Thursday, July 30, 2020

Change in the Marketplace

It persistently surprises me when people question how I am adjusting to telecommuting. It really has not been any adjustment, as I have remained on-the-job, and in the office throughout 2020. For this, the entire OJCC deserves significant praise. We have had a few absences in recent months, and perhaps about 20% of staff has telecommuted at some point. But, here I have been day after day. It has been a long spring and summer. I had every intention of taking my planned vacation in July, but travel constraints interfered with those plans for THE trip. Nonetheless, we managed a trip.

Taking to the air again was eye-opening. Things are different. I was afforded great parking choices at the airport. The lots were all minimally populated. It would seem fair to say that air travel is diminished.

I was confronted by the signs at the airport door "masks must be worn at all times in the airport, NO EXCEPTIONS." Within minutes thereafter, I presented my boarding pass to the Transportation Security Agency (TSA) officer who, looking at my driver's license, literally said "take off your mask." You cannot make this stuff up. Notably, their was no line whatsoever at the TSA station. The personnel were striving mightily to appear busy, though they outnumbered the passengers at the check point at least two to one. 

There is now stress on social distancing in the terminal and gate area. This was not difficult as there are far fewer travelers than you might expect. Even at the through-hub Dallas Fort Worth, there was minimal foot traffic. Many of the airport stores are closed. Particularly noted were the sun glasses, jewelry, and candy stores. However, almost all the food spots were open. 

The aircraft boarding process has not changed much. Before COVID became a thing, people were studying the efficiency of aircraft boarding. Using "4D math," a study in January 2020 Popular Mechanics made recommendations for efficient loading. It is a bit complicated, but essentially is "let the slow people go first." Notably, The Points Guy notes that some airlines have elected to try "back-to-front" boarding. This is seen as minimizing customer interaction and minimizing contact. I did not witness this on my trip. 

Wired noted several years ago that airlines will not be efficient in boarding, instead it claims they are "too enamored with their different levels of boarding for different perks." We all get to file past the premium travelers, way closer than 6 feet, to reach our cheap seats. And, for the price they pay, they get to be exposed to us all as we pass them. Not efficient or COVID-friendly, but it is a business model. 

When I landed, they announced on the public address system their preference that the passengers deplane "front-to-back" to assist with "social distancing." How do you deplane other than front-to-back? Has anyone ever been on a plane that deplaned back-to-front? It would be as illogical to keep the front seat passengers seated while those in the back filed past. And, it would also upset the premium price-payers. Upon arrival, some people behind me (I stood in the aisle to stretch while the front row passengers deplaned) asked to step around me. They assured me that the "front-to-back" did not apply to them because "we have no luggage." That confused me, but likely there is some logic there I am missing. 

Upon taxi commencing, the flight attendant announced that there would be "no service" in order to minimize traffic in the aisles and to maintain the continuous use of masks. The first thing that struck me was that the airlines are striving to get their planes airborne and full, the jobs of so many depend upon that: pilots, attendants, agents (gate and counter), maintenance, fuel, etc. But, I felt some concern for the folks that deliver cookies, pretzels, and canned drinks to planes. Perhaps some jobs will return slower than others. Then, on another flight, I was handed a paper bag that contained a napkin, bottle of water, and cookies. So, perhaps some catering is occurring? And, there is the added task; someone has to put the items in those bags. 

The lack of drinks on the one flight got me thinking about weight and cost. Flight is, in large part, about overcoming and lifting weight. Airlines have been historically focused on minimizing weight and costs. ABC News reported in 2001 that "Penny Pinching Adds Up." The context there was olives. An airline executive figured out that "if you removed just one olive from every salad served to passengers, nobody would notice … and the airline would save $100,000 a year." Remember when airlines served food? (they still do, but only on really long flights). 

What would airlines save if they eliminated the weight of that drink cart on flights (average drink cart weighs about 300 pounds by some estimates)? How might it decrease costs for the galley doors on aircraft to remain closed (easier to maintain air conditioned or heated cabin on the ground). How much might be saved in terms of aircraft cleaning? A side note, airlines seem to be bragging about their "enhanced" cleaning during COVID, but that was not apparent on this trip in either presence of personnel or cleanliness of the aircraft, gates, or jet-bridges. 

I encountered restaurants that had eliminated menus completely. The tables had QR codes taped to them to allow menu viewing on a cell phone. I noted many eateries with tables or booths taped-off to enhance social distancing. Virtually all of the restaurant employees wore masks. Many of them wore the masks incorrectly (with the mouth covered but not the nose), but they did wear masks. Some restaurants are checking everyone's temperature upon entry. And, for those of you wondering why you cannot find hand sanitizer or masks, many restaurants and hotels have an abundance of each available for customer use. 

I ate from disposable plates with plastic utensils. I was provided condiments in individual size packets in some instances. I went to a fast food outlet that actually had a door-person that was keeping count of how many were inside the store and granting or denying entry accordingly. The drive-thru at that business had 25 cars in its line. At yet another restaurant there was a sign for "drive thru only" service. As I sat in the line, I watched personnel walking out to make deliveries to cars in the lot. Upon reaching the menu board (to communicate inside with that horrible speaker system), I first encountered a sign encouraging Internet ordering for "car service." Once you are at the ordering point, that seems a little late? 

One hotel featured door seals (like you may remember from the old police shows): "this room has been cleaned and is sealed for your safety." Most had closed their exercise rooms (which are most often deserted, but this way they need not be cleaned constantly). The free breakfast buffet (all buffets frankly) have disappeared. Hotels are substituting? You guessed it, little paper bags filled with goodies, often distributed right to your hotel room door. In the end, so many things were  different. And, I miss the "good old days," you know 2019?

Some of this may be old news to you. Maybe this is how things are where you live also. The main point of all of this is that business is adapting to the realities that we face. Or, perhaps they are striving to make us think so (let's "deplane front-to-back"). They are striving to provide products, service, and consumer confidence. They are unlikely to be perfect or perhaps even consistent, but the point is that they are trying. In the present, we will likely adjust and adapt to their efforts. But, what happens when COVID ends? 

Will we return to the pre-COVID? Will telecommuting and telemedicine again be doubted or eschewed? Will we return in droves to sit-down dining in crowded rooms, salad bars, and similar? Or, will COVID effect permanent changes? Bob Wilson recently noted how we sometimes fail to make accurate predictions in Never Waste a Pandemic. Can we any better foresee where we will be in a year, and whether the changes of today were permanent or temporary? 

What are you doing with your habits and practices? Will they be efficiencies that survive the end of this illness, or are you focused on a return to "normal." How will the outcome of all of this affect us all emotionally, and does that depend upon our belief regarding predicting the future? Perhaps from that standpoint we would all be well advised to just say "I will wait and see?"

