, on social media. Though there are perils of social media, it nonetheless does effectively distribute information as you are proving by reading this blog. 


Ms. Lean's story includes analysis from legal experts. One noted that "this case is the latest example of a culture clash between the legal world and the cyber realm." While that is poignant, I would suggest that the clash is more specifically between the legal world and the modern "convenience" or "accessibility" of the cyber realm. Notably, the interviewed experts seem to be in agreement that lawyers and judges do forgo some measure of the right to free expression when assuming their respective roles. 

One stressed that "it's easy for an attorney to have hard feelings." That is true. Find me a lawyer that has never had hard feelings, and I will be most impressed. I have certainly had them, and witnessed them in others. A great many hours have been spent over my years in this profession listening to attorneys vent their feelings. Many of those times because she/he was certain some judge somewhere just did not get it. But, venting to a sympathetic ear is not the same as venting to the entire world. My advice to attorneys is to find some mentor or peer to whom you can vent frustration and hard feelings. There is a cathartic effect of getting things off your chest. 

However, as exasperated as those lawyers have been, I have only experienced one expressing those thoughts and perceptions as publicly as is alleged in this Petition. That instance did not involve social media, but mass-mailings. Those mailings came at all hours of the day and night, venting, accusing, and some felt even threatening. So, such feelings are not new; communicating about feelings is not new. Instead, I suggest that social media has merely made it simpler to communicate about them, "louder" and to a broader audience?

While some will decry the legal profession and perhaps express perceptions of its decline, maybe the profession is sound in large part but the modern conveniences more easily facilitate or illustrate our human shortcomings? I suggest that we will all be periodically frustrated and that the best advice out there is to strive to wait, to calm, to contemplate, before we respond. Whether its a letter, a post, or a tweet, perhaps time can be the buffer we need in order to marshal our thoughts, restrain our disappointment or other genuine emotions, and regain our professional composure before we proceed?

At the end of the day, attorneys must remember that their goal is to effectively represent the interests of their client. In that profession, there will be victories and defeats. There will be disappointments, frustration, disbelief and anger. Bottling that up inside is not healthy for us personally; we need to confide it, to vent it. When we do, I think that our mentors and peers will be more receptive if we avoid epithets, insults, and vulgarity. And, it may not be appropriate to do so through social media, the Court will perhaps provide some explanation and guidance on that when it rules. Certainly, the resolution of this intriguing Petition will be interesting to observe. 




Tuesday, February 26, 2019

Definitions, Due Process and Waiver

The Connecticut Appellate Court decision illustrates some interesting aspects of workers' compensation. Melendez v. Fresh Start General Remodeling and Contracting, 183 A.3d 670 (Conn. App. 2018). Fresh Start appealed after the Connecticut Workers' Compensation Review Board affirmed a Commissioner's decision that ordered benefits be provided to an injured worker. Several issues in the case make it worthy of discussion. 

The injured worker was working for a contracting and remodeling company, but the work was performed at the home of the owner of Fresh Start. Thus, at first blush, the case appears to be a homeowner case. The Fresh Start owner, Michael Gramegna, had elected to do business without purchasing workers' compensation coverage. Mr. Gramegna's girlfriend was driving the worker to Gramegna's home, when they were involved in a vehicle accident that resulted in injury. 

The first point is worthy of notice. The employer in this case was ordered to provide workers' compensation benefits. Fresh Start did not have workers' compensation insurance but was ordered to pay benefits nonetheless. Too often, there is a perception that if there is no insurance, then benefits under various state programs are not due. That is not generally the case. 

In Florida "every employer and employee . . . shall be governed by" the workers' compensation law. Section 440.03 Fla. Stat. If there is an accident, "the employer must pay compensation or furnish benefits required by" the law. Section 440.09FlaStat. Further, "the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance." Section 440.13(2) FlaStat. Employers are supposed to "secure the payment of compensation," that is obtain insurance or be approved to "self-insure." And, there are penalties for employers that do not. Section 440.06 FlaStat. But, in the end it is the employer that is responsible for providing the employee benefits. 

Mr. Gramegna contended that the injured worker was not "an employee" as that term is defined by Connecticut law. That is a pertinent point in itself. Whether a particular person is or is not entitled to benefits under a particular state's laws will depend on that state's laws. One of the points raised by Mr. Gramegna was a factual one, essentially regarding a state law exception under which people who work (1) at "a private dwelling," but not (2) "regularly employed by the owner" and (3) "over twenty-six hours per week." Using this statutory exception, Mr. Gramegna argued that the injured worker was not an employee. 

The Commissioner disagreed. The Commissioner concluded that the injured worker had performed work for "approximately eleven weeks." The Commissioner did not consider the workers' efforts over a year, or 52 weeks, but only over the 11 weeks of actual work. The Court acknowledged that for a long-term relationship the amount of time worked should be considered in the window of a 52 week period. But, it affirmed the eleven week analysis in this case noting that when the relationship is shorter than 52 weeks, then the appropriate period for analysis is the actual period of the relationship. That analysis revealed a "consistent schedule," that was "four to five days per week," and averaged over "thirty-eight hours per week." 

A pertinent lesson from this analysis is that technical arguments may be difficult in workers' compensation cases. A 52 week analysis, when the parties did not have a 52 week relationship, would likely work to bar many claims that otherwise exhibit some merit. The Court's analysis essentially acknowledges that equity concern and resolved it in favor of a process that allows the case to be determined on its merits. The Florida Courts have described such as a "public policy favoring disposition of litigation on the merits, rather than upon technical matters of procedure." Westberry v. Copeland Sausage Co., 397 So. 2d 1018 (Fla. 1st DCA 1981). 

The Connecticut Appellate Court noted a second argument raised by Mr. Gramegna, that the injured worker "was a casual laborer" and therefore not entitled to benefits. But, the Court did not consider the substance of that defense. It noted instead that Mr. Gramegna had raised that issue, and that the Commissioner had disagreed. The Court held that Mr. Gramegna should have filed "a motion to correct the challenged finding," but did not. And, because he did not, and did not demonstrate a good reason that he did not, he could not raise that issue for appellate consideration. 

In Florida, the parties are required to effectively litigate their issues at trial. They must "preserve" their issues by litigating them fully. Holiday Inn v. Sallee, 496 So. 2d 227 (Fla. 1st DCA 1986). That includes the process of seeking rehearing, moving to vacate an erroneous order, or otherwise seeking to alleviate any trial court error without the need for an appeal. Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321 (Fla. 1st DCA 2011). The decision in a situation such as this would therefore presumably be similar in Florida. Failing to raise an issue or defense, or failure to alert the trial judge by seeking rehearing regarding a failure to address such, may result in the appellate court concluding the issue or defense is waived. 

