Sunday, January 30, 2022

Single Payer Redux?

Years ago, the subject of "single payer" surfaced. Single-Payer Lessons from Vermont (July 2016). As noted there, a fair amount of dispute and disagreement in litigation systems does not focus on the notable questions of pathology existence or treatment need. Instead, much time is often spent in the debate of the more mundane question of who pays for the effects of pathology. See Someone has to Pay (May 2016).

Vermont's foray into single-payer was not the first attempt, nor the first failure. The economic realities of free healthcare for all are challenging at best. Some would argue that they are insurmountable based upon the immutable characteristics of human nature and the economic laws surrounding scarcity, supply, and demand. Those are all interesting, as is the humanitarian instinct that argues for the collective good. Students of history sometimes struggle to identify successful socialistic governments, but some socialistic medical systems have nonetheless survived across the globe. Despite that, there are complaints about virtually all medical systems, socialistic or not. 

The new year brought news of a possible resurrection of the "single payer" concept. There have been three notable attempts at the concept, and each has failed to thrive. As a 2019 report from Third Way put it:
"What do Vermont, . . . Colorado . . . and Massachusetts . . . , have in common? They’ve all failed at pursuing single-payer."
There are various perspectives on the why and how, but empirically there is currently no active "single payer" jurisdiction in the United States. However, another thing those three states have in common is their absence from the top ten populous states. According to InfoPlease, Massachusetts is 15th in population, Colorado 21st, and Vermont is 50th (behind the District of Columbia). Some would argue that the idea has simply not been tried yet on a large enough scale. Others might suggest that size will not change the outcome, merely the size of the failure. 

But, 2021 brought news that Massachusetts might make another run at "single payer." Proponents are citing the challenges and uncertainty that employees faced with the onset of the 2020 Pandemic. As jobs were lost and employment shifted, there were "inefficiencies . . ., fears and concerns . . . when they were in transition." There is therefore, some advocacy in 2021 for socializing medicine again in Massachusetts with "Medicare for all."

The news in 2021 also brought suggestion from California that the "single payer" discussion might begin again there. California is a much larger state; number one with a population of almost 40 million people. The population of Massachusetts, Colorado, and Vermont combined is only about 1/3 of the population of California.

According to ABC News, the current California proposal would come in two parts:
"Assembly Bill 1400 would set up "CalCare," a state-run, statewide system, and Assembly Constitutional Amendment 11 would change the state's tax code to pay for it through a voter referendum."
There is a distinction between the ideal of medical care for everyone and the burden of how to pay for such a plan. California currently ranks 15th in the country by overall tax burden with close to 10% of Californian's earnings going to taxes, according to Wallethub. By comparison, Alaska is rated last at just over 5%. According to Forbes, perceptions of taxes have driven some of the sentiment of California exodus in recent years.

In that light, there is some room to question whether increased taxes will benefit the state with additional income, overburden taxpayers that may already perceive stress, or further fuel the rate of departure for Texas, Arizona, Nevada, and more. 

ABC reports that there is increased interest in "single payer," and that 63% of Americans support the notion that providing health care is the government's responsibility. The details of how that question has been posed are not apparent. More specifically, the proposal is said to enjoy support of California's legislative and executive branches. However, there is admission that it cannot be paid for within the current constraints of government there.

Therefore, if it is passed, there would have to be "significant tax changes that can only be authorized by a voter referendum" (the amendment noted above). This suggests that any such enactment of "single payer" would be several years in the future at the earliest. The article notes that "single payer" is not new, mentioning the earlier failures elsewhere. It also notes that prior attempts in California have failed to clear the legislature. The latest of these apparently over the "$400 billion price tag" of a 2017 proposal. That is real money even in Dirksen terms ("a billion here, a billion there," or perhaps in context "a hundred billion here . . . "). 

In 2021-22, the entire California state budget, according to the Legislative Analysts Office (LAO), is about $200 billion. So, a parallel path to the 2017 legislation for "single payer" could potentially represent a 200% increase in the state budget. In simple math terms, that would mean that revenue (taxes or fees) would likewise have to increase roughly 200%. And, this hypothesis ignores that the $400 billion figure is five years old and predates the epic inflation that America is experiencing over the last couple of years; with trillions of debt dollars entering the marketplace, there is no prediction for an early end to the current inflation cycle. When Americans are polled regarding whether providing health care is the government's responsibility, one wonders if the question includes disclosure of the tax increases that would be required for such inclusivity and largesse.

In the closing scenes of Blast from the Past (Warner Brothers, 1998), Alicia Silverstone narrates a scene
"It's truly amazing what you can get done when you have unlimited funds. . . .. All you have to say is this 'I don't care what it costs,' and then of course you've got to really mean it."
Of course the fallacy of that is obvious, there is no such thing as "unlimited" anything. The universe is vast, as is California, and yet all things are finite. All resources are limited in at least some context. Theoretically, a government might tax someone 100% of their income, or perhaps even 200%, but eventually that would dry up both the revenue stream and the reservoir from which it flows. And, of course, in the current "single payer" proposal the final limitation will come down to the will of the California voters. Do they "really mean it?" And, if they do, what effect might the ensuing tax increases have on emigration to Texas, Arizona, Nevada, and more? If all the taxpayers move to avoid the burden, how will the remaining residents benefit? 

The "single payer" debate and experiment in California will be interesting to watch in 2022. It seems likely there will be much discussion and debate in the news. Whether the legislature can get over the price tag, or whether legislative action will stall as it did in 2017 will be the issue this year. If that legislation supports the transition, then the voter's decision on expanding, or even tripling the state budget, with the accompanying tax burden, will be the issue in years to come. The debate and discussion will be fascinating to watch, and could be a harbinger for other states' future debates. 

Thursday, January 27, 2022

A Matter of Trust

The SARS-CoV-2 pandemic has been a major influence on our lives for two years now. There are a cavalcade of impacts upon various individuals, and the lucky have been able to avoid the most trying such as extended recovery, hospitalization, or death of someone close. However, everyone has been impacted in some manner. Unfortunately, a major lesson of the pandemic has been in the area of trust.

Some have lost faith in experts over the subject of vaccination. See The Future's so Bright (February 2021). I predicted that all of society would be vaccinated by October 2021. I was way wrong. It turns out that there are a fair number of people that will never be vaccinated voluntarily. Despite government efforts to force vaccination, it thus far appears many will never be vaccinated involuntarily either. I have spoken to a handful of the unwilling, and they are sincere in their disbelief in the vaccine. Doubt in science is not a pandemic-isolated phenomenon. Doubt in science is nothing new. Science and Doubt (July 2019).

The scientific community has not done itself any favors with the rapidly evolving postures regarding other pandemic responses. Masking is a good example. The Science of Consensus and Masks Again (June 2021); Tootsie Pops Make you Think (August 2021). What science and scientists have espoused regarding the the benefits of mask wearing since this pandemic arrived in 2020 has vacillated notably, as has other advice. When I teach credibility topics for testimony, I get many requests to define how one would demonstrate credibility. First on the list of "no nos" is inconsistency.

