Sunday, October 31, 2021

Great Resignation

There are changes underway in the American workplace. Technology is advancing at an epic pace. See Robot in the News (October 2021). The pandemic is impacting how people work, where they work, and more. See Who is Doing the Work (January 2021). For months, there have been news stories about the propensity to retire. Old people are leaving the workforce at a rapid pace, and for a variety of reasons according to National Public Radio (NPR) This is a blog about workers' compensation, and without workers, that concept is difficult to frame.

It is not just retirement though. There is a tendency right now for people to feel overwhelmed and put upon. They are reportedly quitting jobs. The effect is a stress on those who do recruiting and hiring, as well as those who toil on to get the work done with absent former co-workers. According to the USA Today, this is creating a "vicious cycle" and challenging workplaces. It refers to our time as the "Great Resignation." The result is that the American labor market is currently confronted with one of the most challenging labor shortages in history.

The pandemic has led to people wishing to telecommute or to be otherwise accommodated. This has come from a variety of perspectives: protecting personal health, caring for family members, accommodating the schedules of kids as they strive with remote education, infection, recovery, and more. Some have perceived employers as less-than-sympathetic and they have sought new employment. In August 2021, "4.3 million Americans resigned." That is a notable number. Some are leaving to pursue a passion (life is too short). Some are just seeking more money. Some are escaping irascible supervisors or bosses that are simply a little "too extra."

The USA Today explains that some left for greener pastures. This might mean a better working environment, telecommuting, flexible hours, better pay, more concise work responsibilities, and more. Such a departure from any organization can create a cascade of change. People are traditionally asked to step in and to cover work. In the most simplified scenario, a company hires 4 people to put product on the store shelves. They work 8 hours each night, five nights per week, and they can accomplish the stocking task. If one quits, her/his departure results in: (1) hiring a new worker, or (2) stocking less shelves, or (3) pushing the remaining three workers to move faster, take less breaks, or (4) shifting one of the cashiers to stocking, (5) the manager staying after work to finish the task, or (6) extending the three workers' shift with overtime. The seventh choice, just don't stock the shelves, is not really an option that pleases the customer. 

Each of these presents challenges. They raise costs (overtime), diminish efficacy of other services (shifting a cashier means less cashiers and longer store lines/wait times - customers do not like lines), and pressure management to hire and train. The replacement of workers strains the human resource department also with advertising, interviewing, onboarding, and more. The overtime solution impacts bottom line and store profitability. Management is often evaluated on its ability to function without the costs of overtime. And, the overtime impacts that remining three workers. Initially, they may be thrilled to get the overtime work. But, being driven to overperform persistently can be stressful. The four stockers needed 160 hours (4 times 40) to keep the store functional. Now three need to perform 160 hours of work and that is 53 hours each. Short term, "show me the money," but long term 53 hour weeks may wear on life.

Another solution, noted only peripherally in the USA column is technology. One employer noted how the purchase of some new software softened the impact on the remaining staff. That type of a reaction will perhaps solve the crisis, or militate impact. However, that shift to software, robotics, and other technology will likely be permanent. Those jobs replaced by the tech are unlikely to ever return. The technology will never get sick, never need time off for vacation, and require less ongoing management. There is a huge drive to technology and AI right now. Evidence suggest a huge investment in technology during this pandemic. What will that mean to "entry level" staff, our processes for onboarding, training, and promoting from within?

The USA Today says that the volume of resignation is causing people to more broadly notice the challenge of doing the work of more people. And, among management that work is being undertaken without the financial benefit of overtime pay. It is simply more work, frustration, and stress. The only corresponding benefit is that the manager can retain her/his job. But, that may lead an otherwise happy manager to seek work elsewhere. Does management want to work with a company that ignores staff issues and thus increases responsibility, or with a company that reacts to this situation and incentivizes staff to remain and thrive?

The reaction is said to be the same among the workers who are being asked to cover workload, even with overtime. The USA Today says "many of those more loyal staffers are bolting, too." It cites examples of employees becoming overloaded and stressed. They feel that the work has become too much, without commensurate changes in earnings or other benefits, and in some instances is "not even appreciated.” How much does a little appreciation cost? I constantly ask supervisors and managers: "who have you said 'thank you' to today?" Are you expressing gratitude and providing encouragement, or do you expect the money and benefits to just be enough? Trust me, the money is never enough. Make people know you value them. 

Those underappreciated are joining the ranks of the departed. The frustration over workload as people resign is leading more employees to resign. Staff is feeling overworked and underappreciated and the effect is a cascade of employer reactions, further resignations, more employer reactions, and a diminution of effectiveness as greater volumes of management time are devoted to the challenges of staff recruitment/replacement and less time is focused on delivering the company product or service. Some fear that there is a coming wave of management departure and cascading effects. 

There is discussion of the who in this USA Today analysis. The Boomers are not mentioned, as described in the NPR piece noted above. But, USA Today says that "Millennials and Gen Z workers have even more severe cases of wanderlust." It has long been noted anecdotally that these generations are perceived as less likely to stick with an employer or even a career path. Managers have lamented these perceptions for years. But, currently, the article notes that "64% (of these generations are) wondering whether they’re paid enough, and about half thinking of leaving."

There is "burn out," simmering resentment, frustration, and more. The impact on management is emphasized, as is the reaction of some companies to increase pay or provide bonuses to spur retention. How about a 10% pay increase and "bonuses of $100 for each month" the employee stays? That may work well with retaining staff at company X, but let's face it, that may exacerbate challenges down the street at company Y as employees see that greener grass and leave to work for company X. In other words, those employers doing nothing to react in this time may see more departures and challenges. X may thrive and Y may become a memory.

In the end, “People are stressed.” They are leaving for greener pastures and the vacancies they leave behind are causing stress, reaction, and likely more departures. The smart management is understanding that keeping an employee is usually cheaper and easier than finding and training a new one. she says. The others are drifting forward without proactive employee pay, benefit, scheduling and other accommodation. It is intriguing to see the impacts and reactions. And, in the overwork, the tired, and the frustration, it is likely we will see more injury, more significant injury, and struggles with return to work. 

Thursday, October 28, 2021

Domestic Violence

By now, everyone likely knows the name Gabby Petito, Brian Laundrie, and Moab, Utah. There have been abundant news stories, video clips, and analysis. I suspect that officials in Moab are rethinking their processes and training. The first video of a traffic stop there came online about a month ago, followed by a second. Having watched both, I found myself with questions about behaviors and reactions exhibited in the interactions. 

There is an interesting commentary published by a Tampa news station that includes Ms. Petito telling police that she was struck by Mr. Laundrie. There is also discussion of her striking him. There are various troubling portions of the video, but I encourage watching it. This clip includes the commentator's discussion of how police and others may strive to build communication during domestic violence situations. There is discussion of determining who the aggressor is, and other important inquiries or challenges for officials. The difficulty of such conflicts is discussed by a local news station, KUTV. The commentary there by a victim's advocate and others is interesting.

What is the point of our discussion though? This is, after all, a workers' compensation blog. What does domestic violence have to do with workers' compensation? In a nutshell, I am learning that domestic violence is (1) prevalent, (2) pervasive, and (3) pernicious. Its effects are both wide and deep. Read on. 