Interestingly, this accident occurred during the commute to work. Mr. Gramegna's girlfriend, presumably not a coworker at Fresh Start, was driving the injured worker to the home. Often, accidents that are suffered in the process of commuting, that is while "going and coming" to work are not covered by workers' compensation. They are excluded by what is referred to as the "going and coming rule." There are exceptions in various states for various employees. One of particular interest is for police officers, discussed in Police Officers and Course and Scope. But, the parties in Fresh Start did not make this commuting situation a primary issue in their dispute. 

Finally, it is notable that the employment relationship between the injured worker and Mr. Gramegna began "in the fall of 2011." The motor vehicle accident occurred January 13, 2012. And the appellate court decision that finalized the litigation was rendered in 2018, over six years later. Litigation and disputes can require a great deal of time. That is a point worthy of persistently reminding ourselves. 

Of that time, the Court noted one point that is worthy of mention. The trial in this matter concluded in November 26, 2012. The Commissioner issued the "award determination," which in Florida would be a "compensation order" on March 26, 2013 (120 days). In Florida, such an order would have been entered within 30 days, often more quickly than that. It is not clear why a simple trial order would take four months to draft and issue. 

The next fall, Fresh Start complained about the form of the notice provided for the trial, and alleged that Mr. Gramegna was therefore deprived of due process. The matter was then essentially retried. On April 30, 2015, about 18 months after that due process issue was raised, the Commissioner concluded the record was closed. The Commissioner issued a new "award on June 2, 2015," Thus, the trial determination ultimately required more than four years following the accident. That delay is troubling. 

Though the litigation itself thus required significant time. It is notable that the appellate process thereafter required almost three additional years. The point is that litigation does not move rapidly sometimes. Consideration of the requirements for due process, for everyone involved to be informed of the process, claims, and defenses, can be time consuming. For the evidence to be developed, documented, and presented can take time. To hold a trial, consider the evidence, and prepare an order can take time. However, everyone involved should remain focused on expediting the resolution of the dispute. Everyone should remember that it is not a case, but a person that is being affected. 

Sunday, February 24, 2019

The FLREA and a Great Week

It seems like the news is always bad. Back in 1982, Don Henley of Eagles fame had a solo hit Dirty Laundry. The song parodies the news industry with reminders about its focus on the negative. There he said things like "It's interesting when people die," "Get the widow on the set," and he concludes with 
"We can do the Innuendo, We can dance and sing, When it's said and done, We haven't told you a thing, We all know that Crap is King"
It’s not a challenge to find news of individuals acting poorly. The media persists in bringing dark images for us. As Don Henley so aptly reminded us, that is what draws viewers and thus what the news portrays. 

I think we long for good news. I think we all want some reassurance that tomorrow may bring good. And once again, last week, I enjoyed the opportunity to experience the good. I was privileged to interact with 48 exceptional young people engaged in the Florida Law Related Education Association (FLREA) Mock Trial Competition in Florida’s First Judicial Circuit. 

This year, I was the local coordinator. I planned and choreographed (it is intensely demanding and rewarding). In years past, I have primarily been a presiding judge, but periodically a time-keeper. I missed the presiding role this year, more on that later. I caught the bug for this endeavor many years ago in Jacksonville when I had a brief opportunity to help a team at Fletcher High School, coached by the legendary Ed Lange. He was truly a legend in high school mock trial. I was privileged to know him, however briefly. 

Six high school teams appeared this year in the First Circuit, each comprised of eight students. We originally had a record eight teams register, but two dropped out at the last minute. They were tasked with presenting a fictional trial presentation including opening and closing statements, direct and cross examination of witnesses. 

In the end, there was a victor. But throughout, there was growth, achievement, and various smaller accomplishments. This year, I missed having the opportunity to preside over a round. I had agreed to organize the tournament, and felt it best not to preside. But I was present and able to observe periodically during each round. I came to some conclusions. 

First, regardless of the news' failure to persistently remind us, there are exceptional young people today. They work on developing their skills, their futures, and frankly our futures as well. I was reminded of a stanza from The Greatest Love of All covered by Whitney Houston in 1985 
"I believe the children are our future, Teach them well and let them lead the way, Show them all the beauty they possess inside, Give them a sense of pride to make it easier"
That song should remind us of the critical value that our young possess. They will mature at different rates, peak at different stages, bring various skills, interests, strengths, and weaknesses. But, they are all our future. We will come to live with the world that they form as we all fade to the back of this proverbial stage. They need us so much, but we have to remember the symbiosis: we need them so much more. 

In this Circuit, we are amazingly fortunate to have the financial support of the Escambia Santa Rosa County Bar Association (ESRBA), particularly the Young Lawyers Division. Because of their resources and generosity, this competition is not held in classrooms, but in court rooms at the circuit courthouse. Because of their generosity, we are able to place trophies and gavels (individual awards) in the hands of these exceptionally hard-working students. 

At the conclusions of the week, I struggled somewhat through the awards presentation. The exuberance and excitement of the victors is heartening. But the disappointment of the rest is palpable. I applaud the winners headed to Orlando for their next challenge, but I personally identify more with those who will not advance to the state competition. I feel their disappointment, and I commiserate. 

As hard as they have worked, as exceptional and outstanding as they are, I lament they cannot all emerge victorious. But on reflection, I remember that the best lessons I have learned in life came not from my victories and successes, but from disappointment. I remember those times when I stumbled and fell. I grew from those bumps and bruises. I look back on several of those today with appreciation for what they taught me, though they were certainly hard at the time. Some even make me smile and laugh today though. 

At the awards ceremony, the President of the Young Lawyers Division, Jessica Etherton, was generous with her praise of the participants. She thanked the various lawyers who contributed time to judge the contest throughout the week. She explained that her coworkers at the State Attorney's Office had spoken enthusiastically about their perceptions of the students. She encouraged the students to aspire to law school, to return to their communities here in the Florida Panhandle, and to become members of the bar and particularly the Young Lawyer's Division. 

She was not the only person to deliver inspiring words. The rounds in this Circuit were all presided over by actual judges. There were two federal Judges, Roger Vinson and Elizabeth Timothy; two Circuit Judges, Gary Bergosh and Michael Jones; County Judges Amy Broderson, Jennifer Frydrychowicz, and Kerra Smith; and from the Office of Judges of Compensation Claims, Judge Jonathan Walker. It was a stellar group. We had twenty local attorneys participate to score the rounds. And after each round these folks spent time with the students, provided feedback, encouraged, mentored, criticized carefully, and taught. 

