Thursday, March 31, 2022

Consolidation, Mediation, and Remuneration

The rumor mill is an active and intriguing place. A few rumors trickle back to me periodically. This post addresses some that seem pertinent and popular recently. 

A great deal is changing in the world of Florida workers' compensation disputes. Through a combination of Legislative action action and regulatory efforts, there is much to report now and the potential exists for additional change in the future. There is truth to the rumors that some District Offices will be consolidated soon. There is truth to the rumors of a significant pay increase for the judges. There is truth to the rumors of a change in the mediation process. Read on for further details. 

When the OJCC was transferred to the Division of Administrative Hearings (DOAH) in 2001, there was significant angst about how that marriage might work. In retrospect, it has been a very effective union, and there have been many economies of scale that worked to the benefit of this community, attorneys, injured workers, employers, and more. One concern was centralization. Because the DOAH ALJs were all Tallahassee-based, there was premonition and anxiety about the potential for an effort to centralize the JCCs similarly. Twenty years later, that has not come to pass. 

In that 2001 Legislative session, language was added to section 440.44 to prevent such centralization. In 2022, that language was removed by SB (Senate Bill) 2516:

"The 22 Office of the Judges of Compensation Claims shall maintain the 23 17 district offices, 31 judges of compensation claims, and 31 24 mediators as they exist on June 30, 2001."

That bill was ordered engrossed and enrolled on March 14, 2022, and will be presented to the Governor in days to come. There is no plan, nor even sentiment, to centralize all the OJCC judges or operations in Tallahassee. 

However, the DOAH has initiated a plan to consolidate several district offices. At this time, plans are being implemented to consolidate four District Offices: Gainesville, Lakeland, Melbourne, and Port St. Lucie. The details regarding alignment of the counties in these districts is posted on the Announcement Blog. Judge Stanton will continue to preside over claims, but will be headquartered in Jacksonville. Judge Arthur will continue to preside, but will be headquartered in Tampa. 

Mediation will change, and that change may be more wide-spread. The OJCC will transition to a single schedule for mediations. This will mean each mediator will be on the same time table for mediations. That will enable more ready coverage by fellow mediators as needed. They will be allowed to work remotely, but will conduct mediations using Zoom rather than telephone. This is a critical point: "allowed." It is likely that many live mediations will remain the norm, but that some portion of various mediator's calendars will move to this remote paradigm at her/his individual discretion. 

This Zoom paradigm will afford the parties to each case the opportunity to both see and be seen. Of course, the mediator may allow parties to phone into the Zoom conference, but the mediator will strictly use the video system. In conjunction with the consolidation effort, mediators Martinez (LKL), Schmidt (GNS), Hauber (MEL), and Hayes (PSL) will remain valued and appreciated members of the OJCC team and will continue to mediate, but using the Zoom platform. 

The parties to any case may prefer a live mediation. If a mediation is noticed for Zoom, any party may request that it be changed to an in-person appointment. Further, any party may request that a live mediation be changed to Zoom. Those decisions will rest with the each mediator. Live mediations will continue in the various remaining District offices. In this process of consolidation, the OJCC is currently seeking to add two mediators to the team. These will be based in southeast Florida and central Florida. Those links are to the People First system which provides more information and facilitates the application process. Applicants should be cognizant of the Zoom paradigm and be ready and willing to learn to adapt and adopt that process.

Finally, it is hoped that the JCCs will receive a significant pay increase in 2022. This was announced in the Florida Bar News on March 18, 2022: Division of Administrative Hearings Judges get a Bump in Pay. The Bar notes these judges are the "unsung heroes," thought it also misidentifies them as part of the "court system." Our Judges are indeed a great group of professionals. Throughout this recent pandemic, it was their efforts as leaders that effectuated the uninterrupted and persistent delivery of service. 

The mediators and staff likewise deserve great appreciation and respect for their perseverance and dedication through this. What could have been a crisis (and in many states was in fact a crisis of cancelled proceedings and stalled process), was largely just another day at the office for these incredible OJCC team members. The Judges, Mediators, and staff did not falter, stumble, or fail. The process meant that workers and employers had disputes resolved or adjudicated, the practice of law continued, and the people's business proceeded. I cannot overstate how proud I am of each of them. 

The proposed judicial raise is 24%, and will adjust for significant inflation in recent years. The OJCC annual reports for several years have highlighted the impact of inflation and our challenges with recruiting judicial applicants. The article notes Director Antonacci's acknowledgement of the legislative team that accomplished this effort:

. . . Senate Budget Chair Kelli Stargel, R-Lakeland, and House Budget Chair Jay Trumbull, R-Panama City, and their lieutenants, Sen. Ben Albritton, R-Bartow, and Rep. Cyndy Stevenson, R-St. Augustine, for championing the division’s request during budget negotiations this year.

This, of course, is a budget item. We are most appreciative and are hopeful that this portion of the budget receives the Governor's approval.  

Tuesday, March 29, 2022

It Isn't Maybe so Simple

I overheard an interesting conversation recently that seemed to focus on challenges of economic opportunity. The speaker was espousing the perspective, essentially, that if things where you live are not what you would like the best option would be to find somewhere else to be. That was intriguing to me from the perspective of accrued value and investment. It is a simplification that perhaps bears consideration. Possibly there are expenses to relocation? Those might be monetary or otherwise?

Of course, there is at least emotional cost to relocation. In many instances there will be ties to a community. One may belong to clubs, civic organizations, a church/synagogue/mosque, etc. One might have family or friends in a community from which they would not wish to distance. There are a variety of reasons that relocation might be untenable or at least not preferred. But, there are financial costs. Certainly, taking the time to locate new employment and accommodations are a cost. The actual expense of loading belongings and transporting them is a cost. But, perhaps the housing cost deserves a bit more consideration.

There are a great many people whose greatest single investment will be their home. For some, it may instead be their education. In all likelihood, these are the two most likely to consider. The investment in a home includes both financial and emotional components. According to Nerdwallet.com, the down payment minimums are currently around 3.5% of the purchase price. So, to purchase the median single-family home ($313,000 according to the Federal Reserve Bank of St. Louis) the buyer needs about $10,955.00 and will borrow $302,045. 

That expense ($10,955.00) is an investment, which the home buyer would expect to recoup when the house is later sold. But, in the purchase there are also transactional costs. These add another "2 to 5 percent of the home's purchase price," according to Investopedia. Those transactional costs on the median home are therefore are $6,260 to $15,650. Those are payments for taxes, filings, services, and more at the time of purchase. A buyer cannot expect to recoup these costs when later selling that house, and will likely face some level of such "closing costs" on the eventual sale as well. Of course, the buyer might hope that the property would increase in value over time, such that upon resale that appreciation might offset all of those transactional costs of both getting in and getting out. 

So, the day of closing on a new home for $313,000 the buyer has $10,955 in equity in the house, and has written expense checks of $6,260 to $15,650. Thus, if the buyer is compelled to sell the house the very next day, and s/he is fortunate enough to pay no real estate commission (typically 5 to 6 percent according to ownerly) or seller's closing costs, and the market is unchanged, s/he likely loses $6,260 to $15,650. Realistically, however, there will likely be real estate commissions, at those rates of another $15,650 to $18,780. 

So, our hypothetical homeowner having bought the median home and then immediately re-selling it would be likely to lose the real estate commission and her/his own closing costs originally paid. The loss would thus be $21,910 ($15,650 + $6,250) to $34,430 ($15,650 + $18,780). This assumes, of course, that our hypothetical new homeowner would be able to sell the median house for the same price that s/he paid for it. Thus, if the sale occurs before there is some opportunity for market appreciation, the buyer turned seller loses significant money on this turn around. 

What determines the value of the house to begin with? There are aesthetic considerations; home buyers like attractive houses. There are financial considerations; people worry about being within their budget. There are amenity considerations; how are the local schools, recreation, commute time to work, property taxes, local services available, etc.? Among those amenities are the services provided by the local government, led by the elected officials. The market value is also influenced by how many potential qualified buyers there are in that market; this comes down to whether people are relocating in that community and looking to buy. The most perfect home, at the ideal price, will not sell if no one is willing to buy. 