Tuesday, July 28, 2020

Cyber Threats 2020

The Workers' Compensation Hotseat will address cybersecurity in "Cybersecurity Threats: What You Can't See Can Hurt You." Registration is now open for this 08/06/20 12:00 PM webinar. In the planning stages for this one, there was anticipation of the Workers' Compensation Institute's annual Workers' Compensation Educational Conference (WCEC) in August. That was to include a cybersecurity program of epic magnitude, with an eye to IT professionals and to us common business folk who need both awareness and preparedness.  

The WCEC has been postponed until 2021, but the Cybersecurity Forum 2020 will be September 15-17 via Internet. It is recommended for all. We announced cybersecurity as an issue for 2020, see Cybersecurity 2020 (November 2019), Cybersecurity, 2020's Hot Topic (January 2020), and Cybersecurity 2020 Again (April 2020). Suffice it to say that this is an important topic, a personal and professional threat, and should be of concern to us all. 

"The hits just keep coming." I have a vague recollection of hearing that on the radio years ago, perhaps from Casey Kasem, American Bandstand, or some similar venue. Of course the phrase is a touch point in movies like The Boondock Saints and A Few Good Men. I have heard it uttered by lawyers in earnest, jest, and sarcasm. It has become a reference to a difficult position in which one feels that the piling on continues. 

The phrase came to me recently as I noticed interesting articles in the news. The New York Times announced A Brazen Online Attack Targets V.I.P. Twitter Users in a Bitcoin Scam. Like you, I immediately thought of Kimberly George, Bob Wilson, and Rafael Gonzalez. These are among the Twitter VIPs in our world. Thankfully none of these high-profile industry scions was actually hacked, it was just a bunch of people I don't know (who is this fellow Kanye anyway?). Whew!

As that story developed, however, more came to light. The fact that Twitter accounts were breached and hacked was troubling. That money was stolen through trickery and deceit was troubling. Perhaps we are all becoming a bit too calloused to the next announcement of computer-related thievery and tomfoolery? But, then the other shoe dropped. 

The "Attackers" according to Twitter (reported by National Public Radio, NPR) accomplished their trickery and deceit by "manipulat(ing) a small number of (Twitter) employees." By using those individuals on the inside of Twitter, the "attackers" were able to breach security and undertake theft and deceit. They stole data, changed user passwords, and sent tweets. They successfully duped a tech-savvy, security-focused, social media empire. NPR reported that Twitter thereafter admitted "we're embarrassed." One might find that an understatement. 

Like many malwear attacks, the failure at Twitter came through the actions of humans. Do you have any humans working at your business?

Another story also made the news recently. This one involves a Chinese bank that requires tax payments to be processed using particular software. Fox Business reports that a "new type of malware, which they called 'GoldenSpy,'” is part of this software. It has the ability to “conduct remote code execution and exfiltration activities on the victim’s network” (meaning it can cause your computer to undertake activities and can send your data to others). An infected software you are forced to use?

This is not the first time we have learned of technology designed for nefarious purpose. Hardwired Hacking discussed that potential in November 2018. Coincidentally, the allegations there were also associated with a Chinese company. There, chips included in large computers were allegedly capable of quietly and persistently sharing data without the user's knowledge. 

There are a variety of hackers out there in cyberspace. One of the more notorious recently surfaced again in a disabling of GPS and personal fitness programs offered by Garmin. According to the Daily Mail, programs were interrupted for about five days through malwear in an attempt to extort ransom. The article explains, in a new twist, that because the alleged hackers in this instance are the subject of U.S. sanctions, paying a ransom could be a violation of those sanctions. The victim company essentially runs a risk of regulatory difficulties if it gives in and pays the ransom. 

Data breaches have affected law firms, doctor's offices, and many other small businesses. These stories illustrate that the illegal activity can impact business, its customers, or subscribers. There is the potential for illicit attack to affect other businesses that are interacting with the target as well, which has been seen in multiple attack situations in which hackers gained access to large data holders such as Target through an ancillary source

Thus, your network is only as secure as you and your connections make it. You may be a target, or be affected because of your connection to a target. You could experience unavailability of your fitbit, or perhaps your own fitbit might become a passive carrier of someone's bad actions. There are a multitude of various impacts that hackers and malwear could have for you, your business, and your customers. And, through it all there is the risk of direct financial loss or even liability to your connections. 

The fact is, hacking and data theft are lucrative. We know that, because the theft and attacks continue. Are you ready to confront the challenges? Will you be proactive now or wait until your data, or that of a client, is compromised? With the upcoming Hotseat (register here) and WCI Forum, you have the chance to learn how much you do not know about technology. You can evaluate the risk to your livelihood. Make plans tune in for these exceptional education opportunities. 

Sunday, July 26, 2020

Ixnay on the Ausationcay?

The Florida First District Court recently affirmed the trial judge in Premiere Community Healthcare Group v. Rivera, No. 1D18-3503. The Court's conclusions are not specified as the majority decision is "Per Curiam Affirmed." However, Judge Brad Thomas wrote a dissenting opinion that is worthy of consideration.

The worker, Ms. Rivera, tried to prevent a patient from falling, and was injured in the process. She was provided medical care, but her specific claims for "cervical injections and physical therapy" were denied. There was evidence that she had suffered "a prior motor vehicle accident and previous neck symptoms." However, those were not disclosed to the authorized treating orthopedic surgeon, Dr. Schulak. 

Both Dr. Schulak and an independent medical examiner testified "that the workplace injury is not the major contributing cause of Claimant’s current need for medical treatment." However, the trial judge concluded that Ms. Rivera suffered a workplace injury and that accident was the "major contributing cause (MCC) of the need for requested medical care." The Employer/Carrier sought review.

Judge Thomas concluded that "the record lacks competent substantial evidence in support of the MCC determination." He noted that another physician's records were relied upon by the trial judge. This physician, Dr. Tolli, was also an authorized physician. The dissent noted that in Dr. Tolli's records the doctor (1) noted "that the requested treatment for the cervical spine was on hold awaiting authorization from the workers’ compensation carrier," and that (2) "Dr. Tolli did not relate the need for medical care to any other cause." 

In combination with the "claimant's credible testimony," the trial judge accepted Dr. Tolli's "opinions . . . greater weight" than the opinions expressed by Dr. Schulak and the IME physician. Judge Thomas noted that the Florida workers' compensation law requires proof of the MCC, a standard that is defined as “the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.” He also noted that proof must be "by medical evidence only."

