Thursday, April 28, 2022

Happy Memorial Day

I am not a veteran, though I have the utmost respect for those who have (and do) served this country. I have known my share over the years, and have reflected even upon those whom I never met. I recognize that many have suffered and many were lost. See Remembrance (September 2021). I am beholden to those who have made the life we live possible.

Long before my birth, in another age, there was a conflict on this continent that remains deeply ingrained to this day in all that is America. There is oft disagreement about the Civil War, and those who fought it. There are many perspectives upon the causes of war, and the perspectives that contributed to it. However, death in any instance is troubling, even when women and men are ordered into battle for a cause or supposed cause one does not fully understand or with which one does not agree. History is replete with evidence of such deaths in battles. 

The aftermath of such conflict is inevitably sorrow, remorse, and reflection. According to the Constitution Center, our American Memorial Day began when "On May 5, 1868, an organization of Union army veterans," called the "Grand Army of the Republic (GAR)":
"established Decoration Day as a time for the nation to decorate the graves of the war dead with flowers. Maj. Gen. John A. Logan declared it should be May 30. It is believed the date was chosen because flowers would be in bloom all over the country."
On that first recognition of "Decoration Day," a congressman spoke at Arlington Cemetery, and noted:
“We do not know one promise these men made, one pledge they gave, one word they spoke; but we do know they summed up and perfected, by one supreme act, the highest virtues of men and citizens. For love of country they accepted death, and thus resolved all doubts, and made immortal their patriotism and their virtue.”
The Constitution Center goes on to explain that despite this 1868 GAR recognition, some communities had been recognizing those sacrifices as early as 1866 with flowers and "similar ceremonies." Then "Decoration Day" became a "Federal holiday in 1938," with emphasis on those who passed in "The Great War," which was also labelled the "War to End all Wars" (which, I might remind it was not). Then, the "name 'Memorial Day' became more commonplace after World War II," and that name was not eventually "officially adopt(ed) . . . until 1967." So, for the past 50 some years since, we have celebrated Memorial Day on the last Monday in May.

I know, it is not May yet. Stick with me for a few paragraphs on why I am wishing you Happy Memorial Day today.

This is a blog about workers' compensation, which has few parallels to the service of members of the armed forces (my job could become dangerous, but the purpose of a soldier's job is inherently dangerous). But one congruity bears mentioning. Albeit in smaller numbers than in the human conflicts of forces, great and small, people die in occupational settings every day. As the Occupational Safety and Health Administration (OSHA) reminds, "Dying Shouldn't be Part of the Job," and "Safety is Every Workers' Right." Thus, a second "Memorial Day" has been established and observed each April 28 - Workers Memorial Day. Its history is much shorter, attributed to an initial effort of the AFL/CIO in 1989, not yet 50 years ago.  

Are those who die on the job any less meritorious than those who die in military service? I would suggest that there are differences, but I would also suggest that those people likewise "by one supreme act" similarly merit our recognition and appreciation. They went to work as we all do, and by some circumstance or happenstance they did not come home. Some because of violence. You must read Ms. LaVoie's recent post The Day My Husband Didn't Come Home from Work (April 2022). But many are instead by accident, inattention, and happenstance. Most, however, are largely preventable or at least capable of precaution and care.

The Bureau of Labor Statistics (BLS) noted that 4,764 workplace deaths occurred in 2020. That is the lowest total since 2013, and equates to a death about every two hours of every day. That is all day, every day, year round. That number is thankfully lower than what we have seen historically. The Economic History Association documents the notable improvements we have seen as this country has maintained focus on workplace safety, implemented workers' compensation, and improved working conditions. BLS provides extensive detail in this regard:

The preceding chart from the Centers for Disease Control demonstrate the improvements over a 15 year period beginning in 1980. The chart below illustrates the change in workplace injuries more broadly and over a longer period, beginning coincidentally with the passage of the Occupational Safety and Health Act in 1972 (which included the focus on workers' compensation, see Friends, Romans, Countrymen Lend me your ears (March 2022). There was a renewed focus on workplace safety in the 1970s and despite much for which we can criticize the OSHA and the National Commission on State Workers' Compensation, the decrease in workplace injury and death is marked, notable, and certainly welcome.