Across America, there are towns that are dying. People are not moving to them. See Small Towns are Dying, can they be Saved? If one has made this real estate investment in such a town, they may struggle to sell that home, and may simply fail. Detroit has been a prime example of this over recent years. It is responsible for part of the 380,719 homes that were vacant in Michigan in November 2020. And, many of those are being simply destroyed by the city. Around the country, some towns are paying people to move there. Examples include Tulsa, Oklahoma; Italy; and West Virginia. Others in Maine, Vermont, Alaska, and Iowa have been similarly mentioned. 

Another consideration in the purchase decision is insurability. This means, first, are their insurance companies that are willing to write coverage on the house that is for sale. If you cannot get insurance on the house you are purchasing, then you would be essentially self-insuring your new purchase. That would mean that if the $313,000 house burned, sunk into the earth, or was blown apart by a storm you would be 100% liable for that loss. Most homeowners are eager to insure their property against such loss potentials. 

But, even if they are not so eager, the "real owner" (the mortgage holder that owns the $302,045 debt after the down payment $313,000 - $10,955), will likely (certainly) insist that the homeowner has property insurance to replace the value in the event of some disaster. If a risk cannot be insured (the house has previous sink hole exposure, is in a high-risk wind or flood zone, etc.) then selling it may require quite a discount because the population of potential buyers would likely be only those who could buy without borrowing money. 

Thus, as you see the security and predictability of a community deteriorate, you see the marketability of property in that community similarly deteriorate. Those who have invested their funds in a property may find that they cannot possibly resell. A community could proceed from vibrant and evolving to something completely different, like Detroit, Michigan. The Metro Times reports that city has tens of thousands of abandoned homes. Each of those who abandoned a home there lost their investment (down payment) and the transactional costs associated with their initial acquisition of the property. Some of them did, essentially, what the advocate I overheard was suggesting, and simply "got out."

Thus, the homeowner is betting on a community when purchasing a home. Similarly so when someone opens a business. These are investments in a community. It is possible that such an investor would own a structure and live or work there. That person would be responsible for the mortgage payment, insurance, taxes, etc. It is also possible that person would own the structure and lease it to someone else to live or work in. The landlord would be counting on a stream of income from the rent to pay those expenses such as mortgage, taxes, etc. 

COVID has interestingly impacted the plans and expectations of many in our communities. They have committed to pay a mortgage or other expenses, but their own income from working or from tenants paying rent have diminished or ceased. The government stepped in during the pandemic and told landlords that they could not evict tenants that did not pay rent. The United States Supreme Court in August 2020 concluded that moratorium was inappropriate. Similarly, the lenders were precluded from foreclosing on those who have stopped making mortgage payments, according to  sources like the Federal Housing Finance Agency and CNN. In effect, the health officials stepped into people's contracts during the pandemic and suspended people's responsibilities. 

There, relief was afforded due to the nature of the pandemic. But, would the same kind of consideration be afforded for those who merely want to relocate? For whatever reason, a person might fall out of love with a geographic location. A June 2020 Forbes article noted that some who lived or owned businesses part of Seattle were spontaneously denied police and fire protection. The emotional value of a home or business in such an area might suffer. Similarly, the resale value might suffer from perceptions regarding the behavior of public servants in an area. Perceptions might make a piece of property easier or harder to sell. 

This is hindrance to the sentiment of just "getting out." That new home buyer described above that has just spent $17,215 ($10,955.00 + 6,260.00) to become a homeowner may be reluctant to walk away and leave this property to the mortgage holder. And, if the driving force of relocation is similarly affecting neighbors, there may be many properties offered for sale at the same moment. It has been said that "an increase in supply will cause a fall in price." An Investopedia post explains this. Thus, the seller finding disenchantment with the actions of government may be steered toward departure but at a moment in time that is disadvantageous. 

If there are many homes suddenly on sale in a neighborhood because COVID closed a factory or devastated an employer, then the price of that $313,000 home may suddenly decrease. The homeowner looking at a loss of $17,215 might also face a loss because buyers no longer perceive a $313,000 value. What if the neighborhood price drops only $10,000. The homeowner sells for $303,000 and pays a real estate commission (5%) of $15,150.  This homeowner has lost $42,365. 

And, as the volume of homes on the community market increases, as employment in the area decreases, it may become increasingly difficult to sell that home. Oversupply was cited by various sources as part of the "bubble burst" in the financial crisis of 2008. Whether the health scare and pandemic or the rioting that was occurring in some places, it is possible that some areas will become less desirable for ownership and rental. If that happens, those who have invested in real estate will be unable to relocate it; some may be unable to maintain payments for it, and some may face the challenge of foreclosure and even bankruptcy. 

The simplification of finding somewhere else to be is perhaps illusory. The reality may be that many will face a long road back to normalcy in months and years to come. This all came to me when I was honored by a role in the closing panel at the WCRI in March 2022. Our topic was the 50th anniversary of the National Commission Report. Friends, Romans. Countrymen (March 2022), At the WCRI 2022 (March 2022).  There was discussion there of the perceptions of a "race to the bottom," in which critics perceive state workers' compensation laws as providing diminishing benefits to achieve diminished costs. Those lower costs, the critics allege, are to incentivize business to locate in a particular state. 

Great minds have concluded the "race" is real. But, in reality, it would present many long-term costs for a company to relocate. Such change would likely accrue over years or decades. I mentioned on stage there that it is critical for the concept of "employment" that there is both the employee and employer. This is definitional and perhaps obvious, but worthy of reminder. There has to be some benefit to each in the relationship in order for each to prosper. I suggested that some degree of symbiosis is appropriate. But, it is also critical to recognize that statutorily and regulatorily, that symbiosis must also include government. The actions or inactions of government might indeed become intertwined with employment. 

Employees may be motivated to "find somewhere else to be" if employment opportunities falter. Employers may do so if regulation is overzealous or too complex. There is the potential, seemingly ignored in most of the expert's analyses of the "race," that any particular state might be competing not only with the other 56 states (joking, there are not 57 states), but with the other 194 countries in the world. I note that a fair few of those countries have no workers' compensation, no OSHA, no unemployment system, and much more. Employers in many market segments are competing against the advantaged price point that businesses in such countries may bring. And, periodically, businesses in America may not prevail in such competition. Jobs may be lost, families relocated, and the real estate example above emulated and repeated. 

In the end, there are a multitude of market forces at work on the employment relationship. There will be fluctuations of supply and demand for people, shifts in demographic, migration of workers and businesses. The challenge, I would suggest, is in appreciating that employees, employers, and government are in a symbiotic relationship that is delicately, perhaps precariously, balanced. The goal it seems is a system that is conscious of the impacts on each, and is focused on maintaining that balance so that each prospers but each also carries responsibility. 

The economy is complex, changing, and perhaps less than predictable. Businesses and families invest and harbor expectations. Markets change, competition happens, and there will inevitably be winners and losers. In the big picture, predictability, stability, and agility are perhaps attributes important to all? It isn't maybe so simple, but it is critical. 

Sunday, March 27, 2022

Tech Stalking News

In this blog, there have been various references to the ubiquity of technology. See Assume Everyone is Watching (September 2015); Evolving Issue of Body Cameras (July 2018); Artificial Intelligence Surveillance (August 2020); Surveillance, Conflicting Rights, and Balance (May 2021); and Drones, Surveillance, and Security (June 2021). 

We have even explored how hardware can be manipulated, perhaps, to invade our privacy. See Hardwired Hacking (November 2018). The trend for us is seemingly to ever-increasing exposure to technology, its benefits, and potential perils. And, it will be true in our personal lives, professional lives, and even workplaces.

The new year brought an interesting story on the British Broadcasting Corporation page regarding a mother in Mississippi: Air Tags, a Perfect Tool for Stalking (January 20, 2022). She was returning to her home in late December when she received a "notification on her phone." This warned her "that an unknown device had been following her movements." The victim reported the oddity to the local police, but they were unable or unwilling to provide any assistance or advice.

She proceeded with contacting Apple, which confirmed that something called an "air tag" was tracking her movements and reporting to someone. The purpose of these tags is to help us memory-challenged folks with finding our car keys, laptop, eyeglasses, or anything else we need help with. The little tags transmit a signal and can be quite handy for keeping track of personal items. 

However, the BBC says it has identified "six women in the US who say they have been tracked using Apple AirTags." Whether discreetly dropped in a pocket, bag, or vehicle, these handy tools can apparently be readily used by miscreants to stalk or track victims. In the process, of course, the person's privacy is violated. However, that may be the least of concerns with stalking and potentially violence being of serious concern.