The Workers' Compensation Hotseat will air live on Thursday, October 28, 2021, 1:00 EDT, with a focus on domestic violence. In some ways, this follows on the workplace violence program we produced in August (by "we," of course, I mean Bob Wilson and the team at WorkersCompensation.com; I am privileged to be included, but I am fortunate to soar on their wings). The guests include psychologist Geralyn Datz, and two officials from FavorHouse, a non-profit shelter and assistance organization: Executive Director Marsha Travis and Injunction Protection Attorney Lori Prettyman. 

Sure, outside of the obvious telecommuting connection (work can and is literally in our domestic environ these days), what does does domestic violence have to do with work or workers' compensation? 

Well, the fact is that domestic violence is not the isolated, attention-grabbing, exceptional situation of Gabby Petito. Few victims receive the national news attention. The fact is that people we know, patients, claimants, professionals, may be struggling with domestic violence. We may pass them daily in the hall or encounter them sporadically in our community interactions. Do we know enough to notice their challenge(s)?

Specific to injured workers, we talk all the time in this community about social determinants of health and wellbeing, is freedom from violence relevant in that context? 

We have persistent discussions of the potential for work injuries to result in disability, would it surprise you to know that people living with disability are at much greater risk of such violence? Would it surprise you to find that a third of female workplace deaths are related to domestic violence? You should read Bob Wilson's post The Elephant in the Room: Does Domestic Abuse Affect Workers' Comp? (October 2021).

Reading his post got me thinking about where workers' compensation professionals might need to be aware of the implications of domestic violence. Certainly, spotting someone that is in need or even crisis is a responsibility everyone in the community shares. But, how does someone's personal life impact their injury recovery? Would you be surprised that one survey found almost two-thirds of violence victims said their work was affected? Issues surrounding domestic violence are said by some to cause about 8 million lost work days annually. Might these issues be existing challenges ("social determinants of health"), comorbidities in the recovery process, or exacerbating influences on both recovery and return to work?

There have been suggestions for years that the potential for domestic violence is important in legal proceedings. In particular, it has been a concern in the mediation process. Notably, there are those who criticize the MOAB police regarding Ms. Petito and Mr. Laundrie. Do those officials get enough training to spot domestic violence? According to the Harvard Negotiation Law Revieweven people with specific training "fail to detect domestic violence." Even those who have screening devices in place can miss detection.

Detect it? How many of us can even define it? What is domestic violence anyway? Sure, we can all easily reply with examples like pushing, shoving, and hitting. It is deeper though, encompassing "power" and "control" in broad contexts. The United Nations defines it for us broadly:
"a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner. Abuse is physical, sexual, emotional, economic or psychological actions or threats of actions that influence another person."
This topic is about physical violence. There is a need to discuss and better comprehend that. However, this topic is a whole lot deeper than the physical violence to which our minds may default. If we don't understand the breadth of the problem, recognizing it may be far more challenging for us all. There are implications in a variety of settings with an array of potential effects for victims. 
Domestic violence in litigation situations has been long recognized by the Florida Supreme Court, which requires Florida certified mediators to undergo continuing education for "interpersonal violence" as a condition for each certification renewal. In a tense litigation process, are decisions about resolution being made by the injured worker or are her/his actions being influenced by someone else's "power and control?" When we strive to see resolution of the claims, is the injured worker being allowed to maker his/her own decisions?

The recent news media coverage of the Petito/Laundrie, New York, Wyoming, Utah, Florida story may have you wondering about the topic. How might you perceive violence influencing healing or rehabilitation of injured workers? How might you perceive it impacting a coworker, fellow professional, or witness? How might you broach the subject with a worker, client, adjuster, employer, or others? What resources exist for you to help someone find help that they desire?

Thursday is going to be interesting and engaging. These panelists work on issues of domestic violence daily and will share their insights as to why the subject should concern the workers' compensation community as well as potential opportunities for us to help or at least inform victims. Tune in. The registration link is here. If you are reading this after October 28, 2021, no fears. The recordings of all the Hot Seat webinars are all available on www.WorkersCompensation.com.

Tuesday, October 26, 2021

Three Important Daubert Lessons

In June 2021, the Florida First District court published Huggins v. Siegel, 1D19-3987. As Florida's litigation process familiarizes with the Daubert standard for evidence. decisions like Huggins will be critical for practitioner clarity. Here, the Court strives to decide the case, a critical purpose of appellate law, but also strives to provide a broader context for those who will rely upon construing it in order to better construct the next argument, case, or appellate record. Daubert is not new to these pages, see Daubert Better Explained (May 2016); Daubert's New Day (May 2019); Daubert in the Courtroom (August 2019);

There are three critical points outlined by the Court in Huggins. The case revolves around allegations of mold in a rental property and a reasonably rare medical condition called renal agenesis, which occurs in approximately one-tenth of one percent of births (1 in 1,000), according to Healthline.

The Huggins were tenants in Siegel's property from 2015 through 2017. Early in that tenancy, from August 2015 into 2016, Ms. Huggins was pregnant. Ultrasounds during pregnancy confirmed the child was developing with two kidneys as expected. However, the child was born with only one. There were also allegations of brain injury to the child. After the child was born, the Huggins asked the landlord to test the premises for mold, and upon refusal "hired their own mold inspection company." Testing proved that in December 2017 "multiple mold types, including two toxic molds" were present.

The Huggins filed suit alleging that Siegel's negligence exposed Ms. Huggins to "to dangerous mold during her pregnancy," which resulted in the kidney and brain issues. They relied upon "a board-certified physician in reproductive endocrinology and infertility, obstetrics and gynecology" as an expert witness to support the causation connection between the mold and the birth-related issues. The physician was deposed in February 2019 in preparation for trial later that year. A pretrial scheduling order required that "all motions" in the case, specifically including "Daubert motions" had to be "heard and filed" before an October 22, 2019 pretrial conference.

When the expert was deposed, there was no objection based upon Daubert. In fact, that objection was first raised in September 2019 in a motion "to exclude" the expert's testimony shortly prior to trial. The trial judge agreed and excluded the evidence following Daubert. The Huggins argued that the motion was untimely, that the objection should have bene raised at the deposition or at least more rapidly thereafter. Notably, finding themselves on the eve of trial without an expert, the Huggins did not seek a continuance to prepare for trial with an alternative expert.

The appellate court affirmed the exclusion of the evidence from the Huggins' expert. There are three critical lessons in the Court's analysis.

First, the factual predicate (foundation) of the expert opinion was critically flawed. The only evidence that mold was present in this structure was from the testing performed in December 2017. The pregnancy was between August 2015 and early 2016. That mold was present two years later in 2017 was not proof that mold was present during the pregnancy. This illustrates a common hurdle in exposure cases, including workers' compensation occupational exposure and section 440.151, Fla. Stat. The presence of a substance must be proven, and the dose. This is also true in Florida workers compensation. See Florida Occupational Disease Burden (December 2019).

The trial judge's decision to admit or exclude evidence is reviewed with the abuse of discretion standard; there is thereby deference to the trial judge's decision. In addition to the foundation challenges (when the mold was demonstrably present), the appellate court noted the Huggins' expert physician "was not qualified to testify on the issue of causation in this case." He had no background in cases of renal agenesis. When asked, the expert could produce no "scientific or medical literature directly linking aspergillus and penicillium to kidney disappearance in human beings." The Court affirmed that "he lacked the medical experience and education to testify about the cause" of the renal agenesis.

