Sunday, February 27, 2022

Shocking Diabetes Findings

The Center for Disease Control (CDC) has been warning of increased rates of diabetes in America for sometime. It refers to this as "prevalence," and in 1958 the "prevalence of diagnosed diabetes" was less than one percent. In 2015, it was 7.40%. One difficult question may be how much has actual prevalence increased, as the use of "diagnosed" suggests that some population may have suffered that disease in silence in the earlier period or even still. So, either diagnosis or the disease itself is notably increasing. This is particularly important because it is a percentage of population, which is also increasing. The raw numbers were 1.6 million in 1958 and 23.4 million in 2015.

That is of concern for a variety of reasons. First, diabetes is potentially debilitating. It is listed "in the Social Security Administration's impairment listing manual," or "Blue Book." The diagnosis alone is not sufficient to be determined disabled, but the results of the disease may rise to that level. Beyond disability, diabetes is expensive. The CDC says that $237 billion is spent annually on "direct medical costs and another $90 billion on reduced productivity." It is, according to the CDC, "the most expensive chronic condition in our nation."

Early in the pandemic, there were many reports of comorbidities that were noted in the delivery of care for those infected by SARS-CoV-2, COVID-19. In August 2020, Role of comorbidities like diabetes on severe acute respiratory syndrome coronavirus-2: A review was published in the Journal of Life Science. This article acknowledged that hypertension, cardiovascular disease, and chronic obstructive pulmonary disease (COPD) were major worries as regards COVID-19.

However, researchers also noted that
"The severity of COVID-19 disease intensifies in patients with elevated glucose level probably via amplified pro-inflammatory cytokine response, poor innate immunity, and downregulated angiotensin-converting enzyme 2."
In short, people with diabetes, particularly those who were not in that moment in control of their blood sugar, faced risk of a more severe bodily reaction to COVID-19. The journal articles were of academic interest to many. In a true "whose ox" or "whose backyard" mindset, I heard one speaker address this threat with simply "so only diabetics would be interested in that." False. I found the speaker's inclination to disinterest quite intriguing.

So, in summary, diabetes or diagnosis of diabetes has been increasing for decades, the disease is notably expensive, and those who have it potentially faced serious challenges from COVID-19.

But, in 2022, surprising news of a corollary nature. The CDC in 2022 published a study in which it monitored "more than half a million children under the age of 18." That is what they call a large study population, see Understanding Study Size. The conclusions in the CDC study is that "children who had COVID were more likely to be diagnosed with diabetes compared to those who have not had it." As yet, there has been no similar corollary regarding "hypertension, cardiovascular disease, and chronic obstructive pulmonary disease." In other words, having hypertension is potentially problematic if you contract COVID-19, but as yet there is no suggestion that if you contract COVID-19 you are more likely to be later diagnosed with hypertension.

In some part, this recent CDC finding regarding increased risk of suffering diabetes is tied in with the concept of the "long COVID." I noted the potential for a regressive impact of COVID-19 in COVID-19 Regressive Impact (May 2020), and further in Always on My Mind (February 2021). I was worried about its potential early and persistently. The idea that SARS-CoV-2 infection could produce lasting effects is absolutely not new. But, the suggestion that such an infection might predispose people, particularly young people, to a life-long disease process like diabetes is an intriguing and somewhat scary discussion.

Worse still, the CDC report documents the potential for an intensive care stay for such children with COVID-19 related to diabetes is also more likely. The treatment of their diabetes, it seems, is more challenging if the diagnosis or onset follows after a COVID-19 infection. From various perspectives, this news is significantly troubling. 

First, the prevalence of infection with the Omicron variant is predicted to lead to the conclusion that "Most Americans eventually will be infected with the virus." That may be the "classic" COVID-19 or the "new" COVID-19 (at whatever point the infection occurs, we may be out of Greek letters by then). Possibly, some variants may produce less severe symptoms and perhaps will be less likely to predispose diabetes, but the risks remain potentially significant. 

Second, the rates of diabetes are increasing (or the diagnosis is) already. The increase in the volume of patients will drive greater volumes of necessary treatment and therefore expense. Notably, the CDC says that 60% of all diabetic costs are for people "mainly paid by Medicare." Thus, the expense is for us all. It represents a significant public health challenge, rates of diagnosis are increasing, and this pandemic is increasing the chances of the young suffering the disease; a disease they will likely then live with and treat for many years as they age and mature. 

Finally, in the realm of workers' compensation, the CDC study regarding diabetes may suggest a heretofore unpredicted propensity for "long COVID" implications and expense. A result of COVID as a workplace condition may result in a lifetime of treatment and benefits related to diabetes if a scientific cause and effect is demonstrated appropriately. In this regard, it is as important that we are less than two years into this pandemic. So, whether SARS-CoV-2 infection is similarly a cause of other more familiar disease process diagnosis, as is not seemingly suspected . But, it is possible that other diseases will have some tie back to COVID-19 as effects are researched in the coming years of study and research.

At a minimum, there will likely be increasing volumes of diabetic Americans. There will be more American workers suffering with this condition, and the potentials that can present for comorbidity with workplace injuries cannot be ignored. Its presence in the workplace, as a potential aggravator of symptomatology for an injured worker cannot be ignored by those that predict and price risk through workers' compensation insurance premiums. 

So, does COVID damage the pancreas in some manner and "cause" diabetes onset? Is there some underlying genetics that is somehow prone to diabetes and are triggered by the virus or the body's reaction to it? It is an intriguing consideration, added to our already growing list of questions we have about this virus and our futures.

Thursday, February 24, 2022

A Judge Inducted to the College

This morning, I write to celebrate Judge Eduardo Almeyda. Next week in New Orleans, the College of Workers' Compensation Lawyers will recognize him by inducting him as a fellow of the College. It is a proud day indeed, for Judge Almeyda and for this Office in which he serves. He joins the ranks of Judges John Lazzara (ret.), Neal Pitts, and Richard Thompson (ret.), along with a great many long-time workers' compensation community attorneys, and legends, like Richard Sicking, Ramon Malca, Dawn Traverso, and more.

Back in the day, the labelling of superlatives was a normal part of the ritual surrounding high school graduation. There were the obvious "most likely to succeed," "friendliest," "class clown," and more. Back in 2011, the National Public Radio published an article criticizing the superlative practice - suggesting that such accolades may put too much pressure on people. I struggle with anyone that says compliments put too much pressure on a person. Compliments and recognitions are a celebration of the human spirit.

At the risk of similarly creating pressure, today I write about Judge Eduardo Almeyda, who has served in the Miami District Office for fifteen years. He started there as a state mediator, and served for six years. In 2013, he was appointed judge of compensation claims. In candor, Judge Almeyda is at times, the "friendliest," or even "the class clown." He brings humor and long experience in the workers' compensation community to the job daily, and does so with an indefatigable spirit and a twinkle in his eye. I have no doubt he will not be burdened by the pressure of his acceptance of this honor. 

His history in this space is indeed extensive. He was a claims adjuster in workers' compensation when he decided to go to law school. He was admitted to the Bar in 1973, and is just shy of earning his 50 year member recognition. Throughout that time, he has focused in the workers' compensation area, while straying at times into other areas such as corporate, aviation, and civil defense work. Over the many years, he has engaged this community, including various lectures on substantive legal topics in workers' compensation and the mediation process. He authored an extensive textbook, THE ADJUSTER’S MANUAL FOR WORKER’S COMPENSATION, which he intended as a roadmap for the difficult and challenging role of a claims professional. I am proud that the College has seen fit to recognize so many of the lawyers that practice workers' compensation in Florida. It is humbling to see so many of them as fellows of this collegial group.