A recent Microsoft News headline therefore caught my eye: Who do Americans Trust on the Virus. As I read the story, Billy Joel ran through my head singing '"cause it's always been a matter of trust," Matter of Trust, The Bridge (1986). That line really captures it all because most of us lack the scientific acumen to evaluate the threats and challenges of SARS and COVID-19. We are dependent upon others, and it has "always been a matter of trust." Our current challenge is that those experts have recently demonstrated a propensity to mislead us, through lack of information, miscommunication, and unfortunately perhaps intentional misrepresentation for a variety of motivations, good and bad.

Last fall, I suggested that Bill Nye the Science Guy might be the last expert people are willing to trust. Departures from the FDA (October 2021). I recently noted that sentiment in a conversation with a group of physicians and received general agreement. There is a great deal of distrust in the so called experts that are called upon to explain the challenges and implications of COVID-19 to us. While that is lamentable, in fairness, many of them contributed personally and publicly to that doubt and distrust in which we find ourselves. Through their statements and inconsistency, they have impacted our ability to trust them.

So, who do Americans trust? One generality cited by the article is that "Americans seem more likely to trust people they know directly or people with whom they have direct contact." There is perhaps no surprise in that. It is likely easier in today's world of Internet information and shifting documentation to trust someone that you know, or at least feel you know.

The article notes that America is a highly divided population today. It refers to the country as subject to "partisan divides." However, it noted that "the group that ranked most highly in the poll" for trust was "their employer." There was also significant trust regarding the virus implications "in what their local school said," although that was more notable "among parents." Both schools and employers fall in that "direct contact" group,

Others did not fair so well. Only "44 percent of those surveyed said they trusted the CDC." That is our main scientific bulwark against disease and death. It is often the "go to" source for data, studies, and clarity. Its credibility is a dead heat with "43 percent (saying) they did not trust the agency." The article proceeds to delineate responses in more detail based upon respondent perspective.

While the article concedes that some degree of partisanship my influence the outcome. It also noted that critics may be troubled by the fact that "the CDC's guidance has changed at times since March 2020." There is that inconsistency element once again.

This has serious implications for the employer. The employer occupies a place of rare trust and faith in this crisis. It is imperative that responsibility is recognized and understood. The workplace presents a variety of potential perils, including safety, hygiene, and stability. Employers likewise face a variety of challenges, including recruiting, retention, and maintaining operations. It is a time of significant stress and challenge. But, the employer must remember that the workplace is seen as a place of trust.

Employees must be listened to and considered. Data and news must be considered and comprehended. The emotional component of the worker must be considered and respected. A recent report on Medium.com noted that employees are increasingly focused upon their own mental health, even at the cost of promotion and career growth. The author there contends "it's clear that employees see their employment as more than just a job, and organizations that meet these increased expectations stand to benefit." Thus, the nature of the employment relationship might be construed as complicated and symbiotic.

The Employer, who enjoys such a position of trust, must continue to communicate, commiserate, and cooperate so that the workforce is retained, motivated, and engaged. The trust as regards information regarding COVID is a great compliment, but must be earned consistently if the employer is to thrive and succeed in the midst of this challenge, and beyond. There is persistently a symbiosis in the employee/employer relationship. Those who recognize it seem to flourish.

Whether it is in listening, advising, policy-making, or otherwise, "it's always been a matter of trust." Employers should recognize they are trusted, relied upon, and appreciate what that recognition means, and strive to continually earn it as we move forward.

Tuesday, January 25, 2022

Evolving Work Challenges

I happened across a sub-stratum of the British Broadcasting Corporation (BBC) recently. It seems likely that every publication has addressed the concept of work in the modern world. Long before there was a (this) pandemic, technology had begun to facilitate work environments that were less dependent upon physical presence and office environments. But, some contend that what we have lived through will be viewed through the lens of history as an event that changed the world. This, they contend, will be true regardless of whether we label it the "great pandemic," or "the 2020 pandemic," or a variety of less sensitive labels one might contrive. See Vaccination Implications (February 2021). 

I have striven to discuss workplace pandemic challenges. See Loss and Change (May 2020); Ask Three Questions Daily (July 2020); and Great Resignation (October 2021); Little Black Boxes (December 2021). There is little doubt that the workplace is evolving, and some are embracing that. One lawyer explained to me how that firm has shed real estate, downsized offices, and saved money. Another explained how a South Florida firm employs sophisticated paralegals in Kansas to process various case aspects. Yet another lawyer explained that a firm partner has decamped to the countryside, with no intent of returning to the office, and continues to effectively practice daily. Of course, attending hearings and mediations live may return to vogue or even to mandate.

Despite my interest in this topic, and the stream of various perspectives in the news, understanding the implications of an evolving work world has been challenging. I was therefore pleased to run across the BBC sub stratum "Hello Hybrid." In a near exhaustive series of articles, a variety of proponents, detractors, academics, and more address hopes, fears, successes, and failures of the much-touted "new normal" of the hybrid work environment.

The volume of article titles alone is a draw. They are all listed below. Working through all these titles may well be tiring. However, there are gems here for those who would manage a business and the rest of us that subsist or thrive through our employment at one. 

My favorite title, however, and the one that drew me to this Aladdin's cave of perspective, is Why hybrid is emotionally exhausting. This highlights an employee frustrated with hybrid after only a few months. The "novelty . . . soon gave way to hassle." Pressure came from "a stop-start routine," and a "constant feeling of never being settled." Huge majorities (83%) wanted hybrid in a May 2021 survey, but "optimism . . . soon gave way to fatigue." Notably, the absence of routine is cited as a major contributor. Also included are the effort of moving resources back and forth, the challenge of remembering what is where, "digital presenteeism," and even burnout.

There are many titles in this collection. To say that these various chests are full of treasure is an understatement. Certainly, there are points and perspectives here with which any reader will unquestionably agree, and others which will evoke a more dubious response. Of course, your favorite for most credible may well be my most distrusted. We are, after all, different people with varied backgrounds, foundations, and biases. Can we, for once, admit that and simply discuss differing perspectives without invective, snark, and worse? Can we have collaborative and yet disagreeing discussions without being disagreeable?

I have not tried to distill each article. Instead, I identify here some points that perhaps are worthy of discussion, and potentially can be worthy of consideration by both employers and employees as we proceed through our present and focus on our future path beyond SARS-CoV-2 and its wake. For each article, I have selected a singular point for consideration, and recognize your takeaway from that article might be completely different. I would love to hear your perspective. They are:

"employees of all kinds across many industries have proved that flexible work can be highly productive"
"In the US, a whopping 72% of managers currently supervising remote workers would prefer all their subordinates to be in the office."
"even if workers are highly productive at home, they risk no-one noticing that output"
"The choice is theirs to make. The expectations are quite simply to get the job done"
"This halo effect can also cause leadership to excuse the poor performance of those in their proximity, while not properly valuing the skills and expertise of those with whom they have less contact."
“around 50% to 60% of work across different occupations need to be done in a site-specific way”
"suggests recreating aspects of your work-from-home environment in the office to make the switch feel less jarring"
"more and more, it’s a hub of operations that’s a lot smaller, with a few people helping to coordinate those who are working in all different places.”
"As the world moves back into offices, the expectation is we’ll have to give up at least some of that new-found control – a transition that may prove jarring."
"it’s not a good idea to present your hybrid working request as an indefinite arrangement. Instead ask for a trial period, then get a meeting fixed in your boss’s calendar for an honest discussion of how it’s gone."
"18-to-29-year-olds are most interested in a hybrid work set-up, working two to three days a week from home, and the rest in an office."
"Rather than abandoning them entirely, many companies will . . . develop their spaces to meet the demands of a hybrid workforce that wants choice and flexibility for where and how they work."
"there’s also a risk of widening the long-standing gender gap in housework and caring responsibilities that’s already been exacerbated by Covid-19."
"It is fraying. It is hard,” “It takes a lot of inner strength and sustainability without the energy that you get from being around other people.”
"each delay further entrenches flexible working patterns – rendering a full-staff return less likely."
There are emotional issues at play, among employees and management alike. There are challenges involved for management, workers, collaboration, productivity, and more. One of the articles even mentioned the potential for workplace injuries in an unsupervised and perhaps poorly designed or maintained home premises. Should employers become engaged in selecting home-office furniture, posture, and process? One article notes that many who work from home are doing so primarily from their bed (I am typing this in bed). In all, there is stress from the uncertainty, the temporality, the distance, the collaboration, the meetings, the technology, and more.

