Sunday, May 30, 2021

Another Physician Conviction

We live here. Workers' compensation is our community, and we rise each day striving to meets its many challenges. On the best of days, this world is a difficult place. A workplace injury does not enhance our lives, it burdens us. We should never forget that it burdens more than the injured person. If you know of a child of an injured worker, make an anonymous referral to a scholarship program like Kids' Chance.

I am amazed at the many talented and dedicated people in this community. I wonder at how I ever fell into it, met so many of its fellow travelers, and learned so much. I recently spent an engaging evening with some of the best minds in it, and realized they have collectively and individually done a great deal of good over decades of immersion in workers' compensation. We collectively have much for which we should be grateful. See Florida's Hall 2021 (May 2021).

The conversation turned, as it so often does, to those who are not doing right. Workers' compensation, lamentably, also seems to draw a fair few of which we cannot be so proud. We lament it and discuss it, but it persists. That conversation drew me back to an article in late May regarding Pacific Hospital in California. I first wrote about it in Had I Known the Paul Harvey (June 2014). There are other posts, such as Fee Schedules, Reimbursement and Medical Necessity (March 2014), which reminded me this morning of David DePaolo.

The saga over the last seven years has led to some prosecutions and perhaps changes. It illustrates that there is another side of the coin. We are blessed with so many talented, dedicated, and serving people. And then, there is "the rest of the story." Pacific Hospital was involved in a referral for dollars scandal. Patients were referred there for care. Doctors had financial interest, misaligned incentives, and received payments of which their patients were unaware. One physician pled guilty and will spend a little over a year in prison. According to WorkersCompensation.com, the physician accepted over $600,000 "in bribes and kickbacks."

In 2020, it reported on another physician, and former hospital owner, also ordered to prison. That story recounted $1,000,000 forfeited, and a fine, in addition to the prison sentence. It characterized the overall scheme as involving "over $30 million in illegal kickback payments" and "more than $900 million in fraudulent bills." The cost of such malfeasance is on us all, but only financially. The waste is in the workers' compensation premiums that funded these people. The waste is in the price we paid for goods and services, which covered those premiums. Such malfeasance affects us all.

But, we did not each have surgery. This malfeasance profoundly affected people who retained physicians for care and treatment. They believed that these doctors would look out for them, nurture them, and guide them back to health and function. They believed, perhaps naively, that all doctors are good, their motivations pure, their intentions honorable.

In 2019 a surgeon was sentenced to 30 months in prison. In 2018 a surgeon was sentenced to 21 months. The scheme generates a story periodically. The prosecutors and legal system continue to plod along dealing with people who seem to have lost sight of the hypocratic oath: "I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability." Human beings. People. Troubled people who sought help. Doctors. Doctors who were supposed to put the interests of those patients first. 

The recent article notes that the Pacific Hospital owner engaged in conspiracy to "pay kickbacks" related to "thousands of patients." There were elements of it that were complex, involving subleasing of real estate, purchasing of accounts receivable, and other nuanced transactions. But, the point was apparently patent - "induce (doctors) to bring certain spinal surgery patients" to that hospital. There were reportedly also incentives for surgeons to utilize implant hardware from a distribution company also owned by the owner of the hospital. Allegedly, none of these financial considerations were explained to the patients.

The scheme went on for years. Allegedly, the care and treatment of "thousands of patients" was impacted. Lives were allegedly impacted. The physician sentenced in May 2021 will spend 15 months in prison. Others have been sentenced to more, but even the hospital owner alleged to be at the center of it all was sentenced to just over 5 years ("more than $900 million in fraudulent bills.") There is no telling how many such conviction stories are still to come. But, the conspiracy reminds us that despite the multitude of great people in this community, there are a few who must be watched. And, in the process, a great many of the good and virtuous will be tainted by the untoward actions of that few. When surgery is recommended in California, do patients wonder about their doctor's financial interests and incentives? They undermine care, faith, and trust in an unfortunately increasingly cynical world. 

Thursday, May 27, 2021

Florida's Hall 2021

There are many functions we all attend. Often we are obligated to make appearances. I am reminded of a humorous bit in television's Big Bang Theory. In it, an argument ensues between a logic-driven scientist and a realist. A third character butts-in to the frustration and advises the realist to "just tell him it is a non-optional social convention." The reaction is a "why didn't you say that to begin with" acceptance of the premise and end of the argument. There are some things you do because it is what we do.

But occasionally, if you are lucky, there come some occasions that you get to do things. In 2012, the Workers' Compensation Institute concluded that it would be appropriate to recognize people who have literally spent a lifetime in workers' compensation. It is an astoundingly varied group of folks from around the Florida community, largely from the practice of law. However, there are claims professionals, employer representatives, and more in the group. The most recent post on it was August 2019 the Florida Hall of Fame.

Soon thereafter, COVID came to call and the world turned on its edge momentarily. As lives and livelihood teetered on a wire we all tried to go about our business as we could. Some were admittedly more successful in that regard than others. I have heard stories of tribulation, challenge, and perseverance through the valley of grief that SARS-CoV-2 brought to our shores. Despite those challenges, we have come back. In April, I noted progress in We're Really Back! The symptom of recovery there was a live, large-scale educational program.

But, the end of May 2021 brought an even better symptom of recovery, the Florida Hall of Fame induction dinner. It is one of those exceedingly rare opportunities I look forward to attending. It is not one of those "non-optional social conventions" that we find throughout life. It is a brief moment to enjoy the company of people that have largely wandered somewhat aimlessly into this community and somehow never left. It is a chance to bask in history in the company of historians who are responsible for much that is workers' compensation.

The gathering was inspiring. Some staff of the facility wore face masks. But, none of the attendees did. I was able to openly converse with some of the great figures who have made a career out of this community. In A Great Hamburger with a Smile (April 2021), I celebrated being able to see facial expressions in a restaurant. I struggle to express how heartwarming it is to speak to people in person again, with their expressions, reactions, and humanity. The best part of this induction dinner was those conversations and their normalcy.

There was only one inductee for the Hall in 2021. He is a man I have known for many years. I was fortunate to meet him when he served in the Florida House of Representatives. Of all my visits to the capitol, he was one of the exceedingly few that would welcome the chance to discuss workers' compensation. He was a principled and dedicated legislator who later spent years in Washington representing Florida in Congress. Dennis Ross has more importantly been many things to various people: husband, father, lawyer, partner, professor, advisor, and friend. He, as most of us, wandered unwittingly into workers' compensation, and for some reason remains drawn to it.

Dennis has periodically provided me counsel over the years. He is one of those people that is somehow amazingly easy to speak with. He brings an attentiveness and focus to conversations with a unique ability to identify with virtually any topic. I suspect he is as flawed as the rest of us, but somehow I have never perceived the flaws. I am honored to been associated with him over the years. We were all proud in May 2021 to welcome him to the Hall of Fame, to recognize that he is among a most finite group that has demonstrated great care and concern for this community.

I am grateful this morning for Dennis and his contributions. More so for his wit, patience, and collegiality. I am grateful to Steve Rissman who has been the organizing force supporting this Hall. I am frequently tempted to skip an annual dinner, as the at-least 450-mile one-way trip annually beckons, but Steve's enthusiasm is infectious. The comradery is infectious. The history represented in such a room is infectious. The spirit of the community is inspiring, even as I reverse course this morning and retrace that 450 miles back to paradise.