The appellate court also did not accept the argument that the September 2019 motion was too late. Certainly, there is an obligation for a party to raise timely objections. In Florida workers' compensation proceedings, this can be more critical than in the civil practice. It is very common in workers' compensation that deposition testimony from experts will be their only testimony. It is very rare a doctor will be subpoenaed for trial. Thus, it is often that a deposition is noticed for both discovery and trial testimony. Failure to raise an objection in that setting may very well create prejudice for the party taking the deposition, the party seeking to present it at trial.

In Florida, the standard for excluding evidence based upon a failure to object or upon late notice of some evidence is one of "actual prejudice." The party objecting cannot prevail in that argument just by saying that they are surprised or inconvenienced. A successful objection in that setting requires a demonstration of some actual harm that was cause. See Discretion and Prejudice (March 2019). The timeliness argument failed for the Huggins because the motion was made in accordance with the pretrial order.

The trial judge therefore rejected the timeliness argument and the appellate court agreed. It is important that such decisions by the trial judge are also reviewed with the "abuse of discretion" standard. Thus, an appellate court will only reverse such a decision if "the affected party can clearly show the abuse resulted in unfair prejudice.” Certainly, a trial judge may conclude that a Daubert objection is untimely. In this instance, the defense waited 230 days after the doctor's deposition. However, the trial judge was nonetheless within her/his discretion in concluding it was timely per the pretrial order.

Finally, trials are supposed to be decided on their merits. When a party finds itself surprised or prejudiced, the party should seek a path out of that prejudice. The court in this instance noted specifically that the Huggins "did not move for a continuance to acquire an expert to replace" the stricken expert testimony. Having made their arguments regarding the timeliness of the defense motion, and the competency of the testimony, the Huggins should have alternatively asked for the opportunity to remedy their prejudice with additional time. One might aptly note here that additional time might have done little to cure the chronological challenge of the pregnancy dates and the only mold test results in 2017; however, additional time with a different expert, a "mold expert," might nonetheless have yielded some result. The fact is that in the absence of the continuance motion, that will never be known.  

Presented with scientific evidence and expert opinions, parties will face the potential of Daubert challenges. There is merit in remembering the potential for the timing of those motions to be critical. Substantively, parties have to remain conscious of the factual foundation upon which opinions rest as well as the qualifications of those who express them. Finally, parties confronted with their evidence being stricken are wise to seek continuance for the chance to remedy the prejudice from such an outcome and to reassess strategy. These challenges will be common in workers' compensation, due to the common inclusion of expert testimony in the various medical aspects of such claims. Huggins is critical reading for any who would litigate workers' compensation cases. 

Sunday, October 24, 2021

The Metaverse is Coming

The meta-verse is coming at you. It may be coming for you. It is likely to impact the way we live, play, and work. This blog is about workers' compensation, which is inextricably tied to work. 

Though this threat is real and now, the impact is likely a few years away. However, that timing depends on evolving technology, which is hard to predict. Many of us are striving to accept and adapt technology. But, us old folks are not the future; some of us struggle to be the present. The millennials are the largest portion of the workforce, according to Pew. They were born into an internet-connected and digital world. And, before they get too comfortable, the generations behind them are likely even more tech-savvy, tech-friendly, and are gaining share in the working world as we speak. 

I remember a time before the first email in 1971, according to the Guardian. I remember when self-driving cars were a fantasy. In my youth you would have been laughed at for predicting everyone would soon have a phone installed in their car, even more so if you thought they would carry them around everywhere. I am old, but not that old, and I remember when our modern world accoutrement were pipe dreams and fantasy. 

Our world is changing. The way we live, work, and socialize. There has been ample coverage of the impacts of SARS-CoV-2, lockdowns, lock-outs, quarantine, telecommuting, the huge investments in technology, and the stories of those exiting the workforce. Like it, understand it, or not the workplace is changing. Technology is impacting the "old ways," and we are all increasingly dependent upon technology, sometimes in ways we did not even know

The idea of a tech revolution may be new to some, but us old folks have lived through a few. Whether you attribute to Joan Crawford (Mommie Dearest, Paramount 1981) or Michael Caine (Goldmember, Newline 2002), “This ain't my first time at the rodeo.” Forbes has explained that phrase, but essentially this is our way of expressing that we are ready for what is coming. We are, because we have seen it before, heard it before, and lived through it.

The news in recent months has been persistently focused upon social media and its impact on our society. Four recent news stories converge in my mind regarding our recent past and the potential future.

First, an intriguing article published by the British Broadcasting Corporation (BBC) accuses social media of stealing children’s adolescent lives. The article is at best unflattering, and some would say outright accusatorial. It sites perceptions that social media is designed around creating or enhancing physiological human reactions, and that we feed our needs as the providers profit. The word "addiction" is used. The sentiment has been echoed elsewhere, such as Fortune. In another piece, the BBC notes how these platforms, likes, follows, etc. feed our own bodies' production of dopamine. We are unintentionally, blissfully drugging ourselves. 

Individuals quoted in that article note negative impact on individual development of social skills and self image. They voice perceptions of time invested in the pursuit of approval, pure recognition, and acceptance (or rejection). Yet another BBC article notes that this so-called community of social media is rife with abuse and torment. Any yet, we allow or even encourage the young to visit there. Until just recently, Facebook was planning to deploy a social media specifically aimed at young children.

Second, another news report on the Associated Press, which garnered extensive headlines, about a former employee of Facebook what is labeled "whistleblower." This executive outlined allegations of specifically-intended social media interactions, with a particular focus upon attracting, retaining, and entrancing a generation. The story reverberated with the implications of a conclusion that perhaps those who profit from social media do so with a reasonable degree of knowledge regarding it’s implications for young people and other impressionable groups. And, perhaps, a certain degree of cavalier disregard for those upon whom they thrive?

That bloom was not off the rose for a week before a second Facebook whistleblower came forward in mid-October. The Verge reports that this company executive claims the company regularly puts profits before "efforts to fight hate speech and misinformation." Note the BBC report again, above, about the abuse and torment. Some seem to be suggesting that Facebook and others are perhaps less than worthy of our trust and admiration. And yet, millions still logged on today just as they did yesterday and will again tomorrow. They crave what they have come to believe is friendship.

Third, a recent article revealed that potentiality that the next “big“ societal evolution that we face is something bigger and more pervasive then the Internet itself, something labeled “the meta-verse.“ An intersection of video platforms, virtual reality, artificial intelligence, and more, the “meta-verse," is perceived by many as the new horizon for revenue and exploitation. This would be a virtual world in which gaming, meeting, and even working would be ensconced in the virtuality of digital ether world. 

As I read that article, I was reminded of Ready Player One (Warner Brothers 2018), a dystopian view of the 2040s in which online gamers our enthralled with donning head sets and sensory bodysuits, and spending their lives online, fantasizing, socializing, and even working. This paints a disturbing picture in which players become overly invested in the trinkets and glory of the digital world, and in the process find themselves literally enslaved to those who would control their livelihoods. Some of the overlords own the platforms and others just know enough to exploit them.

That film ends with a unlikely band of heroes, having led a Quixotic challenge, a "rage against the machine,“ and an overthrow of the online overlords and slave masters. As the new rulers of that gaming world, they announce that it’s distractions will be available only five days per week, in an effort to force people back into the “real world“ periodically. Like getting offline 2/7s of your life will solve the dependency issues. If the dopamine folks are accurate, those couple of days each week might bring some serious withdrawal? We all likely know someone that cannot let a day go by without their social media fix. 

