Tuesday, June 29, 2021

Drones, Surveillance, and Security

The legislative session in 2021 presented a multitude of interesting bills. Many will become law on July 1, 2021. One addresses our privacy and security, our property rights, and perhaps more. CS/CS/SB 44 is interesting. That designation means "committee substitute" for "committee substitute" for Senate Bill 44. There were multiple revisions, and this designation helps remind us that this bill evolved notably along its path from filing (12.28.20) to passage (04.28.21).

The title is "[a]n act relating to the use of drones by government agencies." The tin foil hat crowd might jump to the Skynet I-told-you-sos (The Terminator, 1984). No, at least not yet. The law, section 934.50, Florida Statutes, prohibits the use of drones by law enforcement to gather "evidence or other information." SB 44 amends that with "except as provided in subsection (4)." It will now be legal for law enforcement to use drones to:
provide a law enforcement agency with an aerial perspective of a crowd of 50 people or more (as long as the police agency has guidelines for the use, date retention/release, and for the safety of the crowd).
assist a law enforcement agency with traffic management (but, the police may not issue a ticket based on drone images/data).
facilitate a law enforcement agency’s collection of evidence at a crime scene or traffic crash scene.
assess() damage due to a flood, a wildfire, or any other natural disaster that is the subject of a state of emergency
There are also permissible uses for fire departments.

I long ago published Assume Everyone is Watching (September 2015) regarding cameras. More recently, I returned to conflicting rights and powers in Surveillance, Conflicting Rights, and Balance (May 2021). The common thread of these is that cameras are ubiquitous. As the Boys might put it, "I tell you (surveillance is) mighty wild, It's getting bigger every day," from Alabama to the ocean so blue. Cameras are everywhere, and now on drones. To be fair, these drone/cameras have existed for years, but now the state will be openly using them. This has the potential to make private property less private. Certainly, helicopters did that decades ago, but these drones are far cheaper to acquire and operate; therefore, the implications may be far broader. 

The foregoing statute portions are interesting. But, the new law continues. There is a short window, "by January 1, 2022" for the Department of Management Services (DMS) to "publish . . . a list of approved manufacturers whose drones may be purchased or otherwise acquired and used by a governmental agency." That phrase may surprise some folks. Is it not fair to conclude that a camera, is a camera, is a camera? Once the list is published, "a governmental agency may only purchase or otherwise acquire a drone from an approved manufacturer" on that list. Furthermore, by "July 1, 2022, a governmental agency that uses any drone not produced by an approved manufacturer shall submit to the department a comprehensive plan for discontinuing" its use by January 1, 2023.

Some drones will be deemed acceptable, and others not. This law will rapidly define that and constrain which government operates. This leads back to the question is a camera, is a camera, is a camera? Why would anyone possibly care who manufactures the drone? Why is there government interest in this? The bill also requires, by January 1, 2023, that the DMS will establish a rule that will govern "minimum security requirements for governmental agency drone use to protect the confidentiality, integrity, and availability of data collected, transmitted, or stored by a drone." So, perhaps it is not the camera, but the extent of security that protects it?

In that, there is some recognition that cybersecurity is a persistent and pernicious concern. This blog has repeatedly returned to the topic of cybersecurity, and I am proudly hosting a discussion of it at the WCI in December. See Cybersecurity Hits Home (May 2021) and Cybersecurity, WCI 2021, the Pillory, and More (May 2021). In the simplest terms, a drone is merely a computer with the capability of flight; their size, mobility, and ubiquity may be of concern. The implications of small and light cameras are numerous, see Artificial Intelligence Surveillance (August 2020).

So what? So drones are computers. So computers store data. Old news? This blog previously noted an innovative method of acquiring data. Rather than working hard to infect your computer after you buy it, might someone strive to co-opt a device before you buy it, in the design or manufacture stage? See Hardwired Hacking (November 2018).

The Associated Press recently reported that the federal government has grounded some of its drones. Furthermore, a bill is making its way through Congress regarding drones. It is possible these particular drones will never fly again. The bill would "impose a five-year ban on U.S. government purchases of drones manufactured or assembled in China." AP concludes that the bill "reflects bipartisan concerns that devices made by companies such as DJI, which is based in Shenzhen, China, could facilitate Chinese spying on critical infrastructure."

Stop the presses! (I always wanted to say that).

Could it be that the same inappropriate hardwired hacking reported with other computer equipment could potentially be similarly employed with flying computer cameras? The Pentagon has recently issues a report noting that its investigation on concerns "found 'no malicious code or intent' in drone software made by DJI and used by the Interior Department." A critical word there may be "intent." Even if there is no design for content misappropriation, could it be that even the most innocent hardware could be hacked by the miscreant community that hacks people's data?

The AP article notes previous concerns of untoward harvesting of data from these drones due to "many unfixed software concerns." There is also reference to a 2017 "document from U.S. customs authorities" that alleged "the drones likely provided China with access to critical infrastructure and law enforcement data." So, there is suggestion that drones might misappropriate data, or at least be ineffective at protecting data. There is also some suggestion in the AP article that these efforts are just a matter of forestalling purchases while the U.S. drone manufacturers catch up in order to compete with the Chinese manufacturers.

The AP suggests that the federal bill might wreak havoc on state law enforcement. It notes that federal funds are used by those agencies, and their purchase of Chinese drones might be impacted or foreclosed by the new law. Of course, in Florida, that will soon depend in some part on which manufacturers are listed by DMS for approved use. And, there are some allegations of Chinese-made drones being donated to government, which would obviate the constraint of federal money. Where the federal effort might frustrate purchase, the new Florida law appears to prevent use of even a gift drone.

The point of all of this is that we are all under surveillance. Often perhaps by happenstance (a security camera just happened to catch a building collapse recently). Not out of suspicion that something will happen (a building would collapse), but merely for the mundane of securing a parking area, providing a surf update, or any of a dozen other pedestrian purposes. There are just that many cameras out there, pointed in that many directions. How secure their signals are is open for discussion. That they are on drones is already known and accepted. And now, their use by government in Florida will likely increase. Therefore, it seems an appropriate time to consider the potential security risks that they may pose. 

In a challenging time of evolving technology, distrust, and sometimes abject paranoia, drones are coming soon to a situation near you. Or, perhaps, they have been here already and we are just learning of their challenges? In any event, SB 44 illustrates yet again that our world is changing, technology is advancing, and we may each struggle to keep up.

Sunday, June 27, 2021

Near Unanimity, Untethered

Not a great deal occurs in the U.S. Supreme Court that has workers' compensation implications. But occasionally a case is worth noting. No, this is not a post about the potential that someday college athletes could be deemed employees, though there has been significant hyperbole on that recently in light of the unrelated decision in NCAA v. Alston, No. 20-512 (June 21, 2021). That is a case about the Sherman Anti-trust Act, and while it is interesting, it does not say that student athletes are employees.

This blog has often referenced the inherent respect and deference that our common law system is supposed to demonstrate for prior court decisions. We call it stare decisis and it lies at the very core of our common law system. I have been hard on courts that ignore it, some would say too hard. No one, it seems, is very good at taking honest criticism at face value. For examples see Stare Decisis, Death Penalty, and Workers' Comp (January 2020), and the posts linked therein. For those I may have offended with my critique and analysis, I offer sincere apologies. 