I am grateful to all the Hall members that made the 2021 trip. We are truly back from the SARS brink. No sign of returning normalcy has been so palpable. To you all, know these simple truths: (1) I enjoy your company more than you know, (2) I lament that our time together is so brief, (3) I am humbled by your presence, commitment, and service, (4) I am grateful to know each of you, and (5) sometimes you remind me of REO Speedwagon ("the tales grow taller on down the line," LOL). To everything there is a season, and in that spirit to every time there is purpose. This time each year is, for me, a chance to reflect on this community of workers' compensation and recognize how fortunate I am to be in your company. I have learned much from you, though you perhaps never even realized you were teaching.

The members of the Hall follow; those that made the trip last night are italicized. 

Michele Adams (’16)
Bob Barrett ('20)
Geoffrey Bichler ('20)
Stewart Colling, Esq. (’12)
Tom Conroy, Esq. (’12)
Steve Coonrod, Esq. ('20)
Hon. Robert Dietz (’16)

Rosemary Eure, Esq. (’14)
Al Frierson, Esq. (’12)
Karen Gilmartin, Esq. (’14)
Dan Hightower, Esq. (’12)
Jackie Hilston (’18)
Stacie Hosman ('20)
Hon. Jeffrey Jacobs (‘18)
George Kagan, Esq. (’12)
Barry Keyfetz, Esq. (’13)
Joe Keene (’12)
Thomas Koval, Esq. (’15)

Steve Kronenberg, Esq. (’12)
Hon. Alan Kuker (’13)
Hon. David Langham (’12)
Hon. John Lazzara (’12)
Ray Malca, Esq. (’12)
Jim McConnaughhay, Esq. (’12)
Bob O'Halloran (’12)

Vilma Palmer (’18)
David Parrish, Esq. (’12)
Claude Revels (’14)
Steve Rissman, Esq. (’12)
William Rogner, Esq. (’18)
Hon. Stephen Rosen (’12)

Gerry Rosenthal, Esq. (’12)
Marc Salm, Esq. (’14)
Richard Sicking, Esq. (’12)
Mary Ann Stiles, Esq. (’13)

Hon. M. Kemmerly Thomas (’17)
Richard Thompson, Esq. (’16)
Mark Touby ('20)
Scott Westman (’17)

The 28 "Legends" are:

Hon. Israel Abrams (’12)
Bud Adams (’12)
Hon. Elwin Akins (’15)
Dudley Burton (’13)
Doc Dockery (’13)
Hon. William Douglas (’13)
John Dubreuil (’12)
Jim Earle, Esq. (’12)
Hon. A.S. “Gus” Fontaine (’12)
Hon. Elmer Friday (’13)
Rick Hodges (’13)
Lynn Houser (’14)
Ed Hurt, Esq. (’12)
G.W. Jacobs, Esq. (’12)
Jack Langdon, Esq. (‘14)
David Levine, Esq. (’14)
Ivan Matusek, Esq. (’12)
Frank May, Esq. (’15)
Hon. Betty Miller (’12)
Jack Miller, Esq. (’12)
Howard Pelsner, Esq. (’12)
Hon. Terrell Sessums (’13)
Hon. Leander Shaw (’13)
Hon. Steve Slepin (’12)
Hon. Baxter Swing (’12)
Gil Waters (’14)
Hon. William Wieland (’12)
Mason Wines, Esq. (’14)

Tuesday, May 25, 2021

Consequences in Employment

Recently, this post focused on Decriminalizing Marijuana (May 2021). Pot is not a new topic on these pages, see Mischaracterizing Pot Again (February 2020), which contains links to various marinjauna posts dating back to 2015. But, the recent focus was upon the insistence of some that pot is "legal," and the potential downside that may pose for the unwary and uninformed.

Days after Decriminalizing Marijuana posted, the British Broadcasting Corporation published "Chinese dreams on Native American land: A tale of cannabis boom and bust." In a related set of consequences, this is not about the use of pot, but the cultivation of it. The story recounts people losing their jobs in the midst of the great COVID-19 scare of 2020. That population is not small; by May 8, 2020 the job losses exceeded 20 million in the U.S. according to the Center for Infections Disease Research. The recovery has begun, but only just.

Pew reports that millions have left the U.S. workforce entirely (not employed nor looking). It notes:
"The decrease in the labor force participation rate for workers overall – from 63.3% to 61.3% – exceeds that seen in the Great Recession and ranks among the largest 12-month declines in the post-World War II era, according to Bureau of Labor Statistics data."
The impact has been very significant. I struggle to understand how it was not worse. It seemed for a while that every business had either shortened daily hours, decreased in-house capacity, or otherwise constrained availability. It is astounding amongst that, the complete closure of the entertainment and travel industries, and more that the decreases have not been more significant still.

But, the recent BBC story recounts these "migrants who lost their jobs moved to a remote city on the Navajo Nation Indian reservation in New Mexico." They were attracted with the promise of work as "flower cutters." Advertised was "10 days' work for $200 a day, room and board included." They traveled to New Mexico and began the job in October 2020 with hopes of earning a living and sending funds to family as well.

It turned out the "flowers" were not roses, but the work was welcome. Three days after beginning, government officials arrived "in uniforms with badges." The workers were arrested, handcuffed, transported, and jailed. The "flower cutters" were "charged with multiple felonies for trafficking, conspiracy and intent to distribute . . . marijuana." It turns out that investors had faced losses due to "shuttered restaurants, spas and tourism businesses," and had turned to cannabis for economic relief.

The BBC article mistakenly says that "New Mexico legalized medical marijuana back in 2007." The press continuing to misinform with their "legal" label is hurting those that rely upon the news. But, of course, New Mexico merely decriminalized medical marijuana. It is still against federal law. The article also notes that "state laws have no bearing in Indian country." On the premise "that the Navajo Nation was a sovereign country," and could "control their decision," much was invested in farming hemp and marijuana. And, that brought workers, development, and attention. Some noticed "the air all around the small New Mexico settlement, Shiprock, hung with the smell of marijuana."

By summer's end, "there were 36 hemp operations in total." That is a fairly rapid evolution in a few months. Some landowners believed the crop being grown on their leased land was legal hemp. But the activity angered some. Local residents protested, and the situation grew tense. Slowly, "public opinion turned against the farms." Then a "massive task force" including police, FBI, DEA, Homeland Security, and the EPA "tore through the farms and seized crops." Their tests supported that the crops were "full of marijuana, not hemp." They seized 60,000 pounds.  Federal law, apparently, still matters on reservations. 

Then there were allegations of "labor trafficking," and squalid living conditions. Some characterized the work as "exploitative," and lamented that the workers lacked other options. The story reports that charges were eventually dropped against the "flower cutters" on the basis of their lack of intent to participate in drug trafficking. The workers largely left the area, some returning from whence they came and others moving on to "Oklahoma - the latest frontier in the marijuana gold rush." The article similarly mischaracterizes Oklahoma as "legalizing medical marijuana in 2018."