All that said, there remains room for improvement. Though 2020 saw decrease in workplace death, and a notable valley ("lowest annual number since 2013"), 4,764 people nonetheless died at work in 2020. The leading cause was motor vehicle accidents, accounting for 37.3 percent of the total, 1,778 fatal injuries. It is also worth noting that 259 of those deaths were workplace suicides, a reminder of the challenges of mental health services and workplace resources. Other leading contributors to the total were workplace violence and "exposure to harmful substances or environments." In short, there are various issues with which an employer might yet be validly concerned; in the same vein, employees might do well to also take note. 

In the end, there will likely always be room for improvement in workplace safety. The focus that has been brought to bear in the last 50 years is laudable, as are these improvements regarding the occurrence of accidents and death. But, there remains work to do, focus to bring, and attention to pay. The point of April 28 is to remember those who have died, who "made immortal their patriotism and their virtue,” perhaps not in the same manner as those who defend us (or perhaps in precisely that way as regards police, fire, and some others). It is to remind us that "Dying Shouldn't be Part of the Job." It is to remind us that workers' compensation plays a significant and vital role in workplace safety and that all workers benefit from its presence, persistence, and protections. We should be thankful for all workers, and the sacrifices that too often occur. 

Happy Workers Memorial Day America! And, as a character made famous on a television show decades ago, "let's be careful out there." (Hill Street Blues, MTM Enterprises, 1981-1987).

Tuesday, April 26, 2022

The 1918 Flu in the News

We have recently lived through the pandemic of our times. Although there is the potential for future challenges that have similarities to SARS-CoV-2 and COVID-19, it is unlikely that many of us living today will be around to remember this when the next challenge comes along. We have seen a great deal of mistake and misstep in this instance, and reflection is perhaps a worthy use of a few moments.

Beginning in March 2020, we were unequivocally told much about this virus, experts provided the government with advice and we were exposed to their predictions and prognostications in the news. For example, we were told not to wear masks, and later told absolutely to wear masks. That debate even included then U.S. Surgeon General Jerome Adams. See Show me the Science (September 2021). We were told it was not airborne, and then eventually that it was (is). Two years after it first appeared in America (they think), there are various mysteries that remain for investigation despite all we have been told. 

Some of the contradiction and policy decision making was perhaps not based on science. We saw wholesale lockdowns, shutdowns, reactions, and precautions, all largely based on consensus, fear, and perhaps an overabundance of caution. The caution was perhaps driven by the potential for widespread death. Let's face it, the potential for millions dead was a very scary proposition in March 2020, and the reality of the deaths now experienced remains sobering. In discussing the science, it is notable that the source of SARS-CoV-2 was not unequivocally identified, and the exact path that led it to human infection remains unclear today. Two years since our first infections and we don't yet definitively know the source. 

When the miracle occurred, See The Future's So Bright (February 2021), I reminisced at the many scientists that had found the potential for a vaccine within a single year after infection began to be fanciful and doubtful. But, in less than a year, there was a vaccine (to be fair, there was more than one). Those scientists that doubted it were wrong. Public statements by so-called experts and scientists (opinion, without data) about the vaccine effort and its rapidity were possibly responsible for various people's reluctance to accept the vaccination when it did become available. Despite those public opinions, in the first year after the vaccine debuted, "over 200 million Americans, just over 60% of the population, had been fully vaccinated," according to CNBC.

Science, in its real terms of hypothesis, testing, and conclusions, has really only just begun to address many of our COVID questions. This was illustrated recently in a great program produced by ACOEM regarding "Long COVID," a reference to the ongoing symptomatology and complaints of those who have recovered from the infection but continue to suffer. To a person, those experts noted that there remains much to learn and that studies and proofs are only just beginning to bring data. Those symptom challenges will likely be a part of our national health considerations for many years to come, and as such will be part of workers' compensation and the tens of thousands of already accepted workers' compensation COVID-19 claims.

Throughout the pandemic, there have been those who drew parallels to the 1918 influenza pandemic. I referenced it in Occupational Disease and the 1918 Flu (July 2020). It is mentioned again in West Nile Disease in Comp (August 2020), and yet again in Disease and Causation (February 2022). There are some parallels in terms of both disease and workers' compensation implications. However, as the data is accumulated, it appears that there may be valid parallels to draw regarding other pandemics as well. 

And, it turns out, that sometimes the challenges of our natural world can be beyond the present ability of science to grasp and explain. The Microsoft Network recently published a critique on the 1918 scientific reactions, and illustrated the dangers of consensus among the scientific community. The article is titled The 1918 pandemic mistake that changed medicine forever.