The astounding team sponsors are each high school teachers. Over the years, I have met several. Few have any significant legal training. They therefore tend to augment their team with a local attorney coach as well. These dedicated mentors contribute literally hundreds of hours of time to the development and growth of these young people. They remind me of The Bridge Builder poem by Will Allen Dromgoole. Throughout the week the student's talent and dedication showed, as did the careful coaching of so many talented teachers and attorneys. 

As I reflect on the week, I am struck by some memories. First, I was so impressed with the professionalism, the poise, the persistent "yes sir" and "thank you" that I heard. I was overwhelmed by the number of students, throughout the week, who expressed their gratitude for the effort that went into organizing the program, my role. They always file past those judges and lawyers after the critique, shake hands, and say thank you. But, I was touched that they would recognize my effort in the endeavor, as I was behind the scenes this year. Their attitudes and perceptiveness were truly heartwarming. 

I was caught off guard by one comment however. As mentioned, I have presided in this contest for many years. The older students this year let me know they remembered me from that role. Several asked me why I was not presiding. I was flattered frankly that they even remembered me. 

After all the awards were presented, and the courtroom had significantly cleared, I was picking up wrappings from an award when one student in a group called out. He said something like "would you just once for us say 'I understand, overruled.'" Apparently, at least with some small group, I have a catch-phrase. Perhaps I overrule more than I sustain? Certainly, it is no “gitter done,“ or "I say nay nay," or even "I'm fluffy" that we associate with some famous comedians. But, in a Captain Jack Sparrow way ("but you have heard of me"), I am flattered and touched. 

Caught off guard in that moment, I was surprised and I didn't say it for them. But, I was touched that over the years these students have listened. Perhaps, just perhaps, something else I said made a difference to one of them. Maybe, just maybe, the hours spent presiding, time-keeping, and organizing brought value to one or more students. And, as mentioned above, that is critical because as much as these students need us, we cannot forget that we need them more. 

I am proud of them all. I am grateful for their effort and achievement. And, I am grateful for all of the lawyers, judges, teachers, and other volunteers that make this competition possible. Finally, I am thankful for the FLREA, without whom there would be no such competition to inspire and enrich these leaders of our future. If the spirit takes you, look for a similar organization where you live so that you too can participate, coach, or judge. If you need help finding one in Florida, contact me (judgelangham "at" yahoo.com) or the FLREA.

Thursday, February 21, 2019

Here we go Again?

In 1966, The Rolling Stones released Mothers' Little Helper. In it, Keith Richards and the band explained 
Mother needs something today to calm her down
And though she's not really ill
There's a little yellow pill
She goes running for the shelter of her mother's little helper
And it helps her on her way, gets her through her busy day. 
As an aside, note that The Rolling Stones had their first chart single in 1963. Believe it or not, they are touring again in 2019, the "No Filter Tour." An amazing run, no matter what anyone thinks. And, despite the lyrics' seeming suggestion that medication might be taken when one is "not really ill," the fact is that in a great many instances medication is both symptom relieving and even life-saving. This post is not an indictment of medication. But, perhaps we might all do well to question our use and whether there are non-medication solutions to try also? 

Those Stones lyrics came back to me with a recent announcement about loneliness. Dr. Stephanie Cacioppo is trying to develop a pill for loneliness. One focus of the research is on the effects that loneliness can have on "the brain and the body." She and "countless other Americans, and scientists believe that it is a condition that not only hinders our happiness but our health."

The goal is "a pill that can soothe brain activity." Dr. Cacioppo says that loneliness is an epidemic, and that it "increases the risk of dementia, diabetes, and even death." She says that "almost half of Americans say they" suffer to some degree from loneliness. Because of our nature as social beings, she contends that isolation portends disease processes like "diabetes and dementia," and may contribute to "destructive activities such as smoking and drinking." 

Researchers have evidence of isolation contributing to, perhaps causing, some physical manifestations. The one "more thoroughly explored" is the link hypothesized between loneliness and dementia. Loneliness has been seen as leading to physical changes in the human brain, "inflammation, which in turn promotes memory loss." There are similar hypotheses regarding heart function and other physical maladies. 

The results of Dr. Cacioppo's research have suggested that a natural steroid produced by our body may be the "key to production of many hormones" which we require. This steroid, pregnenolone, stimulates other systems in our bodies. In a University of Michigan study, "a derivative of pregnenolone" was perceived as suppressing activity in certain portions of the brain. Test "participants said they also felt less anxious." Notably, pregnenolone is an over-the-counter "supplement," so long as it is derived from animals and not created synthetically, that is marketed as "an anti-aging and pro-memory supplement." 

The story of Dr. Cacioppo's research thus works from a premise that a pill could be developed and concludes with an over-the-counter pill already exists. There is little edification as to why her efforts are significant to us in light of that, unless it is to verify the effectiveness of this existing solution. The story left me wondering whether she seeks to refine and improve this existing remedy or whether it is a path towards some more efficacious solution of combination. 

Is there promise for a pill to make us feel less lonely? Is a pill the answer? Might the real cure for loneliness be human interaction and engagement? Certainly, there are living environments that are more conducive to that than others. As certainly, some people are more open and engaging for social interaction than others, but before we turn to a pill for loneliness, might we consider some of our American history with pills. 

A few years back, Time reported that Some antidepressants "Make you Feel Worse before you Feel Better." The study cited says that these drugs may take weeks or even a month before there is improvement. In fact, the Food and Drug Administration requires warnings on these chemicals "of possible suicidal thoughts and behaviors." 

There are reports on the Internet of patients who claim that medications made their symptoms worse. Patients have complained about a particular medication increasing depression. Another patient has complained about various medications. Yet another is troubled by still another. Thus, there is anecdotal evidence of various pills not being the be all and end all solution to people's symptoms. And, some may have side effects we did not expect or want. 

Further, there have been allegations of some instances in which people began using medication possibly for the wrong reason. One pharmaceutical firm founder was "arrested and charged with bribing doctors to overprescribe the drug." Another story describes the arrest of six executives, accused of "a well-organized plot to have doctors overprescribe." There have been arrests and lawsuits, settlements and pleas. As a result, there may be some Americans who lack faith in the pharmaceutical industry today. 