Thus, there is evidence of the uninformed losing jobs for using marijuana and its byproducts. There is evidence of people being lured into employment related to marijuana and suffering arrest, economic loss, and as well as other consequences. Reporting on their tribulations, the press continues to push the disinformation that marijuana is legal. And yet, in the end it is likely that people facing unemployment and economic pressure will engage in such work. To some extent they are victims of the economic disaster of COVID-19 job suppression policies and then to the press failure to write and speak the subtle truth - pot remains illegal and dealing in it presents risks. 

It is troubling to see the misinformation campaign mislead so many to such detriment.  


Sunday, May 23, 2021

A Second Wave?

Can we (should we) strive to learn from what is going on a world away in India? The British Broadcasting Corporation (BBC) reported recently that India is being devastated by a "second coronavirus wave." Incredibly, other countries have somehow avoided devastation. The volume of SARS-CoV-2 infections has been devastating worldwide. But, note India with 19 million diagnoses and over 200,000 killed; yet, next door in China less than 100,000 total infections and less than 5,000 deaths according to Worldometer.

The focus of the BBC story, however, is not a comparison of a regional curiosity. It is a critical expose of the challenges faced there in obtaining medical care. The BBC says that "heartbreaking stories . . . are coming in from across India," which is in the midst of what they describe as a "wave (that) is proving to be more infectious and deadlier in some states."

The story notes that the volume of diagnoses is increasing. The increased infection rate is blamed on India "let(ting) its guard down" when infection rates began to fall in January. The public apparently returned to a sense of normalcy then, which included "big religious gatherings, the reopening of most public places and crowded election rallies." This is characterized as "a false sense of normalcy (that) crept in."

Some lament the current wave and prognosticate that the country should have seen it coming in January, but failed to act. The result, they allege, is a current "tsunami" of diagnoses. This tsunami includes reports of daily infection over 250,000. Hospital beds are in short supply, as is oxygen and other necessities. the BBC reports that cities are "frantically trying to build extra capacity in hotels and stadiums." That is reminiscent of our experiences last year in Los Angeles and New York. Huge sums were expended to convert facilities, but they were not widely used. The physicians in India also lament the shortage of trained professionals.

Despite the efforts of medical professionals, the rate of reported death is notable. Some assert "that the actual number of deaths could be much higher" than even reported. The BBC notes that "crematoriums have been running day and night in several cities." Some claim that the government death data is simply not compatible with their observations. It is fair to say the situation is dire. There are fears that a mutation in the virus may even impact the effectiveness of vaccines.

However, things in America seem to be improving. In Florida, there are many open restaurants, the beaches are streaming with tourists, and there is a sense of normalcy. I have travelled extensively in the last 16 months (throughout the so-called lock downs) and my recent perceptions are of a return to normalcy. See We're Really Back (April 2021) and a Great Hamburger with a Smile (April 2021). On a recent trip to Tennessee, the masks were off and the crowds were rocking. Reports I get from around the country recount similar easing of the great tension. Months after many had eschewed the face mask, the CDC even joined the club. 

And yet, there are still those masked up persistently. I have heard them criticized. But that is a personal choice. We should all remember that some part of our population face medical challenges that we cannot know of and perhaps cannot even comprehend. It seems inappropriate for me to judge someone for choosing to wear a mask any more than for wearing a hat in the Florida sun.  Likewise, as a colleague recently noted, it seems as inappropriate for anyone to question vaccination status or vaccine perspectives. 

So, do we have anything to fear at this point, "but fear itself?" (Franklin Roosevelt 1933). A main point of the BBC story is complacency. Officials there believe the second wave results, in part, from "let(ting) its guard down" when infection rates began to fall in January. That might be a lesson for us all. I predicted in February 2021 that our pace of 1.3 million vaccinations a day would have the whole population vaccinated here by October 11, 2021, see The Future's so Bright (February 2021).

But, I was wrong. In that post, I expressed some criticism of the "experts" or "science" that predicted on April Fools day 2020 that a vaccine was not probable for 18 months (they were wrong). I noted that I might be wrong about October 11, 2021, and encouraged the reader to look back and correct me. I was wrong. Since then, our vaccination rates have far exceeded that 1.3 million daily. Americans have largely embraced the vaccine. 

According to CNBC, the rate peaked at 3.4 million daily vaccinations on April 13, 2021. The rate was reported towards the end of April at about 2.7 million per day. But, at that time 30% of the U.S. population, 98 million, was "fully vaccinated" (that is two shots for those that need two and one shot for others). At least one dose had been administered to 43% of the U.S. population, 143 million. According to OurWorldinData, as we near the end of May, 128 million are now fully vaccinated, about 40%. There are encouraging pockets noted in which the rate is even higher. 

Why the decrease in daily doses? That is a fair question. But, by what measure are we disappointed in 2.7 million per day? There are 328 million people in this country, and 128 million are fully vaccinated. In the month of May, that has increased by about 30 million. That is palpable progress. 200 million still need attention; dividing that by 2.7 million per day (assuming each of the 230 million need two shots, which is an overestimate) yields 148 days. That is October 18, 2021 (my prior prediction was October 11). That is IF everyone gets vaccinated. That is IF all 230 million still need two shots. The fact is that not everyone will be vaccinated and not everyone needs to be. 

And, it is imperative to remember that not everyone wants the vaccine. I respect that. But, CNN reports that "herd immunity" will "likely hinge on continued vaccinations." Their experts doubt COVID can be eradicated (as we did with Smallpox), but might be eliminated (as we did with "measles, rubella and diphtheria,"); each was "largely stamped out by vaccination." But, remember, every day people are contracting COVID-19. What of that number? Statista reports that about 33 million Americans have been infected. Notably, some of them have also been innoculated, but the point remains there are more than the reported 128 million who have antibodies, not to mention the many who are "partially vaccinated" (one shot of the two). 

Notably, CNN explains that some believed "80% of a population needed to be inoculated" with small pox. Johns Hopkins says "usually 50% to 90% of a population needs immunity before infection rates start to decline." It warns, however, these are not "magic threshold" numbers. Science promises no guarantees. But if 80% holds, that is 262 million of us in this country. There are those who have suffered this disease and thus have some immunity, but even without that, we are 134 million from that 80%, or (134 x two shots = 268, 328/2.7 = 99 days), August 30, 2021.

What can we learn from India's current challenges? We might rationally continue to socially distance, wash our hands, utilize antiseptics, and remain vigilant. There is merit in getting inoculated against COVID, though I will not ask you your opinion nor bully you for whatever decision you have made. Let us not be complacent. We need not look toward a full return to normalcy in the months to come, normalcy is thankfully here. But, let us guard against a second waive as India and others are experiencing. We do not need or want a second waive. 


Tuesday, May 18, 2021

Cybersecurity hits Home.

It has been an interesting 14 months in the paradise that is Pensacola (where "thousands live like millions wish they could"). Last spring this SARS-CoV-2 came out of the blue and shut things down. Make no mistake, life in Florida was far less affected than it was in many places. We enjoyed an economy that struggled, but did not shut down as others did. We had beaches, restaurant carry-out, and more. But COVID-19 was a pain nonetheless.