Judge Thomas references various medical records in regard to Dr. Tolli. However, there is no mention of Dr. Tolli's testimony. Generally, it is possible for an expert's records to be admitted without testimony, as medical records of authorized providers may be accepted as evidence in Florida without testimony (which is consistent with the trial order in the case). Judge Thomas notes that Dr. Tolli "never directly addresses the cause of the need for treatment." The trial order acknowledges the Employer's argument that medical testimony should be more persuasive than mere records, and essentially dismisses that argument. 

The dissent concludes that in those reports "there is no language suggesting that work-related injury is the MCC of the need for the requested medical benefits." In particular, Judge Thomas noted that Dr. Tolli included DWC-25 forms in his other records, but that the section of that form which inquires about MCC "was conspicuously left blank on every DWC-25 completed by Dr. Tolli or his staff." Notably, the trial order identifies and warns of the potential for records alone to be insufficient: 
"Obviously, the party relying on medical reports runs the risk that these reports are insufficient to establish the necessary medical causation based on the written word alone."
Judge Thomas concedes that "the use of specific 'magic words' is not required to prove MCC," as the trial judge also reminded. But, he concludes that proof of MCC nonetheless required proof of the definition in the statute. The trial order, instead, relies upon the notes of Dr. Tolli, and by implication the absence therein of any other potential causes for the need for treatment ("this physician does not relate the need for the medical care recommended to any other cause").

There is no majority opinion. The reader is thus left with questions regarding the volume of proof required to prove a case. Clearly, the injured workers is generally the one with the burden of proof. One lesson here is that it would perhaps be advisable for physicians to complete all of the sections of each DWC-25. Those forms are required, and should be complete. 

It is possible that the dissent could view the case differently had the DWC-25 forms in this instance addressed the MCC question.  It is also possible that had those sections been completed the majority view might have changed, or even the trial judge's. It is difficult to conjecture why the DWC-25 is so rarely completed, but many seem to be incomplete. Incomplete records, submitted into evidence without supporting or explanatory testimony are a risk. Advocates will therefore likely study the dissent in Rivera for some time. 

Thursday, July 23, 2020

Occupational Disease and the 1918 Flu

The discussions of COVID continue to predominate in the community of workers' compensation. Today, in a "throwback Thursday," this blog revisits a California Supreme Court decision from the early days of workers' compensation. 

I was honored recently to be asked to participate in a research paper for the Sedgwick Institute. It began with an interview podcast conducted by the Institute Director, Chris Mandel. We thereafter collaborated on an extensive deep-dive into the evolution of workers' compensation generally, with a specific focus on presumptions and occupational disease. This was an invigorating opportunity to review and explore statutory foundations for this community of ours. It was also interesting to explore some of the other resources on the Sedgwick site.

The subject of presumptions is attracting widespread attention during this time of COVID. Recently in Utah Redux, I explored the 2020 legislative efforts there. Some of the complication in presumptions is deciding and defining who is within and without the special group of employees treated better than the rest. The choice of statutory words is explored in a recent Illinois effort in Interesting Word Choice, and word choice plays significantly in the 1920 California case upon which we focus. Overall, the presumption subject has evolved much this year. 

It is a topic on the minds of many. I will be speaking on presumptions and COVID again on August 5, 2020. I am honored to have been invited to provide an overview from the bench perspective on occupational disease and presumptions to the Workers' Compensation Claims Professionals (WCCP). The program is complimentary, but space is limited. Click the link to register.

In the course of these studies of presumptions and occupational disease, I ran across San Francisco v. Industrial Acc. Com., 183 Cal. 273 [191 P. 26] (CA 1920). This analysis is notable for several reasons. 

First, it was rendered in 1920. That was pretty early. According to the California Applicants Attorney Association, workers' compensation in a voluntary form came to California in 1911. The mandatory application came in 1913. This Supreme Court analysis in 1920 regards a 1918 illness, and relies upon analyses from other state courts. It is a reminder of our common law roots and the concept of stare decisis (see A Unicorn Fax). Courts strive to follow precedent, but in the early twentieth century, there was not a great deal of precedent on the books as yet. 

The analysis also demonstrates the application of judicial interpretation of words. In the context of deciding what is or is not covered by a statutory construct such as workers' compensation, the statute is the best starting point. The Court there proceeds from statute to its state constitution. The Court's logic an explanation is illustrative, whether of judicial restraint or expansion, however, is left to the reader.

The interpretation of San Francisco clearly demonstrates the beginning of compensability argument and determination as regards diseases of life. That is a balance whose definition and discussion continue to this day. The current Florida law was recently discussed on these pages in Florida Occupational Disease Burden. Compensability of such ordinary diseases of life is difficult in many American jurisdictions. Perhaps it is this difficulty that has led to the precipitous enactment of 2020 presumptions. Remember, we return time and again to the fact that workers' compensation is a socialistic construct through which government mandates a distribution of risk and cost upon industry. See, Re-Socialization of a Socialistic Construct

Returning to San Francisco (I spent some great afternoons of my youth in a park overlooking that bay, eating shrimp cocktail, chowder, and soaking up atmosphere. Those halcyon days are but a memory). But we return to the case that bears that name, rather than the city. 

In 2018 "a man named Ernest F. Slattery" worked for a local hospital. He became ill with influenza. and was dead within days. The Court does not discuss the historical perspective, but the Court in 1920 was still very close to what the Centers for Disease Control describes as "the most severe pandemic in recent history." It began in the spring of 1918, and was a very serious event:
"It is estimated that about 500 million people or one-third of the world’s population became infected with this virus. The number of deaths was estimated to be at least 50 million worldwide with about 675,000 occurring in the United States."
Thus, the Court was interpreting California's reasonably new workers' compensation law shortly after a worldwide pandemic had begun to subside in 1919. For details on the timeline of that pandemic, see the American College of Emergency Physicians' excellent overview. Notably, COVID-19 has broad potentials and is a serious threat, but has not yet reached the tragic thresholds set by the 1918 pandemic.

Mr. Slattery's spouse sought workers' compensation benefits, and prevailed before the Commission. The city sought certiorari review of the Court asking that the Commission decision be reversed. The city contended that disease was not compensable in workers' compensation and that there was no direct evidence of how Mr.Slattery actually contracted the flu. Obviously, in consideration of the numbers noted above, the 1918 flu was both widespread and serious. Thus, there were likely multiple potential exposures through which one might have contracted that disease, perhaps a similarity with the COVID-19 potentials of today?

The Court noted the city's argument that workers' compensation was intended for that "injury suffered through violence," which somewhat colorfully directs attention the concept of an "accident." The city contended that a disease is distinct from such "violence" and therefore fell without the definitions in the law. The Court's focus, did not turn so much to the concept of "violence" or "accident," but instead "to the word 'injury' as used in article XX, section 21, of (the California) constitution" and in the 1913 California workers' compensation law. 