The BBC claims that Apple knew of the potential for misuse when it began marketing these tools. The company has stated that "AirTags are designed to track items not people." There are also some features that are designed to alert victims. One may apparently use their cell phone to detect whether some "tag" is "moving with them." And, the tags are supposed to emit an audio signal if they are "separated from their owner for a period of time." Some suggest that limit is of little consequence because the owner may disable an air tag. Others complain that the audio signal is too quiet to easily detect, particularly if the tag were placed on the outside of a vehicle.

Some of those interviewed for the BBC story have been frustrated in seeking relief. They have not located the tracker tags, nor been able to regain peace of mind. Police around the country are striving to alert people to this illicit use of technology. In a world where all businesses strive to address the threats of technology misuse, hacking, and worse, this is another example of technology about which we should remain aware. 

In February 2022, a follow-up on the BBC announced Apple moves to stop AirTag tracking misuse. The Tech company is adding a feature to warn people that using the product to track other people may be a crime. It is enhancing the process of notifying people that such a tag may be tracking her/him, and such tags that "been with the person who registered it for an extended period of time" will make a sound when moved. There was also the promise of more and better information from the company regarding how such devices might be used or misused. 

In March 2022, a woman in Paducah, Kentucky found such a device on her vehicle, as reported by WPSD. She was fortunate that her own telephone noted the presence of the device and alerted her. She located and disposed of it, but perhaps regrets not summoning the police for further investigation, fingerprinting, etc. Of course, if you have ever had a car or house broken into, you already know that calling the local police may lead to zero investigation or follow-through. Generally such efforts result in a written report for the insurance company, and little if anything else. 

A woman in Cleveland described a similar recent experience. She described leaving a retailer and receiving a warning on her phone that read:
"Your current location can be seen by the owner of this item. You may be carrying this item, or it could be located closely. If this item is not familiar to you, you can disable it and stop sharing your location.”
At that point, the device had been tracking her movements for over four hours. This article from News 5 Cleveland urged involving the police in such situations. Although, the device in this instance was also not recovered.

The examples seem to be appearing in the news with some regularity. Those who own and use an iPhone will be likely to receive such an alert regarding the device. Those who use Android can use an Apple tracker app to be warned of such intrusion. But, it appears there is no such defense against other such tracking devices, such as the Tile. Some argue that it is less susceptible to misuse due to its limited range, but KimKomando says it is possible and suggests tips on avoiding it. 

These stories support that devices designed to assist and support us may be subject to misuse and abuse by those around us. See How to turn your smartphone into a spy camera. The point is that there are miscreants around us, and the digital age of miracles in which we live offers them advantages and opportunities in much the same way it provides us conveniences and accommodations. As we adapt to the advantages, we will necessarily have to remain cognizant of the potentials for the unscrupulous and malicious to misapply, mistreat, and abuse. 

Thursday, March 24, 2022

Sleeping but Tired

My apologies for the late post today. I was, as they say, asleep at the switch. 

The Daily Dot recently reported a story made popular by exposure on social media. It featured a picture of a lady asleep on packages next to some sort of conveyor or sorting line. The title perhaps says it all "Poor thing was probably fired after she woke up’: Amazon worker filmed sleeping on pile of packages." People who viewed the photo on social media reportedly responded and included "hashtags" such as "#workconditions, #underpaid, and #unsafe." There was thus seemingly some recognition in the general population that safety was implicated. 

There were comments reported blaming the sleeping woman, the very nature of such work, and the employer. There were various perspectives regarding the potentials for cause and effect. The causes suggested in the article included conjecture that this was a night shift, that this was a person with multiple jobs, and that this job is simply exhausting. No published comments suggested that it was a boring job, but that is indeed another potential cause of sleep on the job. For my occupation, the "boring" is never an issue, but the long hours and the night shifts are certainly something of which I remain aware. 

Sleep is an important part of (most) everyone's day and night. I don't personally sleep much, but that is not the norm. Depending upon the occupation, day and night may become challenging distinctions for some workers. I have known many people that worked 3:00-11:00 shifts, 11:00-7:00, or 7:00 to 3:00. There are many variations, but those three stick with me for some reason. I have always been impressed with people who not only work such night shifts, but with those who seem adept at shifting between them. I represented a company years ago at which it was normal to be on one of those cadences for weeks, then shift to the next for several weeks, and then to the third, then back again to the first. Just when you might get used to something it changed. The employees claimed that they loved it, but I doubt I could have done it. 

According to the Sleep Foundation, "there is overwhelming evidence demonstrating that sleep deprivation leads to workplace accidents." Undoubtedly, many of us have noticed that we are not at our best when we are tired, whether that manifests in demeanor or plain error(s). The Foundation claims that "overly sleepy employees are 70% more likely to be involved in workplace accidents than colleagues who are not sleep-deprived," citing data from the National Institute of Health. That, 70%, should an eye-opener no matter how tired you might be. And, I work with a keyboard. Think of how much more dangerous sleepy might be in an industrial setting, with dangerous tools or chemicals or electricity, etc. 

Even without sleep deprivation, the Foundation claims that "long work hours paired with poor sleep quality can also contribute to a higher risk of workplace injury." Again citing the National Institute of Health, it notes that "workers with insomnia are much more likely to have work-related accidents than those who do not have sleep disorders." Simply put, sleep is important for us all. It even has its own day, March 18; I missed that by a couple of days. Just not as attentive as I could perhaps be. 

In one study, a group who "self-reported disturbed sleep were twice as likely to die in an accident related to the workplace." That is an odd outcome. That means they asked about sleep disturbance, and then checked back later to see who might have passed on and determined the cause? But, the point is that odds increase significantly of fatality. Fatalities are of course the worst of workplace accidents, but not at all the most common. In fact, workplace fatalities have been seen as decreasing according to the Bureau of Labor Statistics. This is likely due to ongoing focus on workplace safety, automation, and more. Those statistics are categorized, detailed, and frankly fascinating. 

Lack of sleep may thus be a workplace issue. However, it is a broader threat to our personal safety. The Sleep Foundation notes that the implications of poor sleep are demonstrated in everyday issues such as driving. There are startling statistics: "60% of adult drivers reported driving while drowsy,; "one in every 25 adults had fallen asleep behind the wheel in the past month"; "in 2017 drowsy driving led to at least 91,000 crashes, resulting in roughly 50,000 injuries and 800 deaths," according to the National Highway Transportation Safety Administration. And, note that this is the self-reported; how many of us might deny being drowsy?

In the end, the conclusion seems to be simple. People will be impaired by drowsiness or downright sleep. Their impairment may lead to injury or worse, and is a threat to their own safety and perhaps in some occupations those around them. The picture in the Daily Dot story viewed millions of times is a generator of debate and various comments of derision either of the workplace, the employee or both. Is that fair, in light of the statistics cited? Sleep is simply not that uncommon as challenge.

While the commenter focus is notably on blaming of either employer or employee. Perhaps a better, more productive, discussion would be on the challenges that sleep deprivation and poor sleep habits have on the workforce and therefore the workplace. Perhaps consideration of the health issues that extend beyond the accident threat to the "mere" health implications? Check the list at the Center for Disease Control: Diabetes, Cardiovascular disease, obesity, and more. Remember that obesity is a major challenge for our entire society. See What's in a Name (August 2020). 

The issues of safety and health should seem to take precedence in the discussion about this picture. Why are we tired, what are our risks, and what are we doing about it. As some actor once said "Let's Face it, I'm tired." (Unaccredited). 

Tuesday, March 22, 2022


Merriam Webster says that retrograde means "having or being motion in a direction contrary to that of the general motion of similar bodies." In the simplest sense, it is not moving with the crowd. As (likely) Francis Phillip Wernig purportedly said: 
"The person who follows the crowd will usually get no further than the crowd. The person who walks alone is likely to find himself in places no one has ever been before."
Thus, in retrograde one might find themselves out of synch with the crowd, but perhaps to their benefit? Recently, two articles led me to think about technology retrograde. 

There was a time that the smartphone was a matter of some envy; the capabilities that they bring, the access to the internet, the ease of email, IM, and voice. The evolution to ubiquity is noted in A Computer in Your Pocket on ScienceMusuem.com. It notes the divergence of the 1990s when we merely had "phones on which . . . (we) could talk and send texts." Many of us then also had a "personal organizer" that stored data and details, calendars, and more. We called them personal digital assistants or PDAs. It was light years from the 1980s and our dependence on little notebooks, pagers, and payphones. But, those born in the last fifty years have little experience with such a luddite world. 