In September, some folks forgot to secure some barges as Hurricane Sally came ashore here. There seemed to be genuine shock that she made landfall a few miles east of the earlier NHC predictions. Coincidentally, she landed almost precisely where Ivan did, on September 16, 2021; it was coincidentally the 16th anniversary of Ivan. The news reported that the bridge contractor had 55 barges and 22 of them washed ashore. Some hit bridges. The worst affected is the "three mile bridge" that this contractor was coincidentally building before it destroyed parts of it. My seven mile commute to work became 35 miles; my 15 minute ride turned into 50 to 75 minutes (each way, each day). 

Sure, that was expensive, even at the $2.10 per gallon then prevailing. Fourteen miles per day became 70, and it was expensive. But, there were promises of repair "soon." Spring harkened! A new day was promised with a bridge restored in March (not so fast). Currently, we are all operating under a promise that the bridge will reopen the week of Memorial Day (257 days post-Sally). If that comes to pass, it will still be only one lane each direction, a modest improvement for a route that used to carry up to 60,000 vehicles per day.

But, we persevere. We kept on keeping on. We strove to recover from COVID and keep on trucking (as the price of fuel increased). Then, the week of May 10, 2021 some enterprising miscreants decided to pick on a pipeline company for fun and profit. They hacked in and installed "ransomware" in the company's computers. The point of that kind of effort is to deny access to the computer's owner until they pay a ransom. It is, plainly stated, extortion. The pipeline was shut down, and eventually paid $5 million in ransom.

The impacts were initially minimal. Friday, Saturday and Sunday brought no real concerns. Then the news media became engaged Monday. There were reports on local television. They explained that the hack had led the pipeline company to shut down its deliveries. Supply fell off rapidly, and people (as they sometimes do) rushed out in a panic to fill cars and gas cans. Demand spiked, and the results were marked. One driver burned a car loaded with fuel. Floridians tend to hoard fuel that every time a disaster threatens; we prepare on short notice and reacting. 

According to Bloomberg, "about 65% of stations in North Carolina are without fuel and at least 40% in Virginia and Georgia." As far north as Pennsylvania, "distribution hubs ha(d) run dry." Business Insider reported that "More than 1,000 gas stations in eastern US states ran out of gasoline."

The impact of the hack made world news. The British Broadcasting Corporation reported on the results. It noted:
"If the general public or politicians ever needed proof of how devastating cyber-attacks can be, this hack will more than suffice"
"Even the hackers themselves seem surprised by the damage they've caused."
So, there is hassle for the motorists (particularly those here in Pensacola who are now driving 70+ miles per day, but now with limited fuel). And, there is impact on the retailers. One might think such an event would be a boon to gas stations. However, according to the West Virginia Oil Marketing and Grocers Association (OM&GA), gas stations make little money selling fuel. The profit is "about 2 cents per gallon." Stations "typically make about $100 per day selling gas." Where is the profit? That is in the M&Ms and soda (at least from my personal perspective, but grab some jerky or fruit if you prefer).

To make matters slightly worse, these miscreants literally came from the "Dark Side," according to the New York Times. The Dark Side? Really? That just makes it hurt a little worse. You just cannot make this stuff up. 

The point of all of this is twofold. First, much in our lives is dependent upon computers. That is fact, indisputable, and inescapable. Oh, and often times it is not even your computer that is jeopardizing your livelihood; just like it is not necessarily your bridge or barge that is wreaking havoc on your life. See, there are similarities there. Someone did not effectively tie down their barges, and thus disaster and economic impact on others. Someone did not effectively safeguard their computer, and thus (you guessed it) economic impact on others. Other people failed in their responsibilities and many suffered for their mistakes.

The second point is as simple: what if tying down the barges had been your responsibility? The aftermath of your failure might be uncomfortable at best. What if securing that computer network had been your responsibility? The same. The difference is likely that you do not own or manage barges. But, you do have computers. They are ubiquitous, ever-present, and vulnerable. If yours gets infected, it might infect someone else, destroy someone's data, annoy your friends and colleagues with spam mail, or be the fulcrum of an extortion effort.

If your computer passes on some virus to a client's computer, that may end a professional relationship. If your computer gives up its secrets (data), that could end many professional relationships (and perhaps a friendship or two in the process). But worse, if you fail to secure your computer and damage occurs to others, there is always some outside chance you could be sued for the resulting damages. Even if such a lawsuit is baseless, how much would it cost your small business to defend itself? If it is not baseless, how much might the damages run? When that lawsuit(s) concludes, what will your business' reputation and name be worth? Will you have avenues out besides bankruptcy?

Cybersecurity. As the BBC noted
"If the general public or politicians ever needed proof of how devastating cyber-attacks can be, this hack will more than suffice."
Amen. I am proud to be hosting a cybersecurity breakout at the WCI2021 this December. I will tell a few jokes, cite a few stories, and then introduce the most hacker-daunting team in the southeast United States (perhaps in the world). The team from the Center for Cybersecurity at the University of West Florida will provide details on how you protect yourself from cybercrime, and thus protect those with whom you connect and do business. Will you be at the root of the next "big one" or will it merely impact your livelihood (as a broken bridge or empty gas tank might)?

Cybersecurity is a real concern. Cybercrime is a real threat. The impact could be devastating, even if only for you alone. This is a "must see" breakout at WCI2021. Plan to stay through Wednesday, December 15, 2021; my program is that morning. The Cybersecurity programming is included in the conference. You cannot afford to miss this frank discussion of how to better understand the miscreants who threaten you and how to protect yourself from their tomfoolery. Perhaps you are right: "it will never happen to me," but what if you are  wrong?

Sunday, May 16, 2021

I'll Be Home (be)for(e) Christmas

Sometimes you get to break the news. Sometimes you are the news. But, usually, you just read the news. The art of blogging requires some temporality. Current events are generally of more interest than yesterday's news. By now, it is likely that you have noticed that the Workers' Compensation Institute, postponed from "the year that wasn't" will be in December 2021, an accommodation to the virus that persists. So, today I merely write some more on that rescheduling, which is perhaps old news. But, read on for detail. 

Oh, as The King put it, "I'll be home for Christmas" this December. That is a Christmas tune, and WCI will just precede - (be)for(e) - Christmas. By then, the whole world should be vaccinated, and our path to normalcy should be well established. I recently noted my exuberance at the opportunities for handshakes, interaction, and normalcy at the WCCP/Bar Forum, in We're Really Back! Trust me, in December we will be really back, with a vengeance.

I have looked through the WCI2021 program (I am surprised how many do not realize yet that it has been published).

The best programming is pretty obvious. First, on Monday, December 13, 2021, Out Front Ideas with Kimberly and Mark will present the Industry Keynote from 10:00 to 11:30, immediately following the opening session. This panel will address "Does Our System Do Harm?" That is somewhat rhetorical if you think about it. Every system does harm, and good. Which it is doing, at any particular moment in time, is dependent largely upon your perspective. Put another way, whose ox is being gored?

Life has its ways. You may be a loser one day and the winner the next (or vice-versa). Carlos Santana captured that well in Winning (1981). He explained that "lady luck she was waiting outside the door" all along. Sometimes, you just have to open it. All systems have the potential to do good, and as long as that is true the inverse will be as likely. Joining this philosophical conversation is Michele Adams of Walmart, Max Koonce of Sedgwick, and Susan Shemanski of The Adecco Group. I cannot imagine a more diverse and dynamic set of experiences and perspectives on a single stage. And, if I did not mention, Kimberly and Mark! This is a must see.