That said, the U.S. Supreme Court rendered another opinion recently, in near unanimity. Mahanoy Area School District v. B. L., a Minor, by and through her father, Lawrence Levy and her mother, Betty Lou Levy. As a side-note, the courts use initials for minors. This protects the individual's anonymity. However, with some careful sleuthing, there is some potential that "B.L." may actually be named "Levy," and may in fact reside with Lawrence and Betty Lou Levy. It may seem a bit ironic to "protect" the minor with initials and then publicly identify the parents by full name. 

That near unanimity is noteworthy in a "weary world." While it is encouraging to see the near unanimity, it is the dissenting voice, the lone voice, that resonates in this instance. It is a critical voice, borne of logic and principle. The message is both clarion and informative, while also critical. The situation in this litigation starts with a teenager, disappointed with a decision denying membership on the varsity team. Disappointed and troubled, the teen voiced emotion on social media in 2017, as teens sometimes do. The majority notes that the teen "did not accept the coach’s decision with good grace."

In the student's haste and emotion, perhaps a few too many "f-bombs" were used, as well as a photo of a (likely) familiar hand gesture, to the consternation of some and the condemnation of others. One observer took a "screen shot" of the media post and brought it to the attention of the team coach. The student was "suspended for a year," not from school but from the team. This, according to the dissent "may strike some as disproportionate." Imagine you had been afforded a one year sentence for each time you dropped such a bomb in high school; how long might your sentence have been? I fear I would still be serving my sentence. Of course, we had the benefit of not carrying computers in our pockets and of lacking 24/7 access to transmitting our every inane thought. 

The real issue in the case is not about f-bombs, good grace, consternation, or proportion. It is not about teenage angst and disappointment (I knew a kid in high school that was never disappointed, but only one; "and his hair was perfect," Warren Zevon, 1988). The critical analysis, according to the dissent, is whether this decision is in keeping with our common law system.

Justice Thomas explained perceptions of flaws in the majority conclusions regarding Brandi Levy (as identified in the press, but not the decision, i.e. "B.L.," see supra). The justice identifies three of four critical points worthy of discussion.

First is the concept of "in loco parentis." When students are at school, its authorities are standing in place of parents. Therefore, a variety of precedent has held schools have been able to "discipline disrespectful speech," and otherwise regulate behavior. The dissent cites decisions dating to the adoption of the Fourteenth Amendment (Civil War). It is noteworthy to remember that it is the Fourteenth through which the protections of the Bill of Rights (thus the First Amendment, free speech, etc.) have been held to constrain the states and not merely the federal government. Thus, the law in the time of its adoption is suggested to be of interest.

The dissent notes that precedent have cited the “good order and discipline of the school,” and "the best interest of the pupils." The law has supported discipline of students for both on and off-campus behavior. The off-campus justification has been based upon the conclusion that it "reach(es) within the schoolroom during school hours and are detrimental." Thus, though the school is not "in loco parentis" when the students are away, it nonetheless has been allowed to regulate some student behavior. Thus, schools have been affirmed in regulating off-campus speech that "has a proximate tendency to harm the school, its faculty or students, or its programs."

The dissent closes this discussion with "if there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it." Thus, not a condemnation of the decision, but a suggestion that when a court departs from precedent it (1) acknowledge that precedent, and (2) explain the reason for reaching a different decision in the present instance. That suggestion has merit in every legal process, including workers' compensation. The dissent even suggests some sound reasons for departing from precedent in this instance, but laments the majority does not identify such reason or provide its explanation.

Second, the new test for such speech. Rather than a test per se, the dissent characterizes the decision as "a few pragmatic guideposts." In the absence of concrete parameters, without explanation of the departure from prior decisions, the dissent concludes that the adjudication of "student-speech cases" is now "untethered from any textual or historical foundation." In other words, what standards should a trial court employ in deciding future cases of this nature? The challenge of the law is persistently that the "next" case will include some factual distinction from the present case. It is helpful to therefore have standards and tests discerned by the appellate court for the guidance of both litigants and trial courts.

From a background of nearly unlimited authority of "schools to set rules and control their classrooms," to the present decision, the dissent laments its foreseen challenges for future decisions. The majority is said to provide no test or parameters for future decisions. This is reminiscent of the oft-cited platitude provided by Justice Potter Stewart in Jacobellis v. Ohio, 378 U.S. 184 (1964) regarding pornography: "I know it when I see it." The flaw with such a conclusion is that every allegation of pornography must be then screened by Justice Stewart; the standard afforded to trial courts is essentially "what would Justice Stewart think?" Such a standard does not empower trial courts to make informed legal holdings. Thus, the "untethered" criticism is of broad import.

The dissent says that the majority decision "states just one rule: Schools can regulate speech less often when that speech occurs off campus." the remainder of potentials and distinctions, it notes, are left "for future cases.” In effect, it argues, a "new common-law doctrine" is established, subject to the best efforts of other courts to interpret and refine in years to come. The dissent warns that both "courts (and schools)" will struggle, "almost certainly . . . at a loss as to what exactly the Court’s opinion today means." Is it the content of speech that matters, the location, the impact, the potentials?

As a side noted, other cases have set parameters or "tests. As regards the efficacy of this opinion, and its usefulness to guide future decisions, some may see a parallel in Lemon v. Kurtzman, 403 U.S. 602 (1971) and the so-called "lemon test." This is not cited by the dissent, but may be relevant for consideration. Many critics assert this test is aptly named in that its attempt to bring order to the issues of separation of religion and government did little to forestall litigation or challenge. The decades following its rendition are littered with good faith, yet failed, attempts to implement and apply that test. That attempt at purportedly more of a test, though perhaps well-intentioned, was roundly ineffective.

In the third element of criticism, the dissent is more blunt as regards the majority's reasoning. It notes the majority conclusion "that it 'ha[d] been the unmistakable holding of this Court for almost 50 years' that students have free-speech rights inside schools." However, the dissent notes that the authorities cited in support of this conclusion in fact "do not support it.” There is fault found with prior decisions and criticism of the extent to which the Court previously "explain(ed) itself" in reaching decisions. In criticizing that precedent, there may be a hint of suggestion that Levy may one day be subjected to such criticism. It is also critical that courts are straightforward in both citation of and reliance upon authority. The dissent's suggestion of inaccuracy would be troubling in any discussion of stare decisis, even in workers' compensation. 

Finally, arguably a fourth point, the dissent also suggests that the world is evolving and different. It notes that the communication in this instance was "through social media." Technology facilitates such off-campus speech reaching easily and rapidly into the school environment. This, the dissent urges, may present a greater propensity for potential disruption and harm. The dissent warns that "speech travels" and there will be instances in which "speech is generated off campus but received on campus." There is criticism of the majority for not addressing that potential. Justice Thomas seems convinced that other teenagers might similarly engage in the use of social media, and laments that the decision does not provide context for those future potential (probable?) instances.

There is suggestion that the considerations of regulation and discipline might be different "where it is foreseeable and likely that speech will travel onto campus." Though the dissent cites analog examples, such as a student bringing to school a sketch created elsewhere, the digital implications of speed, ease, and pervading potentials are perhaps seen as worthy of consideration and discussion. The dissent laments the majority not providing guidance in this regard. 