Those who dream of a meta-verse, perceive the potential for various necessary human interactions to be carried out in the future from the comfort of our own couch, perhaps even in a Surrogate (Touchstone, 2009) manner. They acknowledge that SARS-CoV-2 has driven a great migration to telecommuting. They do not, seemingly, deride the capabilities for functionality of platforms such as Zoom, but believe there can be so much more. They envision a future in which we don our head sets and venture into artificial reality to react in the form of avatars for purposes of business meetings, educational gatherings, and other sociology such as plays, concerts, and more. They envision stretching the example of today’s video game participation into tomorrow’s new normal: the ever-present, beckoning, "meta-verse."

Taking a page from the “ghost,“ perceived by Kevin Costner in The Field of Dreams (Universal 1989), the approach appears to be “if you build it they will come.“ And build it, apparently our tech overlords are.  The Washington Post reports that many dollars have been invested in making this meta-verse a reality. A good bit of it lately by Facebook. Thousands upon thousands of people have already become habitual virtual reality headset gamers. And, some vendors have already begun marketing other social interactions using the technology, including concerts, Lectures, and more. The beginning of the meta-verse is here, and the customers seem ready.

In the midst of the "next" thing, we hear more and more about the failures of the "current" thing. There is addiction, bullying, alleged exploitation of children, vulnerable populations, and emotional issues. But, there seems no focus on addressing these issues and challenges. The focus is on a bigger, better, virtuality for the greater exploitation or entertainment of the masses. 

Just as I begin to wrap my conscious around the potential implications of a multi-verse, the other shoe may have already dropped. Yet another article last week, the fourth, on Verge suggested that the great and powerful Facebook may shed its identity. Some may question whether any company would retire a trademark with such global recognition. One might wonder whether additional negative news is yet to come regarding that companies path and progress on the backs of the young and impressionable. You might shed a brand if there were enough potential negative implications. 

One might also question whether a suggestion of such a name change is yet another publicity driver, I can perhaps point to the recent “international house of burgers,” which drove significant social media publicity to another brand? There is always the chance someone would threaten to name themselves after the "meta-verse" simply to publicize that proposed panacea?

However, if the news reports are accurate, the pervasive and so ubiquitous Facebook may in fact change its name as part of its drive to assert primacy in the coming multi-verse. With the promises of novelty, and the stimulus of gadgetry, apparently a variety of enticements will strive to draw the populace more deeply into a virtual world. There, with varying degrees of subtlety, there will be perhaps remain attempts at influencing a variety of personal decisions we all make.

This will perhaps not be a revolution, but evolution. Many of us perceived that ZOOM and other such platforms were an instant "hit" in the wake of COVID-19. However, CNN reports the Zoom revolution was years in the making. Can they build a meta-verse quicker? Can they deliver enough bandwidth, clock speed, and more to facilitate this. Not likely here in paradise, where 5G remains something we hear about out there somewhere.

Potentially, as vendors in the multi-verse leverage their victims customers, and enhance their earnings, they will publicly proclaim their piety and ethic. They might even take to the airwaves and social media to voice their general support for government regulation, parameter, and constraint of their Brave New World-verse. Will that new multi-world be less bullying, less manipulating, less threatening? Will we flock to it for our next dopamine fix, or have we learned our lesson? Remember "fool me once, shame on you . . . ?"

Thursday, October 21, 2021

Taking the Law

Robert Kennedy is purported to have said:
"Whenever men take the law into their own hands, the loser is the law. And when the law loses, freedom languishes."
The British Broadcasting Corporation (BBC) is reporting on an intriguing example of someone taking the law in to her own hands, but within the parameters of the law itself. This is not vigilantism by any stretch, but it is intriguing. It employs a reasonably rare process of state law in the great plains; a process available in few jurisdictions apparently. 

The BBC says that this case "could change how rape is charged." The situation in question begins with two people who know each other. They are friends and university students. One is invited to the dorm room of the other and there is kissing. They "began to have sex," when "suddenly, he slapped her," and things became more violent. The victim reports resisting and attempting to stop the encounter. She says that she then became scared and stopped resisting, that he raped her. The BBC says she accuses him of trying to kill her.

Sexual assault is a difficult topic. There are many complexities. There are various statistics that support sexual assault is an underreported phenomenon, and that is true on college campuses. According to the Justice Department, "only 20 percent of campus sexual assault victims go to police." According to the Brennan Center, that figure is reasonably consistent outside of the academic setting as well. Significant volumes of those who allege assault do not report it to authorities.

In this Kansas instance, the alleged victim did report it to police "soon afterwards." She then had the opportunity to meet with "a county attorney," responsible for making decisions about whether to prosecute cases. That attorney declined to "file a sex charge . . . but instead charged" the assailant "with aggravated battery." That resulted in the young assailant pleading guilty, being "sentenced to two years' probation and," paying a fine/restitution of $793. That left the alleged victim dissatisfied, and through coincidence she happened across an uncommon Kansas law that she could aspire to take into her own hands and seek justice in a different manner.

This 19th century law is referred to as the "citizen's grand jury." (The "law dates back to 1887."). This is a process available in "Kansas, along with Oklahoma, Nebraska and three other states." The alleged victim in Kansas had to collect signatures on a petition, the necessary required signature volume is related to the county population. She had to get 2% of the county population that voted in the last gubernatorial election, plus 100, to support the convening of a grand jury. Even in a sparsely populated county, that volume of signatures would likely be a significant challenge. This compels the prosecutor to convene a grand jury. The BBC suggests that this process recently in Kansas may be a harbinger of the future, with "far-reaching consequences for the accuser and the accused, and perhaps the rest of the country."

It is important to remember that Grand Juries are not about guilt or innocence. They merely make decisions about whether charges should be brought. They are an alternative course to prosecution, beyond that discretion that lies with the prosecutor. And, there are those in the legal profession that believe "most district attorneys can 'indict a ham sandwich' if they so desire." That derision generally refers to the belief held by some that a prosecutor could manipulate a Grand Jury into the outcome desired by the prosecutor.

As Quartz reported, some were surprised earlier this century when a Grand Jury in Ferguson Missouri did not indict a police office that was accused of shooting a youth there. The case ended with peaceful protests that destroyed millions of dollars in businesses and real estate. Had the demonstrations not remained peaceful, the costs might have been higher still. But, Quartz notes that this "ham sandwich" reference refers to:
"district attorneys who abuse their prosecutorial discretion—either by pushing through weak cases, or, as critics have alleged in the Ferguson case, by derailing cases that they don’t want to prosecute."
That might be seen as a troublesome by those who see great potential in the "citizen's grand jury." Despite forcing the convening of the panel, it may not result in the outcome the alleged victim seeks.

It is important to remember that there are two sides to each story. And, in this particular topic there are pitfalls and problems aplenty. The BBC concedes that in the midst of this process, both accuser and accused find themselves awaiting closure. While some proponents trumpet that this 19th century law is "a way to make sure that every citizen has access to the legal system," It may or may not receive the support of those who manage the Grand Jury or the Jury itself.

The BBC concludes, however, that this case may be a landmark. They note that "some . . . believe that it will help strengthen the resolve of others who have gone to the police," and yet not received the outcome they wished. One activist explains that "consent" is a contentious issue and that "A lot of cases around lack of consent are still dismissed." 