In all, perhaps we can all agree on a few things. First, the workplace and occupations will evolve. Second, some jobs will always require a physical presence. And, finally, the answers are not presently clear; only time will tell how we all adapt to and are affected by whatever the "new normal" ends up being.

Sunday, January 23, 2022

What a Difference an Or Makes

Periodically an interesting analysis in workers' compensation leads to discussion of death benefits. A recent decision from Ohio's appellate court provides an interesting explanation of statutory interpretation. Some will likely find the court's analysis somewhat difficult to follow, and it is unlikely that readers would unanimously agree with the interpretation of the court or the constraint of the statute.

Prior discussions of death benefits in this blog have included Marriage, the Law and Workers' Compensation (November 2014), Ideological Shift (June 2015), and Reminded about Death Benefits (February 2019). The topic of death benefits is not popular, and fortunately most categories of workplace death are demonstrated downward trends; overdose is the exception to that generality, see Drugs and Overdose (January 2022).

In December 2021, The Court of Appeals of Ohio decided State ex rel. Christopher R. McDonald v. Industrial Relations Commission of Ohio, No. 20AP-386. The opinion includes some excellent quotes worthy of consideration in the broad context of litigation. First, that statutes should be given their plain meaning. The primary effort should be to determine the meaning from the statute if it is "unambiguous and definite." The Court warns:
"[o]nly when a definitive meaning proves elusive should rules for construing ambiguous language be employed. Otherwise, allegations of ambiguity become self-fulfilling." (Citation omitted).
The point is that ambiguity is the critical first determination. When the statute is clear, it should be applied as written.

In this instance, an employee passed away in a construction accident. The employee had dependent children, but was not married to their mother. However, the two were engaged, held property together, and cohabitated.

The court interpreted the statutory provision, which creates a presumption of dependency in various circumstances. In this setting, the workers' children were deemed to be presumptively dependent and were granted benefits. Their mother, the fiancé of the injured worker was denied benefits, although not each level in the adjudication process reached that conclusion. And, ultimately, the appellate court concluded that denial had been inappropriate, but that it could not grant benefits either. Thus, the case was remanded (sent back to the Commission) for consideration of the issue again.

The Court found ambiguity in the legislature's selection of "and" in one instance and "or" in another. As regards R.C. 4123.59(D), the Court noted that "dependency" requires

"No person shall be considered a prospective dependent unless such person is a member of the family of the deceased employee and bears to the deceased employee the relation of surviving spouse, lineal descendant, ancestor, or brother or sister." (Emphasis added).

Thus, it concluded, there are two requirements: (1) member of the family, and (2) a particular relationship as listed. By comparison, the Court noted that the final paragraph of that statute renders a different outcome:

"In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless such person is a member of the family of the deceased employee, or bears to the deceased employee the relation of surviving spouse, lineal descendant, ancestor, or brother or sister." (Emphasis added).

Thus, the Court concluded that dependency might be established either by demonstration of "member of family," or by the characterization of "surviving spouse, lineal descendant, ancestor, or brother or sister."

Thus, by implication, it is possible in Ohio to be a "member of the family" despite not being a spouse, descendant, ancestor, brother, or sister. The Court did not attempt to further define or constrain the term "family," but remanded the case to the Commission with instructions that it determine "whether under the particular facts of this case Carpenter has established that she is a member of the family."

The Court noted precedent, Blair v. Keller, 16 Ohio Misc. 157, 241 N.E.2d 767 (June 10, 1968), in which unadopted stepchildren had been deemed ""members of the family," in a dispute regarding the same statute. Despite the absence of legal relationship, the court there had concluded those stepchildren "were 'members of the family' of the deceased employee." In so concluding, the court found persuasive that "[t]hey lived in the same house with the deceased and their mother, ate at the table of the deceased and enjoyed the privileges of the deceased and his wife."

As the Court has impliedly concluded that the "or" means that "family" may have some broader meaning. The Florida Courts have routinely referred to the dictionary for the ordinary meaning of words. The analysis in State v. Burris, 875 So. 2d 408, 411 (Fla. 2004) is interesting in its interpretation of the word "carry" through such analysis.

Such an inquiry might have led the Ohio Court to Merriam Webster or some similar publication. That dictionary defines "family" in multiple ways, three of which might apply in such a dispute:
"the basic unit in society traditionally consisting of two parents rearing their children"
"spouse and children"
"a group of persons of common ancestry"
While one might validly conclude that these three do not necessarily each define an identical group of people, one might nevertheless conclude that any of the three is an appropriate definition. Of course, had the Ohio Legislature chosen to, it could have defined the word "family" in the statute. Some might argue that "but for" an errant "or," that is what the legislature did, or intended, with the reference to "surviving spouse, lineal descendant, ancestor, or brother or sister."

When drafting legislation, it is imperative for language to be carefully chosen, and punctuation to be considered as well. See I Never Knew Oxford had a Comma (March 2017).

Now it is for the Commission in Ohio to determine what that word means in that state, in that context. If the broadest definition "the basic unit" is elected, then logically the fiancé will be deemed entitled to benefits. However, if either of the others are elected, then the fiancé's recent appellate victory may be less than fruitful. And, it is possible that any decision will lead back to the appellate court. 

Beyond the scope of this decision is the challenge of whether the outcome is or is not "right." It must be remembered that the concept of workers' compensation is a substitute for tort liability and is confined by its statutory construction. In the event that the fiancé is not entitled to workers' compensation, it is possible she is then allowed to sue in tort. It is possible that she might be denied any recovery whatever. The system is not always seen as adequate or fair in a particular case, despite the many efforts for it to be an adequate remedy and alternative in a macro sense.

Thursday, January 20, 2022

A Coffee Break Fall

The timeliness of decisions is a persistent discussion in the realm of litigation generally, and workers' compensation is not an exception. In a broader sense, the recently discussed Workgroup Report on Civil Cases (January 2022) noted some inclination for decision deadlines. 

Of course the topic has been around for many years in workers' compensation. See On Timelines and Deadlines (April 2014). Also of interest, there is some perception that delays may increase costs in some settings. See Simple Concepts, by Bill Zachry, recently published on workerscompensation.com. So, what is a reasonable time for a case to move to closure?