Though I have thus known Judge Almeyda for several years, he is better known to others. In fact, in the course of his practice, he has been directly connected to other luminaries in this community. He practiced law with Judge Charles Hill (ret.), Judge Medina-Shore (MIA), and Judge Iiana Forte (FTL). Over the years, he has been a friend and mentor to many. I asked Judges Forte and Medina-Shore to share some thoughts on Judge Almeyda as we mark his induction.

Judge Forte wrote:
Judge Almeyda was my mentor and a long-time personal friend. Practicing with him was anything but boring. I recall being a young lawyer, going with him to a pretrial hearing (at that time pretrial hearings were live), and him telling me to write down the defense as the “Tuesday” defense. When I asked him what the Tuesday defense was, he replied - well since we don’t have a defense, and the case was denied on Tuesday, that’s the defense. He was especially proud of a button he wore around the office that said “Kiss me I’m Cuban.” He loved boating, but the boat spent more time at the mechanic’s shop than in the water. Above all - he has a huge heart and loves his work. Congratulations Eddie on your induction to the College of Workers’ Compensation Lawyers – you’ve made us all very PROUD!
Judge Medina-Shore wrote:
Prior to joining the law firm of Almeyda & Hill in 1991, I did not have any knowledge or experience in workers’ compensation. My law school did not offer a course in it and my experience was limited to insolvencies.

I had two interviews for the Associate position: the first one with Chick (Charles Hill) and the second one with Ed Almeyda and Iliana Forte. I vividly remember them although many years have passed. The interview with Chick was calm and instructive as to workers’ compensation law. My second interview was at lunch with Ed and Iliana which I felt was a whirlwind. Their thinking and discussion was at warp speed in a language (IMEs, Vocs, etc.) which I did not understand. In between their discussion, Ed would ask me general questions about medicine and the law. I left the interview in a daze and questioning whether I could withstand the training by Ed.

As a new Associate, I looked to Ed for quick answers. After all, I knew he was board certified and he authored a book for proper adjusting of workers compensation cases. On every occasion, Ed would kindly respond that he did not know the answer and suggested I research it. At first I was perplexed how a legal authority like Ed did not know the answers to my simple questions. After a while, I caught on and researched the issues prior to discussing any pending questions with Ed. Ed always had time to discuss the law with me (which I enjoyed) and pushed me to grow as a lawyer.

He introduced me to the workers’ compensation community and taught me that every person has a valuable role to play. He expected all the lawyers in his firm to be professional and have compassion toward other people. On one occasion, Ed and I were taking several depositions in a case going to trial within 2 days. Ed received a phone call that one of our colleague (a claimant’s attorney) was hospitalized due to a heart attack. At a break, we drove straight to the hospital. We couldn’t stay for long but our brief visit lightened our colleague’s day. At that moment, I learned from Ed that while earning a living and being successful at your profession is important, visiting a friend/colleague in need was way more important.

Ed was great in dealing with mistakes. On one occasion, we were going to a doctor’s deposition in downtown Miami. We were walking and I was leading the way. I did not know where I was going and we became very lost. Ed laughed and said that I was walking with such confidence that he had confidence in me!

Lastly, while we worked long hours, like many other firms, Ed fostered a family environment in our firm. We worked together and had fun together. We celebrated our successes as well as shared our disappointments. Without even knowing it (perhaps), Ed helped instill in all of us (Chick, Iliana, Millie Powell-Rodriguez-circuit court judge and I) the love for the workers' compensation law and encouraged attributes so very sought after for the position of a Judge.
Judge Almeyda is indeed fortunate to count such jurists as friends.

I am proud to be in the New Orleans next week to celebrate the induction of Judge Eduardo Almeyda. He is a force in the Florida workers' compensation community and has been for over 50 years. His persistence in this practice, and his influencing and mentoring of others is inspirational and worthy. Many a practitioner could view his experience and aspire to one day look back on such a career and achievement. It is difficult to comprehend that he is only now joining the fellows of the College, but it is a welcome achievement nonetheless. Congratulations Judge!

Tuesday, February 22, 2022


An interesting and troubling story from the British Broadcasting Corporation (BBC) out of Great Britain that illustrates the potential for broader concerns from SARS-CoV-2 and the COVID it causes. This relates the circumstances of a death by suicide resulting from isolation. The headline caught my attention: Covid left Manchester student who took own life 'literally isolated'.

Recently, I noted in a post that we likely do not know what is going on in people's lives. See Starfish (February 2022). I cited a deeply troubling suicide example involving a celebrity that seemingly had everything together and epitomized success. I encouraged us in that post to strive for better awareness of the challenges that surround us, and to try to reach out more often, share more openly, and support our community and its members. The BBC story illustrates that such support may be even more of a struggle in a virtual world.  

There is a great deal in our lives these days that may be virtual. In the litigation realm it appears a great many lawyers are preferring virtual discovery, some still prefer virtual mediation though they admit it is losing its luster and effect, and some even say they prefer virtual hearings. The headline struck me however, because I cannot envision "virtual isolation"; it seems that isolation might seemingly always be literal?

The young person in question had no outward signs of emotional issues. Having completed secondary school, he had an opportunity many never will and was travelling south-east Asia as part of a "gap year." Back in the day, no one I know had the money to take a "gap year," and if such had been suggested the first response from any parent would have been "get a job."

But, this student's "gap year" was truncated by COVID. He spent his summer of 2020 at home, described by his mother as "miserable." She reported that she believed he was nonetheless "looking forward to the next stage of his life" when he reported to (the) University in the fall of 2020. COVID may have a way of compounding impact upon impact. Each may be small, even inconsequential in itself: a favorite restaurant closed, a distraction such as a social club suspended, a product temporarily unavailable at the grocery store. Each may be trivial, but in aggregate troubling.

In the BBC story, almost immediately after arriving on campus, a student in this young person's building was diagnosed with COVID and everyone was ordered to isolate. The University transitioned to virtual classes ("tutorials"). As a result, this student "didn't really leave his room very much at all." Isolation may be facilitated by the very innovation and enthusiasm that fans of virtual proceedings may relish. It is not just suicide. The Centers for Disease Control recently noted:
"Social isolation significantly increased a person’s risk of premature death from all causes, a risk that may rival those of smoking, obesity, and physical inactivity"
Being alone can hurt you as much as smoking? That is sobering and somewhat scary.

The University in the BBC story strove to maintain some level of contact. On September 30, the student attended a "Zoom session" with university academic staff. Other than that, "no evidence was provided that the 19-year-old was either seen or spoken to during his self-isolation." He was found dead on October 8, 2020 when his family raised concerns. The isolation period there was two days from concluding.

The Coroner concluded this was a suicide. There were conclusions drawn regarding the effects of the pandemic as to the student's travels, and the isolation. Notably, this student had prior emotional issues. A prior diagnosis of anxiety was not disclosed to the university on its admission paperwork, though those forms were not necessarily specific regarding inquiry into emotional issues. The focus of the forms was more akin to the issues of any existing "disability or special need." But, asked about a "special need," the student did not disclose. 

The story suggests that greater university knowledge of challenges might have been more appropriate. Denying that the form wording played any role in the death, the school appears to be interested in  pursuing more complete pre-admission inquiries. Some will undoubtedly see such inquiry as invasive and even abrasive. There will likely be struggle and friction between the need to predict challenges and prevent tragedy and the student right to privacy.