Some will remember the dynamic growth in Ritalin prescriptions. PsychCentral.com reports that Ritilin is a useful and effective drug. However, there is some sentiment that it has led to an "over-diagnosis of ADHD (attention deficit hyperactivity disorder) in children. The author of that critique warns that "Americans have a tendency, more than any other nation on this Earth I think, to want to pathologize behavior which they do not understand or which they have no patience for." As a result, he contends that "too many clinicians nowadays are too quick to diagnose ADHD." He contends diagnoses are too quick, lack evidentiary support, and some "believe Ritalin is being overprescribed." 

In short, there have been news reports and anecdotes that have led the American people to doubt medication. This may be due to doubts about medicine efficacy, the competence or engagement of doctors, or the methodology or trustworthiness of pharmaceutical companies. Of course, there is no reason that people might distrust medication for other reasons entirely, or even a combination of various reasons. 

So, maybe the solution for loneliness that should be tried first would be engagement? Anyone can become lonely. News4Jax.com recently reported a man became so lonely, having used all of his cell phone minutes, that he began calling 911 just to chat. He was arrested and stands accused of making about 200 calls to 911 to cure his loneliness. 

In January, ABC News reported some good news regarding depression. It describes the results of a survey published in the Journal of American Medical Association (JAMA) Psychiatry regarding depression. The study included "genetic data of 300,000." The people "with higher levels of physical activity had lower odds of major depressive disorder." The conclusion is that "physical activity may causally reduce risk for depression." The authors concluded that "any activity appears to be better than none," but they recommend "replacing sedentary behavior with 15 minutes of vigorous activity each day." 

Thus, perhaps one could fight the burden of obesity, discussed in How can they Both Increase, and at the same time reduce risk of some emotional issues. And, perhaps by engaging in that activity with others, the loneliness challenge might also be approached? Perhaps there is aid to our human condition in exercising with others? There are exercise classes available in a variety of environments from a variety of organizations. There are a multitude of events and activities in most communities. One of the most inspirational people I've met, Nicole Marquez (An Indomitable Spirit), recently posted about surrounding yourself with people "lifting each other up." Anyone who ever thinks "I can't" just needs to read her story of how she got back up and did it anyway. 

In the end, even if activity with others is not the be all and end all, is there any harm in trying it to see? See you at

Tuesday, February 19, 2019

Distinctions, Differences, and Disparity

I recently penned Reminded of Death Benefits, including a discussion of a tragic event in Michigan in which an employee was found submerged in a vat of acid solution. He was rescued and treated by co-workers, transported and treated by first responders, and later died from his injuries. It was a story that reminded of the limits of workers' compensation benefits, and of some challenges. 

Expanding on that subject, today's focus is upon those who are so fortunate not to be the one who suffers the injury. There are many who may witness or even participate in recovery from untoward events in the workplace. As I wrote the post regarding the February 13, 2019 story of Mr. Hill, the news broke February 15, 2019 of a work-place shooting in Aurora, Illinois. Neither event is unprecedented, and many readers will see no commonality between a fall into acid and a workplace shooting.

But, the commonality is in those who survive such events. The Michigan death was tragic. Co-workers found Mr. Hill submerged in the vat of acid solution. He had suffered burns (possibly both chemical and thermal) over 100% of his body. The burns were serious, and Mr. Hill would later succumb to those injuries. 

However, his co-workers were the ones that found him. Several suffered burns of their own reaching into the vat to retrieve him. They provided the first aid they could, placing Mr. Hill in a "safety shower" in an attempt to rinse the caustic from his body. Mr. Hill was still "walking and talking" when first responders arrived to provide treatment and transportation to the hospital, according to The Detroit News

From an emotional standpoint, now, think of finding one of your co-workers in such a predicament. Imagine hearing the co-worker's complaints of pain, discomfort, and fear. Picture yourself providing first aid and care for your co-worker as you wait a seemingly interminable time for the professionals to arrive (even if they arrive in record time, it would perhaps seem like forever if you were there providing the care you could). Some co-workers reportedly suffered their own burns reaching into the acid to retrieve Mr. Hill, that is physical injury. But, what about emotional affects? 

In Aurora, eleven people were victims of a workplace shooting. Five were killed; so was the shooter. As is so often the case, the shooter "illegally had a gun." There will be discussion of gun control and stricter laws, but in many instances our present laws are already being broken or disregarded in these situations. The shooter is dead. Reportedly, he "just been fired before he started shooting." It is a reminder that termination from employment can certainly be an emotional experience; For those who have never had to terminate someone, it is worth noting that firing someone is also stressful and emotional. 

The shooter in Aurora, angry about his termination, appears to have re-entered the company facilities and taken retribution on those who participated in terminating his employment. Notably, the shooter had six prior arrests in Aurora and one in Mississippi. The authorities were summoned, and in the process of dealing with the shooter five police officers were also shot and wounded before the shooter was killed by the officers. I suspect shooting someone is stressful and emotional, even when doing so is to save the lives of others. 

From an emotional standpoint, imagine being one of the lucky Aurora employees able to go home that night and hug your family. Some of them, however, may have questions in their minds of what they might have done to aid those injured or killed. There is a phenomenon called "survivor guilt" that afflicts some. Even in the absence of such a feeling that you could have helped, survivors face the loss of co-workers and friends. 

In both Aurora and Michigan, there are workers this week who will struggle to deal with loss. They will struggle with what they saw, smelled, heard, and felt. They will deal with a spectrum of emotions and feelings that many of us fortunately will neither ever bear or perhaps fully understand. They will hopefully express their reactions, fears, and feelings to each other and professional counselors. But, they will likely be treated differently by the law. 

As a people, we granted authority to our government. The Constitution of this Republic is a grant of authority to the government. The people and the states have given that authority, for what was intended to be specific and limited powers. Despite that sentiment and intent, our governments (state and federal) have grown and expanded their influences into our lives. I am persistently amazed at how many people forget (or perhaps never knew) that ours is a government "of the people, by the people, for the people." In the vein, perhaps anyone with criticism of the government should remember Walt Kelly's witticism "we have met the enemy and he is us." 

One example of government influence is the institution of workers' compensation laws across this county. Though few acknowledge it, workers' compensation is one of the first, and perhaps the most successful, examples of "tort reform" in America. We did not invent it (that distinction goes to the Germans or the British depending upon your definitions and descriptions), but it now exists in all American jurisdictions as well as in various federal laws. 

In a sweeping change to the U.S. Constitution, the Fourteenth Amendment was ratified in 1868, one of the "Civil War Amendments" that both ended slavery and set the stage for significant civil change in American society. A great deal of our societal progress in the twentieth century can find its roots in the Fourteenth Amendment, which is often referred to in shorthand as the "equal protection clause." 