Some months ago, I received an article from the Washington Post, though the link I have is not to its site. The story relates an all-too-familiar instance of a worker having trip and fall. According to the National Safety Council, falls are a prevalent work-injury issue and are largely preventable. This one occurred in 2009, during a coffee break. That may remind some of the Valcourt-Williams v. Sedgwick decision, regarding a fall during such a break, and the questions some have raised about it. See It's not That the Wind is Blowin' (June 2021). 

When I see lawyers at conferences and meetings since that decision, there is less than unanimous consensus about "arising our of" and coffee breaks under the Florida law right now. While there are differing opinions, many are confident that clarification is on the horizon though. There are a number of decisions that have been appealed since Valcourt

The 2009 coffee-break fall in this story occurred in Italy. The defense asserted that the injury was "on her own time" and thus not compensable. The employer had no coffee machine or other facility for refreshment. The employee was given permission to leave the premises in search of some cafe. It sounds like "personal comfort" to many, but that is a "course and scope" framework not an "arising out of" parameter. The trial judge awarded benefits, and the "appeals court sided with" the worker. The carrier appealed to the Italian Supreme Court, which rendered its decision 12 years later.

The Italian Supreme Court "weighed in, concluding that coffee-break-related injuries are not workplace injuries." That is noteworthy. A national supreme court addressing workers' compensation is rare indeed. In addition to not prevailing in her claims for compensability, the article notes that the injured worker was also ordered by the court to "pay more than $6,000 in legal costs."

The Washington Post article concludes that the rule from the case is "seek coffee at your own risk." However, the real lesson is perhaps more obscure. The fundamental issue to be remembered about workers' compensation is that cases involve various facts and circumstances. Those facts are then controlled by various statutes and rules that may not be designed for any particular situation or incident. In the end, from any perspective, a case may not end the way one or more parties might like or even predict. There is always the perception for any party to sense a lack of fairness or balance when broad statutory constructs are applied to a particular set of facts. 

Litigation is uncertain at times. There are risks and benefits to litigation, and certainly there are costs. In the Florida system there are costs awardable to any "prevailing party." Section 440.34(3):
"If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees."
One intriguing outcome of this in the context of workers' compensation is that a given case or trial might include multiple issues. It is possible that both parties will be the "prevailing party" as regards some discreet issue(s) in a particular trial. Then, it may devolve into a debate over what each should pay the other. There may also be interesting issues of enforcement of cost orders, see Orange County and Alternative Service Concepts v. Wilder.

And, those potential costs may cause either side some caution in proceeding with claims or defenses. Years ago, I had a prominent workers' compensation scholar challenge the Florida statute's application at a seminar. He explained confidently that only Florida had such a potential for an injured worker to be liable for such costs. This story demonstrates that there are at least two such jurisdictions in the mind-set of prevailing party costs. Perhaps there are others.

In all, an interesting reminder of the context of "arising out of" at least in the narrow construction of one case. As the law is applied it is possible that we will all learn more about the constraints of what workers' compensation does or does not include.

Tuesday, January 18, 2022

Drugs and Overdose

WorkersCompensation.com recently reported disturbing numbers for "unintentional overdoses from nonmedical use of drugs." There are a a large volume of such deaths in America generally, more on that recently in The Time has Come the Time is Now (April 2021). Overdose death is not indigenous or isolated to the workplace by any means, but overdose is occurring in the American workplace. That may be related to increased availability and incredible danger of Fentanyl, see Fentanyl is Killing - Still (November 2021)

Notably, the government has concluded that only about 40% of overdose death involves prescription medication. It is certainly possible to misuse or mistake prescription drugs. There are many who rush to assure that marijuana is a drug that does not implicate such risks, but that is refuted by the American Addiction Centers. It contends that hundreds die each year from drug use that may involve a variety of combinations and circumstances, but which are characterized by the government as implicating pot.

Certainly, according to the story noted at the outset, the volume of Americans dying of overdose is sobering and serious. The volume has been of concern for years, and it is rising. But, it is notable that "unintentional overdoses . . . accounted for 388 workplace deaths in 2020." Following the national trend in overdose death generally, "the number of fatal workplace overdoses increased in each of the last 8 years." In short, there are too many, and the volume is increasing.

It may seem to some that 388 is a relatively low number amongst the millions of people out there in the workplace daily (Statista says it is about 160 million). But, the WorkersCompensation.com story notes that these are included in the "broader event category," which is labelled "exposure to harmful substances." Notably, the overdose deaths in the workplace represent a staggering 57.7 percent of the deaths in that exposure category. Overall, workplace fatalities are recently decreasing, which is positive tribute to safer workplaces, modern medicine, and likely workers' compensation. But, not overdose. Overdose in the workplace is increasing, just as it is in our society.

Intertwined with this interesting upward trend is a disinclination of employers to perform drug testing. The tight labor market, according to the marijuana advocates, is driving employers to abandon any concerns of drug use in the hiring process. Norml (sic) reported results of a large survey concluding "Nine percent of respondents acknowledged that they had “eliminated job screenings or drug tests” as a way to either attract or keep their employees." Economic pressures are thus purportedly changing behavior in the hiring process and making the workplace more accessible to those who use recreational drugs.

That means only that a worker may be hired despite ongoing drug use and even habit(s). That does not mean that employee may not find her/his workers' compensation claim denied following a post-injury drug test. The same economic demands and foci that might lead a company to eschew pre-employment testing might nonetheless similarly lead it to post-accident testing and an effort to avoid the expense that accompanies accident, injury, and disability. See Federal Law Matters in Colorado (June 2015) Federal Law Matters in Maine (June 2018). Stated simply, the pot debate is complicated, see Decriminalizing Pot (May 2021).

One legislator is seeking to impose a statutory drug use deterrent. A bill introduced in the Virginia Assembly for 2022 would mandate post-accident drug testing, according to WorkCompCentral. The testing would be specifically for "non-prescribed controlled substances." While it is possible to get a prescription for products that include Fentanyl, it is also a street drug. Similarly, while it is possible to get a "recommendation" for pot, it is not prescribed and is certainly a controlled substance, see Medical Marijuana (January 2015).

This all illustrates again some disconnect in American Society. There are populations that engage in the use of recreational drugs. The labor market seems willing to accept them and to ignore the potential drug use in which each might potentially engage. There can be debate regarding the extent to which a particular workers' use equates to either impairment or a threat to the safety of that worker or those surrounding the worker. These are undoubtedly difficult questions.

There is also the unsettling fact that drug overdoses are increasing in this country. Unfortunately, that data now demonstrates that increase is also being perceived in the sub-category of workplace death. It seems beyond question that drugs can be dangerous and even deadly, that drug death is too prevalent, and that the upward trends are undoubtedly bad news. What is left is the question of what workers, employers, regulators, and legislators can do to acknowledge and reverse the trends.

Sunday, January 16, 2022


A story about Florida's Attorney General recently hit the headlines. As I walk each morning for my physical and mental well-being, I periodically "cruise the news" on a national site, a local site, and some workers' compensation platforms. In the morning quite, I catch up on the days events, often riddled with the law, this pandemic, and various challenges we face.

The headline in this instance was on WEAR: "Florida attorney general aids businesses in recognizing signs of human trafficking." A statewide official striving against a societal problem, but the article ran in the "local news" section of the site. Human Trafficking has been on these pages before. See Supply Chain Slavery (October 2020) and Consequences in Employment (May 2021). It is admittedly difficult to comprehend the persistence of slavery in our modern world.