The cellphone of the 1990s was a minimalist experience in retrospect, but was incredibly high tech at the time. And, as a side note, they were notably expensive to own and operate. As that decade proceeded, those PDAs evolved to astounding feats like synching with our computers and even accessing the Internet. But, the evolution to a "3G," third generation cellular network capability set the stage for today as the PDA, phone, and PC merged into the smartphone (as many of us are not yet onto 5G and yet look towards 6G). 

An early hybrid device, the Blackberry, came upon us in 1999 and then came into its own early in the 21st century. It was perhaps made famous by presidential contenders like Al Gore and Barak Obama as they texted and interacted on the web. In an odd twist, a campaign staffer once tried to give John McCain credit for inventing the Blackberry. It is a somewhat bizarre world we live in sometimes. Al Gore invented the Internet and John McCain enabled the Blackberry? Both false, but intriguing nonetheless. People perhaps want to appear tech-savvy and able? Or, as we said back in the day "hip" and "with it?"

The Blackberry was immensely successful with its QWERTY keyboard and ease of use. Companies invested millions in emulating it, and for a time a phone with a mechanical QWERTY keyboard was a distinguishing novelty. But, in 2008, the i-Phone burst on the scene and the smartphone's dominance began. Blackberry struggled from its peak of 20% of the world smartphone market to its decision to yield the field completely in 2022. There are other similar examples of marketplace death, but this one of marketplace primacy to insignificance is illustrative. 

Cell phones have become ubiquitous. Pew reports that 97% of Americans own one. I recently was questioned about why we have phones in our mediation rooms - "everyone has a cell phone, don't they?" Similarly, the smartphone is the dominant type, with 85% of Americans owning one. It is rare to see someone in meeting without one. The truly irreplaceable among us usually carry two smartphones, which has baffled some in the age of devices capable of hosting multiple phone numbers. However, there are issues of device security, data connections, and more that various companies enforce. 

Some display their phones in holsters, perennially on the ready. Some smartphones are larger than others. There are various operating systems, attributes, complaints, and criticisms. Many people have unwavering brand loyalty for their operating system or hardware choice, rivaling even their loyalty to some school or football organization. Some base their loyalty on particular attributes, and others are merely lodged in a habit they loath to break. It is very tough to get used to operating one, as there are a myriad of intricacies and tricks associated with each. Thus, changing brands is a major challenge for people, particularly us older folks. 

In short, however, these smartphones have enabled us to do things that still amaze us. We can literally carry the world around with us. All information in the world is at our fingertips. 

Statista reports that the American market is dominated by Android and Apple. They each had about half of the domestic market in March 2021; Apple - 52%, Android - 47.4. The Microsoft and Blackberry shares were each trending at that time toward obsolescence. From a hardware perspective, Apple has a worldwide share of about 14% and Samsung about 20%. Each is less than the "other" category of about 33%. Thus, in America, essentially a two horse race, but globally there are a great many devices out there, a variety of choices regarding hardware and software, and a ubiquity of smartphones. 

The Blackberry lesson is intriguing. Somehow, over the years, it and other similarly dominant brands have lost significant market share, or retired in defeat. And, in the midst of the small screen dominance of the convenient smartphone, one might wonder what is next. Will the dominant operating systems and hardware choices of today prevail in ten years? Or, is there some new and attractive alternative just around the corner ready to issue its siren call to our tech cravings?

The British Broadcasting Corporation (BBC) reports that some people are Deciding to Ditch their Smartphone. They are retreating from the ready social media access, email, and games. The reversion is to simpler devices capable of only phone calls and text messages (without the ease of the QWERTY keyboard). Some will remember the days when texting required many buttons pushed because each number on the keypad also represented multiple letters. Texting required perhaps three presses of the same key to obtain the desired letter. There was therefore then a language of texting, driven by the keyboard constraint. Today, we cling to that language by habit, but no longer need it in the age of smartphones, their keyboards, and verbal assistants like Alexa and Siri. As one might say, "LOL." 

But, despite the ease that smartphones have brought, some people are fed up with living in a world in which time is squandered with endless "scrolling away." One quoted critic said 
"Everyone is missing out on real life. I don't think you get to your death bed and think you should have spent more time on Twitter, or reading articles online." 
She also notes that "Being constantly connected to lots of services creates a lot of distractions, and is a lot for the brain to process." 

How much time? The BBC quotes a "recent study (that) found that the average person spends 4.8 hours a day on their handset." In a 24 hour day, assuming 8 hours is spent sleeping, that equates to about 30% (4.8/16) of our waking day. There are challenges with such access, with some suffering from a cell phone addiction. With that in mind, one might query similarly to the subject of the BBC article: "what else could I do" with that time?

The story reports that some are therefore now eschewing the smartphone, while others are foregoing cellular telephones completely. In a world of instant contact, alerts, and accessibility, are any of us capable of putting ourselves first? There is a very real potential for this constant contact and access to be a source of significant stress, as medicine has begun to acknowledge. How often do you turn off your phone (or at least the alerts) and ensconce in tech-free time? How often do you escape the email, Twitter, Facebook, messages and more? Would we feel better if we did so?

One psychologist cited by the BBC contends that:
"there is a strong link between heavy device usage and relationship issues, quality of sleep, our ability to switch off and relax, and concentration levels."
In short, these devices may be enabling behavior that damages us. In Chatbots and Friends (February 2020), I reminisced on the challenges of a technology-driven existence. I noted:
"Timothy Leary encouraged us in the 1960s to 'turn on, tune in, drop out.' Perhaps in that age, this was sound advice. But the converse seems a better adage for today. It seems we would all benefit if we could instead "turn off, tune out, and drop in." There is value in human interaction."
I acknowledge that sentiment again here. Perhaps those who are abandoning the lure of smartphones and their distractions and pressures have it right. Perhaps we should all consider again the "turn off, tune out, and drop in" corollary? It might be in our best interest to return to a time of less contact and accessibility?

In a subsequent story, the BBC highlighted a 17-year-old "lured by the low price" (less than $11.00) of a more rudimentary "brick phone." She describes the manner in which her previous "smart phone" distracted her and how she "didn't get as much work done." She believes she will remain with the brick, and not return to the "smart" environment. She says she is "more proactive" with the brick. And, read that again, this is a 17 year old. Will the young and innovative lead us back to the luddite age of more limited connectivity? Can they show us the light?

This BBC article claims that "dumb phones" are increasing in popularity demonstrated by the searches for such hardware on the Internet and the annual sales ("one billion units"). These are said to indicate both the interest in retrograde as well as its pursuit. Pluses of the dumbphone are said to include "battery life and durability," but the proponents are seemingly as driven by the decrease in distraction, avoiding the "addict(ion) to liking, sharing, commenting, or describing." In short, there is some population that has entered retrograde, is disenchanted with the smartphone world, and is seeking greater simplicity. 

These prospects have to be on the minds of those who make and support these pocket computers. Where will the next decade take us? Will we see retrograde flourish?

Sunday, March 20, 2022

Safety is Coming

Yes, it is coming, like it, want it, or not.

Back in 2019, the Washington Post noted that Congress was contemplating the mandate of smarter vehicles. There was consideration of a bill that would mandate cars being equipped with technology that would detect whether the driver was impaired. The main point would be to "stop drunk drivers before they get on the road." Of course, "drunk" drivers are not the only impaired drivers, and there are a variety of other potential impairments that may be as worthy of consideration, including other drugs, fatigue, and more. 

Motor vehicle safety is an important consideration in workers' compensation. According to the National Institute of Occupational Safety and Health (NIOSH):
"Motor vehicle crashes are the 1st or 2nd leading cause of death in every major industry group. In 2019, 1,270 U.S. workers driving or riding in a motor vehicle on a public road died in a work-related crash (24% of all work-related deaths)."
The Post conceded the existence and use of such devices at that time. It described an "ignition interlock" that prevents a car for starting. These devices require someone to exhale into a sensor, much like a breathalyzer, and thereby verify the absence of alcohol before the car's ignition system is enabled. There are obvious challenges to such equipment.

An impaired driver might ask someone to blow into the machine for them. Or heading out for a night on the town, someone might borrow someone else's car. Or, perhaps engage in any of the Seven Ways to Trick an Ignition Interlock documented by Select Insurance (note that these are not necessarily going to work, and some are disgusting). One might join in with the over 50,000 people who have viewed the YouTube video "How to CHEAT and BEAT the IGNITION INTERLOCK Program in 2017." The producer claims those methods work, but would anyone watch the video if they did not make that claim? There is, apparently, significant interest in both the devices and how they may be frustrated or defeated. 