That label comes from the last phrase of Section One of that amendment that says no state shall "deny to any person within its jurisdiction the equal protection of the laws." There is a common sentiment and belief in America that people should be treated equally by the law. Despite this constitutional admonition, there are some who believe that some laws in fact do treat people differently.  

Some see the disparity with which laws affect various racial groups and conclude flaws in equal protection. Some see disparity in political or electoral processes. Others see more general flaws in prosecutorial decisions. Anyone can agree or disagree with these or a raft of other arguments raised in the name of equal protection. One fact seems to be that Americans generally favor equal protection, but that there is a struggle to define what that means in various specific instances. 

And, the "grumpy old men in the balcony" have by this point in the post begun muttering "what does this have to do with workers' comp?" There are far too many who forget that workers' compensation is a law, and in this country the foundation for all law came from the people and is embodied in the constitutions, state and federal. These establish government, define boundaries between branches, and provide checks and balances. These constitutions, in themselves, are a check and balance on government. The grumpy old men should remember that societal pervasiveness in their retrospection perhaps. 

That long path leads us back to Aurora and Michigan. In each instance there are the victims that have passed away. Their families will be impacted by the methodology of the two states' workers' compensation death benefit structures. As pointed out in Reminded of Death Benefits, the families in Illinois and Michigan may be treated differently from each other. Workers' compensation depends upon state law, and each state's law has its distinctions. By virtue of being in Illinois versus Michigan, the worker's benefits may be different. 

But what of those left behind? The truth is that employees with purely emotional injury may be treated differently from those with physical injury. There may be employees in both instances that perhaps suffered both, such as the police officers that were wounded and saw the disturbing scene or the coworkers that both burned their hands and witnessed Mr. Hill's condition. But, there may also be those who have no physical injury, but emotional injury or issues, and their state's law may treat them differently. 

Some states do not afford workers' compensation benefits to those who suffer only emotional injury. These states engage an "impact rule" that predicates entitlement to workers' compensation on a physical injury. When such a physical injury results in emotional injury, these jurisdictions will provide care and benefits related to that resulting emotional injury, but not for emotional injury standing alone. In that, there are those who see an issue of equal protection. They see two employees in the acid accident, one who burned their hands rescuing Mr. Hill and another who merely helped, hands on, with his care and treatment while awaiting the professionals. Those two employees, one with a physical injury and the other without, might have their emotional injury treated differently in various states. 

There are also a number of states, and the volume is seemingly expanding, in which people with certain occupations are treated better by the law than those in other occupations. In those states, a "first responder" like a firefighter, paramedic or police officer with no physical injury may be entitled to workers' compensation benefits for emotional injury alone while other employees are not. The law in some states presumes that a paramedic witnessing a shooting victim should be compensated for purely emotional injury, but that shooting victim's coworkers, lacking a physical injury, should neither receive compensation or treatment for their emotional injury. 

In an incident such as the Michigan acid immersion, a first responder emotionally affected by the appearance and circumstance of Mr. Hill might be entitled to workers' compensation while a coworkers without physical injury may not be. In an incident like Aurora, a police officer or firefighter perceiving the wounded might be entitled to benefits, while a mere coworker without physical injury might not be. Some see equal protection concerns in such laws that elevate some workers to special status, and entitle them by law to benefits unavailable to other workers. 

Certainly, the circumstances in either event may present sights, sounds, smells, and other sensory experiences that are disturbing. But, there are those who find it curious that among those without physical injury, the law would provide compensation and treatment for the professionals trained for such tragedy, but provide nothing for co-workers who: (1) knew the victim(s) personally, and (2) who will likely deal with the aftermath such as cleaning and securing a premises, and (3) will have to return to work in the same premises and have persistent daily reminders of the event, tragedy, and emotions. 

In fairness, there is debate whether such discriminatory laws are permissible or appropriate. There are those who see no equal protection argument. Their logic is founded upon the nature of first responder occupations, and the parade of various horrors to which those employees are unfortunately too regularly exposed. Certainly, those people all rush into many situations from which the rest of us flee (fire, violence, etc.). Without a doubt there are good people who serve in these roles, and a societal debt for their services and sacrifices. 

However, it is a fair point for debate. What is being covered for whom? Are there logical justifications for distinction? Should the laws treat people with common experience and exposure differently merely because of their job titles? Should the deputy in the Parkland high school parking lot be entitled to benefits for emotional injury, but not the school teachers and staff that witnessed the actual shooting, injuries, and death?

Sunday, February 17, 2019

Reminded About Death Benefits

There are times when a headline catches attention. In early February 2019 this one caught mine Workers scrambled to pull man from vat of sulfuric acid. Two main points in this story are worthy of discussion. First is the reminder that workers' compensation does not provide compensation for pain and suffering, despite the probability that most or all injuries involve some degree of pain. Second, there is marked disparity among jurisdictions regarding the volume of indemnity benefits potentially due from a workplace death, and those death benefits may be of significantly less duration than benefits for disability. 

This story reported that a 54 year-old, Daniel Hill, died after falling "into a vat." He "was fully submerged in the 10 percent to 12 percent sulfuric acid solution," as his "co-workers worked desperately to pull him" out. The solution was also heated to "160-degrees," and some co-workers burned their hands in the process of removing him. 

The co-workers put Mr. Hill into a "safety shower," and emergency personnel arrived to treat and transport him to the hospital. The local Fire Chief reported that Mr. Hill was "was walking and talking" when emergency responders arrived. But, he died about 11 hours later, secondary to "pretty extreme burns." The news reports that Mr. Hill is survived by a wife, children, and grandchildren. 

The employer is in the process of a "comprehensive investigation." It is also "cooperating fully with the Michigan Occupational Health and Safety Administration investigation" (though the article also uses the acronym "MIOSHA," suggesting it is "safety and health" instead?). A statement from MIOSHA said that "this type of investigation may take several weeks or months to complete." The story notes multiple prior safety issues at the employer for which fines were imposed. 

The implications for this event from a workers' compensation perspective are worthy of discussion in both a micro (this case) and macro sense. The first consideration is what compensation will be paid in the event of a workplace death. 

Michigan provides up to $6,000 for funeral expenses for a work-related death. Mich. Comp. Laws Ann. § 418.345. There is also indemnity benefit payable "to the dependents of the employee who were wholly dependent upon the employee's earnings for support." That is "80% of the employee's after-tax average weekly wage," (which may be capped by a statutory maximum) "for a period of 500 weeks from the date of death." That is almost 10 years (520 weeks). Those benefits may continue even after that 500 weeks for a dependent who is "less than 21 years of age." There is also a process for payment to those "only partially dependent" for support. Mich. Comp. Laws Ann. § 418.321.