In the end, a teen and a coach perhaps overreacted ("let's not make a federal case out of it," too late). Speech was stifled by a school (what if the social media platform had stifled it?). The law provides various prior decisions, precedent, to steer the current dispute, but the Court reaches the outcome without significant discussion of that precedent; in doing so, the law is purportedly changed, but without the analysis depth to facilitate understanding of those who are governed. 

The challenges of the trial judge and the governed are highlighted. When the appellate court brings the conclusion without explaining the logic, it leaves us to the "next case." Schools, students, parents, lawyers, and more will struggle with what is appropriate, in both action and extent. They will struggle with the on and off-campus characterization and its social medial borders. Litigation will ensue, and judges will struggle. There is no "Stewart" app to check whether the speech is or is not offensive, inciting, or worse. The dissent is intriguing and worthy of a read. Justice Thomas is hard on the Court's decision. 

Whether one is inclined to agree or not with his criticisms, one phrase is hard to criticize. He notes that "if there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it." When courts change our course, when precedent is not followed, it is incumbent to acknowledge that and to explain why. It is also difficult to disregard with his "untethered" conclusion. We learn, usually, from our past. We may also learn from the mistakes of others. By studying history, we are better prepared for the present. That is, essentially, the value of precedent - study of the past. 

Agree or disagree substantively with the dissent, or the near unanimity for that matter. But how the decisions of courts are structured, their discussion of the past, their map and guidance for the future, and their value are always worthy of discussion. That may upset some. But, the real value in that First Amendment is that the minority voices, the dissents, are still voiced. There is "equal time," unless it is stifled by the platform selected, which censorship is a topic for another day. 


Thursday, June 24, 2021

Work Hours are Deadly?

Bad news for those of us putting in those long hours? The British Broadcasting Corporation (BBC) recently reported that "Long working hours (are) killing 745,000 people a year, study finds." That is a fair number, but that conclusion must be tempered with the caveat that it is a worldwide figure. There are 7.8 billion people on this planet, so that is not even close to one percent of the population; in fact it is about one one-hundredth of one percent. There are those who see population growth alone as a threat to health and welfare, but that is for another day. 

The BBC article cites a World Health Organization report, which may cause some to pause. The WHO response to the pandemic has not been overwhelmingly positive. Some have been critical of the varying mask advice, others of the bureaucracy. The organization is said to be currently considering a color coded pandemic threat scale, which may be as useful as the National Terrorism Advisory System. Ask yourself if you know how your behavior is supposed to change when the terrorist advisory color changes. What would a color coded pandemic scale add to our knowledge? Would its implementation or deployment be more seamless than other WHO performance this last 18 months?

This WHO global study is focused on 2016 and the headline is somewhat misleading. Those 745,000 people actually died "from stroke and heart disease" that is being attributed to "long hours" at work. That can be a problem with academic research, and with news headlines that oversimplify conclusions (purposefully or as a result of brevity). There is no cause and effect per se here, but an association of work hours and the frequency of stroke and heart disease. Essentially, they gathered self-reported work hour information from patients that suffered those events and drew correlative conclusions. 

Essentially, stroke and heart attack victims tend to work longer hours. That could be a cause and effect, or could be an interesting correlation instead. This may be a faulty cause and effect fallacy, post hoc, ergo propter hoc. If it is not, one might expect that the article provide greater insight as to the actual causation. Stated otherwise, were similar people (age, gender, socio-economics) who did not suffer stroke and heart attack surveyed regarding work hours? 

If it turned out that a similar percentage of that whole population segment (age, gender, socio-economics) worked long hours without the particular medical complaint, you might doubt the cause and effect, or perhaps at least question what else might contribute to the heart attack and stroke risk. Is it possible that people who work long hours are less likely to have time for exercise? Do people working long hours tend to eat less healthy (fast) food? Is it likely that people working long hours may have other socio-economic similarities worthy of study and consideration?

The BBC reports those who worked "55 hours or more a week" presented a "35% higher risk of stroke and a 17% higher risk of dying from heart disease"than those who worked "5 to 40 hours." But, that work hour distinction was the solitary study focus. Most of those who passed away were men, and there was predominance in the geography of Asia and the Pacific Rim. Thus, the headline might read "Long work hours fatal for men" or some other similar oversimplification. 

Fortunately, the report concludes, only about 9% of the population works these "long hours." There was concern because of perceptions that the pandemic resulted in many working more hours rather than less. The advent of telecommuting alone is said to have resulted in increase as people took that two hours per day of commuting time and devoted it to productive work. Some believe the eight-hour work day evolved to ten as a natural consequence for some workers. Others note that some employment became sporadic in the pandemic, leading some to undertake second jobs. 

Notably, there are also those who appear disinclined to return to work. Small businesses report struggles in finding employees. I recently called to order a pizza at a small-town, local favorite while travelling. The phone went unanswered and I presumed it had closed. The next night, I found it open. When I inquired, the manager described closing on Mondays as a consequence of inability to hire workers. This is certainly anecdotal. But, as I meander through life here in paradise, it seems every business has a "help wanted" sign out. So, whether the increased work hours are or are not a defacto result of pandemic may be worthy of discussion and debate. 

The BBC continues, characterizing the report as concluding that working long hours are "estimated to be responsible for about a third of all work-related disease." It claims the impacts of work are two fold. First, longer hours create physiological stress on the body. However, more intriguing, the authors conclude that longer work hours contribute to "health-harming behaviors such as tobacco and alcohol use, less sleep and exercise, and an unhealthy diet." Why not ask those surveyed "do you smoke," or "do you exercise?"

Thus, in the end, the conclusions of work hours being unhealthy are actually conclusions about personal choices. The physiological stress on the body is one thing. That is worthy of consideration and study. Is work causing that stress? And, taking a page from our workers' compensation constructs, is that work stress any greater than those people experience in their non-occupational environment? This is a tighter examination of causation than this particular study finds worthy. 

But more importantly, this final conclusion leads us back to the probability that its conclusions are fallacy. Longer work hours somehow contribute to tobacco and alcohol use? The more one works, the more likely one is to smoke? There is no scientific support cited for any cause and effect there. These are, at least until proven otherwise, not cause and effect. They are concurrent findings. It may be that smoking and alcohol use are more prevalent in the socioeconomic groups that work long hours. Coincidence is not causation. That long hours are similarly associated with poor diet, without more, may also be coincidence without correlation. It is unfortunate that the news would conclude causation without more.

Certainly, there is easier acceptance of the "less sleep and exercise." These are two things that require time. If one is engaged in long hours of work, in a world of finite minutes, there are less minutes each day for sleep and exercise. That is a logical conclusion. However, I know many people that work very long hours and yet still find ample time to both sleep and exercise. Therefore, we return to the assumption that coincidental findings equal causation. 

In the end, the article and study may cause us to ask questions. In a very superficial sense, perhaps it reminds us of what is important. Eating right, avoiding alcohol and tobacco, and getting rest are important to health. Finding time in the daily routine for each are critical to avoiding health concerns. Beyond this, whether longer work hours cause our less healthy decisions in those regards remains questionable. And, in the end, the reporting on this WHO study leaves me with more questions about their science than answers. 