Despite the potentials for avoidance, the Post notes that such devices have been "in widespread use for those charged or convicted of drunken driving." They represent a significant expense. According to Intoxalock, the cost for installation of such a device ranges from $70.00 to $150.00. A website devoted to defending DUI charges asserts the cost may be as high as $2,000. Alcolock says that you might lease such a device for $2.00 to $3.00 a day ($60.00 to $90.00 per month).

The Post also noted in 2019 that efforts were underway to deploy "newer technology." There is some perception that asking every driver to blow into their car's sensor before starting a car might be met with some consumer resistance. When you rent a car, how would you feel about putting your mouth on any part of it? I asked Horace Middlemeier* about his perceptions and he said he buckles his seatbelt behind him and sits on it, and that is only so that the "dinger will quit dinging." So, perhaps there would be some marketplace resistance.

But, the government has forced airbags upon us. I recall when that started, and the lamentations of car dealers that no one would ever buy a car with one. I remember mandatory seatbelts, motorcycle helmets, automobile back up cameras, catalytic converters, and more. The government has been evolving automobiles most of my life. Each safety device added to a car increases complexity of that tool, represents a chance for failure and repair needs, and adds cost to the vehicle. What if I have no need for a back up camera? What i I do not need my backseat monitored to prevent me from forgetting my passengers?

So what? The government considered mandating ignition interlocks in 2019. Many of us missed it, but in 2021, Congress mandated ignition interlocks. While we cannot say for certain how much such devices will cost, we are assured that every car sold in America will soon enough be equipped with one. And, it all happened quietly and without much fanfare. The world was distracted with SARS-CoV-2, lockdowns, life challenges, and more. While virtually no one was looking, this new mandate entered our world of freedoms and liberties. 

Several years ago, I reported on a fantastic speech at the Annual Issues Symposium sponsored by NCCI. See Salim Ismail and a Life Changing Seminar (May 2015). He noted that the laws in many states require cars to have rear-view mirrors, but no car is required to have a steering wheel. This was in the context of driverless cars, and his contention that somehow no elected representative had ever foreseen the era of a driverless car and the obsolescence of the steering wheel. Is an interlock more or less important than a steering wheel in a driverless car? In today's world the driver must remain engaged even when on autopilot, but what will tomorrow bring?

National Public Radio (NPR) reported in December 2021 that "The recent infrastructure law included a provision mandating that, starting in a few years, all new cars must include some sort of technology to detect and prevent drunk driving." The key requirements for this new addition to our vehicles are broad: "it has to be able to accurately detect drunk driving, and that it has to be 'passive.'" That is, not blowing into a tube. The NPR article does not address broader issues of impairment such as fatigue, drug use, and more. It is less than clear whether the new law is specifically focused on alcohol as the NPR story suggests. According to NPR, proponents think "this particular technology could save more lives than airbags."

Motor Trend says that the new devices are expected by Congress to begin appearing in 2026. It quotes, presumably from the infrastructure bill itself, a broader requirement that such devices:
"passively monitor the performance of a driver of a motor vehicle to accurately identify whether that driver may be impaired."
The use of "impaired" is seemingly broader than intoxication.

NPR reports that two innovations are under development to meet this perceived need. One is a device that samples "cabin air" and "looks for traces of alcohol." The obvious benefit is "no need to blow into a tube." This is labelled "The Driver Alcohol Detection System for Safety, or DADSS" (think of that DADSS brought to us by the MADDs). There would be "sensors . . . integrated into a vehicle's dashboard or window," which would "require a driver to blow a puff of air in the general direction of the sensor." The article notes that developers hope to one day measure "normal breathing" with these sensors. The point of measuring breathing in a broader context are not entirely clear. 

There is recognition of the obvious problem. What is the impact of passenger's exhalations? Could a drunk passenger's exhalation  disable the vehicle? One might picture a very frustrated Uber driver sitting stalled in front of a bar with a car load of exuberant and perhaps frustrated potential Taco Bell customers. Developers hope to make this system sophisticated enough to distinguish between the exhalations of the driver and passenger(s). And, pay attention to that main point - "disable the vehicle." Like other ignition interlocks, the big brother of impairment detection could render your car useless.

There is a second form of DADSS, in which light is directed at a driver's finger and "alcohol content of the blood" is measured "based on the light reflected back." Some see this as integrated in an "ignition button" but there is perhaps the potential for some separate touch pad in the cabin. Some will remember the fingerprint readers so popular on laptops and cell phones years ago. For some reason, you don't see those much anymore. Cars might surreptitiously collect fingerprints and share them with, well with someone. And, a passenger's finger might be used to start the car.

Beyond DADSS, some advocate instead cameras mounted in the car that would view the driver. Reportedly, Volvo has already elected this route. Proponents suggest that some cars come with such monitors now, though they are primarily interrelated with the "autopilot" style expanded cruise control systems. Today, these cameras essentially "make sure drivers are looking at the road instead of being distracted." Proponents suggest they could instead look for signs of impairment in the way the face muscles or eye movements compare to norms and predictions. Imagine someone under the stress of an emergency unable to start a car because the camera detects unexpected facial features or eye movement (maybe from pain?).

Before you ask, they note that the cameras can see in the dark and "They use infrared so that it can see (even) . . . if you're wearing sunglasses. So much for Corey Hart's solution to the world's challenges. Software would evaluate the driver's eyes and detect indicia of impairment. A potential advantage to the eye-monitoring concept is that the nystagmus demonstrated by the eyes from alcohol intoxication may likewise be demonstrated by the use of some drugs. Note that there is some question as to which drugs. With the camera(s) pointed at the driver, there is potentially less chance of passenger impairment creating issues as well.

These discussions of a camera watching you drive might dredge up the surveillance issues mentioned in previous posts. Remember Assume Everyone is Watching (September 2015)? Or, perhaps Technology and Surveillance (August 2020). There was A Button Labelled Codger Mode (June 2017), and perhaps Shall your Car Chime In (June 2016) is worth another consideration? Will the new surveillance be any less subject to abuse than Sirius Radio or OnStar, as alleged by some?

In all, there are more questions in 2022 than there are answers. The one answer is that Congress has decided that all drivers will soon enough be under constant surveillance of some form as we drive. The overarching goal of diminished impaired driving death and injury will soon result in some impact upon your personal privacy. Will the equipment report in to some data base so that someone knows how many times your car has declined to perform based on impairment? Will it be able to document and report how many times it notes "some impairment," but not enough to disable the vehicle? Think of that, what if we could prevent crimes before they happen; Minority Report (20th Century Fox, 2002). Will there be imperfections and failures in monitoring, collecting, and using data? Will the conclusions or data collected be admissible in court?

Some will likely allege that such broadly-deployed interlock devices may be seen as akin to 
"an oblong metal plaque like a dulled mirror which formed part of the surface of the right-hand wall. . . The instrument (the telescreen, it was called) could be dimmed, but there was no way of shutting it off completely" (George Orwell, 1984, 1949). 
Others will certainly say that no one has a right to privacy in their vehicle, and some might instead argue that any privacy right is outweighed by society's interests in safety. Those debates are for another day, and perhaps one day for a court room somewhere.

Potentially, by the time that monitored driving day comes, human driving may be a thing of the past. Autonomous, driverless cars are likely coming to a road near you and eventually to pick you up for work, school, or shopping (if such pastimes still exist then in a non-virtual, non-Uber eats type, construct). Some predict that "human driving will be outlawed by 2050." As I look down the road, that will be an intriguing, and perhaps Brave New World (Aldous Huxley, 1932) to perceive. I will hear from some who will decry the references to Brave New World and 1984. I appreciate the sentiment that safety is worthwhile at any cost, and admit up front that these monitors may well not be as bad as they seem at first light. But, such devices will change our lives, impinge to some degree on our privacy, and will cost us all money.

And, the world may remain a dangerous place despite such efforts. For a recent example, one might wonder if such a system would prevent operation of a vehicle by a 13 year old. For that matter, will it take long for someone to begin publishing YouTube videos on how to side-step whatever device is next mandated? Will there be a market for having your car's monitoring system hacked and defeated? There are great reasons to prevent impaired operation of vehicles. There is great public good, and potential improvement in workplace safety, by decreasing impaired driving. However, there are many potential challenges, and significant costs, which have either not been considered or whose consideration are not being discussed in the press. 