The story also concedes the "two sides to every story" perspective. It notes that the accused's "life has certainly been upended." It discusses the potential for devastating consequences of such allegations "even when they are exonerated: People's lives are wrecked." In this instance, the accused has suffered suspension from college, loss of a job, the battery conviction, and four years have passed since the time of the events about which these two people have varied perceptions and recollections. 

I know, by now there is someone out there that is likely repeating that old saw "what does this have to with workers' compensation?" (This blog is about workers' compensation)? The fact is that the legal foundations and process being engaged in Kansas are fascinating, and this blog is about the law. This story illustrates the efforts for balancing the rights of both sides of a story when it comes to legal proceedings (which happen frequently in litigation of all kinds, including workers' compensation). But, more importantly for the workers' compensation community, this is a reminder that legal processes are often not as swift as would be hoped, and closure is sometimes not so easy to reach. 

In the 1990s, I practiced workers' compensation in various Florida venues. Justice was not swift, and delays were often extreme. Years passed without hearings, continuances were rampant, and closure was elusive. Four years seems a long time in this Kansas case, but I saw many workers' compensation cases take longer. As William Gladstone noted "justice delayed is justice denied." And, denied it was in this system as a rule back then. For those who would manage tribunal dockets, the lesson is also that each case is really human beings. They may profoundly disagree on facts, the law, and the outcome. However, we are here to resolve those differences. That we do so with diligence and timeliness is important regardless of which perspective prevails. Closure in itself has importance.

In the broader context, should citizens be able to force a legal system to be responsive? Is the Kansas idea a harbinger for good? If nothing else, it is worthy of thought. 

Tuesday, October 19, 2021

Comorbidity of Obesity

Issues of obesity are receiving attention recently. USA Today noted in September that the Centers for Disease Control recently issued a report concluding that "the number of states with high obesity rates nearly doubled over two years." The Pandemic has been a challenge for many, with impacts professional and personal. The tenor of this article is that "pandemic stress" has fed the growth in our girth. The report notes that "16 states had obesity rates of 35% or more in 2020." In 2018, there were nine. That is disturbing. However, the more disturbing point is that "Just two decades ago, no state had an adult obesity rate above 25%." There is clearly a pattern, and the trend is not positive.

It is not just the macro (state) analysis that is of interest. U.S. News reports that "42% of adults in the U.S. reported gaining an undesired amount of weight" in a recent poll. Some have joking referenced "The COVID 19" (note the lack of hyphen), a attempt at humorous reference to the "19 pounds I gained during the pandemic." Yale Medical references a similar play on words with the "Quarentine-15." Catchy, yes. Humorous, perhaps not so much. 15 pounds is too easy to gain and can be hard to lose. I have personally spent most of my adult life struggling with weight.

I cannot help but recall a line from the control tower scene in Airplane (Paramount 1980). One of the characters mentions, out of context, that another named Leon is "getting larger." Maybe we all are? Leon looks at his coworker askance and pinches his own waistline in apparent doubt or disbelief. Are we honest with each other, and with ourselves on this topic? In today's world of "I'm O.K., you're O.K.," are we honest with friends and family about the need to lose a few pounds? 

The implications are of note with some now openly calling for denial of medical care to those who do not satisfy critic's perceptions of appropriate self-care. When Obamacare was passed, there were those who saw the potential there for rationing medical care. See The Washington Times Obamacare death panels should be ended. Many decry that terminology and insist that rationing could/would never happen in America. See U.S. News The Truth behind Obamacare Death Panels and NPR From the Start Obamacare Struggled with Fallout from a kind of Fake News. See Science, Standards, and Government (April 2020) for more on obesity and the challenges it posed with COVID-19

Obesity is an expensive challenge. The USA Today notes "obesity is linked" a variety of medical conditions. It is perhaps causative or at least exacerbating. The article mentions "type-2 diabetes, heart disease, stroke and many types of cancer." According to the authors, obesity "increases health spending by $149 billion a year." What we have learned in the last 18 months is that obesity also "raises the risk of COVID-19 hospitalization and death." Will those who advocate no medical intervention for those who fail to vaccinate be as vociferous, immature, and crass regarding those who are obese or who fail to manage their diabetes, or similar? Some insist we are better than that, but there is perhaps uncertainty nonetheless.  

Despite the risks, obesity is rising, at least in some areas. The list of states now reporting more than 35% are "Alabama, Arkansas, Delaware, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Ohio, Oklahoma, South Carolina, Tennessee, Texas and West Virginia." It appears that this is not an issue of which we are oblivious. U.S. News reports that "Americans spend north of $60 billion annually to try to lose pounds." If anything, we seem acutely aware of the problem and yet it continues to grow. If you are keeping track, Dirkson, that is over $200 billion on medical care and attempted prevention ($149B + $60B). You know, "a hundred billion here, a hundred billion there . . .."

The USA Today blames in part a change in our physical activity during the pandemic. Certainly, there have been places in which gym access has been limited by lock downs. Even where gyms remained open, there may have been distancing constraints, shorter hours, and even patron's own fears. Each limited access. As I travelled, I was pleased to find hotels with an open work-out room, but was periodically frustrated back to the city sidewalk by capacity restraints (e.g. "two persons permitted at one time"). However, the article also lays blame at on stress. Certainly, there has been stress from the pandemic, work changes, school changes, shopping changes, vacillating mask requirement changes, and even childish profanity-laced ad-hominem attacks on social media. It has been a stressful time for many. The fact is there has been one notable and persistent consistency throughout the pandemic, inconsistency. Doubt and uncertainty cause stress. 

There is also suggestion of various groups demonstrating higher rates of obesity. A physician is cited concluding that obesity is related to the stress of racism. There might be challenges  regarding stress of economic status, and gender. There is tendency toward our core belief of created equal, but in impact it is possible that some have been more challenged by COVID-19 than others. The USA author suggests that stress may have changed the way we eat. There is some chance, he explains, that "your cravings for food change when you undergo stress." I know I love comfort food, but that is anecdotal. Do you? The author also suggests that "food insecurity" increased during the pandemic. It cites school closures and changes in families incomes. The conclusion is seemingly that income impacts access to nutritious food. It is shocking that for some the only chance for a nutritious meal is seemingly at the public school

In another reference to stress, A study published by Plos.org suggested there is a correlation or perhaps causation between "adverse childhood experiences" and "childhood obesity." Others have found correlation claiming "childhood adversity has been associated with poor adult health" in a more general sense. Yet another finds correlation between childhood obesity and adult obesity. So, there are challenges in childhood that produce long-lasting effects. I know some that suffer from very challenging obesity who in fact had very stressful and challenging childhoods. I cannot make the correlation clinically, but some faces came to mind as I read these articles. I also know some who suffer from morbid obesity and have since a very tender age. I am no scientist, but I do personally know anecdotal examples of these propositions.  

The Yale Medicine article notes that the "COVID curves," or "Quarentine-15" are not universal: "in fact, there are reports that some people are losing weight." I have been on a personal odyssey to reduce my mass since 2019. I had a good year in 2019 with some reasonably simple changes. Note, I am no nutritionist, no doctor, no scientist, and am not providing dietary advice. But, I made simple reductions in fast-food, carbohydrates, and sugar. I lost weight. I began exercising regularly. I lost weight. I do not crave the exercise, but I do it daily. And, I am now maintaining a healthy weight. 