Michigan lists various individuals that are "conclusively presumed" to be dependent upon the employee. This includes a child of the employee, under 16, who is living with the employee when death occurs. It also includes children under 16 who do not live with the employee but are children "by a former spouse" or "who has been deserted by" the employee. If there is someone "wholly dependent," that person (or persons) is/are entitled to all of the death benefits, and if more than one then the benefits are shared equally. If there is no one "wholly dependent, then the benefits are paid to anyone "partially dependent." Mich. Comp. Laws Ann. § 418.331.

This analysis and structure is not uncommon. Florida similarly provides for work-place death in Section 440.16, Fla. Stat. This provides a benefit for funeral expenses and for indemnity payments to dependents. Some would argue perhaps that the division of those benefits among a group of dependents is more complex under the Florida law, but it is consistent in that there is a statutory division set forth. In Florida there is no distinction between the "wholly" or "partially" dependent though. 

In a macro sense, one of the striking things about workers' compensation death benefits is the tendency for states to limit entitlement to them. This may be based upon dependency, or even relationship. See, Ideological Shift, 2015, and Marriage, the Law, and Workers' Compensation, 2014. In various states there are requirements that must be met in order to prove entitlement to death benefits. And, sometimes there is even dispute regarding how a death occurred. In many cases, the circumstances of death are less than clear. In the absence of witnesses, the causation may be a challenging hurdle to overcome. As an example, how did Mr. Hill come to be in the acid vat?

It is notable that workers' compensation is a statutory substitute for tort liability. The benefits provided by workers' compensation replace damages that might be due in a civil lawsuit against an employer. The employers and workers have each gained through this statutory contract, which has been described as a "grand bargain." For example, employers have gained immunity from civil lawsuits, but have lost the ability to avoid payment due to lack of fault. Similarly, employees have gained a more certain and rapid recovery for a greater spectrum of injury (fault is largely irrelevant), but the kinds and amount of benefits are more limited. There are more examples, but these illustrate the give and take that is the "grand bargain."

That exchange came to mind reading the Michigan story. Mr. Hill was burned over 100% of his body. Notably, burns can be characterized in degrees. Very Well Health provides a good overview of how burns are characterized as well as the risks associated with first, second, and third degree burns. The news reports are not clear regarding what degree burns Mr. Hill suffered, but they were sufficiently serious to result in death.

It is possible that his burns were related to both chemical and temperature. The sulfuric acid was diluted (10%-12%). It was also heated to about 160 degrees. The boiling point of water is just over 200 degrees. And, a brief exposure to boiling water can result in first or second degree burns or "scalding." The government recommends you set your water heater thermostat no higher than 120 degrees to prevent scalding. Thus, Mr. Hill was in liquid that was hot enough to burn. 

Furthermore, sulfuric acid is capable of causing both "chemical and thermal burns." The Material Safety Data Sheet Online describes that the chemical burning damages the skin, and that secondary thermal burning can then result through dehydration. There are also dire warnings about the potential harm from eye contact, and from internal organ damage if it is ingested. 

It is therefore likely that Mr. Hill was in a great deal of pain following his rescue. His coworkers responded just as the experts recommend, with immediate "flush (of) the affected area gently with lukewarm water for at least 30 uninterrupted minutes." It is certainly likely that first responders or emergency physicians professionals thereafter provided him with pain medication. But, Mr. Hill most certainly suffered a painful experience. Workers' compensation provides no compensation for what in tort situations is referred to as "pain and suffering."

Mr. Hill had a spouse, children and grandchildren. Whether some or all of those was "wholly dependent" or not will be for the Michigan Magistrate to determine. In the event that none was "wholly," then there will be an analysis whether any were "partially dependent." Determining who is entitled to death benefits can be fact-intensive and time-consuming. And, in a macro sense it is certainly possible that an employee might suffer a work-related death and have no dependents, but many loved ones nonetheless. 

The median household income in Michigan in 2017 (the last year for which there are figures available) was $54,909. That would equate to an average weekly wage (divided by 52) of $1,055.94. Assuming that for the purpose of a mathematical example, The dependents of Mr. Hill will likely receive about $844.75 (80%) per week for 500 weeks, a potential total of $422,376.90 over the next almost 10 years. 

But, in Florida, that indemnity total would be different. Section 440.16, Fla. Stat. includes a statutory cap that Michigan's statute does not. Florida law provides that the indemnity benefits for death "shall not exceed $150,000." Of course, the statutory delineations and definitions vary from jurisdiction to jurisdiction. However, it is not uncommon for death benefits to be more restricted than disability benefits. 

It is possible that any disability from a work injury may last for years. There are serious work injuries that result in total disability, and various workers' compensation laws strive to replace income in those situations. For disability that is permanent in nature and total in character, statutes might provide for indemnity payment for as long as a worker lives, or until the worker reaches some age threshold, such as a retirement age. Regardless, it is likely that those disability limits will be more generous than either Michigan's 500 weeks or Florida's $150,000. 

There are those who criticize this mathematical outcome. They argue that the most permanent of injuries, death, should not be less compensated than other injuries. There is also criticism of the "dependent" analysis that is common in workers' compensation statutes. They find incongruity in the potential that a worker might have no dependents and thus there would be no indemnity due to the worker's loved ones. They argue that death benefits should operate more like a life insurance policy in which death results in a sum-certain payment of some amount. The advocates of this more certain payment see an employee designating a beneficiary rather than a legal determination of dependency. 

These are interesting discussions and arguments. Regardless of perspective, it is probable that many or most in the workers' compensation community can find legal provisions with which she or he disagrees. When the National Conversation occurred, one of the main topics of interest was benefit adequacy. As the workers' compensation community debates system sufficiency and benefit adequacy, death benefits are often a subject of conversation. Mr. Hill's accident is a reminder of those points. In March, the Workers' Compensation Hot Seat will address benefit sufficiency in broad context. 




Thursday, February 14, 2019

The Accouterments of Modern Business

I recently posted about a Florida Bar investigation and consent agreement in A Disciplined Attorney and Repercussions. I do not know Mr. Bradley Douglas (I don't think, though I meet many people and I am not good with retention of names sometimes). When I first ran across the Supreme Court order in that case, I searched the Internet to help me identify, or perhaps remember, Mr. Douglas.