The Court focused on that section as it had existed at the time of "Slattery's death," a reminder that in workers' compensation the law in effect at the time of an injury usually controls, rather than laws that are enacted thereafter. This is an important reminder as the marketplace today witnesses both legislative and executive actions responding to COVID-19 in which retroactive effect is both stated and intended. Whether the courts are inclined to such retroactivity, the recent presumption proclamations seem destined to lead to court interpretation. 

The San Francisco Court focuses upon the Constitution's grant that the state's legislature "may . . . create" a system of compensation that addresses "any injury incurred by the said employees in the course of their employment irrespective of the fault of either party." The Court found the use of the word "injury" to encompass more than merely that "resulting from violence." From that grant came a statute that persistently focused upon "injury" rather than "accident."

The Court turned to the Webster dictionary. It provided reference to other courts that had developed some precedent on interpreting "injury," specifically Connecticut (1917), Ohio (1916), Michigan (1916), New York and New Jersey. These seemingly did not support compensability of a disease such as the flu. The Court also noted other examples that did support a "broader meaning," and concluding disease was compensable; this notably included two decisions of the English House of Lords (1905)(1916) and an Indiana decision (1917). Recognizing the split of authority, the Court was persuaded the broader interpretations were more logical. 

The California Court also considered the potential for concluding that a disease is actually an "accident." It's analysis supports the conclusions in the Sedgwick paper that disease compensability in America had its origin in diseases specifically connected to a "certain occupation," such as "lead poisoning." Despite the apparent connection in some contexts, the Court in 1920 noted that "as a rule, such industrial or occupational diseases are not considered as injuries by accident and in the absence of special statutory provision compensation is not allowed therefor," unless the result of some "unusual circumstances" of work. 

In the end, the Court was impressed that the word "injury" was used rather than "accident. It noted that "the word 'injury' and not 'accident' was employed by the legislature throughout" the workers' compensation act, but provides no citations. It concluded that this word choice was intentional and that this is "an inclusive word"; more being suggested for coverage than merely accidents (violence). The Court found similar analysis to support its conclusions in Massachusetts, Michigan, California (1917), and Wisconsin. 

Notably, the Court concluded that it was bound to follow the legislative action. There are those who argue that America's courts have evolved to frequently ignoring the separation of powers thus recognized (for more on the role of branches of government, see Inconceivable!). It is worth noting the Court's quote that: 
"It is no small matter for one branch of the government to annul the formal exercise by another and coordinate branch of power committed to the latter, and the courts should not and must not annul, as contrary to the constitution, a statute passed by the legislature, unless it can be said of the statute that it positively and certainly is opposed to the constitution." 
Finally, the Court turned to the actual causation in this instance. Mr. Slattery contracted a disease which millions of others also contracted. There was the apparent potential for exposure in a variety of locations and ways. In this it seems is similar to COVID-19. The Court noted that Mr. Slattery was shown to have been caring for twelve patients afflicted with the flu in his role as a hospital attendant. At the time, the flu epidemic "was raging in the city."

The factual evidence was that during the incubation period (4 days); "that so far as known he was not exposed to any cases except in the course of his employment," and that "during the two weeks preceding his illness had been working very hard and had gone directly from his home to his work and from his work to his home, and had not been out" otherwise. Thus, a logical cause was shown, and no other cause was demonstrated. However, review of Florida Occupational Disease Burden might suggest that such a demonstration today is perhaps insufficient?

On that demonstration of proven workplace exposure and the absence of any other exposure, the Court affirmed the trial conclusion that this disease was work-related. In doing so, the Court also reminded that its role was not to re-decide the case, nor to determine if it agreed with the Commission conclusions. Its role was to consider whether "a reasonable man could not reach the conclusion which the commission did." The standard in appellate review is one of error, not disagreement. That an appellate body may disagree factually is not sufficient to support a reversal. 

Thus, 1918 was a time of pandemic. A health care worker contracted what is undoubtedly an "ordinary disease of life." The trial body determined that under that state's law an "injury" rather than "accident" was the critical analysis (thus arguably, disease insinuates into workers' compensation early through word choice, whether intentional or not). The appellate court found no grounds to discount the factual conclusions of causation and interpreted the word use to support a broad and "inclusive" connotation. The evolution of workers' compensation toward disease had thus begun. 

Would the outcome be different today? The analysis in many states will turn on whether COVID-19 (or other malady) is an "ordinary disease of life." The analysis will perhaps be influenced by whether the injured worker's occupation was one that presented some specific or increased risk of disease; that is perhaps more likely for a health care worker than for one who sits alone in an office all day? These distinctions and factual discussions are perhaps the critical element in the analysis of various workers' compensation statutes across the country.

COVID-19 is with us for at least the near-term. We will all struggle with it on a personal level at least. Claims professionals, risk managers, lawyers, doctors, and judges seem destined to be faced with it professionally as well. The decisions may involve compensability, the legality of executive imposition of presumptions, the retroactive application of law changes, and more. It will be intriguing to observe in those broad contexts. However, it is also important to remember that each such example is actually about the two people for whom workers' compensation was created: the employee and employer. Let us not forget that these interesting debates all involve real people and impact real lives. 

Tuesday, July 21, 2020

Ask Three Questions Daily

I was recently struck by the news coverage regarding the deaths of a Hollywood star and a member of the House of Representatives. In each instance the coverage was across multiple media platforms, and provided significant depth. In no way do I suggest that the coverage was inappropriate or excessive. I merely note that the death of someone famous brings coverage, reflection, and perhaps inspiration.

What I lament is that American workers die on a daily basis as we continue our Herculean effort to enhance and improve workplace safety. By no means is this a new effort. And undoubtedly a great many people deserve credit for the phenomenal improvements we have witnessed in workplace safety in recent decades. 

The numbers don’t lie. Workplace fatalities have remarkably diminished over the years. Despite those incredible improvements, 5,250 died on-the-job in 2018 on the job. That is about 14 per day. Those deaths do not make nearly the media impact. Some of those, undoubtedly, would have occurred despite our absolute focus and best efforts. As clearly, some of them likely could have been prevented. OSHA notes that many of these (21%) are in construction. The Bureau of Labor Statistics notes that the occupation at most risk are drivers (40%). That does not mean other occupations are risk-free. 

It is particularly lamentable when we see the occurrence of a workplace death that was patently related to some violation of an existing law or rule. We see motor vehicle death that involves someone‘s failure to wear a seatbelt. We continue to see excavation accidents that involve the failure to observe trenching regulations. But, we do not see the sort of publicity outpouring regarding these workers. I would posit that each of their lives is as important as any celebrity or elected official, to someone. We can each be more focused on safety than we are. We can be more persistent, consistent, and conscious. 