The second program I recommend for the workers' compensation nerd is the annual SAWCA Regulator Roundtable on Monday, December 13, 2021 at 2:00-4:30. This is always an eclectic group. One might validly say that the Roundtable is "like a box of chocolates. You never know what you're gonna get." There will be an assortment of regulators from across the country, unscripted and uninhibited. The program moderator, Melodie Belcher of Georgia, will guide them through an assortment of challenging aspects of American workers' compensation. If you want to know how recent challenges have been met, or what the next challenge might be, this is the room to be in.

You have time just before that, Monday from 1:00 to 2:00 for the Injured Worker Inspiration Awards. This is a chance to come and hear about incredible challenges, dedicated care providers and heroic people. So many injured workers each year overcome odds and persevere. They have heart and dedication that is outstanding and impressive. Each year, the Florida Orthopedic Society honors one such instance. This is a great investment in your appreciation of how this system can do "good."

Or, catch most of Dr. Brigham's "Living Abled" presentation in the National Workers' Compensation Review. This is a story of a physician, author, and recovering patient. It is about perseverance, faith, and inspiration. This will raise your spirits, but may make you a few minutes late to the Roundtable. 

The third program that I highly recommend for your Tuesday is at 8:45. The Orlando Orthopedic Center Live Surgery will stream live. With one physician doing the lower extremity surgery and another live in the room to both narrate and address questions, this experience is absolutely unique and impressive. Certainly, the rest of Tuesday is replete with outstanding opportunities in the breakouts for adjusters, lawyers, physicians, and more. Of particular interest may be a series of return-to-work breakouts. After all, the "good" this system is supposed to do is restoration of function and return to work.

On Wednesday, the focus might change to multistate considerations, the operations of Florida's Division of Workers' Compensation, or the latest challenge for all businesses - Cybersecurity. For various reasons, the Cyber program is my recommendation. Too often, folks seem inclined to head home Wednesday. But, this year Wednesday provides in-depth coverage of cybersecurity, ransomware, government regulation and certification, and much more. I will preface and introduce an outstanding program beginning at 8:00 Wednesday - "Cybersecurity Risk Management for your Organization."

This discussion will help you understand what cybersecurity is, and why it is critical to you, your business, and your success. Technology can do great things for your business and success, but (stealing from Kimberly and Mark, above) does technology do harm? Certainly, it can. There are examples in the news persistently. The recent cyber attack on a gas pipeline will be featured in a future post, but recently Cyber was addressed in Cybersecurity, WCI2021, the Pillory, and More.

When I think of cybersecurity, my mind always wanders to Yoda. In Star Wars: Episode V - The Empire Strikes Back, our protagonist Luke exclaims "I'm not afraid," to which Yoda replies "you will be." I know so many people who are oblivious to cyber security. They are ensconced in a cocoon of denial (it can't happen to me) and they are sure it won't happen to them. They are not afraid, but they need to be educated, cautious, and prepared. I am not suggesting you need fear, but this day of cyber security programming may open your eyes to the threats and challenges your business faces. This is a must see.

Yes, for about twenty years I have made an annual trek to the Marriott World Center in Orlando for the WCI, and for a few years before that to the Peabody. I have spoken on many stages over the years (well over 1,000). But, harkening to my professional beginnings in Florida, and the 1992 conference I first attended, the WCI will always seem like home. I have been on stage there over 40 times; it is a welcoming and familiar environment. I'll be home (be)for(e) Christmas this year. It will be December 12-15, 2021. I hope to see you there.

Thursday, May 13, 2021

Surveillance, Conflicting Rights, and Balance

It has been a while since surveillance graced these pages, but it is not a new subject. I invoked Rockwell in Assume Everyone is Watching (2015). Cameras played a role in Judicial Bullying in the News (2018). And, shortly thereafter, The Evolving Issue of Body Cameras (2018). Then, in the midst of our great pandemic, then 17 year old Darnella Frazier became the Abraham Zapruder of her generation. Her video of George Floyd has been viewed more times even than the Baby Shark Dance (because it does not get viewed on the news). 

Cameras are everywhere today. I have come to expect privacy nowhere. I assume I am on camera, being recorded, at all times. Rockwell has been rattling around in my brain since 1984 "why do I always feel like I'm in the twilight zone" and "I always feel like somebody's watchin' me."

Florida's Fourth District Court of Appeal rendered an interesting decision recently in the cause of Ford v. City of Boynton Beach, No. 4D19-3664. It is a fascinating read regarding our privacy, cameras, and more.

This is a civil case, but with criminal law undertones. Essentially, a teenager was detained for trespass at a theater. He allegedly snuck into the movie without paying (I knew some people who did this in their youth; one had a "Chrysler, as big as a whale" and he used to smuggle people into the drive-in in the trunk). Initially, the officers did not arrest the teen, but called his mother instead. In retrospect, it seems that the movie-sneaking teen in this case might have avoided arrest altogether. Police who are eager to arrest will rarely call a parent first. 

The situation in this litigation began when the teen's mother responded to the police call; she went to the theater. The teenager and the police "were (then) on a public sidewalk directly across the street from the movie theater entrance." The mother approached on foot "with her cell phone on record." A police officer told her to stop recording. She was then asked for identification. And, "she ignored their requests (to stop recording) and continued to video and audio record." I have always found it best to comply with police officer requests even when I knew they were wrong. Remember the Clash? "I fought the law and the law won."

The officers then proceeded to arrest the teenager. They "informed the mother that she needed their permission to record them." At some point, the officers asked if she was still recording and she "falsely" denied it. This recording also included recording a citizen that interrupted the officers with conversation. There were "numerous requests to the plaintiff to stop recording . . . which she ignored." She was, in her words, “a mother and a concerned parent” and “[was] just asking questions” when she was then arrested for "intercepting oral communications and obstruction without violence." The State Attorney later elected not to file charges against her. 

She then elected to file a civil case "against the City and the officers for false arrest, declaratory relief, and for violating her civil rights." A federal judge dismissed the civil rights claims, and the case proceeded in state court thereafter. The Florida trial court dismissed the lawsuit, concluding that "the recorded parties had a subjective and reasonable expectation of privacy in their communications." Thus, the arrest pursuant to the "wiretapping statute" was appropriate. That she lied about recording was also mentioned.

The case then proceeded to the Fourth District Court of Appeals, and this decision. The Court affirmed the dismissal, but not unanimously. The Court explained that "obstruction" does not require physical interaction. If a police officer is in the "lawful execution of a legal duty" and someone does something that "constituted obstruction or resistance of that legal duty" then the charge may lie. The mother's protestations that she could not be charged because her actions in "no way physically obstructed or impeded" the officer(s) were not successful.

The Court was critical of the plaintiff. It noted that the police had detained her son and rather than arresting him they contacted his mother. Instead of "a short, uneventful exchange," the court concluded she instead took an "approach to the officers . . . designed to impede." The Court seemed critical that she was "confrontational and . . .recording the officers," seemingly escalating rather than calming the situation. The court concluded that "the plaintiff consistently and persistently failed to comply with the officers’ direction and requests." Remember Cougar, "I fight authority, authority always wins."