Coincidence does not equal causation. Inferences are not necessarily proof, and when we stack inferences upon inferences the strength of our conclusions may be questioned, as the court explained in Inmon v. Convergence Employee Leasing in 2018. We have to watch those headlines, ask some questions, and keep asking those who preach consensus to instead show us the science. That is, simply, what science demonstrates that work is killing almost a million people each year? Not what science demonstrates that work hours cause smoking. Our skepticism should be piqued. Show me the science! Can we rationally expect better of science or journalism?

Tuesday, June 22, 2021

Felony Embezzlement?

"These kids today" will not comprehend the business model. I have gotten old enough to use phrases like "these kids today," and "I remember when." Anyway, the subject of this post is called a "VHS Tape" (1977). See, "back in the day," when you wanted to watch a movie, it was as simple as driving to the "video store," there was no such thing as "streaming" unless you considered watching one of the few (in most towns less than 5) "broadcast" stations that your television set could pick up (you streamed what they chose). At your alternative, you would join these stores, and carry a membership card. The rentals were for a fixed number of days (someone else could not watch the movie until you brought it back).

It was a great paradigm, of which we were very proud. We frankly could not believe the convenience. And, there were video stores everywhere. The biggest chain was called Blockbuster (started in 1985), and at one time it had 9,000 store locations, "employed 84,000 people," had "65 million registered customers," and was valued over $3 billion.

We watched as these stores evolved from VHS tapes to DVDs (Digital Video Discs). They were smaller and you did not have to "rewind" the movie (with VHS, the tape physically moved from one reel to another as you watched; to watch it again you had to "rewind" it). Blockbuster and other stores also charged you a dollar if you did not rewind the tape. Sometimes they would then rewind it themselves, but other times they just took the dollar (profit) and left that rewinding for the next customer. Despite evolving into those DVDs, Business Insider notes that Blockbuster then went bankrupt due to competition from others such as Netflix (which used to use something called the U.S. Mail to deliver and pick up those DVDs).

The big difference between Netflix and Blockbuster was therefore convenience. But, as I recall, another big difference was the dreaded "late fee." Netflix did not mail the old VHS tapes, so no rewind fees. But if you rented a movie from Blockbuster, it had a return time. If you missed it even by minutes, they put another few bucks for a late fee on the credit card you had given to them when you signed up. Business Insider says that in the late 1990s "Blockbuster earned $800 million in late fees alone." Some of us codgers might even admit that we switched to Netflix primarily to avoid those late fees. It was harder than you think to remember to return those movies.

The news in 2021 reported an Oklahoma Woman Charged with Felony. She had reportedly lived with a man 20 years ago (2001), and the man had daughters. It appears that she, the man, or the daughters rented Sabrina the Teenage Witch from a video store and it was never returned (or at least checked in as returned, anyone might make a mistake). The store filed charges with the local officials, and then proceeded to go out of business like all the other video stores. Well, most; you can still visit the last Blockbuster in Bend, Oregon (and even purchase a "Be Kind, Rewind" t-shirt, yes that is a real thing).

Fast forward to 2021 and she was trying to renew her driver's license when she finds there is a problem. The old criminal charge remained pending. She says that "over the last 20 years, she's been let go from several jobs without being given a reason why." She now believes it stems from the fact that a criminal background check would alert any employer to the pending "felony embezzlement" charges. She finds herself trying to correct charges filed by a now out-of-business store. Fortunately for her, the prosecutor's office agreed to drop the charges.

There are multiple lessons here. First, you have to be careful letting anyone use your accounts. That may seem easy to remember with your credit card, but perhaps you would tend toward leniency if someone wanted to use your membership to rent a $3-$4.00 movie? The lesson for the business might be to get that credit card number in advance? My late fees at Blockbuster were always just charge to my card. If I had simply not returned a tape, I suspect they would have charged me for that also (you broke/lost it, you bought it?).

One's first reaction might be "felony?" Over a video not returned? According to 21 OK Stat § 21-1451 (2014), a felony would require the value of what was taken to be over $500.00. It may be difficult to comprehend that value. In fact, movies in that era may have cost up to or more than $100.00. This is supported by the recollections of others. But how does that $100 make for a felony? One path may be that the store did not report the loss to police until those "late fees" accrued for some time. A $1.00 per day late fee could accumulate quite an aggregate over a year or two. The second point is that responsibilities can create problems; if they are ignored it may become worse.

Third, the victim (video store) does not have to persist in order for a prosecution to occur. Criminal charged can linger for a very long time. Years ago a student approached me regarding threats from a retailer to whom the student has written a bad check. I struggled to convince the student to take cash to that store and buy that check back. The student was convinced that one bad check would not impact or harm her/his future. I explained that such "truth crimes" are a question on virtually every job application you will ever complete. Eventually, the student relented, but I will never know for sure if s/he bought that check back.

Fourth, you don't know when something like this will crop up. I similarly knew someone who was engaging in a transaction and ran a simple computer background. S/he was surprised to find a delinquent tax bill that was from more than 20 years earlier and which had never appeared on any report over that time. S/he was able to prove it had been satisfied (do you have your paper records from 20 years ago?). But, in doing so, s/he learned that the county's records had long misidentified that account as delinquent. What had at that point only very recently changed was the county had accomplished transferring such information to the Internet. Thus, the digital delay had resurfaced long forgotten and untrue information to her/his chagrin.

Fifth, people are keeping information about you. That does not mean they are necessarily telling you. Do you know what your credit score is? Better, do you know why your credit score is what it is? Who has reported what and when? Has it been reported accurately or not? There are free methods for checking your credit report.

Additionally, for $24, you can check your own criminal history (Florida only) on the Florida Department of Law Enforcement website. Should everyone do this periodically? Likely not. But, if you are being mysteriously let go from jobs, finding you cannot qualify for credit to make some purchase, etc., perhaps it would be good to do some research? Sure, you never did anything (this lady says she did not even rent this movie), but some clerical mistake may be mysteriously haunting you. It is always possible that details will not appear on such a check, as illustrated by the tax anecdote above, but these are a good place to start.

Finally, records can be wrong. This can occur through human error in creating them, or in digitizing them. Mistakes, yours or those of others, can follow you for years. Thus, the workers' compensation community might be careful in reliance upon digital records and perhaps more careful of old information. There are anecdotal examples of misidentified "prior injuries" and similar records being attributed to the wrong person.

In the end, paradigms will change, and information management will evolve. Those who create it or maintain it may go out of business and thus perhaps increase our challenges with correcting the data. With no store to explain, we are left with conjecture as to the felony perspective. Others will rely on this data. These issues might challenge any of us, and deserve some attention. And, "buckle up," you may too soon find yourself uttering phrases like "these kids today" or even "get off my lawn." This getting old is, well, getting old.

Sunday, June 20, 2021

Presenteeism and the Coming Divide

I have been hearing a lot lately about "return to work." It was confusing at first to hear various workers' compensation community members discussing this. My first reaction, long ingrained by this workers' compensation world in which we live, was it must be a reference to the end of work restrictions following an injury. I was way off. These folks have been away from their offices, telecommuting, and are now returning to the office. 

Over the course of the last 15 months or so, I have heard anecdotal stories of offices closing due to SARS-CoV-2 fears (You cannot be infected with COVID, it is result not a cause). Admittedly, the Florida OJCC has had to shutter an office here or there for deep cleaning a few (less than 5) times; those have been for a day or perhaps 2. We have had some employees that needed to telecommute temporarily, but that population was never anywhere close to a majority of our team. In short, the Florida team weathered the pandemic fabulously; mediations proceeded, trials were held, and orders were issued. I cannot express how proud I am of these outstanding professionals.