In the high end profile instances, we often hear reference that the deceased was someone’s “sister, cousin, daughter, mother.“ This sort of reference is to remind us that there are those who feel loss upon the stars passing. But I would posit that the same is likely true for any individual who passes in the workplace accident. They similarly leave behind friends and family; they leave behind a chasm in someone else’s life. As a society, we would do well to similarly lament their loss, and celebrate their existence. 

We would do well to remember that these various government regulations and safety rules exist two promote the potential, hopefully probability, that we will each return home at the end of the workday. We would do well to slow down and remember the simple efforts available to protect ourselves, and our coworkers around us. 

We need to focus on protecting our personal safety. Each of you should presently begin your workday preparation by asking the following questions: 

(1) do I have a cough, sore throat, fever, Loss of taste/smell, or other sign/symptom of illness

(2) have I been in a high-risk situation in the last 24 hours (engaged with others who are not practicing social distancing, masking, and other appropriate protocols)? 

(3) have I been in contact with someone who has been diagnosed with COVID-19, or who exhibited outward signs/symptoms of COVID-19? 

If you answer these questions affirmatively, please alert us ("file a motion" is always an option, Rule 60Q6.115(1)). If you answer these questions with a "yes," we need to avoid your presence in the OJCC office. And, if you answer "no," then visit the district office, and later (within the following 14 days) answer "yes" to question (1), we need to hear from you. Let the district office know if you later have symptoms or have been diagnosed. If an office has been exposed, it is important for us to know. 

This is not to increase anyone’s COVID-19 stress. I realize we are all concerned about this malady, and the potential it has to affect us and our families. We have to be similarly concerned about the effect it could have on our coworkers. Human to human contact is a significant risk in the spread of this illness. 

Please avoid bringing this potential to an OJCC office. We have processes in place to afford due process and claims-facilitation without posing undue risks. We have telephonic tools, Internet tools like ZOOM, and beyond. We have the ability to mediate and adjudicate your issues without physical presence. Yesterday my imagination was even challenged to conduct hybrid a proceeding with lawyers present in person and witnesses by ZOOM. Easier to say than do, but we figured out how it can be done; figured it out because a lawyer imagined it, asked for it, and challenged our imagination. We should strive for that kind of interaction and cooperation. 

When you decide to enter our office, we need you to address the three questions above. We need you to focus on whether your personal presence is necessary. Are you safe for those around you, or are you presenting a risk? Ask the questions first. 

When lawyers do not follow the rules, they can create risk. The unique Corona virus ("2019-nCoV”) can live for days upon in intimate items such as documents/papers. Despite that, lawyers persist in bringing documents to OJCC offices to share or even to file. In one instance, we had one lawyer show a piece of paper to multiple OJCC staff. No one refused the paper as it was passed around. That was unwise and unnecessarily risky. Notably, the rules require all filings to be electronic, Rule 60Q6.108. Generally, if all lawyers followed the rules, "what a wonderful world it would be." But this one is about safety. It is important. Please do not bring paper documents to share at mediation or hearing. All documents necessary for proceedings should be electronically filed. Scan them at your office, transmit them to our office, and avoid the potential for virus transmission.

Do not bring spectators to proceedings. We know that a work accident can be life-altering. We know that litigation proceedings can be unfamiliar and uncomfortable. Having one's spouse, significant other, friend, or confidant present for mediation or hearing can be comforting and helpful. However, our facilities are of limited size, social distancing is of critical importance, and we all should strive to limit the presence of individuals. Bring those who are needed (witnesses, translators, etc.). But remain conscious of the need to limit attendance. Others may instead be available by phone. They may wait outside the office to be consulted as needed. But, we would appreciate minimizing the volume of people that come inside the district office. 

For anyone that you do deem absolutely necessary (witnesses, etc), ask them the three questions enumerated above. Ask the questions. Make it a point to stress that you are looking out for the health, safety, and welfare of other proceeding participants, yourself, the OJCC personnel, and in effect the entire Worker’s Compensation system and community. 

You must follow any local ordinance or order to socially distance and utilize personal protective equipment (PPE). When in OJCC offices, this includes the appropriate use of facemasks, unless specifically directed otherwise by the presiding mediator or judge. I admit that I find masks constricting, uncomfortable, and distracting to wear. However, I will wear one in your presence to protect you, to respect you, to minimize risk. Regardless of how you feel about PPE, I ask that you respectfully and patiently do the same. 

We are striving to develop processes to facilitate remote check-in for events. Whether by text message or telephone, we hope to alleviate the need for you to enter our office merely to say “I’m here," and then wait in the waiting room. We will strive for a process that allows you to wait in the comfort of your vehicle or outdoors, until our mediators and adjudicators are actually ready for your presence. For live proceedings, you should consider doing the same with witnesses (“I will phone you when I need you to come into the building and testify“). But, please consider having witnesses appear by Zoom, deposition (even video), or telephone. How can you minimize risk to yourself and others? 

Our community diligence and imagination is critical. Our mutual consideration is critical. Our individual and collective health is critical. We, are a community in fact. We need each other to resolve and adjudicate disputes, while all remaining healthy and available for the next client, claim, or proceeding. We need to do our jobs and not take risks nor take risks home to our families. 

Your thoughtfulness, helpfulness, and community concerns are greatly appreciated. Email me if you have suggestions to make process healthier, safer, and less stressful. We need your help. We need you to ask the questions. Do so daily. Think of yourself, of the community, and of those with whom you interact.

Sunday, July 19, 2020

What a Wonderful World

In 1960, Sam Cooke recorded What a Wonderful World. Mr. Cooke's lyrics, while also a love song, provided an illustration regarding the importance of knowing what is important. My first recollection of the Sam Cooke song is inexorably tied to John Landis' Animal House released in 1978.

Mr. Cooke leads us through a litany of things about which he "don't know much," such as "history, biology, geometry, trigonometry, algebra, a science book, French (he) took," and more. Periodically, he punctuates his lack of knowledge in those subjects returning to his simple truth, that he does know that if his muse loves him, "what a wonderful world this would be." I was drawn to reflect back on this Sam Cooke pronouncement recently when I received a Bulletin from the Kentucky workers' compensation system. 

The June 24, 2020 bulletin comes from Commissioner Robert Swisher, a former Administrative Law Judge and Chief Judge in Kentucky. He reminds attorneys to be specific when identifying their electronic filing. Also, a "catch all" is mentioned: "All Other Motions,” with the reminder that this is intended to be used only when there is no more specific, descriptive choice available. That is a handy reminder, which Florida also recommends. Rule 60Q6.108(g). But, the more interesting part of Commissioner Swisher's bulletin is a reminder of what not to file.