What it returns to is the simple conclusion that no one knows what others are going through. Whether from some event, some cascade of experiences, or otherwise, people suffering from challenges surround us. Some of them will only cross our paths virtually, and their isolation in that regard may itself be a significant challenge. To what extent will we remain conscious of that? What will we do to acknowledge that? How will community and business meet the challenges of that as normalcy nonetheless returns to the commonplace? 

How do we acknowledge the challenges which people face and have overcome? As the world comes back to full activity, "normalcy," and the viral concerns fade, how do we remain conscious of what people have been through, or are perhaps going through each day?

Sunday, February 20, 2022

A Miserable Example

The local ABC affiliate in Phoenix, Arizona recently published an expose of "astonishing and horrific conduct by judge." It is an interesting read, and reminded me of Victor Hugo and Les Miserables, which he wrote in 1862 depicting injustice in the nineteenth century. He noted "I'm not totally useless. I can be used as a bad example.” And, as Don Henley reminded in his Driving with your Eyes Closed (1984), "everybody got to have a purpose in this world." It is alleged that an Arizona judge has possibly found hers. If you are tempted to click the link and read the original story, note the station's warning that it "contains words and images that are graphic and cruel."

The story is about "mock(ing) and ridicul(ing) people during hearings and trials." The Judge and staff allegedly sent emails back and forth with "cruel and obscene statements, jokes, and memes" about "defendants, their families, jurors, witnesses, attorneys, even other court employees and top court officials." They apparently were, one might say, equal opportunity offenders. The foregoing should be shocking as regards any public servant. And, one might readily think of the Arizona Code of Judicial Conduct, and its imperatives, guidance, and constraints. 

That Code, similarly to others, speaks of "promoting confidence in the judiciary," "decorum and demeanor," "bias, prejudice, and harassment," "judicial statements," "supervisory duties," and even "ex parte communications," a subject that has graced these pages a few times. See Judicial Behavior and Ex Parte Communication (October 2015); What is Ex Parte (January 2018); and Ex Parte Yet Again (September 2019). If the reader has not caught the theme on ex parte, stated simply: ex parte is bad. 

Of note, the Arizona Commission in this instance did not conclude there was sufficient proof of ex parte communication, but it was merely alleged. Ex parte was alleged, because in addition to the allegations of making fun of and demeaning people, the judge "and her staff were also accused of regularly having inappropriate contact and communication with defendants."

The judge was a prosecutor before appointment as a Court Commissioner in 2012, and was appointed judge in 2016. While the allegations against the judge were under investigation, the judge was quietly "allowed to resign" in 2020. The ABC affiliate noted that the Arizona officials conducting the investigation did not impose any sanction or punishment, and that the former judge who now works as a prosecutor "declined to be interviewed" for the story. 

What many do not think of is the limited authority of state authorities that investigate judges. In many instances, that authority evaporates when one ceases to be a judge. Thus, the station's "allowed" may be more suggestive than real. The panel may not have had any authority to impose any sanction once the resignation occurred. That could leave it to the state licensing authority, such as the bar association, to impose sanctions as The Florida Bar did following the resignation of a judge discussed in Judicial Behavior and Ex Parte.

A clerk in this bad example's court made the allegations noted above in 2019. She described the behavior she alleged as bullying, and described being ashamed of her personal tolerance of the behavior before coming forward. She contends that if you "watched someone bullied and do nothing, you’re as bad as the bully.” That is an excellent point, worthy of reflection. If we tolerate, are we not equally guilty?

The complaint that was eventually filed is said to "outline() many examples of alleged misconduct." The ABC Affiliate reports that it "independently verified many of the allegations in the complaint filed with the commission." While that is a resounding statement, the reader must remain conscious that "verified" may nonetheless fall short of the burden of proof in such situations. For example, one independent witness verifying an allegation may well be "verification," but not be sufficient to convince the discipline authority that the allegation is "highly and substantially more likely to be true than untrue," which is what the "clear and convincing" burden means according to the Nolo Legal Encyclopedia.

The judge is alleged to have dismissed a juror who described a medical excuse from service, after which a bailiff circulated to the judge an others "a cruel and graphic meme to mock her medical condition." The affiliate reports there are "dozens of examples" of such "mocking and ridiculing of people in court," which took place "over years." Images were published in the original story. The complainant in the case alleged "it was an 'almost daily” occurrence.'" Some of the derogations were allegedly "printed . . . laminated . . . and hung . . . on the wall in the division." One law professor was quoted equating the behavior to what "you normally associate with high schoolers.”

In March 2021, the Arizona Commission on Judicial Conduct dismissed the 2019 complaint against the judge. The order is said to have "acknowledged the improper memes and emails but did not address any of the other serious allegations alleged in the underlying complaint." It noted that the Arizona Bar had likewise not taken any action, but reported those officials claimed "they were never notified." As a result of the news inquiry, perhaps the Arizona Bar will undertake an investigation now. Its inquiry may be governed by a "clear and convincing" standard, or perhaps not. Its' authority may similarly be truncated by a resignation, or not. Those issues are all likely to be particular to Arizona law. 

The ABC Affiliate also expresses concerns about the former judge's new role as a prosecutor and the timing of discussions that led to that position. It notes the potential for conflict of interest, saying the judge "presid(ed) over at least one capital case while talking with (the prosecutor's office) about a job prosecuting capital cases." It is not clear whether that allegation was ever raised with the Commission, or whether it will be with the bar association.

The judge provided a statement to the ABC Affiliate and stressed that she was found to have "failed to appropriately supervise my staff," but that all "other allegations were unfounded and dismissed." As to the emails and memes, the judge "admit(ed) that I did not handle that in the best way and have taken full responsibility for it." The judge adamantly denied "participat(ing) in ex parte communications" or keeping a collection of "memes and photos” in the division, either posted on the wall or in some collection or book.

According to a "confidential letter" from the Commission, provided by the judge, the standard for judicial conduct in Arizona is "clear and convincing" evidence. That means that
"the evidence is highly and substantially more likely to be true than untrue; the trier of fact must have an abiding conviction that the truth of the factual contention is highly probable. (Colorado v. New Mexico, 467 U.S. 310 (1984)."
According to the letter provided by the judge, the Commission did not find such "highly and substantially" convincing evidence to support any of the allegations other than the obligation of a judge to be "courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others," and to require judicial staff to be likewise. In short, it appears that this judge essentially lost her position over allowing a cruel and intolerant bailiff to ridicule and demean people. 

Certainly, the "clear and convincing" is a somewhat lofty standard, beyond the "preponderance of the evidence" standard that applies in civil court proceedings (facts must be determined to be more likely than not). The clear and convincing standard is similarly not nearly as demanding as the "beyond a reasonable doubt" that prevails in criminal proceedings. However, the point remains that in this country those who are accused are presumed innocent until proven otherwise. These "standards" define how much proof is necessary. In this instances, that standard was met as regards only one set of facts, albeit a fairly disturbing set of facts about the memes, photos, and disrespect, and then the judge divested the authorities of jurisdiction by resigning. 

Certainly, it is not clear whether the Bar will investigate or take further action. It is possible that this lawyer will continue to serve as a prosecutor, or perhaps private attorney, in the Arizona justice system. Time will tell if further inquiry is undertaken.

What is clear from the story, and the admissions by this judge, is that the Code of Judicial Conduct demands respect and courtesy for all that participate in any judicial proceeding. That such respect is afforded is the responsibility of all involved, including the judge. We must remember as judges that in these regards the behavior of everyone else in the proceedings is our responsibility. The temperament and tone of each and every proceeding, chamber or division, and hearing room is up to the judge presiding. 