But now, the news is littered with advice for the workplace "reopening." Organizations are touting plans. Lawyers are posting advice. The Centers for Disease Control is providing guidance about environments and advice for the unvaccinated.

But some will not return. CNBC reports that "working from home is here to stay." There is news of companies "Switching to Long-Term Remote Work." and predictions of "accelerating the trend toward telecommuting."

A recent WorkersCompensation.com story highlighted the prevalence and challenges of telecommuting. It notes at the outset that many leapt to telecommuting with little or no warning. Thus, some concerns might be addressed with preparation. However, it noted that a small sample (194) study found that telecommuters were complaining of pain, perhaps largely "due to ergonomic deficiencies" and weight gain. 

The ergonomics are somewhat predictable. It is rare for us to have professional-grade desk, chair, monitor arrangements in our homes. Despite that, the study concluded that those who telecommuted "reported a significant increase" in their work hours and "outputted better quality of work." The authors suggest that employers planning to use this paradigm in the future either invest in, "or contribute to" the kind of ergonomic arrangements that would be common in an office environment. 

The weight gain is troubling, but the causes are perhaps not hard to define. The survey respondents largely reported that they ate better (homemade not carry out), but also admitted consuming "more junk food." The study isolated inactivity and other factors including a reference to technology reliance and sedentary work.

And, there are other detriments to telecommuting interwoven with some troublesome aspects of office presence. The British Broadcasting Corporation (BBC) recently featured "Why presenteeism wins out over productivity." That word means "being physically in your seat at work just to look dedicated, no matter how unproductive." Businesses thrived on it before the pandemic, and despite the shift of many to telecommuting, the issue persisted. The BBC notes that "presenteeism has simply gone digital."

See, in presenteeism we are striving to look dedicated. That means first to the office and last out; being at our desk even if the work is done. Our presence virtue-signaling our dedication and necessity. I had a judge tell me years ago, upon my initial appointment, that I needed to be in the office; "being there is that important." So, a great many people were displaying their dedication that way before the pandemic. In the midst of it, reportedly, many worked harder at home (more productive) than they had in the office. And, they worked longer hours than ever. The BBC acknowledges that we may in fact be "be slaves to presenteeism forever," whether in the office or beyond.

They note that the pandemic did not legitimize telecommuting in the eyes of some. They noted that a 2019 study concluded "telecommuting has generally been stigmatized as irresponsible, and those engaged in it suffered detriment in salary growth." Those that come to the office are seen, are able to "ingratiate themselves," and may enjoy advantage(s) as a result. The authors mention psychological concepts relative to how we perceive each other, and presence may influence that. It warns that "Many bosses only see the most visible people."

The article acknowledges that we may be no more productive in the office than at home. It notes workers recognize the presenteeism trap, however, and even telecommuters will come to the office. In some part, this will be due to our coworkers making that trip, and our desire to fit in with coworkers and enjoy benefits when possible. The authors quote one academic suggesting that managers must get over this "presence equals performance" bias. To to so, they must personally "model healthier behaviour." Thus, when the work is done, the manager should leave the office. This signals to others that such a practice is accepted. Those managers should look to measures of "raw performance," and whether deadlines, commitments, and goals are being met. In short, the output and accomplishment must come to outweigh the simple presence. 

So, as you "return to work," and join those of us that never left, perhaps you will want to find ways to stress your effectiveness. Perhaps there is value in being in the office, but maybe we all need to find value beyond presenteeism and this apparent conclusion that being physically there is half the battle?

Thursday, June 17, 2021

Your Light Switch Could be Spying

This week Jon Gelman published "Cybersecurity Must be a Shared Responsibility." We live with the daily threat of phishing, worms, Trojans and worse. We are a threatened society, struggling to accept and appreciate the extent to which miscreants and malcontents will go to trouble us. The recent pipeline hacking was discussed in "Cybersecurity Hits Home" (May 2021) and "Your Cyber-Health is Your Job" (June 2021). That is a recognition that you play a role in your defense, which sentiment is echoed in Mr. Gelman's piece.

We have heard for years that the criminals will go to great lengths to steal. In 2018, I noted in "Hardwired Hacking" the imagination that can go into misdirecting information or outright theft. Mr. Gelman describes how the federal government faces moral dilemmas regarding hacking and network security. He describes "zero day" software and its role in the anti-hacking strategies. The term refers to a fallibility of technology. According to TrendMicro, all software is flawed. There are weaknesses and vulnerabilities periodically discovered.

When a problem is discovered, the software producers begin programming to "patch" the software and either eliminate or ameliorate the risk of that flaw. Unfortunately, communication is extremely rapid in our world. Imagine that you discovered a window lock in your home that will not function. You know you need to have it replaced, and until that "patch" is applied your premises are vulnerable. But then imagine that it is possible for every malefactor, villain, and evil-doer to rapidly be informed that your window does not lock. You have a problem, and they are coming to exploit it.

This is an oversimplification of course. However, the challenge with software is that while you are fixing that window lock, the villains are busy striving to find some other weakness in your structure. They may even depend upon your good nature and see if they can trick you into inviting them in. Picture some kindly person ringing your doorbell and offering any number of sympathetic pleas or helpful assistance with your problem(s). You might just invite them into your house, the same way you could be tricked into clicking some link in an email, inserting a "found" flash drive into your computer, or allowing someone to wander back into the office with your group following a break.

They call these "zero-day" threats because once the miscreants know that your window lock is not functional you literally have zero days to get that fixed. As long as no one knows of such a problem, you might play the odds. Seriously, of all the houses in your neighborhood, and all the windows, what are the odds that some miscreant will manage to happen upon yours? But once the word is on the street of that particular window being vulnerable, in the words of "Field of Dreams" (1989), "they will come." Oh, "people will come Ray. They'll come to Iowa for reasons they can't even fathom."

Mr. Gelman brings this home. He notes that we are obsessed with technology. And the very hardware that we are bringing into our homes (remember the old Trojan horse?) What if the miscreants and malcontents could avoid having to break into your home by convincing you to bring the Trojan horse in yourself? This is apparently now being recognized as a real threat. Similar to the "Hardwire Hacking" threat with commercial servers, Mr. Gelman cites "the $5 automated lamp switch that may have software embedded in its chip that routes personal and confidential to ill doers."

You brought that lamp switch into your home. You brought that "smart" device: digital thermostat, front door camera, digital eavesdropper (anything that can listen to your commands can listen to anything), and more into your home. You brought in that Trojan horse for what you perceived as value and in the process you simultaneously admitted whatever else it contains. And, long after you have forgotten your refrigerator is "smart," it will still be gathering data. With whom might it share?

Mr. Gelman points out that these technologies place a burden on law firms. That is not news. The Florida Bar Journal warned in 2016 "Attorneys Must Protect Clients's Sensitive Data." That article pointed out "Attorneys cannot afford to sit idle and assume that their information is secure." The legal firm is often targeted because "Law firms are high-value targets for hackers because they hold highly confidential and sensitive data." And, what leads anyone to believe that doctor's offices, claims centers, and others in the workers' compensation world hold less of that sensitive data? The Bar urged lawyers to "develop() and implement() strong and comprehensive cyber security programs." Isn't that good advice for us all?