Commissioner Swisher reminds that the Kentucky Rules preclude filing "notices of deposition, notices of physical examination, and requests for and responses to requests for production of documents." These are "not to be filed and served via LMS (the Kentucky electronic filing platform). And, as I read I thought if all lawyers followed the rules and paid attention regarding what "not to file" well, "what a wonderful world this would be."

You see, Florida has a similar rule, but compliance with rules sometimes wanes. Rule 60Q6.108(1)(c) says:
"(c) The following documents shall not be filed with the OJCC unless relevant to an issue to be heard and not more than 10 days but at least two days before the scheduled hearing: requests or notices to produce and objections or responses thereto, deposition transcripts, correspondence between counsel or parties, correspondence to the judge or the judge’s staff, subpoenas and returns of service."
Despite this prohibition, some have a proclivity to include a cover letter with every filing. Essentially, these say "dear judge, enclosed is my motion." Of course, when the judge sees the document following thereafter, titled "motion for _____," she or he can pretty quickly discern it is a motion. The cover letter really adds nothing to the discussion. It merely takes up space during the filing (bandwidth) and then space on the servers forever (storage). It is a waste of time, bandwidth, and memory. And, more important, the rule clearly says not to file it. If every lawyer read and followed the rules, "what a wonderful world this would be."

There are other persistent examples. Lawyers file discovery requests, responses, and transcripts. I was astounded several years ago when I asked a group of attorneys why that occurs and they expressed surprise when I told them the rules preclude these practices. More recently, I spoke with an attorney who professed he was now "brushing up on the rules," and was "surprised with what I am learning." He is a lawyer with decades of experience, but just now studying the rules. 

In the course of COVID-19's impact on workers' compensation as a community, I heard another state's official proudly explain how their state had "figured out" how parties could electronically provide exhibits needed for hearings, despite this pandemic. Florida, and others have long both allowed the filing of trial exhibits and encouraged it. The electronic filing system in Florida has facilitated that for about fourteen years, and it has become ubiquitous. 

But, the rule says that all those materials should not be filed until shortly (10 days or less) before the hearing for which they are (or may be) needed. Rule 60Q6.108(1)(c). Some lawyers seem to file everything they ever receive, as soon as they receive it. Others seem to fail to file anything, even the day before trial, unless prompted. Some judges provide a prompt, others expect the lawyers to be responsible and professional. It is a tough choice for the Judge. Some lawyers even try to bring paper documents to trial for filing. We do not want your paper. We do not have the staff to scan it and upload it. And, currently, there is some potential for viral exposure from hard copies of documents. 

More than ever, we need every proposed exhibit to be e-filed, and labelled as a "proposed exhibit. We need the lawyers to follow the rules. If every lawyer read and followed the rules, "what a wonderful world this would be."

Each item that is e-filed has to be looked at by the OJCC staff. Lawyers should remember that there are items which the lawyers need to see, to exchange, to discuss, that do not require the judge, the mediator, or the OJCC. But, when they elect to file those items, someone at the OJCC has to look at them. That takes time and distracts from the documents that actually do require our attention. In fiscal 2019, this Office received 2,395 filings daily. Imagine if nothing superfluous was filed? What if no cover letters were included? A great deal of time could be saved, and "what a wonderful world this would be."

What if everyone followed the rules? How would the workers' compensation practice look different? The primary point would likely be far fewer motions filed. Lawyers would actually, personally, communicate with each other before filing a motion. I recently received a very detailed motion. The opposing attorney filed an equally detailed response. They each made excellent points. The movant telephoned for a hearing date (but the motion made no request for a hearing, Rule 60Q6.115(4)). 

A few days later, there was a call asking that no order be entered. They explained that the two lawyers had now spoken and "worked it out." Perhaps if the parties had spoken as frankly and thoroughly before filing, there might have been no need for motion or response? Perhaps the hour I invested researching the law on their motion (something neither the motion or response provided any citation or reference to) could have been invested into someone else's dispute, settlement, or situation?

Back to Mr. Sam Cooke. It does not really matter if you know much about discovery, pleading, settlement, or more. If everyone just read and followed the rules "what a wonderful world this would be." And, it is troublesome that anyone would need a periodic reminder as simple as "follow the rules." In a professional world, reading, comprehending, and following the rules should be ubiquitous, effortless, and commonplace. 

Make it a wonderful world today. Read the rules. Follow the rules. Train staff to support and help you. Doe professionals really need a memo that says "follow the rules?" Apparently some lawyers do, but that is perhaps not the same question either. 

Thursday, July 16, 2020

Re-examining the Peter Principle

A Recent headline on the British Broadcasting Corporation (BBC) news site caught my attention: The Reasons Why People Become Incompetent at Work. An attention-grabber no doubt. It focuses us upon "the peter principle," which many have likely heard, but may not fully understand. The author explains that the principal is attributed to Laurence J. Peter, who reminds us that "competence, like truth, beauty, and contact lenses, is in the eye of the beholder." He then gave us the "Peter principle": "every employee tends to rise to his or her level of incompetence." 

The article leads us in with the simple question "why are so many people so bad at what they do?" I would caution that it may also be that we perceive people as being ineffective or inefficient, without ever walking a day in her/his shoes. Perhaps there are challenges to someone's role that we do not personally appreciate or even understand? But, I digress. 

The posit of Mr. Peter began with his perceptions of "inept behavior" of those around him. One example cited was the refusal of papers he submitted by hand delivery. They were refused because they "had not been registered at the Post Office for safe delivery." Someone was inflexibly following a rule, and ignoring the reality of delivery or receipt. That reminded me of recent posts regarding the "actual delivery of pleadings. See A Unicorn Fax, and other posts cited therein. 

As an aside, I broke a rule regarding "paper color" back in the 1990s. In those days, a Florida workers' compensation settlement had to be mailed to the district office, along with 8 copies of the joint petition (sometimes 30 or more pages long). And, you had to include 8 copies of the proposed order on distinctive paper. Some settlements required yellow paper, others required pink or blue. The idea was that the type of settlement was easily discerned. The downside was that copying an order printed on colored paper did not create the best reproductions. 

I vividly recall sending a joint petition package hundreds of miles. Without staff to help me, I had used the wrong color (white) paper for my proposed orders. I recall the postage was over $5.00 in those days. After weeks of waiting for judicial approval, without a phone call or other inquiry, I received the entire package back. The judge's office had not copied my orders onto the right color paper. They had returned the whole package for me to correct. They wasted time and money, but mindlessly their rule. 

The BBC article suggests that we may see "such foolish behavior all around" us, as Mr. Peter did. We may see it in a variety of settings. He explained in a 1969 best-selling book that "most people were promoted based on their current performance." He explained that when hiring it makes more sense to consider whether someone is competent for, suited for, the job that is being filled. Instead, there is an inordinate focus on how the person is performing in their current (or most recent) role. 