I did not start walking miles a day. I began by walking to the end of my street and back. I added a few steps daily. In 2020, I averaged 7.5 miles per day. That is extreme, but it sure does relieve the stress. I had no gym, no treadmill, no trainer. I simply walked every day, rain or shine. Furthermore, eating right is not the challenge people think. I found lots of fruit and vegetable alternatives to sandwiches, and found my grocery bill decreasing markedly by shopping nutritious food. I convinced myself that apple was as desirable as the cookies. 

2020 brought stress. There is no denying that. From various directions, challenges arose. But, we can all learn to recognize stress. We can all find ways to deal with stress. And, it is critically important that we find healthy ways of dealing with stress.  While my "go-to" solution used to be a full package of a certain cookie that will remain nameless, the better "go-to" has become a mile walk in my neighborhood. That this works for me is personal, and I note it only as an example. The solution is not for you to do as I do, but to recognize your stress and to find your healthy way of addressing it (beginning with a consultation with your physician). If you desire it, you can accomplish it. 

If you are not persistently taking care of you, where will you end up? Certainly we all have those who depend upon us, but as the nice attendant reminds on each flight, "put your mask on first then assist those around you." If you are not healthy, how can you assist those around you? Obesity is a killer. It is a pandemic with potentials way beyond COVID-19. It is time we found a way to address it, and I think that will mean a lot of different solutions for different people, lifestyles, and histories. Regardless, we really need to find a path. As COVID-19 comes to a close, this obesity pandemic is getting away from us and will continue to kill. What will you do about it?

Sunday, October 17, 2021

Departures from the FDA

Are we following the science, or not? While we all (I think) appreciate the many scientific minds that brought us a SARS-CoV-2 vaccine in less than a year, see, Future's so Bright (February 2021), there are a fair few now who find little to trust in the scientists we see on television and in the press. I overhear much criticism and distrust for the physicians featured on news shows. It is possible that Bill Nye, the Science Guy, is the last best hope for a credible public discourse on the science of COVID-19 (facetious, but not by much).

The British Broadcasting Corporation (BBC) noted last week
"While tens of millions of US residents are already eligible for a third jab, Americans across the country remain confused about boosters, who needs them and how they help."
The authors seem sympathetic with those who struggle to keep up with the persistent shifts in the recommendations, mandates, and more. Like the press that insists on discussing "legal marijuana," perhaps some portion of the blame lies with the terminology that the press chooses ("third"). See Mischaracterizing Pot Again (February 2020). One American is quoted by the BBC:
"Of course, I'm confused. On one day the White House said that they'd give boosters to everyone. It turns out only some people can get them. I still don't know who decides . . . . "It seems to me there's been a lot of contradictions."
Some suggest that referring to a "third jab" is problematic. Fifteen million Americans have taken the Johnson and Johnson vaccine. That is delivered in one dose. Those people never had a "second jab," and referring to what comes next as a "third jab" is apparently not so clear for them. One physician even suggests that SARS-CoV-2 is here to stay and that we will all be getting annual shots, as we do for the influenza virus. Are we going to keep using numbers and try to track (in 2025) that we are on our own personal "sixth-jab" or similar? Would the generic "booster" ease comprehension?

The news last week is that the Moderna and J&J vaccinations are now recommended for approval for "booster" shots. That simply means that if you are "fully vaccinated" with any of the three potentials (Pfizer, Moderna, J&J), you may soon be able to get an additional shot that is intended to enhance your personal protection; a "booster." 

For those who received Pfizer, the "booster" will be available for:
"older adults and 50 to 64 year-olds with medical conditions, as well as adults with underlying medical conditions or those who live and work in high-risk settings."
For those who received Moderna, the "booster" will be:
"a single half-dose booster for the elderly, the immunocompromised or those in high-risk jobs or living situations."
For those who received J&J, the "booster" will be:
"given to anyone over 18, at least two months after the initial dose."
And, some expressed that the J&J should be shifted to a two-dose initial inoculation for all who elect that brand. How was it ever decided that this one is one and that one is two. This one is two followed by a third, but that one is two followed by a half? How, why, what, explain the science to us? Were there trials, tests, and experiments? Is the protection we have degraded? How extensive or deteriorated is our protection? Does is matter if we also were infected/recovered at some point? Is there science? Or, have a number of really smart people just reached consensus?

These are the recommendations of the Food and Drug Administration as of mid-October 2021. The recommendations are a challenge. For example, at the time the "booster" recommendations were made last week regarding Moderna and J&J, 9,800 Americans had already had a J&J "booster." Of more interest, in terms of magnitude, is that 1.5 million had already had a Moderna "booster." Unapproved? The FDA, per the news, is recommending that "boosters" be allowed, encouraged, provided, but it appears that "boosters" are not all that uncommon already, approved or not. Perhaps we don't need Bill Nye as much as we need some simple, straight, answers?

There are some in the scientific community, affiliated with groups such as the Food and Drug Administration (FDA) and the World Health Organization who conclude that "the current evidence on Covid-19 vaccines does not appear to support a need for booster shots in the general public right now." They published their thoughts recently in The Lancet. This is discussed in a recent post Show me the Science (September 2021). OK, if there is no evidence for "boosters," does that mean all of this is a battle of consensus? Is there science? Why the "right now" in that sentence? Does that mean we (the vaccinated) do not scientifically need a "booster" or that we do need it but others need an initial dose more? Where does the science end and the sociology begin?

That "not now" position or conclusion from "the medical journal The Lancet," was recently discussed by CNN. Among the authors of this paper are "two senior FDA vaccine leaders." Apparently, in August, the FDA announced these two "will be stepping down in October and November." CNN notes that this "sparked questions about whether the departures would affect the agency's work." Perhaps their departure might cause one to question why they are leaving? Is it voluntary, is it related to their seeming disagreement with the political promises of impending "boosters for all" last August?

The best news in the Lancet paper is that "randomized trials and observational studies on Covid-19 vaccines" led them to conclude the vaccine is effective and "substantially protective against severe disease from all the main viral variants." With all of the press that Delta is getting, that is reassuring. Notably, however, "the efficacy of most vaccines against symptomatic disease is somewhat less for the Delta variant than for the alpha variant." Thus, there is reason to remain cautious and careful despite vaccination status. However, it is undeniable that the efficacy of these vaccines is admirable and beneficial to each of us (personal), and therefore to all of us (societal). But, are there similarly "randomized trials" to prove I do or do not need a "booster?" (as in now, not later).

The CNN article supports that sociology is at work in some of the analysis. The authors "argue in their paper that the current Covid-19 vaccine supply could 'save more lives' if used in people who are not yet vaccinated than if used as boosters." That may be suggestive of the influence of global concerns. The attitude in America seems to be that those who want the inoculation(s) have received it, and yet many would like a booster. Among those who have not had the inoculation, there seems a range of ambivalence to defiance regarding getting it. I know people diametrically opposed to it. I have spoken with some simply unwilling to drive to town to get it. For whom are the doses being saved in a market that seems saturated with vaccine and absent of new customers? Is the described choice between "boosters" here and shipping it there a real choice?

These scientists seem troubled with the discussion of "boosting." They claim to have examined various research regarding the vaccines, and that "none of these studies has provided credible evidence of substantially declining protection against severe disease." Furthermore, they contend that discussion of "boosting" "could adversely affect confidence in vaccines and undermine messaging about the value of primary vaccination." I can almost hear Dr. Venkman now "your scaring the straights" (Ghostbusters 2, Columbia 1989). The lesson there is that scientists need to be clear and concise when speaking to the rest of us; we lack your expertise and training, and will perhaps take as controlling your broad conclusions in the sound bites to which the news cycles and advertising have acclimated us. You can, it seems, damage your credibility. Yet, we need you and your credibility in clear, careful, and expository fashion. 