The Court also noted that "the trial court reviewed the video in its entirety and found probable cause for the plaintiff’s arrest." Notably, the appellate court likewise reviewed the video. That is not unprecedented, see Who Ya Gonna Believe (2018). Not only does video afford an appellate court credibility determination opportunities, it is possible for a video to become part of the digital record of a court decision. It is practical to expect that appellate viewing of recording will increase. In an age of Zoom trials, will appellate courts become more involved in credibility determinations on appeal?

Two appellate judges thus affirmed the dismissal of the lawsuit. Some perceive the case outcome as a social justice issue. See The Tampa Times and New York Daily News. Other headlines also suggest that implication, but their stories are behind paywalls

The third judge on the court panel dissented. This judge concluded instead that the "officers had no reasonable subjective expectation of privacy" at that time. As such, there was no "probable cause to arrest (the mother/plaintiff) for violating the wiretap statute." The third judge found the absence of her "physically obstruct(ing) to be relevant and persuasive in concluding there was insufficient "probable cause to arrest her for obstruction."

The third judge "conclude(d) that the officers could not have had a reasonable subjective expectation of privacy." The judge explained that a "speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.” citation omitted. 

The speaker must somehow have "shown that ‘he seeks to preserve [something] as private.’” They must make efforts or take "precautions to keep the conversation private” (something apparently beyond telling someone that they cannot record you). The third judge "would hold that a law enforcement officer has no reasonable subjective expectation of privacy in conversations he (or she) has with the public or the arrestee in the performance of the officer’s duties in public places."

The third judge invoked George Floyd and "the individual who recorded George Floyd" last summer. The judge noted that "in Florida, he would have been guilty of a crime." Side-note, the individual who made that famous video is a "she," and a brave, young, she at that. The judge then conceded that some police interactions may be, by necessity, "non-public." However, this situation was not in that category. The opinion seems to suggest a default of no privacy expectation, subject to some specific pursuit of privacy beyond "stop that," with esoteric suggestions that some such requests should be honored (when, where, which?).

Several years ago, another person took video of a traffic stop. She was arrested and later sued the police "alleging that her arrest amounted to 'retaliatory prosecution in breach of her constitutional rights.'” The police in that case paid a settlement in excess of $50,000. That was not in Florida. Might one be encouraged by such an outcome? Or, by the potential that such a video could be one's ticket to the promised "fifteen minutes," referenced by Warhol?

The issue, one might conclude, is less than clear in Florida. Can you video a police officer (or anyone else for that matter) without the person's consent? If an officer on a sidewalk has an expectation of privacy, could we say the same for any of us speaking on a sidewalk? As municipalities, companies, and individuals continue to hang cameras on seemingly every pole and post, is it ever "reasonable" for any of us to believe we have privacy? May we, can we, ask that these cameras stop recording us? 

I recently posted in Cybersecurity, WCI 2021, the Pillory, and More regarding the seemingly endless battle between smokers and non-smokers in our society. The point of that discussion is that our rights often collide with the rights of others. There is much discussion of one person's right to document (the mom) and the privacy rights of others. This is not new. Our rights have been creating friction with other's since America's inception. Government steps into those relationships and its intervention ("state action" can be perceived as taking sides (Florida State University's "no smoking" could be viewed, right or wrong, as endorsing the rights of non-smokers over those of smokers). 

As cameras proliferate, our privacy will inexorably diminish. Do I have a right to be free from being recorded? Are my rights different than a police officer in this regard? If I stand on the roadside at a distance and video a police officer, am I likely to be arrested? Do I have a duty to obtain releases from those who wander through my scope of vision as I video the gulls over the bay? Does it come down to my intent when I capture someone on video? It seems likely that there will be more discussion of the privacy issue in years to come as population grows, technology evolves, and society changes. Change is a constant, and our society is challenging. 

If you had told me in the 1970s that smoking would be banned on a college campus I would have laughed. If you had told me surveillance cameras would watch my every move, I would have laughed. If you had told me that bad police officers would be held responsible, I would have laughed. If you had told me a pandemic would cripple America and the world, I would have laughed. Who knows what our future will bring? how will our individual privacy and the proliferation of technology evolve?

Tuesday, May 11, 2021

Kids' Chance Challenge

The day-to-day is a struggle sometimes. There are challenges in this workers' compensation community, regardless of your specialty or focus. That has been more notable in this pandemic, but true all along.

Back in the 1980s and early 1990s, there was a situation comedy called Cheers. In those days, production companies paid to have original, catchy introduction music for their franchises. That trend has faded, but my generation grew up with such songs. The theme from Cheers became, for a generation, a classic in its own right. One stanza in particular came back to me in this context:
"Making your way in the world today takes everything you've got.
Taking a break from all your worries, sure would help a lot."
The full lyrics are humorous. But, the point today is that the weight of this world can be challenging. A bright spot sure would mean a lot. What if you could actually help someone? What if you could bring a ray of hope to an otherwise threatening and scary situation? What if you could literally make someone's day? What if it would cost you nothing but a few minutes?

Workers' compensation, the community, the process, takes a lot of grief everyday. The people in this field are persistently underappreciated, when they are appreciated at all. I am astounded by the vast array of talent, dedication, and focus I encounter in this community. I am grateful, and appreciative of you, your efforts, and the successes that mean restoration of function and recovery for so many. 

But, it is too easy to forget that for every injured worker there is an impacted family. Workers' compensation does little for the family. Outside of death benefits when the most disastrous of outcomes occurs, there is little thought of the family. And yet, the impacts there are real, pernicious, and persistent. 

Kids are so important. You can discount them for their lack of focus. You can lament that they have not faced the challenges you did. You can ridicule their entire generation, proclivities, predispositions, and preparedness. Understand this: I do not care if you appreciate them, understand them, or believe in them. They are our future. Like that of do not, they are the future and we are either the past or fast approaching that status. 

It received an email recently from a Kids Chance of Florida Board member; I get those periodically and those names in my inbox are not shocking. But, the subject line caught my eye: "I did it." That was click bait and in I went. I soon realized I was looking at at reply to a forwarded message from a Kids' Chance scholarship recipient. The first line Board member had typed was "This made my day" and I had to read on. I have to admit that by the time I finished, I was well beyond "made my day." It made my month, at least. 

It began with well wishes and then to business. The business: "I wanted to let you know that this past Saturday I finally walked down the stage and graduated with my Bachelor's in Applied Science!!!" ?Yes, enthusiasm and all three exclamation points in the original. The message described the pride of two parents, one of them a Florida injured worker. The student described the joy and the relief at finally accomplishing a goal. 

This is a college graduate. One that has faced the reality of a serious injury to a family member. A child that has been forced to grow up rapidly and undertake responsibilities and challenges that would sober many an adult. A family member that kept eyes on the future and dug in to the challenge of college despite challenges. And, in a very small way, I think I played a role in this young person's success. 

No, I did not finance the student's education. No, I did not find the student, recruit the student, or even motivate the student. But, through service on the Board of Kids' Chance of Florida, I played a miniscule role in this fantastic human being's life, future, and success. I am immensely proud of the student, the commitment, and the dedication. 