He explained that our past or current performance may result in our promotion more than once. Each promotion, he posited might result in a diminished performance, but one which nonetheless supports some further advancement or promotion. The eventual result, according to Mr. Peter, is that we eventually reach a point where our "performance may be so bad that we no longer warrant a further promotion." And, by then we are frankly unable to do the job assigned. We are, at that point, "incompetent."

Of course, most are already familiar with "The Peter Principal." The focus of the BBC is not to merely remind or refresh. The point is focused upon that the principal has received more recent review and study over the past decade. A study of over one hundred companies was conducted using data from companies that all used "the same performance management software." This congruity allowed the scientists to mine data on almost forty thousand salespeople, and the approximately 1,500 who were "promoted to management."

The initial conclusion was fairly obvious. The "best salesmen or women were the ones who tended to be promoted." That premise is founded, of course, on who was most proficient at sales. However, did those people provide effective management? The manager role involves "training and allocating and directing." The role of manager is not the same as the role of producer. This study focused on the sales performance of the teams led by those who were promoted.

The outcome of the study did not demonstrate that those who can aptly, even exceptionally "do" can also lead. The study leader concluded that various factors may contribute to the incongruity of a great salesperson not being the best sales team leader. She cites the absence of managerial experience, potential deficits in team dynamics and motivational skills, and the need for collaborative interaction. In leadership, she concludes, "there's a difference in skills required."

I thought of my professional experience when reading this. I have known so many excellent and even exceptional attorneys, adjusters, case managers, doctors, and more. But, I have seen a fair few of these find that managing other people is just not to their individual liking. They are outstanding performers who bring skills and ability, but they are not well suited to being the manager or leader of an organization. 

This is a topic I have seen periodically raised in business publications. A company is started and nurtured by the founder, whose idea and ideals bring it success. But, then a certain point is reached on the growth curve, and "professional management" is brought in to take the helm. There are those who see that as an insult to, or deriding of, the founder. But, there are those tasks required of management, such as accounting, personnel, and more for which perhaps that founder is just not the best.

The article notes that this is likewise demonstrated in academia. The study leader notes that the “the best researcher or the person who's best at teaching may not be the best dean of a school.” There may be real value in determining qualifications, skills, and interests. The best person to lead may not be the best producer or performer, but the person that possesses and hones those skills that suggest success? A great many universities are headed by people with no management training or expertise.

The article warns that there may be motivational issues. Without the potential for promotion based on performance, it is possible salespeople may not perform as well. How does a top performer feel when a less-prolific co-worker is promoted based upon perceptions of perhaps untested education or management skills? A shift in that regard could lead to disenchantment and even the departure of top performers from the sales force.

A second study featured in the article concluded that expertise is an important characteristic for management. This study concluded that "a boss’s technical competence" is critical to the team following. The essential question, this researcher concluded, is "whether they (the manager) would be able to do your job if necessary." If the team believe the manager could or even would, there is a greater propensity to follow and support. Thus, promotion of those with technical skills is perhaps best. 

The article concludes that there is therefore a need for balance. Too much focus on either the past performance or the skill-set analysis can lead to greater challenges. There is, it concludes "clearly a fine balance (required between) the two." One thought, there is likely value in an organization in (1) recognizing the potentials for both managerial performance and team reaction; (2) contemplating the role each set of qualification criteria should play in each managerial appointment; and (3) understanding that it is unlikely that any member of any team will be the "perfect" choice, team dynamic suggests that teams are developed rather than simply formed. 

For the young professional, starting out, the question about management should likely be whether that is a goal. If it is, whether long or short-term, it makes sense to strive to be a top performer in terms of the company business. But, it also makes sense to become exposed to the other aspects that may bring value to the managerial role. There may be opportunities to participate in management committee work within an entity. There are always opportunities for further education in a classroom or seminar setting. Finally, there are mentors all around a young professional, if only she/he takes the time to spot them, recruit them, and learn from them.

To be best prepared for that opportunity, it is perhaps best to focus on both the technical performance and the managerial competency.

Tuesday, July 14, 2020

Yes and No, Defense Explained

There is nuance in the law. It often escapes us, and a good explanation of seeming contradiction is helpful. When it appears that the answer to a question we thought was "yes" turns out to be "no," the result can be confusion. But, the most hated answer that clients receive from lawyers is the "it depends" answer. As one blogger notes this answer comes from the fact that "it really does depend." A recent Florida workers' compensation appellate decision illustrates that and provide a poignant reminder of our challenges.

Early in 2020, the Florida First District Court decided McNair v. Dorsey, 291 So. 3d 607 (Fla. 1st DCA 2020). The case began as a workers' compensation matter, and evolved into a Circuit Court litigation. This decision was an appeal from the Circuit Court in Leon County upon which the Court opinion is based. The process and the outcome are instructional. 

Two parties in the case, Mr. McNair and Mr. Dorsey "were coworkers employed by Armstrong’s company." Mr. McNair claimed an injury at work and filed for workers' compensation benefits. Two petitions were filed, a pretrial compliance questionare was completed, and the Employer contended "McNair’s accident did not occur within the course and scope of his employment." Remember, "course and scope" is a criteria for workers' compensation, discussed at length in Personal Comfort? Testing Compensability.

In addition, the Employer contended that Mr. "McNair fraudulently misrepresented his prior medical and employment history" in the course of their relationship. Thereafter, Mr. McNair "voluntarily dismissed his workers’ compensation petition," and filed a civil lawsuit "alleging negligence" on behalf of the employer and his co-worker Mr. Dorsey. The response was essentially that workers' compensation immunity precluded the civil lawsuit. See section 440.11, Florida Statutes. Mr. McNair responded that the Employer should be precluded from such an argument because of its earlier allegation denying "course and scope."

The Court explained the application of "workers’ compensation immunity." It explained that workers' compensation is generally the "exclusive remedy for an employee injured in the course and scope of employment.” Upon that statutory authority, the Circuit Court granted "Summary Judgment in favor of" the Employer, "concluding that (Mr.) McNair’s exclusive remedy was through a workers’ compensation claim."

The District Court reiterated that immunity and explained that it is not absolute. The employer may, through conduct, find itself outside of that protection. If that conduct would render it "inequitable for the employer to invoke the" immunity. The Court reminded "estoppel" in that setting requires three things to be established:
"1) a representation of a material fact that is contrary to a later asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel that is caused by the reliance on said representation."
Thus, an employer may be denied the protection of the immunity when the 
"employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment.” 
A critical word in that explanation is the word "may." The Court expounded that despite the "may," there was not a foundation to say that such a denial would always foreclose the defense of exclusive remedy. 