I was first surprised when the "images" Google search yielded no photos that were the Bradley Douglas for which I was searching. Eventually, I located a video. Using my rudimentary computer skills, I included in that post a screen shot of the YouTube video, the only success I had in my search for an image.

This is not the first time I have struggled to find a photograph on the Internet. In my work with the National Association of Workers' Compensation Judiciary (NAWCJ), I have often struggled to find photographs of, and information about, individuals appointed to various judicial positions around the country. It is not uncommon that an announcement in the NAWCJ newsletter features a state seal image in lieu of some appointee's photo. It has persistently struck me as curious that data is widely available for some people and yet completely unavailable for others. 

Often, successful searches for photographs and background biography information are successful when there is a law firm website. But, as often I am surprised to find a particular lawyer has no website. Al Gore "took the initiative in creating the Internet" decades ago. It has become the "go to" source of information in our society, invading and permeating our existence in so many ways. And yet, many lawyers do not have even a rudimentary website (name, picture, practice area list, address, phone number). 

Certainly, there is expense associated with constructing any website. But, a website is a relatively inexpensive opportunity to introduce one's self to clients. prospects, and your community (I know some lawyers who thrive on referrals from other attorneys, their "community"). It is an opportunity to put a face with a name, overview areas of practice or expertise, inform, and expound. I know so many lawyers that are engaged in outstanding charity and community service, and yet so few who provide information about that on their website. 

Notably, lawyers that elect not to make that commitment to a firm website will nonetheless have an Internet presence of sorts. Searches will likely yield references on Avvo.com, Mapquest.com, Kudzu.com, Justia.com, legaldirectories.com, and more. Those sites strive to compile and provide information regarding people without their involvement or consent. And, in more than one instance, I have been told that information on some of those sites is not accurate. 

For Florida lawyers, of the search results will likely be for a member profile at The Florida Bar, www.flabar.org. The Florida Bar has invested significantly in technology over the last 15 years. It has a dynamic and diverse website full of information, as well as a significant following on social media platforms. Each Florida Bar member is afforded a profile page. Some might argue that platform is "free," and others might contrarily argue lawyers each pay for it with their dues. But, does that distinction matter? 

Considering both arguments, there is little excuse not to use the platform. If it is "free," then it makes since to take advantage of that opportunity to introduce oneself to the legal community, potential clients, and more. On the other hand, if each lawyer is paying for the platform with their dues, then does it make sense not to use something for which you are paying? The process of accessing and updating that particular tool requires less than ten minutes and a simple cell phone photograph. 

Nonetheless, it is not uncommon for me to find a Florida Bar member that has not taken advantage of this Internet benefit. Foregoing the opportunity to upload a professional photo, these members display the default:

Courtesy, The Florida Bar

Not the most informative selection. Some members also decline to provide information in their profile regarding in which Circuit they practice, or their areas of practice. That is, they are simply not leveraging the opportunity to inform of their identity, location, and practice on a site for which there is at least no marginal expense.

More surprising are those lawyers and other professionals who elect to engage in social media. Seemingly, the only purpose of social media is to both be informed and to connect with others. This is a volitional choice to put oneself out there in the (too often) morass of noise and confusion of Facebook, Twitter, Instagram and more. Periodically, an attorney's name will appear on one of the OJCC social media feeds similarly without a photo. Note that these instances each evidence an attorney that has taken the time to engage in social media, but has declined to provide a photo. And, on more than one occasion has declined to provide even rudimentary information about themselves.

Courtesy, LinkedIn



The information age is upon most of us; it has overtaken some of us. Technological changes keep coming. The technology generation was born to a world of cellular phones and unlimited data. They are as familiar and comfortable with the Internet as previous generations were with newspapers, yellow page directories, and facsimile machines. As important as an internet presence arguably is today, there is every indication that its importance will only increase. 

For those who would be viewed as accessible, professional, and technologically aware, the time for leveraging their Internet presence would seem to be now. What message does someone of the technology generation glean from a failed Internet search for some professional? What does an incomplete social media profile communicate to those who are inextricably caught up in social media as a way of life? If you are one of those generic image users on the world wide web, perhaps it is time to consider a photo. If your social media profiles are incomplete, perhaps a few minutes would be a worthy investment. 

And, if you are in business today, perhaps a basic website is a worthwhile consideration. Maybe you could trade that antique fax machine gathering dust in the corner to some budding Internet entrepreneur in barter for some web-programming?




Tuesday, February 12, 2019

How can they Both Increase?

A headline in the summer of 2018 caught my eye. Fox News reported Exercise and obesity both on the rise in America. As one who has struggled with weight for decades, and for whom exercise is a hated necessity, that headline screamed oxymoron sentiments. 

The author concedes that the results of a recent study and survey seem internally inconsistent. The story notes, however, that "more adults in the U.S. say they are exercising at the same time more of them are becoming obese." In each instance, the results reflect what people are self-reporting when responding to a survey about themselves. In that regard, perhaps there is reason to consider our own tendencies for truth? At least one expert quoted by Fox suggests we may tend to overstate what makes us look good (exercise amount and height) and understate what makes us look not-so-good (weight, lack of exercise). 

The survey results indicate that "24 percent of adults last year (2017) said they exercise" consistent with "government recommendations." Notably, those recommendations can change, but more on that later. This represented an increase from only "21 percent in 2015." 

In the same survey, "31 percent of adults indicated they were obese last year." That is, they self-reported their perception that they were "obese." And, after decades of on-again/off-again diets, perhaps others join me in the category of people more than a little reluctant to refer to ourselves as "obese," despite what some chart at the doctor's office might say. But, the percentage of Americans self-identifying as "obese" has nonetheless increased. 

The Fox story notes that one explanation of this apparent anomaly is that the data responses "may reflect two sets of people," They characterize these groups as "the haves and have-nots of physical fitness." It contends that perhaps "the people becoming more active are already normal weight." That is, the increase in physical activity is occurring within the portion of the population that perhaps wants, for fulfillment and to prevent future issues, physical fitness; the group that least needs weight loss. 

If that perspective is accurate, then perhaps there is another group of people who are not in a proactive posture. These individuals perhaps have slowly accumulated body mass or adopted sedentary habits. They may find themselves today on the wrong side of that doctor office chart, labelled as "obese" or worse. And, those people may not be exercising as recommended. 

The definition of obese has not changed. And frankly, there are flaws in how we define obese. The Center for Disease Control (CDC) explains how body mass index (BMI) is calculated. It is expressed on that website in the Metric system measures that our teachers predicted would become the accepted normal in America, which predictions, miles later, have proven not so accurate. But, essentially, the BMI is calculated by dividing weight by height. 