This student is today a college graduate. Plans for the "next chapter of my life" were mentioned. The student is an entrepreneur with a new vegan cake small business. The excitement about being a vendor in an upcoming festival was palpable. A success story in the making. And, in the most miniscule way, I helped. The closing line brought a lump to my throat: "Thank you again, Kids’ Chance is my family and I can’t wait to one day help other students like myself!!!" 

This is a kid that gets it. This is a student that has overcome the odds, achieved the first goal, and is prepared to face the future. This is a kid that sees value in community and aspires to be on the giving side. And, I played a miniscule role. What if you had referred this student? You can nominate a student anonymously. What if you had, and played even a miniscule role in this momentous day? I wish this young person prosperity and Godspeed. I hope the student realizes what a bright spot this is in my month. 

I wish for you the same feeling. Nominate a student. Refer a parent. Make a difference. And, in the end, maybe you will meet a fantastic success story like this student (or more). The point is, you don't have to be everything in the process (nominator, motivator, financier, etc). You can choose to just be something in the process and help that student find Kids Chance or vice-versa. I hope you have that opportunity. I hope you will choose to make that one little effort and nominate a worthy kid that has been impacted by a parent or guardian's serious workplace injury.

"Taking a break from all your worries, sure would help a lot." It would help you, and some worthy student. How about it? Just a miniscule effort, a moment, to help change a life?

Sunday, May 9, 2021

Cybersecurity, WCI 2021, the Pillory, and more.

One of the groups with which I collaborate sent me a note the other day "please take our online cybersecurity training." Essentially, this group affords me access to information and data. They are happy to do so, but have some concern that I will do something untoward that could expose their network to malicious persecution of some notable effect.

Remember Otter in Animal House (1978) "I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part.” Brother Bluto replies solemnly "we're just the guys to do it." It was irreverent and preposterous. It has stuck with many of us for the decades since. The problem with computer security is that the "stupid and futile" occur from time to time, but we perhaps do not think it through and decide to do it nearly as fully as Otter and Bluto.

We all make errors on the computer. Mitch Ratcliff made one of my favorite comments of all time about computers: "A computer lets you make more mistakes faster than any other invention with the possible exceptions of handguns and Tequila.” Oh, we can make mistakes. Social media merely affords us the opportunity to make it more offensive in the process. 

So, I spent a few minutes in the training. I learned that people may send you emails with links in them. The bottom line is do not click links in emails from people you do not know. This remains true even if it is from a prince or potentate, or a relative thereof, who has a billion dollars that you can help them retrieve with just a few minutes of your time, and for which they agree to let you keep half of the money. The same goes for documents attached to emails. The instructor dourly repeated "what type of file is absolutely safe? None, none I tell you" (and then he laughed maniacally). I made that last part up, but the "repeated" and "dourly" are for real.

The latest threat, apparently, is called a social engineering attack. The example is a group standing about smoking a cigarette or two outside (cannot smoke inside anymore). I recently read a piece about how Florida State University has made smoking verboten anywhere on its campus (inside, outside, upside down even). We'll come back to that.

So they stand, smoke, socialize, and commiserate. When some head back into the business, they all seem to move together. What none realize, is that one of them is not really a company employee. She/he has engendered group membership and trust, and thus sneaks into the business, sits at a vacant computer and hacks away. This is only an example. In its broadest sense, social engineering is any process by which someone gains the trust of another to allow a computer attack. Anyone might be a threat against you, your network, and your business. I found this one very interesting as it is something we might see James Bond do. 

That recent training was on my mind when a story was published May 6, 2021 about a Florida high school student that will be tried as an adult. This story is about her downfall, and the ridicule to which she is now being subjected. Don't get me wrong, a crime was allegedly committed. I am all for that being investigated and prosecuted if appropriate. But public ridicule?

Some may not realize it, but it used to be an English punishment (and yes, we imported it to America) to publicly shame people by locking them in a pillory and ridiculing them in the town square. Britain stopped using the device in 1837 according to Britannica; Delaware was the last U.S. state to abolish it in 1905. Then Facebook and Twitter brought it back in a more convenient, pervasive, digital format in the 21st Century. Go figure. 

The teen essentially is accused of hijacking the election for homecoming queen at a Florida high school last fall. Her mother was employed by the school board in a position of trust. She had access to computer resources and information. The student is accused of using her mother's password to gain access to some student accounts and to vote for herself, and she won the Homecoming Queen title. Not exactly Snidely Whiplash, but an alleged crime nonetheless. 

The young lady "has been stripped of her title and will be tried as an adult." This is, as John Mellencamp might say "serious business." A young person now accused of "a really futile and stupid gesture," and a "mother (that) admitted she was negligent." The mother has already faced consequences related to her employment (at least at one point she was suspended from work; the reports do not provide any edification on how long that is to continue, or the next steps).

Thus, the ultimate "social engineering" in which someone gains trust and then accesses information that they should not (what is more trusting that a parent/child relationship?). Some will argue that this is a petty crime, stealing a homecoming election. But the theft is not the crime. The illegal access to a computer network is the crime. There was trust, and it was exploited. Some would say exploited stupidly (breaking news: kids do stupid and impulsive things all the time. Breaking news, adults do also). No hacking involved, no computer expertise involved, no phishing, no click-bait, just good, old fashioned misuse of someone's password. Who knows your password? How do you know? So, lesson one is beware of who knows your passwords and with whom you share them.

Let's return to the smoking ban at Florida State for a second. There are a great many people on this planet. We all have to function daily in the midst of each other. our rights may (will) periodically run up against someone else's rights (your right to smoke and my right not to inhale your exhaust). Government will become involved in those points of friction, and courts will make decisions. It is critical that we remember in those contexts that there is no perfect solution when rights collide. Government will regulate and we will all be faced with the outcomes. The smoking ban is likely a great illustration of that.

Now, back to the public pillory. Sure, Facebook, Twitter, and more have perfected the "pillory post of social media" (copyright, David Langham, 2021). Post a picture of your meal and prepare for the ridicule to follow ("you eat meat, what about our planet"). Post a picture of yourself in a public place and see who is offended ("You paid money to that company, you know their human rights record?). Express an opinion (oh no, not an opinion), and be prepared to be accused of every social ill since Eve took a bite of apple and just ruined everything for everyone. But, the virtual pillory of our modern age has not changed public ridicule; it has just made it faster and easier, a parallelism to Mitch Radcliff's "more mistakes faster" is perhaps "more ridicule and disdain faster."

The student in this story, however, made the news not because of online bullying in the pillory. In this story, we learn that the school published a year book that included her photo. And, superimposed over her face is a photo of, to put it delicately, the southern end of a north-bound horse. Ouch. That is clearly criticism; some may find in it humorous as well, but it's not very kind. And, like any picture on the Internet, it will be around forever. The news reports that parents are "outraged." The school is "recalling those yearbooks to fix that problem." But, the photos will not disappear. I wonder if this young person will be at the ten-year high school reunion?

We are in a huge society. We will face the challenges that people around us do things that we do not like, and that potentially even harm our own health, safety, and welfare. We will have our "government of the people, by the people, for the people." And, laws will be made, conduct will be forbidden and criminalized. Those laws will not stop people from stupidly or diabolically impacting us though. We will be threatened, challenged, and inconvenienced.