The Court explained that outcome, estoppel of the ability to rely on immunity "may" be appropriate in some factual settings. It explained such a situation decided by the Florida Fifth District There, the employer did not deny the occurrence of an injury, but disputed that it occurred "in the course and scope." That Court concluded that "the employer was estopped from claiming workers’ compensation exclusivity" in the civil case because it thus denied the admitted event (injury) was covered by workers' compensation in one proceeding (before the JCC), and then "reversed that position in the later tort suit," essentially arguing that the admitted event did belong in workers' compensation. 

The Fifth District explained in that case (Byerley v. Citrus Publ'g, 725 So. 2d 1230 (Fla. 5th DCA 1999)) that such a reversal of argument "would 'allow employers to avoid all liability for employee job related injuries.'" The First District explained in McNair that it found no credence in the "course and scope" argument raised, but that instead that defense in his case was essentially "that no accident causing injury occurred at all." Thus, the Court concluded that the defenses raised in workers' compensation and the civil action were "not inconsistent," and thus there was no reason for the Employer to be estopped from asserting that defense in the Circuit Court. 

For clarity, "An employer is not estopped from asserting workers’ compensation exclusivity merely because it had denied compensability of an alleged workplace injury." The determination of whether a compensable event occurred is appropriate for the OJCC. Thus, a denial that someone was an employee might preclude a later defense of workers' compensation immunity in Circuit Court. There is a distinction between denying compensability and instead denying ("much more") "that the employee belonged in a compensation forum at all." If denying that the case belongs before the JCC, then the affirmative defense of workers' compensation immunity thereafter may be tenuous at best. 

An interesting case, and an explanation of distinctions that is perhaps helpful to those who litigate Florida workers' compensation claims. The answer may be "yes" and "no," with the unliked and underappreciated "it depends" to steer us all back to the crucial point upon which the estoppel analysis for immunity depends. 

Sunday, July 12, 2020

Interesting Word Choice

Is a curious time in America. We are presented with a century virus, affecting millions of lives, and profoundly affecting our world and national economy. Across the country there is diverse reaction both legislatively and in the executive branch of governments. Some states employing strict lock-down, other state striving to reopen. And, more recently, the protest, riots, property destruction, National Guard deployments and more in response to perceptions of police behavior, government, rights, and more.

Legislatively, it may be an interesting consideration. Since the first COVID-19 diagnoses, we have seen executive and legislative amendments to various states' Worker’s Compensation laws. Many of those are retro-active in nature, placing risk upon business and insurers today for an illness (COVID-19) and frankly class (viruses writ large) that had largely been excluded historically from workers' compensation.   

Some of these actions have been broadly focused. California's Governor executed an executive order create a presumption of compensability in Worker’s Compensation for COVID-19 for virtually any employee that works outside the home. Executive action in Kentucky has also been broad. Other states have seen executive order expansions more focused on the "first responder" or the "front line worker" or the "essential" worker. In each such action there is the balancing of various rights and responsibilities. Over it all hangs the fact that this virus has the potential to produce intense effects on people, business, government, and more. 

Legislative actions, and the preponderance of other actions, seem to be focused upon first responders. That is a term that includes different populations in different jurisdictions. However, most include police officers, firefighters, paramedics, and correctional officers within that group. 

Thus, in June 2020, we saw news reports of legislative effort directed at limiting police activity, or even defunding police departments. Juxtaposed against that backdrop, we also see legislation signed into law for the presumptive compensability of COVID-19 for those of same officers (and other first responders). Some may struggle to reconcile the two discussions. There will be some curiosity as to the convergence of these two sentiments, one pro-police and the other not so much.  But to the discussion of word choice. 

On June 8, 2020 the Illinois governor signed a COVID-19 presumption law, HB2455. Like other actions across the country, this provides retroactive compensability for events that occurred prior to the law's effective date (retroactive). This particular bill provides that coverage beginning more than three months before (March). That retroactive law change will perhaps face court challenge at some point, as is possible with any retroactive enactment. How that is analyzed in various states will be intriguing to watch. But, in all, perhaps not such a distinctive bill in the age of COVID. Or is it?

The Illinois bill was interesting reading in another context. The language admittedly did not alert immediately, but in reading the language repeatedly my curiosity was piqued. 

In 1979, Florida amended its Workers' Compensation act to remove gender specific references. That was over 40 years ago. "Workman's Compensation" became "Workers' Compensation," a recognition of the, even then, long-existing fact that Americas workforce was not Uni-gender. So, while I was not surprised Illinois enacted a COVID presumption, I was surprised to notice it specifically focuses on “policeman,” and “firemen.” There are also repeated uses of the pronouns "him" and "he," as well as frequent use of the term "widow," but not "widower." 

Of course, "widow" refers to "a woman who has lost her spouse by death . . ." A man that has similarly lost a spouse, and not remarried, is a "widower." Thus, a reference to what a "widow" can do, or that to which a "widow" is entitled, has a genderist tone suggesting that the decedent was male and the survivor is female. In our age, when a family loses the income of either spouse, there is a marked impact. In an age of genderist term challenges, I also wonder about the application of the term "widow" in various other contexts, but that is perhaps for another post. 

"Fireman" might be used in any sentence. However, a more general reference to someone that works in the fire-fighting profession might simply be "firefighter." The Illinois bill recently signed by the Governor uses the term "fireman" 28 times, and uses the term firefighter 3 times. Similarly, the bill uses the term "policeman" 44 times, but does not use the more generic term "police officer." Regarding a death, the bill uses the term "widow" 11 times, but does not reference benefits for a "widower." In the bill the words "him" (13) and "his" (102) are used in describing the delivery of benefits many times. The pronoun "her" (27, of which 25 are in the phrase "his or her") and she (4, each of which are in the phrase "he or she") are used far fewer times.

In the age of political correctness, which the Atlantic reminded in 2018, there is perhaps room for discussion as to viewpoints, fatigue, and the "exhausted majority." More recently, Housing and Urban Development Secretary Ben Carson was quoted on ABC News: "America needs to stop being offended about everything and 'grow up.'" Admittedly, word choice may not be among our greatest challenges today. As we view the larger world issues, perhaps genderist legislative references are simply not that large an issue? 

But, on the other hand, in our modern world they are so easy to fix. With any word processor someone could proof a bill like HB2455. The "search and replace" function could almost effortlessly remove such gender references. Whether it is or is not a big deal, whether we should be offended or not, it seems like this language would be very easy to change. And, one might ask what reason there is not to? Seemingly, the ease of not using "man" supports simply not using "man." Or, perhaps there is some good reason to continue doing so? If I am missing the boat here, I would love to hear from you.