The World Health Organization argument is also tinged with sociology. The same CNN article quotes its leadership regarding the "right to be protected." The WHO Director-General believes that no "booster" program should be undertaken until the end of 2021. This, he contends, will allow more vaccine to be given to "low and lower-middle income countries." The key word there may be "given" (you have eaten enough, you should fast until others have had a first helping). I defer the issues of socialism and egalitarianism for another day. He accuses both manufacturers and "countries that control the global supply," of relegating "the world's poor (to) . . . leftovers." The White House responded that this was "a false choice," and that vaccination can be delivered both domestically and abroad. In defense of the President, there is likely some truth to the contention that choices of global perspective are rarely simple dichotomies. 

And, there we have it. Conclusive, pervasive, and uncertain . . . doubt. Do I believe this scientist or that? Do I need a booster or do I not? If I do, then does that mean now? If I get a booster, am I denying life to someone elsewhere in the world? If I do not get a booster, am I putting self, family, and my local community at risk? Which is the more selfish, getting one for my community or deferring it in favor of some other community? Is there science to support one or the other, or merely a parade of consensus conclusions? And, why are those scientists leaving the FDA, is it the politics of disagreement and dissent or is it unworthy of our concern?

To echo the person quoted by the BBC, "Of course, I'm confused." Is that my fault? Bill, if you are reading this, IM me.  Thanks!

Thursday, October 14, 2021


I struggle for words periodically. The old memory is . . ., well . . , you know . . .

Let's just say I struggle for words. I landed in this instance on "contemptuous" - "manifesting, feeling, or expressing deep hatred or disapproval : feeling or showing contempt." Perhaps there is a better description, but I landed on this.

Opioids are not new to these pages, but it has been a while since they have come up. See Opioids, the Hot Seat, and More (November 2020). That post notes that overdose continues to haunt this country. The volume increased in 2020, with some concluding that the impacts of COVID-19 on people, the medical system, and support or treatment systems may have played a role. There have no doubt been great strides in the effort to address opioids, however the crisis remains.

In September, the Associated Press reported that a "sweeping settlement" has received "conditional approval" from a bankruptcy judge. This "will remove the Sackler family from ownership of OxyContin maker Purdue Pharma and devote potentially $10 billion to fighting the opioid crisis." That sounds like a lot of money. Keep reading. This settlement will "resolve a mountain of 3,000 lawsuits from state and local governments." Purdue Pharma will become a "charity-oriented company" that will "funnel its profits into . . . efforts to prevent and treat drug addiction."

What has received less attention, is the tenor of communications about opioid prescribing. In a West Virginia courtroom last spring, there was disclosure of emails in a lawsuit against drug distributors. A representative of one of the involved companies testified that these business emails were "for business purposes," and that the culture at his company "is of the highest calibers," as reported by CBS News.

One of the "business purpose" emails "contained parody lyrics about "pillbillies" (to the tune of the Beverly Hillbillies) traveling to find opiate prescriptions." In another, someone joked about "oxycontin for kids." Noting a news report regarding the shipment by distributors, the representative noted in an email "There is a whole lot of pain in the Appalachian area." The emails might be perceived as insensitive, unsympathetic, perhaps even contemptuous. 

Florida came up in the matter. There was discussion of a 2011 effort to address opiate abuse. The company spokesperson sent a "business purpose" email to a lobbyist regarding that legislation and warned "Watch out Georgia and Alabama, there will be a mass exodus of pillbillies heading north." There are also jokes about the people who were seeking opiates, in one the spokesperson says "one of the hillbillies must have learned how to read." Insensitive, unsympathetic, perhaps even contemptuous? The company spokesperson complained that the emails were considered "out of context," and were merely "a way to express frustration as the company worked to crack down on the opioid epidemic."

The Daily Mail provides more detail. It provides lyrics in an email including "a rhyme to the tune of The Beverly Hillbillies theme song in which a 'poor mountaineer' named Jed 'barely kept his habit fed' and traveled to Florida to buy 'Hillbilly Heroin'." In another, A Jimmy Buffet song was parodied with a description of Kentucky as "OxyContinville."

In trial, the company spokesperson explained that "pillbillies" is a "reference to drug dealers, not to the patients." There were a volume of patients. Reportedly, Cabell County, where the trial was held, has a population of about 90,000; "Over the course of nine years, three drug distributors . . . delivered about 100 million opioid doses" there. That is about 11 million doses a year, or over 100 doses per resident per year (11M/90,000). 

NPR noted, when the trial concluded in July, that there were two "legally thorny questions." First, was it unreasonable to send so much oxycontin into "one small Rust Belt city?" And, is the present "addiction crisis" in that area a "'public nuisance' that the companies must help remedy?" The county asked for $2.5 billion in damages. That is one county, in one state. Note the $10 billion discussed above as regards the Purdue bankruptcy. There are 3,006 counties in America, according to the Census Bureau. If each one has suffered damages of $2.5 billion, the total is $7,515,000,000,000. As Dirkson might remind us "a trillion here, a trillion there, and pretty soon you are talking about real money."

Does it matter whether patients or drug dealers were being denigrated? How do we spell contempt? Are we willing to excuse contempt and conclude that it was only drug dealers? That is, do we agree that "a mass exodus of pillbillies heading north" translates to "a mass exodus of drug dealers heading north?" Or, is it more likely that this reference is to the people addicted to this opioid flow that we see?

The National Institutes of Health published disturbing news in September 2021. It noted that "Non-Hispanic Black individuals in four U.S. states experienced a 38% increase in the rate of opioid overdose deaths from 2018 to 2019." The "rates for other race and ethnicity groups held steady or decreased." It concludes this evidences a "widening of disparities in overdose deaths in Black communities." We cannot argue that the increase is not bad news. But, 841,000 people have died of overdose since 1999. That is more than have died in this country from SARS-CoV-2. 

The NIH concedes that much effort and money have been devoted to battle the opioid issues, but "Unfortunately, these interventions have largely failed to gain widespread implementation in community settings." Translation: the money we are spending is not reversing the trends. It is perhaps slowing growth, but not reversing the trend. How much? It is at least $1.8 billion per year over the past decade, or $18 billion. Dirkson again "real money."

And, there are already predictions that the figures for 2020 will be troublesome. Recently released data, according to Commonwealth Fund, suggests that overdose deaths in 2020 will be 93,331. This, it notes, is a 20,000 (+28%) increase last year. Death from drugs is not decreasing, it is increasing. 

Courtesy Statista, 2021.

In the end, we continue to face a crisis. We invest piles of money and at best the results suggest some slowing of the growth rate. Almost 100,000 overdose deaths in one year. Are we as a society concerned about those people and their families? Or, are we contemptuous and dismissive? Is there a way to reduce the overdosing, the cost, the suffering and the death? Or shall we just make fun of them?

Tuesday, October 12, 2021

Common Sense or Evidence?

The Florida First District Court recently rendered Cabrera v. Kablelink Communications, case 1D20-736. It is an instructive opinion as regards burden of proof. A concurring opinion additionally provides interesting insight into the task of statutory construction; workers' compensation is inherently dependent upon statute for its existence and therefore such construction often lies at the heart of disputes. Understanding the intricacies of statutory construction is a critical tool in this community.