The WEAR story is an overview. It concludes with an offer of more information or to take a training course from the Florida Coalition to End Human Trafficking. I spent significant time on that site without finding the training course link. However, a quick Google search located the correct link. The course was informative and interesting. It was not a major time commitment. 

As I perused the initial Coalition link, I was surprised at the data and information. For instance "Between 21 million and 45 million people are enslaved around the world." According to Worldometer, Sri Lanka has a population of 21 million and Argentina has 45 million. I wonder how people would react if they learned Argentina was enslaved. Another note says that the number is "at least 27 million, the population of Australia and New Zealand." That is likewise an illustrative comparison that clarifies the significance of what is happening. 

I learned through these experiences that slavery can be divided into various categories. It involves forced labor, sex trafficking, coercion, and even children. Some victims have been brave and tell their stories. Those narratives are difficult to hear, but I nonetheless recommend it. From the information provided, it is apparent this is a worldwide tragedy, but it has implications and impacts in our own communities; it may very well be occurring in your own community in one form or another. 

If one pays attention to the news, there are other stories related to these people and their plight. The British Broadcast Corporation (BBC) alleged in 2020 that "China is forcing hundreds of thousands of Uighurs and other minorities into hard labour." That story was followed by China banning broadcast by the BBC in China. More recently, the BBC reported that Tesla's new retail facility in that region of China was drawing criticism related to the allegations of the persecution there. Companies have banded together to pressure China; the New York Times reported last year that 190 companies have joined that effort. It alleges that various well-known brands are connected to cotton harvested there. 

Why is the Florida Attorney General interested in this topic? Notably, Florida is number three in the country, after California and Texas, in the number of "calls to to the National Human Trafficking Hotline" (1-888-373-7888). Admittedly, the largest state populations in America are California, Texas, and then Florida. But, the fact is this state generates a notable volume of reports. Additionally, the statistics cited by the Florida Alliance are sobering.

The Attorney General is striving to train 100,000 people in 2022 to spot human trafficking victims. She notes an anecdotal example in which a truck driver "at a rest stop, knew the signs, (w)as trained on the signs of human trafficking and rescued a victim." The driver was not a police officer, social worker, or other expert. But, the driver had obtained some knowledge and was able to save a life. What an incredible achievement that is. The publicity is helpful, and led me to complete the training, so only 99,999 left (how about you decrease that number?)

The Florida Coalition says that "Slave labor is in the supply chains of the items we purchase," as noted by the NY Times article cited above. It lays some portion of blame for slavery, perhaps a significant portion, at the feet of consumers: "We want cheap goods, so businesses secure free, slave labor to cut labor costs." That theme is at the root of the discussion above from the BBC, and the Uighurs. That centers on the production of cotton, and its inclusion in any number of manufactured products. The lessons are not isolated there, a Thompson Reuters report contends that gold, bricks, sugarcane, coffee, and tobacco are all implicated, but the list is much more extensive.

The Coalition site includes a quiz to help you see how many "slaves work for you." That was a sobering experience. It concluded that my consumption habits, foods I eat, clothing I buy, etc. may account for 34 people who are being oppressed or enslaved around the world. The Reuters report suggests that solutions include both awareness of the problem and legislative efforts. It cites multiple recently-enacted laws. 

The report suggests that those who produce products can understand the risks associated with various products, that is the probability for connections to slavery. It suggests that reliance on various supply sources can be controlled by manufacturers, thus decreasing demand for products that are intertwined with this slave labor issue. It suggests that capitalism must evolve to "conscious capitalism" with focus upon the sourcing of materials and components.

To that end, the Coalition publishes a list of "slave free companies." There are recognizable names on that list, but in the massive consumerist population in which we live, the list seems short. It is possible that with greater awareness of those millions of victims, there will come greater incentive for producers to verify supply chains and further raise awareness of these human issues. Hopefully, awareness will increase, and you will take the time to complete the training. As noted, the challenge is greater with components and raw materials. Imagine looking at a ton of coffee or cocoa beans and trying to trace each bean, or bag of beans, to the plant and who did the picking. Not easy.  

In the world of workers' compensation, we all see a great many people. We travel the state for business, attend events, and have many opportunities to see people, just as the truck driver described above did at a rest stop. It lies within each of us to make change, and perhaps this training is a valid first step in our personal growth and enlightenment? Perhaps we will never perceive a victim of human trafficking, never engage this training. The same may be said of our learning CPR training, but I am glad I took that course as well. 

It is unconscionable that our world includes forced labor and human trafficking. We may find ourselves individually unable to remedy the enormity of that challenge, but perhaps it is in each of us to address some part?

Thursday, January 13, 2022

Zehmer Finals in Tallahassee

Last fall I wrote about the amazing transition of the annual Zehmer Moot Court competition. This is usually held at the annual workers' compensation conference each August, but 2021 was delayed. In Perseverance and Poise (November 2021), I congratulated the organizers and participants for their successful pivot to a virtual preliminary round. I cannot stress enough the contributions of Hon. Jacqueline Steele, Tracey Hyde, Esq., and Amie DeGuzman, Esq. They always produce a great event, but their efforts and achievement in 2021 are truly superlative. 

The students did an exceptional job of adapting to the virtual platform. Some will note that this next generation is exceptionally abled technologically, but it was nonetheless a challenge for them to pivot into the digital world. That they adapted so readily is a tribute to their ingenuity and flexibility. Nonetheless, their absence from the actual conference in December left me missing the competition, see What is Different (December 2021)

January 2022 brought me to the Florida First District Court in Tallahassee. The various virtual rounds had delivered two finalist teams, and the return to an in-person environ. In the ceremonial courtroom they gathered before a "hot panel" of the Court, judges Lewis, Bilbrey, and Tanenbaum were prepared and curious. They engaged with vigorous questions, listened intently, and deliberated at length. 

The Zehmer contest emulates the reality of workers' compensation practice. A fictional problem is delivered and the students strive to identify critical issues in some decisions rendered by a fictional trial judge. They research various legalities and precedent, then prepare an appellate brief in which they describe the issues and address allegations of error by the trial judge. Brief writing, any writing, is a critical skill for lawyers. Some believe it is becoming a lost art, but perhaps not. 

During the contest, in various rounds, each team will find itself advocating each side of the case: the appellant seeking a reversal of the judge's conclusions and the appellee striving to convince the Court to let the trial decision stand. Most appellate lawyers will admit they prefer to be the appellee, seeing that role as advantageous, defending the judge's order. And, in many instances, one side of the case is perceived as "easier" or at least easier to advocate. Some contend that prevailing in a contest such as this may be influenced by which role is drawn in the pairing. Despite such perceptions, either side on any day may prevail. 

The contest is challenging. First, the research and writing are rigorous. Second, it involves students standing and orating in front of a tough audience of strangers, of judges. And, finally, it involves critique by judges who are very versed in the law, the process, and the technique of oral advocacy. In short, it is a difficult activity in a fairly tough room. 

Despite this, the presence and performance of the students in this contest is always impressive. The 2021 final round in Tallahassee was no exception. The outcome was a "split decision," rather than unanimous. Judge Lewis explained in his comments afterward that the Court struggled with the outcome because the two teams were so exceptionally prepared and able. All of the judge's critiques and comments were laudatory, and peppered with hints, tips, and advice on effective advocacy. Many practicing lawyers would benefit from the chance to have such feedback from esteemed jurists. 