*Horace Middlemeier is a fictional character. No reference is intended to any real person, living or dead. 

Thursday, March 17, 2022

At the 2022 WCRI in Boston

The workers' compensation world is never short of experts. There are a multitude of moving parts in these state systems, and a great deal of interaction that leads from the premium paid to the benefits delivered. That has been a criticism levelled periodically, why are systems so complex? Well, in a nutshell, workers' compensation is complex because it is a microcosm of business, government,  economics, and actuary. 

Each of these is complex and challenging in its own right, and it is folly to think that somehow marrying two or more of these complexities together would somehow yield a simplicity. My seventh grade math teacher used to persistently mumble "two negatives make a positive," which one might argue means that through all the challenges, marrying two of these complexities together might create a simplicity, workers' compensation. It is not merely two, however. Three negatives, makes a negative instead of a positive. But, then again, I never really understood anything that math guy said; so, I became a lawyer. 

Speaking of lawyers, there are those who see the world as involving too many lawyers (I am a lawyer). Others see far too many academics (I am an academic). I also hear criticism of actuaries, economists, and CEOs (I am none of those things). Our world, employment, relationships, are all imperfect. Markets, laws, the exchange of goods and services, are all imperfect. And, they are all complex. We can, at any moment in time, find many things about which to complain, at which to point fingers, about which to worry. And, likely validly so to some degree or another. 

But, there are a great many complex analysis within workers' compensation that require the services and perspectives of lawyers, academics, actuaries, economists, and business leaders. We need to all remember, however, that the perspective of the workforce itself is more important. At the end of the day, workers' compensation is not a mental exercise, it is a critical support system for the people that go to work each day planning, making, and repairing the world in which the rest of us live. As one of the presenters at the WCRI mentioned Wednesday, the pandemic taught us that the "critical workers" were those who keep the world moving for us all. See You are Essential (March 2020). 

Among those of us that do study this subject, there are those who labor each day in their respective furrow and struggle to find time or opportunity to look around and see those laboring beside them. For the non-agriculturally aware, a "furrow" is "a long narrow trench made in the ground by a plow." The analogy is that I work my part of the field, you work yours, and we largely perhaps do not notice each other (unless it is to crack a mean lawyer joke, actuary joke, etc.). Fortunately, there are a few opportunities each year to step out of our own furrow and strive to understand the bigger picture, the challenges of others, and the part we play each day back in that furrow.

This week, I am at the WCRI in Boston. What I really like about Boston is the food, but I digress. What I do not particularly care for is the cold. It is 39 degrees here this morning and I am missing the balmy (comparatively) 63 of Paradise. Sure, that is not the winter warm 75 degrees of Miami this morning, but of course Paradise does not have the crowds and traffic either. But, back to Boston, did I mention the food here is astounding? But, I digress yet again. 

Thursday of this conference promises to be the best day. I admit and own my bias in that regard as I am participating on the closing panel Thursday. We will discuss the 1972 National Commission Report. More on that in Friends, Romans, Countrymen (March 2022). See, I am biased toward my own panel, but I admit that bias. Like it or not, we are all biased in this world and we must strive to overcome those. I remind judges and regulators of this persistently. If you are an actuary, try to see Comp as more than a numbers game; if you are a lawyer, try to see it as more than a dispute system; in short, consider the role and value of others and their contribution the whole of this (these) system(s). 

On Wednesday, however, we heard from some exceptional voices in the workers' compensation community. They are, in part, old friends. We have heard many of them before, and despite the intervening Zoom efforts of the last 24 months, we are gratified to hear them again, in person, Live from Boston, it's workers' compensation! The food here is outstanding. Sorry, I digress yet again.

The program began Wednesday with one of my favorite academics, Robert Hartwig from the University of South Carolina. Dr. Hartwig is a favorite because he can take the heady and challenging of numbers and break it down for the rest of us. He reminds me of the scene in Margin Call (Myriad Pictures 2011). Jeremy Irons' character is the head of an investment firm, and in a very early morning meeting he asks a young associate to explain an issue with a complex investment security. He says 
"please, speak as you might to a young child. Or a golden retriever. It wasn't brains that brought me here; I assure you that."
Many of us require that kind of simplicity when numbers and complexity are the topic. Dr. Hartwig presented on the global impact of COVID-19, in terms of economics, labor, management, and the foundational relationship of industry for which workers' compensation was designed and implemented. He did not speak to us like we were children, but he brought this heady combination of complexities down to a level everyone could comprehend. 

Without work, there is no workers' compensation. This is, at its root, a system built on the concept of economics, markets, exchanges, and labor. We all likely too often forget those roots as we toil away in some furrow focused on some segment of the system mechanics. 

Dr. Hartwig essentially told us that the economy has largely responded to the COVID-19 challenge. It is flooded with cash from multiple government infusions, and many consumers are seeking limited goods, thus prices began to increase. At the same time, supply chains have been interrupted locally and globally, leading to short supply of some goods. Either decreased supply or increased demand may lead to price increases, and we are seeing both. And, the energy markets have been impacted by the Russian war in Ukraine as have general perceptions of economic stability. In short, we are in a recovery, but interest rates must rise to combat the inflation issues. Workers must be found to replace the retiring and the disaffected. Recovery is underway, but is not complete. 

If you ever get the chance, attend one of Dr. Hartwig's lectures. He really does make it comprehensible for us golden retrievers in the audience. And yet, he also appeals to the exceptionally intelligent whose post-presentation questions are so intellectual and challenging.

Two Wednesday speakers addressed the growing trend of provider consolidation in the U.S. Through various mergers or purchases, hospitals have joined together in chains. Physician offices have trended from independence to being hospital subsidiaries. There are marketplace perceptions of the practice of medicine morphing into the business of medicine: managed, calculated, ponderous, and perhaps less responsive. 

Yes, there is economics and management in medicine also. Dr. Savych and Dr. Negrusa provided an interesting overview of what these trends portend for workers' compensation. Medical care is, after all, the largest and still fastest-growing portion of the workers' compensation expenditures. With medical inflation having been so expansive for the last 50 years, this portends an ongoing challenge for this industry; though Dr. Hartwig explains that medical inflation is not a major part of the present overall inflation threat. But see Langham, The Conundrum of Medical Inflation (April 2018),

The impact of chiropractic care was addressed, with emphasis on the low back complaints that are common in workers' compensation. This was a preliminary introduction of a 28-state study of the impact of this care in terms of frequency, costs, claim duration, and more. If you are not familiar with WCRI, this study somewhat epitomizes its ability and proclivity for drilling down into factorial elements and discerning performance, trends, and more. Wednesday's were preliminary results, and I look forward to perhaps writing about the study soon. As an aside, the market has been seemingly less wary of chiropractic care in recent years, with many finding the potential costs and challenges of persistent care and adjustment more palatable than the addictive and deteriorative path of narcotics that this market traversed over the last 30 years. I have been sometimes critical of Opioids, see Florida's 2018 Session - Opioids (March 2018) and the list of articles linked there. There has been so much addiction, death, and overdose from those substances. 

The afternoon returned us to the COVID-19 topic, In retrospect and reflection, but also in prediction. The panel included: risk and medical director of Albertsons, Denise Algire; the executive director of a construction organization - CISCO, Dan Allen; the regional medical director of Liberty Mutual, Craig Ross; and, Sebastian Negrusa of WCRI moderating. I always enjoy hearing Ms. Algire's perspective, she is insightful and direct. Mr. Allen was as direct and focused. And the medical perspectives from the overview perch of Dr. Allen brought a certain clarity of perspective that was compelling.

They strove to address the impact of workplace mandates in the midst of the last 24 months, the changes and challenges of workplace injuries, delivery of medical care, and the emotional considerations as workers return to normalcy following virtuality, lockdown, and isolation. The persistent challenges of vaccine mandates in the workplace also received some attention, and that particularly seemed future focused - "how can employees be better supported emotionally." 

There was significant discussion of the "long COVID." I have been discussing this for some time. See COVID-19 in Comp October Update (October 2020). The medical implications of this virus are still unknown. There was discussion of various medical studies that are foreshadowing the potential for many long-term implications and complications of this virus that will stretch on for years perhaps. Comments came even from the audience regarding the health effects of this; there is some consensus that this is not over in terms of overall impact. 