Coincidentally, the NY Daily News recently reported that workplace bullying is not appropriate in other workspaces either. A "top science advisor" in the federal government recently apologized "for "Browbeating staff," and then resigned. His boss reportedly said "I hear you treat another colleague with disrespect, talk down to someone, I promise you I will fire you on the spot.” And yet, again, a resignation not termination. And, not on the spot, but after a lengthy investigation during which 14 current and former staffers described a toxic workplace." 

By example first, and other mean when necessary, the judge has a duty to maintain an appropriate tone of decorum, civility, and respect for all involved (before, during, and after) in judicial proceedings. In any workplace, everyone has the right to be treated better than the normal fare served by playground bullies. Lest anyone be tempted to forget that, refer back to this particular miserable example. Judges should make it their purpose to be an example, but a good one. 

Thursday, February 17, 2022

More Explanation of Arising Out Of

The Florida First District Court of Appeal issued a decision on February 16, 2022 in Silberberg v. Palm Beach County Schools, Case number 1D20-75. It is a very detailed return to the topics of "course and scope," and "arising out of" that underlaid the Valcourt-Williams decision. See Personal Comfort? Testing Compensability (April 2019). The Silberberg case is mentioned in It's not that the Wind is Blowin' (June 2021), regarding various cases citing Valcourt-Williams. See also Preservation and Interpretation (July 2021).

The Court's en banc decision in Valcourt-Williams v. Sedgwick has given the Florida workers' compensation community much about which to think. It's not that the Wind is Blowin' (June 2021). There has been much discussion about the scope of that interpretation. Some see it "Changing everything," and others not so much. Silberberg provides a detailed explanation of "arising out of" as well as its interaction with Major Contributing Cause. The opinion should be considered a "must read" for anyone working in the Florida workers' compensation community. It provides explanation and clarity.

Factually, the employee in this case sat for a short time at a classroom desk, "five minutes or less." Upon standing, he found one of his legs had become "numb just before he stood up." This was described as the leg having "no feeling." The worker's "leg gave way, causing him to fall on the linoleum floor and break his left femur." The trial judge concluded that this injury was in the "course and scope" of the employment, but that it did not "arise out of" the work performed.

In some regards, the analysis is reasonably straightforward. The two medical experts in the case each reached the same conclusion, that the sitting resulted in "experienc(ing) a compressed nerve." There was also mention of the possible involvement of "vasculature." The condition was described as "a very common phenomenon 'that most people experience at least once in their life,'” Note that this was "something that could happen anywhere." That is a critical point.

The decision focuses the reader on the relevance of the presence of any "pre-existing condition," "personal risk," and the "increased hazard" concept. In focusing the analysis, the Court reiterated the distinction between "arising out of" and the "course and scope:"
"The words ‘arising out of’ refer to the origin of the cause of the accident, while the words ‘in the course of employment’ refer to the time, place, and circumstances under which the accident occurs.'”
That an injury occurs at the work site is primarily part of the "course of employment" analysis. However, the "arising out of" requires proof of "a causal connection between the employment and the injury.” In this regard, the Court provides edification of the social rationale for placing responsibility upon an employer for an injury, referred to as "the burden" an employer must carry. It is the business that profits from the investment of labor, and essentially it is therefore seen as socially just that the business bear the expense of injuries that result therefrom. 

There is explanation also of the evolution in Florida workers' compensation from "any presumption in favor of the employee or employer," to the so-called level playing field. This involves discussion of statutory amendments in both 1990 and 1993, citing the Vigliotti v. K-mart Corp., 680 So. 2d 466, 468 (Fla. 1st DCA 1996) decision which interpreted those changes.

The Court reiterates that there are no "'gimmes' regarding causation based on the mere fact that the accident or injury happened at work." It is possible that such a location test may weigh significantly in the "course and scope," but not necessarily the "arising out of." Therefore, location is something that may be considered, but is not controlling as regards the latter.

Notable cases cited in Silberberg include Hernando Cnty. Sch. Bd. v. Dokoupil, 667 So. 2d 275, 277 (Fla. 1st DCA 1995); Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065, 1070 (Fla. 1st DCA 2011); Grenon v. City of Palm Harbor Fire Dist., 634 So. 2d 697, 699 (Fla. 1st DCA 1994); and Acker v. Charles R. Burklew Constr., 654 So. 2d 1211, 1212–13 (Fla. 1st DCA 1995). As the dates make clear, these analyses have been around for years. 

However, the Court specifically noted that "decisions like Walker and Ross are also alive and well." Walker v. Broadview Assisted Living, 95 So. 3d 942 (Fla. 1st DCA 2012); Ross v. Charlotte Cnty. Pub. Schs., 100 So. 3d 781 (Fla. 1st DCA 2012). Thus, a specific and separate analysis is appropriate when the facts do not demonstrate "an intervening idiopathic condition or personally presented external hazard having played a role." These instances, the Court notes, are "any exertion test" cases, similar to Caputo, see infra. These "any exertion" analyses and decisions, the Court explains in Silberberg, are "left untouched by Valcourt-Williams."

There is explanation of the Valcourt-Williams analysis when there is a contributing non-work condition or risk that is implicated along with a work risk. In that instance, we are reminded that the determination of "major contributing cause" would require demonstration that "work must be more than just a cause - it must be the preponderant cause compared to any idiopathic cause." (Emphasis added).

But, "in the absence of any idiopathic cause, there are not competing causes in the mix to assess, and the MCC standard would not be necessary." In that instance, instead of the Valcourt-Williams analysis, the "any exertion test" would be used in determining compensability. In that test, the law:
"does not look at the quality or quantity of the activity. 'Any exertion' means any effort in furtherance of work will do."
The court then turns to two prior decisions for an analysis and explanation of the distinction. Caputo v. ABC Fine Wine & Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) and Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. 1st DCA 2019). The court explains that "In Caputo, there was . . . no evidence pointing to any non-work explanation for the fall." Thus, the "any exertion test" "was enough of a causal connection between the work and the accident."

However, in Valcourt-Williams, a "different problem" was analyzed. That question was "whether exertion at work but during a comfort break is work at all when considering causation." It noted that "A comfort break is inherently personal, and there usually is much about the break that will not be clearly work related." Thus, a factual determination as to whether the particular exertion is in fact personal or not, thus "arising out of" or not.

The Court is clear that Caputo was "not even mention(ed)" in the Valcourt-Williams decision (though Caputo, Walker, and Ross are mentioned in the dissenting opinion there). It explains that Caputo was not cited because in Caputo "there was no evidence of any other risk contributing to the fall." Thus, the Court notes that "reports of Caputo’s implicit demise at the hands of Valcourt-Williams are greatly exaggerated." Perhaps here a homage to an "often misquoted quip" of Mark Twain?

The Court clarifies in Silberberg that "Valcourt-Williams was a narrow, trip-and-fall/comfort-break-accident case." Therefore, the decisions overruled by that decision "were those that seemed to hold - contrary to this principle - that an injury at work necessarily arose out of work because the accident happened on a comfort break." This, it is clear, is too simple a test of compensability.

Of particular note, in deciding if there is some "other risk," the risk need not be "pre-existing" in that it was "previously manifested or diagnosed." Instead, a "dizziness, labyrinthitis, or epilepsy" might suffice, as could some "external failure of equipment . . . like a leg brace." Thus, in this case, the "leg numbness while simply sitting" was similar to the facts of Grenon and Acker (supra), and the Court affirmed that the resulting fall had not been proven compensable.