That is perhaps the equivalent of the police advising you to lock your doors and windows. Have you paid attention? Are there broken locks or other risks that should be treated as "zero day?" This may be in your physical premises (yes, they can just steal your server), your software, or apparently your light switch or refrigerator. What are you doing to better understand those risks and live up to your professional responsibility. In the age of information, are you tempted to just disconnect from the Internet?

In December, I will host a portion of the WCI cybersecurity program. No, this is not a class just for IT experts and aficionados. This is a program for the rest of us. As we live out our pedestrian lives in the world of information, what are the realistic concerns that workers' compensation professionals face? What role can we play in keeping the villains out our our premises, out of our networks, and out of our data. 

The liabilities are extensive. While lawyers tend to engage the "parade of horribles" ("A rhetorical device employing series of progressively more terrible results following from an act."), the fact is that a data breach can mean lost work time and revenue. It can mean loss of client data, lawsuits, and financial loss. It can destroy reputations and close businesses. If you are not keeping up on these imaginative and relentless evil-doers, the time has come. These threats are real and they are perilous. I hope to see you in December to have a broad discussion of your personal "zero day" threats (what you should be working on right now).

Tuesday, June 15, 2021

The Science of Consensus and Masks Again

The sun rises on me this morning in Bonita Springs. It's a far cry from many places in Florida (600 miles from Pensacola), nestled between Ft. Myers and Naples on the gulf coast. This time of year it is a slice of heaven. In the winter, it is an amazing congestion of Hoosiers, Buckeyes, and other mid-westerners escaping the cold and drear. I am here for the Workers' Compensation Claims Professionals (WCCP) 29th Annual Claims Management Conference. I am speaking later today with William Rogner regarding the Florida court's reasonably recent return to "arising out of," see It's not that the Wind is Blowin' (June 2021)

A brief stop at the venue late Monday afternoon found a reception full of people. They transitioned from there to the pool area and began a series of team competitions they called the "Olympics." There was some irony perhaps. Some will recall that the 2020 Olympics were slated for Tokyo last summer and were cancelled due to SARS-CoV-2 concerns. There is some hope they will be held later this summer, but the WCCP beat them to the punch with chronology if perhaps not pure athletic prowess. I am not denigrating the participant's efforts. They were, of course, more athletic and braver than I am.

What didn't I see? A mask. No, not plural ("s"). Not a mask. Perhaps they were there and I missed them, but I didn't see them. Masks were on my mind, though we have not worn them here for weeks (or longer). Recent news from California brought masks back to my present last week when WorkersCompensation.com reported "Workers Must Continue to Wear Masks, California Standards Board Rules." Periodically, I still run into the occasional mask-wearer. I respect their personal choice, and I accept that I may have no clue regarding their personal circumstances. I would hope none of us would disrespect someone for such a choice.

But, in California, they are playing mask ping pong lately. On June 3, 2021, the California Occupational Safety and Health Standards Board met for nine hours to consider workplace mask wearing. It is unfortunate that such a board would struggle with a subject like this. Everyone in the safety business has been frustrated over the last two years by the "don't wear a mask," "wear a mask if you want to," "everyone wear a mask," "don't wear a mask" roller coaster. The scientists and experts often disagreed with each other, and sometimes disagreed with themselves.

The best opinions we had to offer collectively and effectively reached a resounding "we just don't know" conclusion about masks. There was no science. That is data-derived, replicable, demonstrative proof of mask efficacy against this virus. Many asked "show me the science," and the response was thin. By science, we mean "The process of observing, asking questions, and seeking answers through tests and experiments," See Britannica Online. There were anecdotal examples cited that suggested some masks could be of benefit, but a great many of us were only able to access masks of questionable efficacy (paper, single layer cotton, etc.). At best, there was scientist consensus, and so we all wore masks.

Then, on May 16, the Centers for Disease Control (CDC) changed its recommendation (again, seemingly on consensus; if not, Show Me the Science!, the experiments, the tests, the data). The CDC changed its consensus. This is, after all, the federal government at work on our behalf. It cannot be wrong, can it? 

According to the CDC - "If you are fully vaccinated, you can resume activities that you did prior to the pandemic." Furthermore, "fully vaccinated people can resume activities without wearing a mask or physically distancing." This is the scientists telling us their latest consensus. Then, bowing to the politics of pandemic, the CDC adds "except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance." At this moment, your reaction might be somewhat confused. What local government official knows more about SARS-CoV-2 than the great consensus that is the CDC? Some consensus is better than other consensus? Admittedly, I find myself confused sometimes. 

So California's Occupational Safety and Health Standards Board debated their scientific hypothesis and conclusion on June 3, 2021 and voted to adopt changes "that would have allowed workers to forego masks only if every employee in a room was fully vaccinated." See, there is trepidation regarding "the vaccinated" being unmasked. Some believe it is possible for vaccinated people to spread the virus to others. It is not clear whether that belief is consensus or if there is science to support the potential. If we accept on faith/consensus that there is potential, one wonders what is the probability? Potential versus probability - we each have the potential to scale Mount Everest - about 4,000 people have in all of history. The potential is high, the probability (.0000005) is low (based only on the current population of the planet).

Before the new Cal OSHA regulation could be implemented, the board voted unanimously, more recently, to withdraw those "changes to (the) COVID-19 emergency temporary standard (ETS)." In seven days the board went from a nine-hour meeting and conclusions to unanimously reversing course. Their concern, it appears, is that "officials" believe "those changes are out of sync with recommendations from the Centers for Disease Control," see above. They also see conflict with the conclusions or recommendations of "the California Department of Public Health." Presumably, that conflict regards the CDC and others essentially saying consensus holds no need for masks if one is vaccinated.

If one is vaccinated. "Aye, there's the rub. For in that time of COVID what uncertainty and doubt may come . . must give us pause." (respect to Billy Shakespeare, or whoever wrote Hamlet). Who is vaccinated? How would you know? You cannot even ask in many settings (HIPPA, privacy, ADA, etc.). We have seen that in retail already. The masks are gone, the signs are gone, and they are not requiring masks. They recognize, it appears, the challenges of policing compliance with a great unknown. The Cal OSHA Chair voiced this somewhat, noting "both enforcement and compliance with the changes adopted last week would be 'unduly difficult.'" That is likely because you cannot tell.

Of course, the government could have made this easier. They could have simply put a microchip in each inoculation. Then we could simply scan each other with our cell phones (yes, there would certainly be an app for that) to see who is or isn't. But, despite the prognostications and protestations there was no chip in the vaccine. And even if there had been, our tinfoil hats would defeat it anyway (or not, you decide).

So, for now, workers in California will wear masks and wait for further guidance. The federal government has reached consensus, but that conclusion will not be the end. There are doubts, fears, and angst. No one should make light of that. What we are each scared of is our own burden (and likely related to our own circumstances - do not ridicule those who chose to wear masks). What government is scared of is simply a reflection of our collective (consensus) fear and angst. 

In some part, this all makes me reflect on the Florida legislative changes in 2000. Someone noticed that Congress has passed the Occupational Safety and Health Act (OSHA) back in 1970. In 2000, someone asked why we still had an occupational safety division in Florida workers' compensation. Apparently, no one had a good answer to that one. Thirty years after the federal government got into the occupational safety business, Florida abolished its safety agency (which some perceived as redundant and others viewed as critical). However one feels, there is no Florida OSHA. But, only a year into the pandemic, OSHA issued occupational guidance for SARS-CoV-2.