The 2021 winning team was from Florida International University (FIU) in Miami, on the far left in the picture above. Coached by Ila Klion (in picture below) were Ms. Samantha Lee and Ms. Kristy Michel. The runner up was from Baylor University in Waco, Texas, on the far right above. Coached by Elizabeth Gardner (in picture below) were Ms. Jillian Ginger and Ms. Emily Means. 

The winning team is in their third year of law school at FIU and is acutely focused on graduation, careers, and the future. The Baylor team is in their second year, and thus about half-way through the law school experience. It is impressive that people in the midst of their education are as poised, focused, and formidable as these four are. It is more impressive that the same can be said of all the students that enter this contest, win or lose, year after year after year. The Zehmer consistently attracts exceptionally hard-working and strong advocates. In 2021, there were 20 teams; in 2022, likely more. 

When the program concluded, I had the chance to chat with each team about their perceptions of the program, their career plans, and the law. Not one of them expressed any interest in practicing workers' compensation law. That was not a surprise, but nonetheless a disappointment. People seem to typically go to law school with dreams of criminal law, employment law, commercial litigation, tax law, family law, and more. But, somehow, no one seems to ever dream of workers' compensation. 

Each of these advocates expressed their interest in various areas of the law. They have enthusiasm, goals, and ability. From my brief time with them, I have no doubt that any employer would be well-served by these outstanding and hard-working advocates. 

Some schools enter more than one team. A member of a second FIU team was recognized with an award for Best Oral Advocate. There are also awards for the best written brief, which in 2021 was won by Miami University, and second place was a tie between the Baylor team described above and the Mississippi College team. In short, the awards each year are typically distributed across more than the team prevailing in the final round. There is, a great deal of perseverance, talent, and hard work evident from all of the contest participants. 

There are doubts expressed periodically by my generation. I hear expressions that make us sound geriatric and cliché ("you kids get off my lawn"). There are lamentations of "these kids today" how "law school is not as hard as it used to be," and more. But, Ms. Lee, Ms. Michel, Ms. Ginger, and Ms. Means demonstrate that there is much to celebrate in the next generation. There are bright and effective students preparing to take over this profession. The future holds much promise indeed.

I celebrate and congratulate them, while I do lament that they do not dream of workers' compensation. Perhaps through efforts like the Zehmer competition we draw attention to this law, practice, and challenge? Past competitions have included some that sought to practice workers' compensation, and I have always been particularly pleased to see those students graduate and enter this practice. 

When August 2022 rolls around, which will be quicker than we think, take the time to sit through a round at the WCI. It is refreshing, interesting, and engaging. And, if you are involved with a law school, please encourage it to enter and join us for the Zehmer competition in 2022. 

First place team from FIU, Ms. Samantha Lee and Ms. Kristy Michel, with judges and coach Ila Klion.

Runner up team from Baylor, Ms. Jillian Ginger and Ms. Emily Means, and coach Elizabeth Gardner.

Tuesday, January 11, 2022

Man's Best Friend

One of the great challenges of COVID-19 has been our inability to detect its presence prior to the appearance of symptoms. Unfortunately, it appears we all have the ability to carry and spread SARS-CoV-2 before symptoms appear. Even the "fully vaccinated" can apparently carry and spread the virus, according to the CDC. We thus live in an apprehensive and pensive environment with much hand-washing, distancing, and more. But, there is a low-tech tool being deployed to aid in our defense. You see, the phrase "COVID stinks" is both cathartic and yet also accurate. 

In 2015, reports began to surface regarding a program at Florida International University that trained dogs to detect a fungus that impacted avocado trees. As reported by the Community News, a "deadly fungus (was) spread by" an invasive species of beetles. Researchers noted that by the time a particular tree showed symptoms, "the fungus has likely spread to nearby trees." The critical challenge was diagnosis prior to symptoms.

The Florida University contrived a two-prong process to attack the issue, combining high and low tech. The high tech involved drones with thermal cameras. These images sought to identify trees that were exhibiting stress. While temperature signature helped in that regard, the thermal did not identify the cause of the stress. Identifying the cause of the stress then fell to dogs and their sense of smell.

It turns out that dogs "have up to 50 times more olfactory receptors than humans and can be hundreds to thousands of times more sensitive to detecting odors." Some might wonder at that. I have often caught a dog in the yard rolling in something that smells really bad, and the smell seems to offend me far more readily. But, I digress. The fact is that these avocado-fungus sniffers "detected the pathogen much earlier than any other method available." Fungus has a smell.

In December 2021, the FIU News noted that the same concept could be engaged to detect the presence of COVID. While the effect may be identical, it seems more likely that the dogs can detect the virus, SARS-CoV-2, which causes COVID. That may be mere semantics, but I have striven to be clear on the cause and effect.

Dogs have a history of deployment in various olfactory challenges. The News notes their proven value in "locating people and human remains, drugs, currency, accelerants, explosives, invasive species, fungi." But, this latest potential is truly intriguing. Similar to the situation with avocado fungus, we are dealing with a virus that may be present in us seemingly at any time, often undetected. We may be distressed without actually knowing it, and the actual symptoms may appear days after we are infected, days after we have been shedding the virus on our surroundings and contacts.

The Massachusetts Institute of Technology has noted that dogs' acute senses are incredible. In February 2021, it noted "numerous studies have shown that trained dogs can detect many kinds of disease — including lung, breast, ovarian, bladder, and prostate cancers." It asserts that the challenge in this regard is the volume of dogs and the investment in training. It has therefore been working to develop and deploy a technological device of similar accuracy and sensitivity. The dream is "an automated odor-detection system small enough to be incorporated into a cellphone." Thus, technology may lead to under-employment even in the canine world.

The FIU researchers explain that “a basic principle of forensic science is ‘every contact leaves a trace.’” Because of the acute sense of smell, dogs can actually smell the virus, detect its presence in a room, or on a surface. Testing their theories, the FIU team deployed dogs at "the South Beach Wine and Food Festival," and later at the "employee entrance at Miami International Airport." The dogs demonstrated an impressive "real-world" "average accuracy rate of 97.5 percent." The research and findings are now "in published, peer-reviewed, double-blind trials."

One might think that the natural next step would be deployment of such dogs around Miami. However, the existence of these dogs and their ability came to my attention through WJAR in Norton, Massachusetts. The story reports that "the Bristol County Sheriff’s Office is the first law enforcement agency in the country to utilize trained canines" for COVID-19 detection.

Reportedly, their two COVID dogs, “Huntah” and “Duke,” are capable of "sweep(ing) an area such as a cafeteria, library or hallway, and alert the presence of the odor that is left on surfaces by a person infected with COVID-19." When the dog detects the scent, it signals by sitting. The manner in which drug-sniffing dogs "signal" their "alert" has been fodder for many a comedian. I have heard various criminal defense lawyers speak regarding their skepticism of such "signaling" and handler interpretations that are necessary in the context of probable cause and searches.