The CDC even provides a chart for your use in determining your BMI. Notably, the same CDC that says the calculation is based on "kilograms divided by the square of height in meters" provides a chart that is accessible to the rest of us (Americans), in which height in inches and weight in pounds directs us to our respective BMI. According to this chart, I am "obese." But, so is Dwayne Johnson (the Rock). No I am not comparing myself to the Rock, but just saying I am in good company perhaps. 

As mentioned, the government changed its activity recommendations in 2018. A National Public Radio (NPR) story in November 2018 noted the recent recognition that Americans are burning fewer calories, and that our "sedentary office jobs" are the cause. Sitting, the experts have concluded is not good for us, with some concluding that "sitting is the new smoking." I know a few who have spent hundreds of dollars to modify their workspace to allow standing as an alternative. Stand-up desks have become very popular.

Courtesy Heavy.com 

One workers' compensation community company can be said to have gone "all in" on stand up desks. WorkCompCentral recently reported that Texas Mutual has equipped each workstation in its new headquarters with these desks. This story notes however, that "a spirited debate continues over the benefits" of such equipment. There are studies cited regarding the impact on cardiovascular health, and perhaps the overall theme of that story might be aptly described as "the jury is out" on stand-up desks. Buying some trendy new equipment may or may not benefit us. 

And, the government recommendations for activity have recently changed. NPR reports that the government has "updated recommendations for physical activity." And, with that update, it is likely that the number of people reporting they are exercising "consistent with the "recommendations will increase even beyond "24 percent" in the next survey. That may not mean more are exercising, just that more are able (or willing) to "count" what they are already doing. 

The new guidelines are essentially a recognition that any activity, of any duration, can be beneficial. The new recommendations do not change the overall volume of activity recommended. The government says "adults need a minimum of 150 minutes a week of moderate-intensity physical activity." This essentially meant that you should perform some activity that "that gets your heart rate up," for about 20 minutes daily (average) and that you "do muscle-strengthening activity on two or more days a week." 

The new recommendations maintain those overall goals, but abandon restrictions for workout duration. Essentially, "the old message was you needed at least 10-minute bouts of aerobic activity for it to count toward the goal of 150 minutes." The "new guidelines conclude that all movement that helps you stay physically active is important." Thus, before walking counted if you stayed with it for ten minutes, and now strolling to the water fountain counts. It is astounding how many steps people take in a day, even seemingly sedentary folks. The popularity of fitness monitors and even cell phone apps is raising awareness of that activity. 

The goal, according to NPR is to change attitudes about activity. The hope is that people will take the stairs and skip the elevator. That they will periodically take a short walk "around the block." The hope is that activity would be more integrated in our daily routines, to our individual and collective benefit. 

The NPR article quotes a study about the cost of medical care associated with sedentary lifestyles. and the figures are compelling: "$117 billion in annual health care costs." That comes close to $400 per American per year. An interesting study cited on TheRichest reported the top ten physically active nations, including: The Netherlands, Burma, Mongolia, Cambodia, Greece, Malawi, Benin, Comoros, Mozambique, Bangladesh. TheRichest noted that this "list largely consists of countries with low income per capita that have more active lifestyles due to the exerting physical nature of their everyday work." 

But, there is also some evidence of economic impacts driving some behavior in the area of commuting. TheRichest report concludes that The Netherlands activity may be related to oil shortages 50 years ago, that resulted in "a cycling craze that has only grown ever since." Similarly, it notes that "the gulf between bike and car sales was more pronounced in Greece than anywhere else in Europe." Discussions of other nations included on this list make references to the physical demands of work in those nations. Overall, the the outcome of TheRichest analysis is not inconsistent with the NPR connection between American obesity and "sedentary office jobs." 

Despite that link, exercise is not the be all and end all of body weight. The FoxNews article concludes by reminding that "unhealthy eating has a lot to do with obesity." Therefore, the recommendation is for "a change in diet" as well as exercise. Without that change in diet, the increase in activity may not produce lower body mass. The government recommendation (as revised) for activity remains, but perhaps our individual disinclination for altering our calorie intake frustrates our best efforts in exercise? 

As with many things, it is probable that there is not "an answer." The solution to each of our personal challenges may be different because each of us is different. Seriously, is anyone suggesting that The Rock is not in good shape? Therefore, the BMI analysis with which we are seemingly enthralled may not be the best tool for measuring our status or personal progress. And, though the "have and have nots" analysis may be worthy to some extent, there seems significant foundation nonetheless for some introspection not only about how much we eat, but what we eat. 

By now, too many of us will have broken their new year's resolution. Business Insider says that 80% of us fail by February. And, not surprisingly, there is support that "getting in shape" is the most popular new year's resolution. Thus, a great many began 2019 with the commitment to improve fitness, and a great many of those have already not lived up to their own expectations or aspirations. But, perhaps the healthy course is not to wait for next December to make a new resolution? Instead, why not resurrect the 2019 resolution now? As a side note, I have kept my resolutions so far, and will report on that in December (earlier if I fail). 

This can be rational and reasonable. A recent Tweet from the @RxProfessor (an Atlanta resident and well known workers' compensation commentator) reinforced the seemingly simple message of the new Federal Guidelines.


His simple message: if arriving at Atlanta Hartsfield, is to walk from terminal to terminal instead of taking the shuttle train. This is akin to the hope expressed above that people would take the stairs. Instead of grand plans for gratifying self-improvement (grandiose goals or unrealistic eating commitments) why not accept some more realistic expectations: 

(1) increase activity, however and whenever you can; 

(2) eat less each meal, and focus on what is in the produce department (fruit, vegetables, nuts, etc.); 

(3) accept that we will all fail (miss a day of exercise, eat a decadent desert, overdo, under do), but that we can all get back on track the next day rather than waiting for resolution time for the next year; and 

(4) Remind yourself that The Rock is on the wrong side of the BMI chart with you and don't be so focused on the BMI, the weight, the number of minutes in the workout. 

Focus instead on doing better. Not radically perhaps, but merely doing better. Incrementally, we have decreased our national activity level. Incrementally, we have seen increasing obesity. We will not immediately reverse that trend, nationally or personally. We will reverse this trend, if at all, incrementally. Strive to do more, to eat less, and to eat better. Know that the benefits may be incremental, and take a long view of expecting results and improvement. Just do better, that is resolution you can keep. Do it persistently, even if not necessarily consistently, and it will benefit you.