The suggestion seems to support that illness and impact will persist and thus there will be costs for workers' compensation to bear. The afternoon panel reiterated some of those concerns, though perhaps less directly. But, the most compelling element of the afternoon discussion was the flexibility that may be required with return-to- work for those who even have an option. In that vein, there was reminder of the fact that grocery store/supply chain workers cannot telecommute any more than construction workers or truck drivers. See You are Essential (March 2020).

There was a seeming consensus that return-to-work, for those who "went virtual" in the midst of the pandemic, will be challenging. This is challenging for those of us that never went virtual. Among office workers, I often get the feeling that perhaps only a very few of us remained at the office throughout. As an aside, the Florida OJCC never closed, never faltered, and never failed. I am immensely proud of that team and the various judges that lead its districts and divisions. We really never missed a beat, though we were never perfect. See, When we Return (May 2020). I am privileged to work with such a motivated, dedicated, and outstanding group of professionals. 

But, the panel voiced the conclusion that some will never return to the office environment, and that a fair few more will be desirous of an ongoing hybrid environment. If for no other reason than the price of gasoline, but I digress. The hybrid issues are not new to these pages. See Evolving Work Challenges (January 2022). There is also discussion of the emotional state of the American worker. This panel stressed that issues such as the "Great Resignation" (October 2021) are impacting the workplace, placing stress on the employees that remain, and these implications need to be factored into the challenges of work, management, and employee care (care for them or fail to retain them and their skills). 

There is much curiosity of the challenges that telecommuting and virtual work create, foster, and perhaps enable. There are questions raised about the "going and coming rule" in workers' compensation when the office is one room down the hall instead of across town. The panel discussed the potentials for more repetitive trauma injuries and ergonomic claims. One panelist mentioned efforts to easily afford the telecommuting worker with devices and equipment to facilitate the worker's effectiveness, health, and injury prevention. How many employers are thinking forward in this vein about preventing injury and accommodating the challenges of home-work? How many employees are struggling along on their kitchen table top?

In all, Wednesday was an informative and invigorating discussion. However, in fairness, Thursday is the real point of the whole show. The final panel, in case you missed it above, will be our discussion of the 1972 National Commission Report. In my heart, I am certain that is what the crowds are really here for, and I sympathize with their impatience and anticipation (sarcasm, our panel will be interesting to be sure, but it is merely the dolce, following a great workers' compensation feast). We will end the show with a flourish or with a whimper, hopefully reminding the crowd again of the real point of all we do: employers and their employees. 

In just 12 months, the WCRI will likely be right back here for yet another (its 39th) annual conference. The audience is always engaged and engaging, the information always enriching, and the experience always rewarding. And, if you get the chance, the food in Boston is outstanding. Just sayin'.

Tuesday, March 15, 2022

Friends, Romans, countrymen, lend me your ears

I did not make up that title folks. That is a direct quote from Marc Antony's speech in Julius Caesar, by Billy Shakespeare (or whomever wrote those great works). He goes on to note a bit ominously that "I come to bury Caesar, not to praise him." And, yet, praise him Marc does, carefully and methodically (while denying he is). He admits, that "Brutus says Caesar was ambitious," as if that might be derogatory, and praises Brutus as a "honorable man." There you have it in parallel. I come perhaps not to praise, and yet I will. Is the praise as sincere as directed at Brutus, or better? I too note that there has been ambition, and I question if that is really a bad thing. Let's dive in.

This week, the Workers' Compensation Research Institute (WCRI) hosts its 38th Annual Issues and Research Conference in Boston. This conference is a great destination for the actuarially inclined. There will be analysis, statistics, and evidence. But, for each of us, the program includes much more than numerical and trend analysis. There will be other items such as COVID-19 disruption with Robert Hartwig (he never disappoints), effects of provider consolidation with Bogdan Savych, and the Future of the Workplace with Denise Algire along with an intriguing panel. In all, a well-rounded program with something for all of the workers' compensation community.

The program concludes Thursday just before lunchtime with a panel dedicated to the Report of the (1972) National Commission on State Workmen's Compensation Laws. John Ruser (WCRI CEO) will navigate a panel with Alan Pierce (attorney), Bruce Wood (attorney), and yours truly (reformed attorney), with perspectives on this document. As I write this, I wonder whether it is this document or the Commission to which I address my Shakespearean references. Perhaps I "come to bury" the report, not to praise it. 

When I think of the National Commission Report, I think of ambition. What a project to undertake, in a two-year time frame! I have studied workers' compensation for decades and would find such an undertaking monumental. Notably, Congress directed the scope of inquiry, which was a benefit in any such undertaking. I find items in that tome to praise, but also find room for criticism. In fairness, the report was written by a group that was not very diverse in terms of gender, race, industry, occupation, and more. 

The report was written when the AMA Guides were in their infancy, as was the idea of federalized workplace safety, OSHA. The report has been criticized as coming from the perspective perhaps of too many academics, only large employers (2), lawyers (45% of Commissioners), and the usual higher learning institutions. Some have criticized that no service sector or professional employers were involved. Of course, the concept of employee leasing did not exist in that era. Others have noted the involvement of vested interests, and perusal of the Commission members is a worthy consideration whether you share that perspective or not. More still have criticized that the only representation of workers was two AFL/CIO Directors. To have a national conversation on workers' compensation and involve no injured workers seems strange. 

If none of that persuades or dissuades you, the report was written in 1972, during the Nixon administration. There was no "gig" economy and no Internet (though they did hook some computers together in 1969, according to Britannica). People back then belonged to unions more than they do now (a lot). Americans were more apt to work in manufacturing than they do now. There was no Americans with Disabilities Act, no Family Medical Leave Act, and even the ground-breaking Title VII of the Civil Rights Act of 1964 was not even a decade old. 

WalMart was just a decade old in 1972, with 51 stores. There was no social media, Amazon, Tesla, personal computers, robotics (well very little), artificial intelligence, cell phones or apps. The first human had just recently been to the moon and the CT scan had been invented, but not widely deployed. At that time, no one had yet been in a magnetic resonance imaging (MRI) machine. The rest of that decade brought the first vaccines against measles, chickenpox, pneumonia, and meningitis. It was a time  of great progress in science. But, perhaps I come not to praise the 1970s, but to bury them. 

In short, it seems it was a different era. The United State's competitive place in the word market had not really been challenged. It was a time in which people proudly owned an American made televisions, stereos, or even cars. I recall neighbors being critical of those who purchased German or Japanese cars. There was often derision of many foreign-made items. There had as yet been no North American Free Trade Agreement, nor any of the complaints or accusations regarding off-shoring of jobs. The ideas of on-demand inventory and "just in time" were alien. It was 50 years ago, and simply stated it was a different age. 

History delivered the intrepid Commissioners to a moment, and they worked mightily to deliver a set of recommendations on sixteen subjects that were dictated by the 1970 Act. They addressed those sixteen from the perspective of "five major objectives: "Broad coverage of employees and work-related injuries, substantial protection against interruption of income, provision of sufficient medical care, encouragement of safety, and an effective system for delivery."  I come not to praise the Commission, and yet I admire it for its ambition, drive, and speed (20 meetings and a voluminous report in only two years from the call to study). 

Anyone that labors in this industry, and hears the periodic threat of federalization, should really take the time to read the whole report. For more on Federalization, see A Move Towards Federal Influence (June 2017), and Is Federalization in the Wind (October 2021). The Commission Report is available on John Burton's website. Professor Burton chaired the Commission back in 1972, and is rumored to be the sole surviving member. Our discussion Thursday will begin with a video clip in which he discusses the report, that effort, and the goals and perspectives that came to the table. Whether one agrees with various views, he is uncontestably one of the very few who have truly studied the phenomenon of workers' compensation.  

Without a doubt, workers' compensation had its critics in 1972. In fairness, it has its critics today. A great many point to the Commission Report as evidence of lethargy in the great socialization, lamenting that each and every recommendation has not been embraced and ensconced. But, an objective eye will likely see that much has been embraced. Calculations of benefits are more generous and uniform today. Interaction of programs with others like Social Security are more uniform today. The delivery of medical care is exceptional today, and in many instances more so than non-work injuries receive through health insurance. 