Be that as it may, building upon the FIU program and research, this law enforcement unit has begun searching for the novel coronavirus on surfaces in Massachusetts. They claim that these particular dogs similarly demonstrated a "97% accuracy" during their certification in Florida. They claim that is "more accurate than a PCR test.” And, there is no downside to a false positive in this setting since the detection is on surfaces, from which the virus might be spread to some person. Upon detection, the surface can then be simply disinfected and the spread slowed or even stopped.

The Massachusetts story describes how the Sheriff offers the services of Huntah and Duke to the local school systems. They patrol and sniff schools in search of surfaces that need disinfection and thus slow the spread of the virus. Their presence has apparently been welcomed by multiple schools. 

Whether detected by canine of eventually by some super-smeller cell phone, the implications of such detection are clear. Although the immediate interest is in this virus, the long-term implications for detection, diagnosis, and treatment of this and other maladies is intriguing. The impacts on both the employment setting and the medical delivery system are intriguing, both within and without the context of workers' compensation. 

While time may bring some such super-smeller cell phone, the conclusion today is that man's best friend may be our best tool for slowing the spread of this virus, and perhaps a great many others. 


Sunday, January 9, 2022

Judge Robert Dietz

It has been a tough 2022 (I am cognizant that we are less than 10 days in). Yesterday (01.08.22) brought unwelcome news, a phone call in the mid-afternoon. Calls like this are surreal, and I often struggle to accept that I have heard the caller correctly. In this instance, stated simply, "Robert Dietz died last night." The statement surprised me, and for a moment I was literally speechless. 

I have known Judge Dietz for many years. As I type, I cannot recall when we first met. I am fairly certain he was a defense lawyer at that time, and I recall some involvement in a defense attorney association was the precipitation of our acquaintance. That is a mile-marker for me because Robert later evolved to an exclusively mediation practice. Notably, though he focused solely on mediation for several years, he remained Board Certified in Workers' Compensation for the last 30 years. Remarkable, simply remarkable. 

I remember when he came back to my attention with the formation of the Professional Mediation Institute (PMI). Jim McConnaughhay had decided that the WCI needed a breakout focused on mediation. State mediator Stuart Suskin was heavily involved in that initial effort. I recall some conference calls, and Stuart's repetitive "we have to get Bob Dietz." There was a sentiment that his presence was critical to success. Robert was welcomed into the fold, and became the leader of the PMI. I feel confident he was given the title of "President" of the Institute, but the current leader uses the title "Chair." I am not sure which is the correct vernacular, but there is no question Robert was the inaugural leader and responsible for much of the early success of PMI. 

Back in those days, he was heavily relied upon as regards the program, topics, and other resources. He had a broad experience with other mediators, and many marketplace connections. Although my experience with PMI has waned in recent years, I am confident that he remained an integral and important part of its ongoing success. He has remained engaged in  that programming persistently. He spoke at the PMI 2021 not a month ago. And, when the PMI began, Robert proofread every one of the PMI Newsletters, which unfortunately are no longer available on the website. Suffice it to say that they were extensive and informative. Proof reading them was undoubtedly a significant challenge. He never uttered a discouraging word though. 

Through our work in that era, I became familiar with Robert Dietz the mediator. Then, in 2013, when Judge Remsnyder retired in Melbourne District, Robert was interested in the vacancy. That interview still sticks in my mind. The Nominating Commission interviews were at the Orlando airport, and I anticipated discussion of his former practice and his mediation activities. However, the interview focused instead on topics like pro bono service, the Guardian Ad Litem program, Legal Aid, and the Civitan club. His passion for community was patent, and his conversation with the commission was telling. I recall at the time thinking the choice for that vacancy was pretty obvious. 

Shortly after he was appointed judge, he called with questions about the Code of Judicial Conduct and whether various community activities would remain permissible. Judge Dietz believed in those activities, in community, and in contributing. He had talents and interests, and he poured himself into them like few people I have known. Over the years, he was devoted to groups like the local bar association, the Inns of Court, the PMI, and others. He served as Judge of Compensation Claims since 2014, and was nominated just last month for reappointment to a third term. 

This blog is about the law and workers' compensation. So, turning attention in that direction momentarily is apropos. What kind of a judge was Robert Dietz? Well, without a doubt he was a teacher. Barry University School of Law had him teach workers' compensation for the last decade. I was honored to meet some of his students and suffice it to say he was revered there. But, he was undoubtedly also a student throughout his career. He had a curiosity, an inquisitiveness, and an interest that was persistent and infectious. He enjoyed studying the law, its underpinnings, purposes, and interpretations. Any conversation with him would invariably lead back to either workers' compensation or mediation, likely both. 

Judge Dietz knew much about the law. He was a repository of odd bits of knowledge, and he recalled appellate holdings with apparent ease. He relished discussion of the intricacies of this law, and many a judge discussed challenges and interpretations with him. In a perhaps over-used description that is simply too accurate to ignore, he was "a judge's judge." Lawyers appreciated him, mediators followed him, and judges consulted him. His presence on the bench in Sebastian will be sorely missed. 

In fairness, however, neither workers' compensation nor mediation were his favorite topic. Robert spoke often of his children, his wife, and his activities. Judge Dietz was immensely proud of, and focused upon, his family. He was also involved in sports as a referee, and was an avid follower of professional soccer. More than once, he tried without success to explain soccer to me. I was, undoubtedly, his worst student.

One of my fondest memories of Judge Dietz was in January 2017 when he was inducted in the Florida Workers' Compensation Hall of Fame. See Thoughts from the Hall of Fame (January 2017). It was an honor for Judges Lazzara, Rosen, and me to welcome Judge Dietz and former Judge Richard Thompson to that group. Their induction was recognition of careers devoted to this strange little corner of the law, too often dismissed or overlooked. I recall struggling at the time with understanding why it took us until 2017 to recognize him. 

I have written repeatedly recently of the disturbing trend of deaths in this community. Each of those brings pain and challenge, Douglass Myers and Robert Barrett (also a Hall inductee); certainly 2021 was tough. Still fresh, however are passings such as Jack Langdon in 2019 (also a Hall inductee). I grow weary of the pain of these departures. I strive therefore to remember each for their contributions and values. Each is a loss worthy of note and acknowledgement. Judge Dietz is only the second sitting JCC to pass during my tenure. I still struggle with the loss of Hon. Joseph Farrell in 2002. Judges Farrell and Dietz shared much, a love of the law and an incredible passion for being a judge.

Indeed, only ten days in, it has now been a tough 2022 as well. Many will miss Judge Dietz, and I am in that number. He was reliable, relatable, and industrious. He was a jurist, a mediator, a teacher, a student, a father, a husband, a contributor, a thinker, and more. 

God speed judge. May you rest in peace. 

Updated January 12, 2022.

Since this post published, many have called or written to express their grief and admiration. Judge Dietz was deeply involved with the PMI as mentioned in the post. Additionally, he was involved with the National Association of Workers' Compensation Judiciary, and many of the comments stem from those involvements with leaders across the nation and Florida. I am adding their comments here. 

Hon. Dwight Lovan (former KY Commissioner and Judge) “He was always so pleasant to talk with. A reminder of the importance of appreciating one another."

Hon. Deneise Lott (MS Senior Judge and former NAWCJ President) “We have lost one of the best examples of a servant leader I have known as a judge.”

Hon. Bruce Moore (KS Judge and former NAWCJ President), “He was a super nice guy, easy to talk to, and always willing to lend a hand. He’ll be missed.”