The critical issue in Cabrera involved coverage of the workers' compensation statute. Workers' compensation generally is a benefit and burden to employers and employees. Stated that way, there are periodically questions regarding who is burdened and benefitted. The crux of these statutory systems is that the answer is "everybody."

For example, employers are burdened with liability, often for injuries that occur despite their utmost efforts; they are benefitted by limitations on damages and tort immunity. Employees are similarly benefitted by rapid entitlement to benefits, even when the employer was not negligent, and a general absence of tort defenses such as comparative negligence. Note that the burden of one is the benefit of the other. The system is a conglomeration of various benefits and burdens generally in a macro-balance. See Micro v. Macro Analysis (April 2019).

The overall concept of workers' compensation is also generally mandatory for employers and employees, except in Texas. See Staffing, Compensation and Opt-out (November 2017). There are usually exceptions in state statutes for very small employers; Florida is mandatory for employers with four or more employees, section 440.02(17)(b)2 and 440.02(15)(c)(2), Fla. Stat. That mandate is general, and there is a more restrictive constraint for construction businesses; If the employer is in the construction industry then the requirement is for "one or more." Thus, coverage is required for a greater population of businesses in the construction industry.

The coverage by workers' compensation is not without cost. Whether an employer retains financial responsibility for workers injuries and illnesses, called "self-insured," or purchases an insurance policy to cover such expenses, there is financial impact to the business. The premium for workers' compensation insurance is calculated by reference to the number of employees a business has and the payroll it pays. Therefore, it is important to know who is or is not an employee, and for each person's payroll to be accurately recorded/reported. The alternative to employees is for a business to hire an independent contractor.

That distinction between "employee" and "contractor" is at the crux of the dispute in Cabrera. The parties did not dispute that Mr. Cabrera was performing work "in 2016 when he fell from a ladder and was severely injured." He contended that he was an employee of Kablelink and the company contended that he was an independent contractor. The critical point, according to Mr. Cabrera, was his allegation that "he worked 'in the construction industry.'” See § 440.02(15)(c)(2), Fla. Stat.

The Court noted that there was a contract that said Mr. Cabrera was an independent contractor. That such a contract may exist is not uncommon in contractor relationships. However, the statute controls interpretation of such agreements. Thus, if the law concludes one is an employee, a contract to the contrary may provide no relief. Mr. Cabrera argued that the statute should override the contract and conclude as a matter of law that he was an employee and thus entitled to benefits. This led the Court to analysis of what "construction industry" means.

The trial judge concluded that Kablelink and Cabrera were not in the construction industry. The appellate court agreed, affirming the trial judge's order. The Court explained that “Construction industry” means for-profit activities involving any . . . substantial improvement in the . . . use of any structure . . . ." Furthermore, it noted that the statute also provides that "the division may, by rule, establish codes and definitions thereof that meet the criteria of the term “construction industry.” Section 440.02(8), Fla. Stat. Thus, what is or is not included in "construction industry" was a question that the legislative branch delegated, at least in part, to the executive branch.

The Court focused on the Division's rule, which is dependent upon work codes that are used to define and delineate job functions. The insurance industry has determined that there are varying degrees of risk in different occupations. To quantify and classify those risks, insurance has compiled a list of occupations and work descriptions. These definitions are used to determine how work is defined and therefore classified for the purposes of insurance premiums. The Court noted that in defining "construction industry," the Florida Division of Workers' Compensation rule "incorporate(s) the classification codes and descriptions." That "Kablelink’s work didn’t overlap with" construction codes was deemed pertinent by the trial judge.

The Court further explained that the analysis of whether work was “in the construction industry” depends on "whether it involves working, performing services, or engagement 'involving . . . substantial improvement in the . . . use of any structure.” Section 440.02(8), (15)(c)3., (15)(d)(1), Fla. Stat. (Emphasis added). Thus, in a prior case, the Court found a fall compensable when the worker was "working to seal and repair a hangar’s roof." Ficocelli v. Just Overlay, Inc., 932 So. 2d 1230, 1233 (Fla. 1st DCA 2006). However, it concluded a truck driver was not involved "in the construction industry" when he was "injured hauling construction . . . debris." Allied Trucking of Fla., Inc. v. Lanza, 826 So. 2d 1052, 1053 (Fla. 1st DCA 2002). Thus, consistent with other aspects of workers' compensation, labelling will not be as persuasive as the actuality (labelling the contents of the vehicle "construction debris" was not controlling). 

The analysis, the Court explains, is in the work performed and whether that work 'involv(es) . . . substantial improvement in the . . . use of any structure.” Section 440.02(8), (15)(c)3., (15)(d)(1). The Court held that Mr. Cabrera had the burden of proving that his work did "involve substantial improvement," and that he had not met that burden.

An intriguing element of the Court's explanation addresses common sense. The Claimant argued that evidence was not necessary in satisfying the burden of proof. Mr. Cabrera argued instead that his work should be deemed related to "substantial improvement" “as a matter of pure common sense.” This is seemingly a proposal for an assumption that should be made about work performed, its purpose, and effect. The Court did not accept that "pure common sense" or assumptions control. It noted that even if one made such an "improvement" assumption about the nature of a business, "the evidence in this case shows little of whether Claimant was working or engaged in the construction industry when he sustained his injuries."

For clarity, the worker had to prove that his "cable installation work involved a substantial improvement in the use of the homes that he served." Concluding that he had not proven that, the Court affirmed the trial judge's determination. In the absence of proof that work "involved a substantial improvement," the Court had "no basis for reversing the JCC on the record before us." In trial, it is critical to provide evidence. See If you are not Perry Mason, Bring Evidence (May 2013)

A concurring opinion in Cabrera notes that the decision is "is eminently correct." However, it provides an insight into the construction of statutes, the use of language, and is instructive. This opinion describes there are "two separate elements that had to be established before the JCC in this case could conclude that the claimant was an 'employee.'” This conclusion is based upon the language used by the legislature in two statute sections.

In one, with the use of “working or performing services in the construction industry,” section 440.02(15)(c)3., there is focus upon "the actual work being done by the claimant at the time of the accident." This is present tense ("ing"). This also involves analysis of the "arising out of" requirement in section 440.02(36), Fla. Stat. For more on the "arising out of," see It's not That the Wind is Blowin' (June 2021). The concurring opinion notes that the tense of 440.02(15)(d)1. is past tense ("ed"), "that the claimant was “engaged in the construction industry.”

Thus, the concurring opinion directs the reader to both "attention backward in time, to the claimant’s historical work" and "the type of claimant’s routine, day-to-day work historically performed . . . leading up to the occurrence of the accident." This suggests that a worker must prove:
"both that the claimant’s accident occurred because of his doing work in the construction industry at the time, and that his work as an independent contractor regularly or consistently was in the construction industry over a period of time preceding the day of the accident."
The decision provides guidance in three perspectives. First, the definitions of work classifications may be of relevance in determining a question such as this regarding what is or is not "construction." Second, the burden is clearly on the injured worker to demonstrate that the work performed was "involved (in) a substantial improvement" to property. Finally, the letter of the law may be critically important and there is the potential for even the tense of words to be of import in interpreting statutory meaning. For any that would interpret the law or render advice, there is merit in study of Cabrera v. Kablelink Communications.