We must remember that. We must remember that computers will help the ne'er do wells be stupid and diabolical far more rapidly than they can do so in person. The threats are all around us. This December, I will host a session on Cybersecurity at the WCI Conference in Orlando. I will bring a broad overview to the table, and then turn it over to Florida's top experts on cybersecurity from the Center for Cybersecurity at the University of West Florida. I hope you can be there. Whose problem is cybersecurity? You guessed it, it is yours. 

How can you do a better job of security against the malicious and the stupid? What are the threats to you and your business? What will it cost you when some employee allows a security breach? How will your customers and your customer's customers impose constraints on your Internet use? How will the law? Come to the program and learn more. Trust me, I will not put your picture on the Facebook pillory. I will even pose with you for selfies afterward so you can inflame your friends and followers by associating with someone that still dares to have "opinions."

Thursday, May 6, 2021

Decriminalizing Marijuana?

On April 22, 2021, The Florida Supreme Court issued Advisory Opinion to the Attorney General Re: Adult Use of Marijuana. The subject of marijuana is not new to this blog. Most Americans by now have been exposed to the topic in some form. The concept or using pot for treatment of complaints has been around for decades now. And, the list of states that have decriminalized weed keeps growing. There is a "legal weed map" that illustrates this in bright colors. This, like so many other examples, insists that pot is "legal" when in fact it has merely been decriminalized.

That is an important distinction. Congress has yet to act in "legalizing" marijuana. Pot remains illegal for possession or use under federal law. There are interesting perspectives regarding enforcement of federal law, and many cite Gonzales v. Raich, 545 U.S. 1 (2005) in discussing that, the commerce clause, and the supremacy clause. For more on the current posture of pot, see Mischaracterizing Pot Again (February 2020).

The law can be confusing. In 2020, WorkCompCentral reported on a Florida teacher who lost a job in 2020 because of marijuana use that the teacher believed was "legal." Pot advocates are prone to use the "legal" label. The teacher filed an appeal of the dismissal, and the decision was ultimately upheld. The news coverage in the Ocala Star Banner likewise repeatedly uses the "legal" label.

That labelling may cause confusion. The teacher was fired because marijuana is not legal. It is illegal in all 50 states. Some states have decriminalized it, meaning the state will not prosecute someone in certain circumstances of use or possession; will not prosecute under state law. But, it remains illegal pursuant to federal law. see Mischaracterizing Pot Again (February 2020).

More recently, WESH published a story of another fired teacher: "Florida teacher fired for prescribed medical marijuana use." That is also incorrect. No physician prescribes pot. Pot is illegal and a physician could imperil her or his license by writing such a prescription. Doctors therefore "recommend" pot for their patients, but they do not prescribe it. Using the word "prescription" lends an impression of permissibility or legitimacy, which may mislead the reader in the same manner as "legal."

Too complex? Is the nuance too subtle?

The pot issue has been discussed in Florida for several years. In both of the situations described above, the use of pot became known following work accidents. The subject of "medical" pot is thus becoming intertwined in the world of workers' compensation. The discussions of whether it must be paid for a treatment for workers' compensation is also an issue. See Federal Law Matters in Maine Also.

Some people are most eager to have pot. However, efforts to decriminalize it further have not been passed. WJCT recently reported on another teacher for whom pot was "recommended" (though the article headline portrays it as "legal). This teacher was also terminated according to the story. The article focuses upon a bill proposed but not passed in the just-ended legislative session to "to prohibit employers from taking action against qualified medical marijuana patients."

The alternative to legislation on legal topics is constitutional amendment. There have been a variety of provisions adopted in that manner, including animal rights, voting, the minimum wage, and more.

In the recent Opinion to the Attorney General Re: Adult Use of Marijuana, the Florida Supreme Court was asked to consider whether such a proposal for a constitutional amendment to decriminalize pot in Florida may be placed on the ballot for consideration. Justices Canady, Polston, Muniz, Couriel, and Grosshans concluded that the amendment may not be on the ballot as currently proposed. Justice Lawson wrote a dissenting opinion, and Justice Labarga dissented also.

The Court's majority concluded that the manner in which the proposal is summarized for the ballot lacks clarity as required by Florida law. It noted that clarity is required “to ensure that the ballot summary and title ‘provide fair notice of the content of the proposed amendment’ to voters." The Court explained its process for such cases as involving two considerations:
"(1) whether the ballot title and summary, in clear and unambiguous language, fairly inform the voters of the chief purpose of the amendment; and (2) whether the language of the ballot title and summary, as written, will be affirmatively misleading to voters.”
It explained that “[A]n accurate, objective, and neutral summary of the proposed amendment is the sine qua non of the citizen-driven process of amending our constitution” (sine qua non means absolutely indispensable). Here the summary says the amendment
“Permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason.”
The Court concluded that “[p]ermits” is problematic. It noted that the use of "permits" “mislead(s) voters regarding the interplay between the proposed amendment and federal law.” it concluded that this word "strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida," which ignores the persistent point that use or possession remains illegal under federal law. The Court concluded that "A constitutional amendment cannot unequivocally 'permit' or authorize conduct that is criminalized under federal law." Therefore, "a ballot summary suggesting otherwise is affirmatively misleading."

There will be those critical of the conclusions. Critics may see too fine of a point in the focus upon word meaning. However, the examples cited herein reflect untoward outcomes for two Floridians who believed that their use of marijuana or THC was "legal." The connotation of "legal" or "prescription" is of legitimacy and permission, as is the word "permits."

Justice Lawson dissented with a written opinion. His conclusion is that such a ballot "summary need not address secondary issues or ramifications, including federal law." He analogizes the challenge of composing such a ballot summary to an examination, and focuses upon whether some student's answer to that examination question is accurate, compared to whether the answer provides additional information not necessarily clearly sought by the question.

Justice Lawson also notes that the Court has “traditionally" been "deferential" in reviewing such ballot summaries. He characterizes this as "restraint," noting that "Sovereignty resides in the people and the electors have a right to approve or reject a proposed amendment to the organic law of th[e] State." Therefore, he notes the Court "take(s) a nonpaternalistic approach to our review, expecting voters to educate themselves regarding the details of a proposed amendment before voting." Justice Lawson concludes that it is thus the purpose of the initiative summary to "give the voter fair notice of the question he must decide so that he may intelligently cast his vote."

Both the majority and dissent are intriguing reading for the lawyer. It is 38 pages of perspectives regarding the Court's precedent in the Florida ballot initiative process, and is recommended reading. The Court's conclusion will require reworking of the ballot summary and the debates about decriminalizing marijuana will continue. In the meantime, it would likely benefit people greatly if we all quit misusing the terms "legal," "legalize," "prescription," and "prescribed."

Two teachers have suffered consequences of their misunderstanding of marijuana being "legal" or "prescribed." The dissent's explanation of our "expecting voters to educate themselves" is respectful of our autonomy and freedoms as Americans. But, the majority's focus on avoiding the "affirmatively misleading" is also appealing in the context of our individual rights - specifically the right to not be misinformed.

The Court concluded that "permits" is misinformation. Similarly, when the press or pundits use "legal" or "prescribed" that is similarly misinformation that has the potential to lead good people into difficult situations involving their employment and lives. And, in some instances to suffer detriments regarding their workers' compensation benefits, see section 440.09(3).