Hon. Dave Torrey (PA Judge and former NAWCJ President) “That is quite upsetting. Yes, he was a fine man indeed.”

Hon. Shannon Bruno-Bishop (LA Chief Judge and NAWCJ President) “I am sorry to hear about Bob. He was, indeed, a big help with NAWCJ.“

Hon. Michael Alvey (LA Board Chair and former NAWCJ President) "Bob was truly a great guy, and always ready, willing, and able to pitch in where necessary. We will miss him as an organization, and personally I will miss him because he was a truly outstanding individual."

Hon. Melodie Belcher (GA Judge and NAWCJ Board Member) “Such very sad news. I am so sorry for the loss of such a dedicated judge and kind man.”

Robin Caral Shaw (PMI Chair) "Absolutely shocking and sad."

Mary Ann Stiles (Florida attorney, Hall of Fame member) "I had a great deal of respect for Judge Dietz. So very sad."

Dan Hightower (Florida attorney, Hall of Fame member) "Robert Dietz was a person, a good defense lawyer and a good mediator and judge."

Steve Rissman (Florida attorney, Hall of Fame Chair) "Judge Dietz was a long term excellent defense lawyer, a mediator and a terrific Judge of Compensation Claims. More than all those things though, he was very smart, analytical and a good man. We will all miss him."

Stuart Suskin (Florida attorney) "If you knew him, you not only revered and respected him; but, more importantly, you also loved him. How could you not? He was special. A huge “success” in every sense of the meaning: smart, well-educated, outstanding attorney, mediator extraordinaire, an even tempered, fair and respected jurist, honest, ethical, giving, a terrific husband and father, but most importantly, a genuine friend."

Thursday, January 6, 2022

Mental Health

You probably know someone who is struggling. The world in which we live is filled with potential challenges and stressors. They may be professional, personal, or otherwise. They may give rise to symptoms or signs, but as likely may be indiscernible in the pace and tempo of our lives. And, it is possible our reaction could be humor; I recall a coworker years ago who had a faded sign hung on the cubicle wall that read "I don't suffer from stress, I am a carrier." What made it really humorous was the general agreement to the sentiment among that person's coworkers.

Similar stressors may impact different people in different ways. As individuals, we are each differently abled in terms of both discerning and coping with stressors. There is individual susceptibility that is worthy of consideration. An important element of the personal consideration is the extent to which an individual can or will recognize challenges, stressors, and reactions, and be amenable to seeking help.

Recently, I was reminded of a a lecture I attended many years ago, presented by a psychologist. She explained the importance of stoicism in regards to Worker’s Compensation injury. She noted a documented reluctance of some individuals to admit injury. Her theme focused on delays in reporting of Worker’s Compensation complaints and symptoms by some individuals with personal perceptions of invincibility. She concluded that certain individuals are reluctant or even in capable of admitting weakness or injury. That lecture led me to some reading, an excellent example is Danger Zone: Men, masculinity and occupational health, but a Google search will find you many such references. It is important that such stoicism may or may not have any coincidence with gender, occupation, or other indicia. 

That personal perspective has been illustrated as regards to physical maladies recently. A recent article by the British Broadcast Corporation (BBC) reported the death of celebrity French twins. They had each personally foregone Covid Dash 19 vaccination, but were not reportedly being particularly “anti-VAX.“ They believed they "were not at risk" based on lifestyle and physical strength. A telling quote from the article noted that: "they had left it too late to seek hospital treatment." 

When I read that quote, I was reminded of a news story from WXTL Tallahassee in which patients with “mild“ symptoms were encouraged not to visit emergency rooms, due to the facilities' struggles with patient volumes. This illustrates that we are individually encouraged to assess our symptomatology, to consider societal impact, and that we may in fact be mistaken in our beliefs or conclusions regarding when it’s time to access professional assistance. We must have judgement and discretion, which may be difficult in the best of times (these are likely not the "best of times" or "the worst of times," apologies to Chuck Dickens, A Tale of Two Cities, 1859). However, there is indicia that these are stressful times, see Mental Health News (September 2020). 

There are also statistical supports that various occupations present significantly greater stress than others. U.S. News reported last year that the most stressful occupations include doctors, lawyers, therapists, firefighters, paramedics, and police. Business News provided a similar list late last year. One might also consider the occupations demonstrably more likely to experience such challenges as substance issues (doctors, lawyers, firefighters, police officers), divorce (bartenders, flight attendants, production workers), and suicide. I have written about the mental health challenges for attorneys, see Risks for Attorneys (June 2019). 

Despite that potential statistical foundations thus illustrated, an individual particularly susceptible to stress, or lacking personal coping strategies, might be overstressed or overwrought in any occupation, even one which does not present such statistical significant risk. Conversely, even the statistically risky occupations include populations of individuals who somehow personally manage and cope with the stress and challenges involved. The first conclusion which I can reach based upon this complicated set of facts is that it is simply impractical to reach broad conclusions regarding either potential for stress, or personal ability to cope with stress and challenge. Thus, I return to my opening thought, "You probably know someone who is struggling." However, you may not know it. 

These thoughts came this week in perusing two news stories. The first comes from WEAR. This announces that the sheriff in one of Florida’s least populated metropolitan counties, Escambia (includes Pensacola) has instituted a second-of-its-kind in Florida mental health program. The other program is in the most populous county, Dade. The Sheriff notes that law enforcement "is not easy." He also acknowledges that "the pandemic has added extra stress." 

The program involves mental health professionals as part of the police/sheriff force. It will include internal counseling, referral to outside counselling, and more. One expert quoted in the article suggested that such a program "needs more wellness programs," thus focusing on the prevention of stress accumulation rather than merely on the remediation of such impacts after they have become such that one seeks help. 

Following the WEAR article, I ran across a tragic story from St. Lucie county regarding two sheriffs deputies. They were the proud parents of a one-month-old child. Something led to the suicide of one deputy the last week of 2021, although the officer was removed from life support this week. The second deputy then resorted to suicide "in the wake" of the other. The outcome is tragic, but more so for a child that will never know either parent. 

The Sheriff "saw these two deputies as young, ambitious and a great complement to my already amazing group of professionals.” He reminded that such officers might be seen "as superhuman . . . but let's not forget that they’re human just like us." By no means diminishing law enforcement, the same can be said for a vast spectrum of occupations. Let's remember doctors, nurses, teachers, lawyers, etc. may similarly seem immune and yet are merely human. 

The Sheriff's most telling though was "'it is impossible for us to fully comprehend' what was happening in" the deputies' lives. Here again, that is not limited to police officers. And, it brings us back to the theme with which this post began: "You probably know someone who is struggling." There is an added degree or two of patience and compassion dictated by the pandemic in which we live. But, in any time, there is room for our compassion and care. 

There are people around you that are struggling. They may not even realize the effect that stress is having upon them. They may have access to a program like the one instituted in Escambia County, or more likely not. As a community, we owe it to ourselves to strive to recognize the threat of stress. We should perhaps ask if we are carriers? We should each strive for consideration and compassion as a general rule, but more so in this pandemic. There is still a job to do, difficult decisions to make, and challenges to confront. However, we can face those challenges professionally and compassionately, recognizing the impact they may have on the people involved. A kind word, a thorough explanation, a bit of patience, could each go a long way perhaps.