In the end, we are a diverse country. Bound together in a federalist system, a constitutional republic. We will see variety and disparity from state to state. Different states have reacted to SARS in their own ways. Florida has largely remained open, and I am grateful to have not had to live through lock-downs, shutdowns, and beat-downs (my sympathies to those who don't live here). Here in paradise we will be gathered today to discuss workers' compensation. I suspect we will be mask-less. Here in paradise, I will be back in the crowds today. Perhaps I will congratulate the Olympic champions with a handshake or even a hug? Perhaps they will fear me, or not. But, I will not wear a mask. I will apparently not be alone.

Sunday, June 13, 2021

It's not That the Wind is Blowin'

When I finished the substantive work on this post, it occurred to me that the Valcourt-Williams case and the "arising out of" requirement are sorta' like a hurricane. Comedian Ron White describes a man who remained in the Keys during an evacuation. He said he was essentially proving his virility and bravery. Mr. White notes that "it isn't that the wind is blowin." No, "it's what the wind is blowin." He suggests that "if you get hit with a Volvo, it doesn't really matter how many sit ups you did that morning." Keep readin', I'll try to come back to this.  

I am honored to be presenting with the esteemed William Rogner this week at the "second" (thanks to COVID) 29th Annual Claims Management Conference of the Workers’ Compensation Claims Professionals (WCCP). I naively thought that we might finish the conversation we started at the Current Trends hour at the Forum in April. Mr. Rogner in April assured us that the “arising out of” discussion was worthy of our immediate attention. He reminded that this began in earnest in April 2019 with Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla 1st DCA 2019), and despite our limited time there was some animated conversation. From his involvement in all things workers’ compensation, he related a perception that the court’s decision was presenting some interesting questions in various trials.

Having now looked through a number of orders, I am convinced that we will not “finish” anything Tuesday at the WCCP. We may put a bit deeper scratch on the surface, but I am convinced that we will not be able to be comprehensive in our coverage. In short, as Willy Wonka once said, “So much time and so little to do. Wait a minute. Strike that. Reverse it.” There is, indeed, so much to cover here.

First, the volume. I ran a search for “Valcourt” on the OJCC “Finals by Keyword” search tool. Did you know you can search all the judge’s trial orders? It is a critical tool for anyone engaged in litigation in this state. It is an ideal method to study the law and familiarize with decisions. Go to the “Orders Search” tab at www.fljcc.org to learn more. My search yielded 19 cases citing Valcourt-Williams. To say they were interesting is a gross understatement. They are, without exception, well written and fascinating analyses, some more in depth than others. 


In Santiago v. SBA Communications, OJCC No. 20-001834, the judge reminded that the claimant bears the burden of proof that an injury arose from and was in the course and scope of employment. The judge provides an extensive explanation of “course and scope” and the personal comfort doctrine. There is also explanation of the evolution of “arising out of” as regards workers with “pre-existing conditions or competing causes of the . . . injuries.” The judge noted some perception in the community that Valcourt-Williams should be “viewed narrowly,” but acknowledged it is an en banc decision of the court. The judge interpreted the law as presenting a two-part analysis, “whether the risk was introduced by employment or introduced personally.” The judge presented various possible interpretations of the Valcourt-Williams opinion, the precedent cited, and some points not mentioned by the court, such as the “neutral risk” alternative. In denying compensability, the Judge concluded that Valcourt Williams is “expansive” and any determination of compensability requires “occupational causation,” that is risk. The Judge denied compensability of an injury when claimant was "walking toward her work station . . . , twisted her right ankle causing her to fall."

If you told me you had time to read one decision, Santiago would be my recommendation. The judge carefully dissects "the 2012 troika" - Caputo v. ABC Fine Wine & Spirits, 93 So.3d 1097 (Fla. 1st DCA 2012); Walker v. Broadview Assisted Living, 95 So.3d 942 (Fla. 1st DCA 2012); and Ross v. Charlotte County Public Schools, 100 So.3d 781 (Fla. 1st DCA 2012). These are somewhat founded upon Lanham v. Department of Environmental Protection, 868 So.2d 561 (Fla. 1st DCA 2004). The decision also provides illumination of Sentry Insurance Company v. Hamlin, 69 So.3d 1065 (Fla. 1st DCA 2011). Some have said that Hamlin is a critical landmark on the path to Valcourt-Williams. These precedents are critical, as are some others mentioned below. 

In Long v. City of Melbourne, OJCC No. 19-016164, the judge discusses Valcourt-Williams and an idiopathic condition. The worker suffered a collapsed arch, and the risk was that “walking, jogging, or climbing stairs” could result in such injury. The judge suggests that any of these might be an occupational risk, but concluded the worker had to prove that some such risk was one the worker “would not normally encounter . . .during his nonemployment activities." Upon that point, the judge found the evidence unpersuasive and denied compensability.

In Young v. CEMEX, OJCC No. 19-005255, the judge denied compensability of an injury in which the worker's “knee popped while he was simply walking on level ground.” In doing so, the judge made credibility determinations and discussed the claimant’s testimony as to when the "pop" occurred, that is while pivoting, or thereafter while walking. Despite this, the order grants compensability through the date the employer/carrier filed a “notice of denial of the entire claim.” No benefits were awarded.

Injury in a Personal Vehicle

In Ballard v. Hardee Correctional, OJCC No. 20-021918, location also receives significant attention, including ownership/control of the parking lot in which the injury occurred. Having concluded that injury was not in the “course and scope,” the judge also analyzed “arising out of.” The judge concluded that the injury to claimant’s foot in his own vehicle was not a risk “that was not there in his non-employment life.” The judge noted the injury could have happened “in any of the countless places he may park his car.” Thus, the injury did not “arise out of” the employment.

In Marrero v. D.R. Horton, OJCC No 19-023521, the judge denied compensability. There is discussion of deviation from employment, but with the employer’s knowledge. The order illustrates essentially a factual dispute involving an off-premises motor vehicle accident, and a credibility analysis that ended in disbelief of the claimant’s testimony regarding the work-purpose of a trip. While "arising out of" is mentioned, this is really more of a credibility and/or "course and scope" decision.


Soya v. Health First, OJCC No. 20-008027 involved a fall for unknown reasons. The best testimony essentially supported that the fall occurred, perhaps because a shoe became momentarily “stuck” to the floor. The Valcourt-Williams defense regarding “arising out of” was raised. Possibly, the case might have turned on whether the worker had left and returned for personal items (the “forgetful claimant cases”), but the judge was not persuaded. The judge concluded that there was no “condition that would substantially contribute to the risk of injury,” and denied compensability. There is an interesting discussion of the distinction of Vigliotti v. K-Mart, 680 So. 2d 466 (Fla. 1st DCA 1996), which makes distinction as to the known or unknown cause of the fall, but which does not discuss the “major contributing cause” distinction of Vigliotti (the Vigliotti court reversed without addressing MCC, leaving that for the judge to decide on remand) mentioned in Santiago, supra.