The Court clarified that such instances will require examination of the facts. It noted "each employee brings a slightly different risk of physiological response to work activity." In this case, the
"medical evidence in this case established that Silberberg’s leg falling asleep could have happened anywhere, at any time; but his particular physiological phenomenon fortuitously happened at work and caused his fall."
Thus, the work did not create or cause the risk of the fall. While the sitting did "trigger() his idiopathy—his leg falling asleep," the work was nonetheless not the major contributing cause of the injury. To prove that it was, the worker would have to demonstrate more, e.g. "that the sitting at the time of the accident was an exertion or strain more or different than what he ordinarily would encounter in his non-work life." Hypothetically, the Court noted, the worker might do so in some factual scenario with proof that:
"he had to sit for an unusually long period of time, or that the chair in his classroom was unusually hard or particularly prone to causing one’s leg to fall asleep."
The risk, in such a setting, will require more than the risk merely existing. The risk at work must be shown in some manner to be more than the risk elsewhere in the worker's life. 

The Silberberg decision is absolutely a "must read" for those who would strive to understand the import of the Valcourt-Williams decision, the decisions there "expressly overruled," and the distinction of situations that instead present the "any exertion" analysis. 

Tuesday, February 15, 2022

A New Job?

This blog is about workers' compensation, certainly. However, it is often also about the law, in that vein drifting periodically from its workers' compensation roots somewhat. The law is dependent upon predictability and transparency. Those who find themselves participating in legal decisions or proceedings are benefitted by clear statutes, the doctrine of stare decisis, and dedicated judges. Periodically, there are stories that may contribute to doubts in the system.

I have written about judges suspended after inebriated excursions, see Conferences and Consequences (November 2019). There was the judge who restrained a lawyer, Judge Handcuffs Attorney (August 2016). There is the more pedestrian, but always present risk of untoward communication, Judge Reprimanded for Ex Parte Communication (September 2016). There was The Sleuthing Judge (October 2017), the Judicial Witness (February 2018), and the one engaging in The Practice of Law (July 2021). There have been some good examples to learn from. Perhaps none received as much press as the Brevard county example in which the judge was accused of hitting a public defender, A Recap and Result of Judicial Viral Video (January 2016).

Over the years, there have been plenty of situations from which we might each take a lesson. As I read a recent MSN.com publication of a Newsweek story from Michigan, these and more came to mind. The situation described there is not as graphic as a fistfight, shooting, or even the practice of law. However, it is intriguing in its own right, and sufficiently significant to make the national news. The headline there proclaims that this judge "may be in the wrong line of work." 

There is implication that the judge stepped over some line with a ruling, reminding me of Brewer and Shipley crooning "one toke over the line" (Tarkio Road, 1970). They later explained that this lyric is intended to suggest that "too much of anything will probably kill you." An interesting perspective on stepping over a line.

The Newsweek story focuses on a "judge known for giving criminals higher sentences than what guidelines recommend." He also is alleged to have a history of "making controversial comments from the bench." The Michigan Court of Appeals recently considered an appeal involving a case over which this judge presided.

The case was challenging. A woman was accused of stabbing a man, "her boyfriend on Valentine's Day in 2015," though she insisted "she acted in self-defense." The Judge sentenced this woman "to serve a minimum of 35 years in prison, 15 years over the recommended guidelines." For more perspective on "minimums" see Mandatory Minimums (February 2022).

To make matters clearer still, the judge decided to editorialize during the 2017 sentencing hearing. He allegedly told the defendant "I hope you are haunted by the vision of you stabbing him. After this day, you don't exist." The judge also allegedly told the convicted stabber that the "major flaw" suffered by the stabbing victim was "that he stayed in a relationship with you."

The Court of Appeals took issue with the judge's comments and sentence in 2020. The case was reversed and remanded for the judge to enter a new sentence. MSN reports that the Judge "ignored" the appellate court on this second opportunity and sentenced the defendant to 30 years. At that time, there were apparently comments about premeditation, though the "defendant (was) not convicted of that crime." Thus, the Appeals Court had a second opportunity to review the case.

The Court unanimously reversed the 30 year sentence. In addition, however, it took a further step regarding the trial judge and "ordered he be removed from any future hearings related to the case." The Court characterized the sentence as "an abuse of discretion and a willful violation of controlling precedent from our Supreme Court."

The opinion reportedly notes that "If a trial judge is unable to follow the law as determined by a higher appellate court, the trial judge is in the wrong line of work." It reportedly also mentioned that the judge's "conduct in court 'may warrant investigation by the Judicial Tenure Commission.'"

As I read, I was also reminded of a workers' compensation case this century in which the appellate court had more than one opportunity to review. The Court noted there that it had initially
"reversed and remanded for additional proceedings because the 'JCC's final order [was] inconsistent in its findings of fact and conclusions of law....' Id. at 490. Because the JCC's order issued after remand contains many of the same internal inconsistencies, we again reverse and remand for further proceedings." 3 So. 3d 12, 1278, 1279 (Fla. 1st DCA 2009.

The message is clear, seemingly, "do as you have been told."   

The lessons for judges from the recent Newsweek story are clear. First, and perhaps foremost, is that commenting from the bench is fraught with potential problems. The judicial comments in A Recap and Result of Judicial Viral Video (January 2016) illustrate this, even before that situation escalated. The comments in this Michigan case likely underpinned the Court's conclusion that reversal was warranted (twice). There is rarely any compelling reason for judicial editorializing from the bench. An exception to that is when compliments are appropriate for a well tried case.  

Second, and more important, is that appellate courts exist to bring consistency to judicial application of the law across geographic areas. The law should be the same in Miami as it is in Pensacola. But, more critically, appellate courts are courts of error. Their main function is to interpret the law, and to correct misinterpretations. The trial judge's job is to listen to, and follow, the appellate court's decisions.

As Train noted in Drops of Jupiter (2001), this remains true "even when I know you're wrong." When the appellate court is wrong, the solution to that lies not in the trial judge, but in some higher authority such as an en banc consideration by that court, a supreme court review, or legislative correction. Those avenues are open to the parties or the community. But, the trial judge's job is to follow the law. 

Of course, a judge might explain why some disagreement exists. A recent concurring opinion in Florida's First District Court illustrates that. An almost 60-year-old U.S. Supreme Court decision, New York Times v. Sullivan, resulted there in dismissal of a defamation lawsuit. One judge concurred and wrote a lengthy explanation of why that outcome is perhaps troublesome or incorrect, concluding with "but as I am bound by New York Times, I concur." Thus, one might appropriately express thought, contrary perspective, and question, but in the end, trial judges are bound by the decisions of higher courts. That is the foundation of America's judicial process, and worthy of reflection.


Sunday, February 13, 2022

Mandatory Minimums

There is a great deal of discussion in the news recently regarding a concept called "minimum mandatory." This had its birth in the 1980s, when legislative bodies sought to limit judicial discretion in the context of sentencing criminal convicts. There were perceptions, at least, of inconsistent sentencing, and some desire to establish better predictability. When a judge has unlimited discretion in decisions, there is much flexibility and less predictability. As discretion is constrained, consistency and predictability may flourish. Either measure of discretion may allow for outcomes that are seen by the public as unacceptable, a person receiving too light or too stringent a sentence. 

Similarly, the Florida workers' compensation system has experienced various efforts over the last century to limit or define attorney's fees, and to focus judicial discretion. Those efforts largely began in the 1970s with perceptions of unpredictability. The Legislature limited fees to instances of "bad faith," then adopted formula and the Judicial legislation of "factors" from Lee Engineering. There was tinkering with those factors, and an eventual 2003 departure from the "presumptive" fee analysis. Then came Murray v. Mariner, 995 1051 (Fla. 2009), and a side-step of the constitutionality question, followed by the Court's most recent analysis in Castellanos v. Next Door Company, 192 So. 3d 431 (Fla. 2016).