Admitting, again, that there is much to study in those recommendations, and much to praise, it is possible that the conclusions of that group "a long time ago, in a galaxy far, far away" are today a bit dated, a bit disconnected from the world in which we live, work, and struggle. (quote is from Star Wars, Lucasfilm, which had coincidentally also not been seen in 1972). In that vein, any analysis of the Report must acknowledge that there has been great change in the half-century and much of it traces roots to the Report. Whether the progress is or is not "enough," is best left to the reader. But, criticizing the states for not uniformly and universally adopting those recommendations is likely a bit harsh. 

That all said, we must learn from history. There is a benefit to study of the evolution of our society generally, and workers' compensation deserves our attention.  

Some critical foundational points bear mentioning. It is impractical to review everything in the report here. It provides over 100 pages of information, recommendations, and observations. 

First, the National Commission was enabled by the same law that created OSHA, the Occupational Safety and Health Act of 1970. The statistics cited in the report itself regarding workplace safety support that we have come light years in the last 50 years. Workplace death had decreased, as has the frequency of workplace injury, according to the Bureau of Labor Statistics (the frequency chart is a must see). While too many continue to suffer injury or death, the progress is nothing short of astounding.

Second, the Commission Report notes that the "distinguishing feature of workmen's compensation is that it assures benefits for many who could not win suits for damages under the common law." To prevail in such a suit, one must prove fault or negligence. Commission Report, Chapter 1. It notes later in that chapter that when proof of negligence was required, "the ability of an injured workman to win a claim against his employer was minimal" in the nineteenth century. That challenge largely drove the passage of workers' compensation laws. 

Things did not improve markedly by "the opening of the 20th century," when "shortcomings" remained regarding such legal claims. The Report says that the legal "system was wasteful, partially because of high legal costs." Elimination of "wasteful litigation" was a prime driver in the evolution of workers' compensation. The Commission concede the Constitutional guarantees of due process, but contend that "the constitutional limitations of due process have little or no relevance to workers' compensation." An intriguing observation to say the least. Some would also find irony in the "wasteful litigation" perception of tort that drove us to workers' compensation. 

Third, as to coverage, there is criticism of these workers' compensation systems, but perhaps we should see praise instead? The report noted that 85% of American workers were covered by workers' compensation (Introduction and Summary). In 1972, the vast majority of workers had this safety net beneath them. These state systems had provided an imperfect and sometimes convoluted process of recovery available to 85% of workers, and were criticized because it was only 85%. The Commission was critical of a solid "B" grade, and is to be admired for its advocacy of greater coverage; however, a solid "B" is a B nonetheless and thus workers' compensation was even then a great success compared to the eras of virtually no recovery for the injured workers of this country. 

The Commission starts from some interesting foundations. 

It notes that 

"The basic purpose of workmen's compensation is to protect the employee."  Thus, the Commission endorsed a "traditional practice of resolving doubts in favor of the employee." Despite this, the Commission concluded that "we do not believe that workmen's compensation should be converted into a general insurance scheme." Commission Report, Chapter 2.

This perhaps deserves criticism. The basic purpose of these systems is to provide benefits mutually to both employers and employees in exchange for mutual renunciation of rights. To say that the purpose more favors one or the other side of the equation is unfounded, and some would argue potentially demonstrates a bias of perspective.  

Despite its mention of not advocating evolution to "general insurance," in its advocacy for full coverage of all employees, the Commission suggested that all homeowner's insurance policies include a provision for "workmen's compensation protection" so that any domestic employee injuries would be covered (the report specifically mentions babysitters). Commission Report, Chapter 2. Perhaps, in the 1970s, more households engaged domestic help than we see today? Or, perhaps I do not comprehend how many of you have such domestic assistance in your homes. 

The Commission advocated strongly for "second injury" funds. These were seen as critical in its analysis. These funds were to encourage employers to hire those with existing physical challenges through reimbursements for part of workers' compensation benefits paid in the event of an accident. These existed in many states, but fell out of vogue with the passage of the Americans with Disabilities Act and similar legislation. If employers were forced to hire, some saw less use of incentives to hire. Notably, one of the Commissioners was deeply involved in "Second Injury Funds."

The Commission is also noted to have observed that "In no other social insurance program, such as social security or unemployment compensation, did workers surrender any right of value in exchange for benefits." Commission Report, Chapter 1. However, one might as readily note that in no other program did employers surrender any right of value either. The Commission's focus here, again, is on the employee. Whether that evidences bias or is mere hyperbole is left to the reader. Regardless, the focus would perhaps be better on balance, a recognition that employers need employees just as employees need a place to work? Symbiosis and balance may be critical, and the "basic purpose" may be to balance each so that both may prosper?

There is criticism by the Commission of the manner in which high-earning employees see their benefits more constricted through processes such as the maximum compensation rate. The Commission was, however, "not totally unsympathetic" with a "philosophy (that) justifies income redistribution at the expense of high-wage workers." Commission Report, Chapter 1. Thus, in support of minimum benefits for some, the Commissioners were willing to concede some acquiescence in the socialistic tone of "From each according to his ability, to each according to his needs," Karl Marx, Critique of the Gotha Program. In this, perhaps there is more Commission recognition of the needs of the lower wage earner than there is of equity in the broadest context. Remember "if you prick us, do we not bleed" (The Merchant of Venice, Billy Shakespeare). 

Continuing that social theme, the Commission argued that "workmen's compensation benefits should not be tied solely to lost remuneration." Commission Report, Chapter 1. The tenor of that discussion is one of equity and fairness. From the foundation of a social safety net that replaces wages in the event of a work injury, the Commission evolves periodically to more socialistic suggestions of levelled support and benefits. There are suggestions that post-work-injury benefits might well be more robust and focused on the worker's need instead of wage replacement (assuming the pre-injury wage was insufficient or "below poverty" and that this replacement system should thus augment earnings to address such societal inequities that are not related to the work, the injury, or even the employer). 

The Commission periodically eschews the concept of balancing the relationship of the Grand Bargain. It acknowledged costs, but noted in one section "Arguments concerning the proper allocation of the costs should not be permitted to thwart the achievement of these primary objectives" (coverage of all workers). Commission Report, Chapter 2. This, unfortunately, may seem to some to have a tone of Farragut's "damn the torpedoes" or perhaps even Aiken's "don't confuse me with the facts, my mind is made up." This is, after all, a conglomeration of state systems that embody mutual renunciation of rights. The costs of work accidents should be borne by the industry that causes them, or more pertinently by the customers and consumers of that industry. However, the costs are necessarily a matter about which consideration and analysis must occur.

The Commission also noted that there are challenges in law drafting and that consistency is a challenge. In one segment it noted "arising out of and in the course and scope of" constraints were seen as lacking uniformity, "but we believe it is impossible to devise a tidy rule which will end the controversies." Commission Report, Chapter 2. The fact is that nothing is impossible, and perhaps "tidy" is in the eye of the beholder? In the end, in any balancing, there will likely be anecdotal outcomes in any system of legality that challenge our individual or collective perceptions of "fair" or "just." The more tidy the rule or law, the more likely that it will lack exceptions for the situations that are truly exceptional. The less discretion for the judge, the more likely untoward outcomes. The Commission notes that some degree of judicial sympathy perhaps drove outcomes in workers' compensation in the 1970s. Should sympathy or the law determine whether benefits are due? Sympathy for whom?

In the end, I go to Boston not to Praise the Commission. I see no reason, conversely, to bury the Commission or its report. Both are history, reference, and guidance. I see value in study of the conclusions and findings, though also harbor some sympathy for the criticisms some voice. The analyses of this report and this effort should be unbiased and objective. The contribution of the Commission in starting the grand conversation should be noted and appreciated. We should continue the conversation and remain introspective.

However, the world has changed more than a bit since 1972. The Commission's advocacy for nationwide uniformity in order to prevent competitiveness among states largely ignores the great off-shoring of jobs. America competes today in a market of global competition in which a great many countries offer workers far less (if any) protection against injury and illness. Can the goal be anything short of just compensation for injury? I would posit that the answer to this is a resounding "no." However, in our critique and criticism, we must view workers' compensation through the prism of today's worker, today's industry, today's technology, and not become entranced with the observations of another era, long passed. 

I come to Boston to discuss and consider. Is there value in the National Commission Report beyond historical reference? Is there value in a new National Commission? If one were to be named, could it be more diverse in perspective, more practical in its approach, and more willing to acknowledge the fantastic progress and benefit that a century of workers' compensation has brought to both the American worker and employer? I hope to hear your thoughts on these questions.