In Silverberg v. Palm Beach School Board, OJCC No.19-006573, the judge concluded the worker was “at or on his usual desk” and “on his usual chair.” His leg became numb, and upon arising the numb leg “gave way.” Finding no “risk of an injury more than they would have in non-employment life,” the judge concluded the employee’s “routine movements” did not affect employment risk. The claim was deemed not compensable.

In Rodgers v. Winn Dixie Stores, OJCC No. 20-010060 the judge interpreted Valcourt-Williams as “strongly reaffirming the statutory requirement” of “arising out of,” and the “substantial() contribut(ion) to the risk of injury. The worker was on break (suggesting personal comfort, and the "course and scope" discussion). He remembered reaching for the refrigerator door, and then "being on the floor surrounded by paramedics." No doubt of the fall and the injury (that), but the judge concluded the issue was why there was a fall. The argument apparently centered significantly upon the fall being “unexplained” and cited Caputo v. ABC Fine Wine & Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) and Ross v. Charlotte Public Schools, 100 So. 3d 781 (Fla. 1st DCA 2019)(essentially the same “troika” cited in Santiago, supra,) and Sentry Insurance v. Hamlin, 69 so. 3d 1065 (Fla. 1st DCA 2011). Rejecting that “no fault” is synonymous with “no occupational cause,” the judge denied compensability. This is seemingly a conclusion that the worker must prove the occupational cause element.

In Rosa v. Salvation Army, OJCC No. 20-008766, the judge suggests that Valcourt-Williams establishes “differing standards as to the degree” of “arising out of.” The judge noted that the employment must present a risk, but also one “claimant would not ordinarily be exposed (to) during his nonemployment life.” Thus, not merely risk, but "occupational risk." The parties argued based upon the judge’s decision in Santiago, supra. Concluding that there was credible evidence of something “sticky” on the floor, the judge concluded this claim compensable. One may wonder if sticky floors are not ordinary in nonemployment life, and others will consider whether the court’s interpretation in Vigliotti is relevant to such a conclusion.

In Ugalde v. Garden of Memories, OJCC No. 18-14602. The judge discusses at length the potential for risks in the workplace, in large part from Medeiros v. Residential Communities of America, 481 So. 2d 92 (Fla. 1st DCA 1986); Hernando County School Board v. Dokoupil, 667 So. 2d 275 (Fla. 1st DCA 1995) and precedent cited there (of note is Foxworth v. Florida Industrial Commission, 86 So. 2d 147 (Fla. 1955). The evidence demonstrated a fall and work, and the judge concluded the circumstance of fall was critical in the “arising out of” analysis of Valcourt-Williams. The point, according to this decision, is whether the work was a cause of the fall. The judge concluded it was in this instance and ordered benefits.  

In Galas v. Winn Dixie, OJCC No. 19-029119, the judge concluded that the accident was “pivoting on his leg to return to his work area.” Finding the worker credible, the judge concluded that time limits on the work at hand (unloading truck), a “pace that he would not use in his normal non-work life” satisfied the legal burden of an “increased risk() associated with his employment.  

In Tola v. Winn Dixie, OJCC No. 19-016663, there is an analysis concluding that the Valcourt-Williams court “receded from a number of prior holdings,” which effectively did not address “arising out of.” There is also discussion of idiopathic injury, and the same three cases cites elsewhere (“Caputo, Walker, and Ross”). Concluding that the worker was moving to the counter to assist a customer, and did not suffer an unexplained collapse, but stumbled and fell, the judge found the accident compensable. This might be a "pace" case similar to Galas

In Luraschi v. Blacktip Services, OJCC No. 19-028322, the judge concluded that the claim was compensable under the “premises rule” as the injured worker was on her way to the workplace, but was already on the employer’s premises when she encountered a “hazard sign” near where she fell and video evidence demonstrated a slip “at or near the area of the hazard sign.” The precise nature of the hazard is less than clear, but the sign seems to signal the existence of a hazard. The judge awarded benefits.

Rivera v. International Paper Co., OJCC No. 20-006618 concludes that the condition of the ground, the work area, created a risk “not something one does in non-employment life.” The decision includes discussion of many of the same precedents, and aptly notes “it is not enough to say a trip and fall at work is a ‘workplace trip and fall.’” The judge seems to conclude that characterizations and labels give way to the facts and circumstances; that is, a fall from work, not merely while at work (course and scope).

In Crouse v. Precision Mechanical, OJCC NO 19-031519, the judge cited Valcourt-Williams and the “arising out of” requirements. Noting that the worker fell, “while carrying a 20 foot long metal pipe over uneven terrain,” and concluded that this satisfied the risk requirement. Benefits were awarded.


In Wall v. Staff Zone, OJCC No. 19-032768, the judge provides a brief discussion of Vigliotti and Valcourt-Williams. The judge found that there was an event at work, pushing a pallet, and the medical evidence supported that was the major contributing cause of the onset of symptoms.  

Course and Scope

Castano v. Nobel Learning, OJCC Case No 20-006592 engages the Hamlin analysis and discusses Valcourt-Williams. It notably examines course and scope in regards to a firearm discharging and causing injury. The conclusion is founded on various conclusions regarding horseplay, personal comfort, and the presence of risk (the three-risk Hamlin analysis). The judge concluded that the accident “did not arise out of his employment.”

Rodriguez v. Sunrise Landscaping Contractors, OJCC No. 18-028462 (February 9, 2021) involved a man provided housing by the employer, and the so-called “bunkhouse rule.” The employer raised the “arising out of” defense. One of the more intriguing citations there is to Inmon v. Convergence Emp. Leasing III, Inc., 243 So. 3d 1046, 1048 (Fla. 1st DCA 2018). There an employee was struck while walking ”on US Highway 1.” The court focused upon the intoxication defense and the stacking of inferences (which the JCC in Rodriguez focused upon). However, no one raised the “arising out of” defense in Inmon. In Rodriguez, the judge concluded the accident was compensable, as it did “arise out of” the employment as the event “arose out of the location” of the employer-provided “bunkhouse.” This wording (“location”) might be confused for “course and scope,” but that is mere coincidence. 

In Anders v. Shawn’s Deli, Inc., OJCC No. 18-029274, the judge discusses Valcourt-Williams in the context of the “occupational causation” that is “a risk not existent in the claimant’s non-employment life.” Citing Hamlin, there is a review of the three categories of risk. Rejecting argument that evidence demonstrated a “criminal past,” the judge concluded that “some jobs are more prone to workplace assaults than are others.” The judge did not conclude that the workers’ duties “increase(d) his risk” of being shot, but that the “environment of the claimant’s employment” in fact did. Concluding this to be an occupational risk, the judge found the claim compensable and awarded benefits. In a different context, violence rather than fall, this analysis is reasonably consistent with that above in Rosa (sticky floors), Ugalde (coworker distraction), Galas and Tola (pace of work); Luraschi (unidentified but warned-of risk), Rivera (condition of ground), and Crouse (20 foot pipe).

Returning to Ron White, "it's (apparently) not that" the ankle's twisting, the arch is collapsing, the knee is popping, or the person is falling, its "why" those things are happening. In considering these various decisions, the "why" seems to be the critical element. Stairs, are something we may encounter anywhere, does that mean that stair climbing at work cannot cause an injury "arising out of" my work? The trial decisions above do not seem to suggest so. The evolution is before us however, and there is the potential for further explanation from the court and the judges.