Though the Court concluded in 2016 that "a reasonable attorney's fee has always been the linchpin to the constitutionality of the workers' compensation law," the history supports that there have been various statutory enactments on the topic. The Court's 2016 conclusion was essentially that a fixed fee schedule, eliminating judicial discretion, was an irrebuttable presumption and thus unconstitutional. There is the potential that judicial discretion might be viewed similarly as regards any statutory effort directed at constraint or predictability. 

It is perhaps possible that any definition or constraint might result in an outcome that is viewed by some as inappropriate, while the absence of constraint on discretion might similarly work an outcome deemed equally inappropriate from some perspective. The fee analysis in Castellanos v. Next Door was a total fee of $164.54 resulting in an effective hourly rate of $1.53. The Court noted that low fees had been characterized as "manifestly unfair." Might a "mandatory minimum" likewise be characterized?

There are sound arguments both for and against consistency. Furthermore, it is likely that unfettered judicial discretion can perhaps either prevent or cause injustice, as perhaps can unyielding absence of discretion. Therefore ideas like mandatory minimums have advocates and detractors. Those who support and oppose such laws can each likely cite anecdotal examples in which they perceive the injustice in either too little or too much judicial discretion. For several years, I have wondered whether such minimums are "irrebuttable presumptions," in the context that the Florida Supreme Court expanded in Castellanos in 2016.

Recently, two examples of mandatory minimums have been in the news, and are perhaps worthy of consideration. However, it does not appear that the "irrebuttable presumption" constitutional challenge has been raised in either instance. Neither are within Florida, and so perhaps not subject to such a presumption analysis. 

Last October, according to the Gazette, a truck driver was sentenced in Colorado regarding a serious automobile accident. The vehicle brakes failed, and the driver reportedly did not avail himself of a "runaway truck ramp" that is a common tool in the mountains. Four people died in the eventual collision that stopped the truck, and in December the twenty-three-year-old was sentenced to 110 years in prison. The judge was quoted regarding the sentence and stated he was required to impose the minimum penalties and "to order those sentences be served consecutively." According to People, about 5 million people thereafter signed an online petition urging intervention in the case to alter the sentence. They perceived injustice from the constraint on judicial discretion.

Thereafter, Colorado "Governor Polis issued a clemency letter and executive order announcing that he had reduced Aguilera-Mederos' sentence to 10 years." The Governor noted that the driver was not "blameless" in the various injuries and deaths. However, he stated the "sentence is disproportionate compared with many other inmates in our criminal justice system who committed intentional, premeditated, or violent crimes." Thus, in a seemingly broad population, a perception of an outcome deemed unacceptable and yet predictable. The Colorado Governor noted that "there is an urgency to remedy this unjust sentence and restore confidence in the uniformity and fairness of our criminal justice system," leading to his decision to commute the sentence through Executive action. I note the two seem curiously conjoined in that sentence, "uniformity" and "fairness." 

Shortly thereafter, the British Broadcasting Corporation (BBC) reported on a judge "reassigned" following his reversal of a conviction for a sexual assault crime. In that instance, an 18 year old, who had "only recently turned 18 prior to the" assault was charged with "sexually assaulting a 16-year-old" who "became intoxicated at a party," was "unconscious and awoke to a pillow covering her face" in the midst of an assault. The Judge found the defendant "guilty of sexually assaulting a 16-year-old," which "carried a mandatory minimum sentence of four years."

However, the judge later concluded that "the minimum sentence (4 years) was 'not just,'" and therefore found "'that the People failed to prove their case' on the one charge, and reversed the guilty verdict to not guilty." The judge said that "the 148 days spent in jail . . . was "plenty of punishment" in that alleged, proven, and then overturned assault. Some noted that the mandatory minimum removed the judge's discretion in sentencing. Others complained the decision "sends a chilling message to other rape victims." Notably, however, the judge there overruled the "minimum" sentence and the result was a public outcry resulting in his reassignment to other judicial duties. 

Similarly, National Public Radio reported in 2018 regarding a case of sexual assault, and a recall effort regarding the judge. The potential punishment in that instance was 14 years. The judge imposed a sentence of 6 months, of which 3 months was actually served. There was a public outcry, and that judge thereafter similarly stopped hearing criminal cases. Some saw a "threat to the independence of the judiciary." Others perceived a "precedent" in the short sentence that was "dangerous," and sought to recall the judge. Arguably, each perceived shortcomings in the legal system.

There seem to be perceptions of either too much or too little discretion.

The reader can consider the interests of predictability and uniformity that may support the concept of unfettered, diminished, or eliminated judicial discretion. The involvement of Executive commutation in sentencing and reconsideration of guilt in impacting the effect of legislative enactments is also of interest. In a broad sense, however, there appears to be some lack of confidence in the American legal system; Willow Research reports "public confidence is low," according to polling. However, Gallup reports that confidence in the judicial branch (54%) is higher than the legislature's (44%) or the executive's (37%). These appear to be broad conclusions that may include perceptions of various particular issues and individuals. 

Are mandatory minimums, reduced judicial discretion, burden or benefit for the judicial system? Do they support or detract from public confidence? Are they, in fixing a sentence from which there is seemingly no escape, an irrebuttable presumption in an unconstitutional sense? Do states apply such "presumption" analysis in constitutional regards? The reader may find interesting United States v. Haymond, 530 U.S. 466 (2018) on the subject of minimums, judicial authority, and the role of juries. It does not address the irrebutable presumption, but does conclude the minimum unconstitutional in a limited instance.  

Thursday, February 10, 2022


I lack the openness that other bloggers bring to their pages. I have always envied the manner in which people like David DePaolo and Bob Wilson open their lives on the Internet and share unabashedly from their personal relationships and experiences. I am, at heart, a very private person and struggle with sharing such details. I chose today to do so, recognizing that the motivation may be perceived as self-serving or worse. But I was recently bestowed with a tremendous honor, which made me think. I am hopeful it will do the same for you.

You will likely find yourself periodically wondering whether you accomplish anything. The day-to-day is sometimes daunting and seemingly repetitive. Over time, achievements and accolades may begin to accumulate after a long career. Some may appear less than sincere. I will never forget being invited to speak to a group less than a year after being appointed Deputy Chief Judge. They were keen on my appearing at their event and proposed to bestow a "lifetime achievement award." I demurred. 

Awards and plaques may sometimes just come with your territory perhaps. As we age, hopefully we all come to understand that they are not valid measures of ourselves. See The Man (or Woman) in the Glass. The critical point made there is "you've passed your most dangerous difficult test if the man in the glass is your friend." It is you that determine the measure of your success, not a garage full of plaques and plates. 

That poem, The Man in the Glass, was distributed to me as part of a college activity a million years ago. A copy of it has remained in my desk for decades, and it resonates with me. Awards, accolades, praise, and more can go to one's head: "get pats on the back as you pass." The real measure of success is whether you have "cheated the man in the glass." We would all do well to remember that both personally and professionally.

With all that said about plaques, certificates, and awards, I received a recognition recently that was touching in its simplicity, clarity, and brevity. There was no banquet to attend, no speech to deliver, and no crowd in front of which to be embarrassed; yes I find my shy personality challenged by public recognitions.

This tribute made me recollect and reflect upon The Starfish Story, an amusing and poignant parable of making a small difference in an otherwise perhaps indifferent world. My reflection upon that story was inspiring. In a nutshell, it tells a story of a child walking a beach that is covered in starfish stranded by the receding tide. An old man, seeing the child throwing starfish back in the sea, explains patiently, and perhaps haughtily that the child simply cannot save them all, is struggling against absolutely unbeatable odds. The child responds by throwing yet another into the sea and replying I "made a difference to that one!”

What if you could truly touch one person? How would you ever know? Perhaps someone might tell you, or provide you some public accolade. But, any such public display or award might be sincere or perhaps not. They say good things come in threes. I provide three recent events in my life that remind me how much we need each other. 

In January 2022, I received a nice card from the department head of a college at which I have periodically been an adjunct instructor (I never use the "professor," nor allow the students to do so, as it upsets some people). The card said simply that "this is my favorite part of being a (department) chair."

Enclosed was a card that read "Congratulations Graduate," which had been distributed to some student upon finishing her or his college degree. It asked
"Can you tell us which faculty or staff member has made the biggest difference in your college experience?"
The student had taken time to return the card, had named me, and added a personal note of thanks related to my efforts in teaching a business law course. I will likely never know which student it was, and over more than 20 years of teaching there are many potential suspects. Certainly, this one was likely fairly recent, and I have involuntarily listed recently into imagining which it might have been. I suspect that I shall never know.

This little note card is, without a doubt, among the highest praise and reward I have ever received. Its anonymity, simplicity, and clarity are indescribable. I picture myself on that long beach, and proudly exclaim to myself "made a difference to that one!” Maybe my publication of this experience is the very antipathy of my reticence regarding public recognitions, perhaps even hypocrisy (or worse)? 

In a similar experience, my cell phone rang one recent Sunday morning. Caller ID showed a number in a Florida city, but no name. I was reluctant to answer, fearing some telemarketing recording best left to voicemail. For some reason I answered. An old friend of more than 25 years was reaching out to talk about Judge Dietz' passing the day before. We had an animated and enjoyable conversation. The caller knew I would be troubled. The caller was in the midst of other tasks, and took the time to reach out to share memories, recollections, and humorous anecdotes. The call was cathartic and healing. I realized later in the day that call and the recollections and laughs was exactly what I needed, but that I was unaware I needed it until it came. Serendipity? Perhaps, perhaps not.

Days ago, I received a brief email. The name of the sender was immediately familiar, but from my ancient past. In my days of legal practice this expert had been a mentor as I learned some of the challenges of orthopedics. In a frenzied and frustrated world of litigation and conflict, this physician was one that had striven to explain medicine, causation, and physiology to me, to my benefit, progress, and success. Somehow, our paths had recently crossed on a virtual webinar. The doctor had taken a moment to write simply "I just looked at your lecture again . . . and realized how special it was. Thank you." It was heartwarming that someone benefitted from my effort. It was more so because perhaps in a small way, so many years later, I repaid some small measure of this physician's patient efforts to help me grow and learn as a young lawyer so long ago. 

I write today not to brag about the little notecard described above, but to note that perhaps you have made a similar difference in someone's life, yet such a card to facilitate your acknowledgement will never come. I hope the former is true, and that you somehow know that you helped someone, even in some minor way. I write to acknowledge that you have the potential every day to make that difference to someone. As cliché as it may sound, I encourage us to seize those opportunities, to support those around us, and to remain aware that people we encounter may be experiencing challenges. 

For example, who would have guessed a Ms. USA, an attorney, with intellect, beauty, success, poise, and more would jump to her death? What was going on in her life? How did no one perceive her pain? How did she reach the point of no return? Who did she turn to, or why did she conclude she had no one to turn to? Her friends, associates, and family will struggle with that (If you ever find someone in such pain, there are many resources, start with the hotline 800-273-8255). People you come across every day, despite the image they share on the outside, with the world, may be as fragile, as troubled, and as at risk. 

Will your kindness and compassion buoy them or will you pass them by like starfish stranded on a beach? Will you be patient with them and help them learn and grow? Will you take the time to make a quick phone call on a Sunday? Will you take that call if it comes? Is there someone you might touch with a quick email?

Perhaps someone has made a difference in your life? That is where my nagging feeling of guilt about that recent note card originated. As I re-read that card, I realize that a great many people have made significant difference in my life both professionally and personally. I fear, in retrospect, that I have not been very adept or diligent at acknowledging and thanking them. Have you?

Today, find a way to throw back one starfish. Do it daily. Today, take 30 seconds and send someone an email to acknowledge that in some perhaps miniscule way they threw you back in the ocean in some way. It need not be something or someone recent, need not be some magnanimous or fantastic help they rendered. But, if you recollect a kindness that made a difference, why not reach out and remind someone?

Tuesday, February 8, 2022

New York Man

Tragically, a vast number of people have been infected with SARS-C0V-2, the "novel coronavirus" which causes the disease we all know as COVID-19. We have lived through lockdowns, travel bans, roadblocks, mask mandates, testing requirements, vaccination waits, and more. People have lost jobs, closed businesses, been hospitalized, and even passed away. It has been a tough couple of years. You cannot find me someone that has not been impacted by this pandemic.

Notably, Floridians have been less impacted than many others. I am persistently reminded of the value and benefits of living in a free society. As I hear lamentations of the challenges that persist in other jurisdictions such as mask requirements, enforced distancing, vaccination passports, closed schools, and more, I am grateful to live in Florida.

Unfortunately, when there are challenges, it seems there is always some inclination to potential abuse. In the early days of the pandemic our tax dollars or debt was distributed "to help protect the American Dream." ABC reports that over a trillion dollars was distributed. There was reportedly insufficient "due diligence" and "little or no verification of self-reported information" in that process. This, ABC claims, led to "unprecedented fraud."

The news has been replete with examples. One group (including from Florida, South Carolina, Michigan, Illinois, and Georgia) was accused of accessing millions which was improperly used on luxury cars, jewelry, and more. Some have already been sentenced (in Georgia) to years in prison as a result of misrepresentations regarding their need for, and entitlement to, money from these programs. The best wishes of a national government for preservation of jobs and livelihoods at public expense were hijacked by some for their own personal gain. And, some may think that words like "fraud," "millions" and similar make for good headlines.

More recently, there comes a story of much smaller individual proportions. The allegation is of misrepresentation and the inappropriate collection of only $1,700 in workers' compensation benefits. Certainly a far cry from the allegations against "Florida Man" and "Ohio Guy" levelled by Forbes. However, who couldn't use an extra $1,700?

NBC reports on a New York man who faces multiple counts of misrepresentation for "submitting multiple fake positive Covid-19 tests" to his employer. The motivation was essentially "so that he could stay home from work and collect workers' compensation for months." The dollar values are much smaller than the headline-grabbing stories of Payroll Protection fraud, but over time this 23-year-old has allegedly collected $1,700 in worker's compensation. It is admittedly a pittance compared to many of the stories we have seen in the news.

The young man's situation of having to defend the fraud charges is further challenged by multiple charges of "forgery, falsifying business records and worker's compensation fraudulent practices." This illustrates that one action, faking a doctor note for instance, might be grounds for multiple criminal charges. I find students are persistently surprised that one act may break multiple laws. This gentleman's path allegedly all began with a perfectly legitimate allegation that he was exposed to SARS-CoV-2 in the workplace, contracted COVID-19, and was unable to work.

The young man allegedly provided "a physician's note and a positive Covid test," and "began collecting $150 a week in workers' compensation." That weekly figure alone is an indicator that this young man was not a high-wage earner. The maximum rate in New York is over $1,000 per week. It is likely that this young man was earning about $225.00 per week, to result in that $150 per week rate. As time passed, for most who contracted COVID-19, recovery followed. Everyone knows someone who recovered from COVID in days. However, we all likely know someone who has suffered the "long covid" and has striven for weeks to recover, or been repeatedly infected.

This young man is accused of thereafter submitting "seven more positive Covid-19 tests and two more physician's notes" in support of his ongoing absence from work. Based upon those submissions, it is alleged that "the carrier continued to pay benefits" over many weeks. Then, the insurance carrier "noticed that many of the positive test results used the same specimen ID." Certainly, that could be a clerical error. Or, someone may have been altering and reusing an old document.

The investigation allegedly established that some of the tests "submitted in April were real," but that "the rest were fakes," as was one of the "doctor's notes." The story did not make the front pages of the national news. It perhaps lacks the "click bait" value of a headline regarding "millions" or a photo of an exotic car. However, if proven, it represents misrepresentation for the purpose of obtaining workers' compensation benefits, perhaps fraud, and even forgery.

Florida has a reasonably strict view of misrepresentation. Of course, criminal activity is criminal activity, including fraud, forgery, and falsification. However, the Florida workers' compensation law forbids anyone from knowingly "mak(ing), or caus(ing) to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter." Section 440.105, F.S. And, a worker who seeks benefits signs an attestation that they understand this. 

Making such false statements may result in the injured worker forfeiting entitlement to any and all workers' compensation benefits. That is an important point. A worker who falsely claimed inability to work, as is alleged in this New York case, might forfeit all benefits including the future medical care required for the effects of a "long covid," for example. The misrepresentation regarding any benefit might result in the forfeiture of all benefits. Section 440.09.

In short, there are consequences for misrepresentation. They may come in the form of workers' compensation impacts or effects like forfeiture of all potential benefits. They may come in the form of criminal prosecution, as is apparently proceeding in this case. In the end, they are not worth the risks that they pose, for New York Man, Florida Man, or Ohio Guy. Perhaps this is a young man that can learn and grow from a relatively minor mistake. Maybe the financial impact of $1,700 will glean some leniency. But, the story supports that it will not be only the big frauds that attract the prosecutors. 

Sunday, February 6, 2022

Never COVID Cohort

In 2021, I wished everyone good luck with my new-found phrase Catch a Cold! (March 2021). There, I described the view of some that the body may react to exposure to some coronavirus with production and retention of T-cells that may be providing them with ongoing resistance to other coronaviruses like SARS-CoV-2, and the COVID-19 infections.

It is possible that humans may be "genetically predisposed" to disease. As Medlineplus explains and cautions, "genetic variations can have large or small effects on the likelihood of developing a particular disease." It seems that "particular variations in other genes," which might also be called "mutations," have been identified as increasing patient risk for diseases like cancer. Just as the virus can evolve, so perhaps does our DNA? As living organisms, we are all very similar, but our individual genetic code may include distinctions and challenges.

This came to mind recently when MSN.com published Why do some People get COVID when others don't? It is an intriguing look into the virus that has dictated much of our existence over the last 24 months, deeply impacted the world of work generally, and influenced much in the community of workers' compensation. There have been impacts on the ability to attend doctor appointments, the rapidity of surgical interventions, process changes for mediations and hearings, and much more.

So, why is it that some people seem to jsut not be susceptible to this virus? I know a lady who refers to her husband as "superman" because despite multiple exposures he has not contracted COVID-19. MSN refers to these people as the "never COVID cohort."

I know four young people that sat around a card table yelling out while playing Uno one evening. The next day one of the four had symptoms and positive test; the other three tested negative. I know a lady whose family all tested positive and she cared for them for days, but she consistently tested negative. It seems implausible, but these anecdotal instances are similar to stories that have been related to me by others.

MSN parrots that by noting that:
"there are multiple anecdotes of COVID cases being discovered among couples, families or groups of colleagues who have mixed closely, but where not everyone has become infected." 
The medical community is "keen to understand why." To find out, a small-scale recent study intentionally put the virus directly into 36 test subject's noses. Only 50% of them contracted COVID-19.

The MSN article characterizes this variation on susceptibility as "one of the great mysteries that has emerged from the Covid-19 pandemic." Why does this virus seem so fickle? The good news is that scientists are researching and experimenting. Recent research "published by Imperial College London" is supportive of the earlier theories regarding "T cells" that may have been created or stimulated by some previous "common cold coronaviruses," to which the "never COVID cohort" was exposed.

There is clear evidence that "high levels of pre-existing T cells" from "other human coronaviruses" have in some instances been effective in protecting "against Covid-19 infection." Thus, there is some clear evidence and conclusion. However, the researchers are not satisfied that this tells the whole story. They are quick to advocate for being "fully vaccinated, including getting your booster dose."

The MSN article provides ample discussion of vaccinations, and benefits of reduced disease severity, and diminished transmissibility. There is candid admission that Omicron and other variants are successfully infecting even the "fully vaccinated," but blessedly causing far less severe symptomatology overall. Thus, the vaccines are admittedly "not 100% effective in preventing infection and the immunity they provide wanes over time."

However, the sentiment in favor of vaccination is clear in the MSN discussion. While multiple experts in the article include vaccination in their potential explanations for the "never COVID cohort," the year that most of us spent waiting for a vaccination, a year in which many did not contract COVID-19 despite exposures and risk, must certainly support that vaccination cannot alone explain the overall "never COVID cohort" phenomenon.

Part of the mystery, or perhaps merely curiosity, of the "never COVID cohort" is that we have all likely been the victim of a "common cold." Many of those are caused by coronaviruses. Thus, one might expect that we would all carry T-cells to combat infection of SARS-CoV-2 (COVID-19). However, a molecular oncologist quoted in the MSN article notes that "some individuals maintain levels of cross-reactive immunity," and by implication he seems to suggest that not all of us "maintain" so well for some reason(s).

The conclusion is that further research will be needed regarding the "so-called never COVID individuals." The point of investigating their immune response will hopefully be a "better understanding of the immune response" and specifically "what facets of the cross-reactive response (prior T-cell reaction and retention) are most important." There is hope that such knowledge may enable scientists to better formulate future vaccinations, with broader capabilities and less susceptibility to the challenges of virus variants and mutations.

That said, there is also suggestion that some portion of the "never COVID cohort" is instead blessed with individual genetic make up. This may have import both in whether one becomes infected and in the extent or nature of resulting symptoms. One expert is quoted claiming "variations between people's immune systems 'makes a difference, at least to whether or not you get symptomatic disease.'" Some current focus is on the human leukocyte antigen genes and the potential they have to impact a human immune response. Thus, there are perhaps innate advantages some enjoy in the COVID battle.

A side note to the study in which people were purposely exposed but only 50% contracted COVID-19, is the detection of infection. The researchers noted that the virus tends to be detectable "first in the throat," rather than the nose. While the "peak levels" were higher in the nose, detecting the virus there was possible only about 18 hours after it was detected in the throat. This may explain some of the challenges that people have cited regarding negative tests. MSN notes that testing only nostrils presents some risk of "missing infectious virus early in the course of infection."

The end result is likely that more research will be pursued. There will be exploration of the ability to retain T-cells and thus be better prepared for any coronavirus. There will likely be exploration of the process of vaccination composition and administration. There will be studies regarding DNA and the potential for some viral insusceptibility based upon genes. There will undoubtedly be further advocacy for vaccination and boosters. There seems fairly broad agreement regarding both efficacy and advisability. 

For my part, I do sincerely hope you will catch a cold, just in case.