This describes a "bacteriologist named Richard Pfeiffer" and his error of 1892. He, and other scientists, did not then grasp that the flu resulted from a virus (there were things science did not then know). Researching the "suite of infectious respiratory symptoms" then referred to as flu, this scientist/researcher then connected the disease instead to "a new bacterium in 1893."

Through a series of experiments on "31 patients who had died in the flu pandemic of 1889-90," Pfeifffer "discovered a new type of bacterium," "bacterium Bacillus influenzae" (which became in common parlance "Pfeiffer's Bacillus"). He concluded that this was "the exciting causes of influenza.” The article noted this scientist's stature and standing, and noted "his stature was such that people readily believed him." (side note, Society is often impressed with consensus of physicians, or dentists or others). 

When the 1918 flu later struck, "multiple groups developed and administered vaccines" which were often "based on the assumption that . . . bacillus caused the disease." There was, it seems, some degree of consensus among the experts regarding what they were dealing with and how best to proceed. This included "then-U.S. Surgeon General Rupert Blue" (see also, above, re other surgeon general in 2020). Those vaccines, of course, did not prevent the flu. However, the article notes some remaining consensus that various other infections were perhaps prevented by those injections, and thus "reduced deaths from secondary infections." They did not, however, stop the flu virus.

The article notes that the story of this German scientist of such stature is "a potent reminder of the challenges scientists face when a novel microscopic threat emerges." In 1918-19 "tens of millions were dead across the globe," and both cause and mechanism still largely eluded science. However, some degree of consensus drove the response nonetheless. It was decades ("roughly 40 years") before "scientists eventually discovered the viral strain that caused the 1918 pandemic." Those many vaccinations then, based upon the bacterium theory, were largely mistakes. Mistakes in which seemingly wide swaths of the era's scientists engaged through the consensus, or "group think," of the moment. See Consensus in the Absence of Proof (January 2021). 

The article notes that "the scientists" at that time “were very thoughtful, smart, hard-working people, doing their very best, using their knowledge base and their technology.” However, their collective efforts aptly demonstrated that science had not fully grasped the threat with which humanity was confronted, and consensus proved a poor substitute for science. However, their work undoubtedly led to new treatments for other diseases, hastened the formation of national and global public health institutions, and left us better prepared to deal with modern pandemics, including COVID-19.

The scientists in 1919 continued to research. They collected pathology samples and did examinations and experiments. They identified the so called "Pfeiffer's bacillus" in some samples, but larger "teeming colonies of Streptococcus, Pneumococcus, and Staphylococcus aureus." They also found the "Pfeiffer's bacillus" in the lungs of "many healthy people" and were troubled by that incongruity. 

They performed tests by "spray(ing) a pure culture of Pfeiffer’s bacillus into volunteers’ noses," but they did not become ill. And, experiments continued, became bolder. Despite various exposures to the "Pfeiffer's bacillus," the article notes "no one got sick." This direct exposure experiment process is called "human challenge" and it has begun anew with COVID-19, as reported by Reuters. In that article, note how many similarly intentionally-infected subjects did not contract COVID-19 (47%). Note that. Some people do not contract COVID-19 when they are intentionally, directly, and completely exposed. Might we still have things to learn?

One of those studying and experimenting in 1919 later reflected that “We entered the outbreak with a notion that we knew the cause of the disease. Perhaps, if we have learned anything, it is that we are not quite sure what we know.” Perhaps, that caution remains yet today as we face new challenges? There is room for experimentation, gathering of real data, and study.

The bacteria and the flu were studied for years after "Flu deaths finally returned to pre-pandemic levels in 1921." Science worked on the potential causes, and focused still on this bacillus. In 1933 researchers began to focus strongly on a virus. It would not be until 2005 that science would determine conclusively "the deadly strain that caused the 1918 pandemic . . . was H1N1, and it had leapt from birds to humans." Over 80 years of work and science were needed for somewhat definitive answers on H1N1. 

That H1N1 flu killed "At least 50 million people . . . in 1918." It evolved to an endemic state and has since killed "tens of millions of people" more.  MSN notes that science method has improved in the century since. In 1918, there were "no standardized methods of research or testing, virtually no peer review, and no common protocols for clinical trials." Our evolution since then has included better communication and critical thinking, guidelines for trials, even the establishment of National Institutes of Health, and global efforts through the World Health Organization.

And progress continues. A 2005 paper suggested that neither H1N1 or SARS-CoV-2 was the first virus to "leap" from one species to another. There is study now to determine if a coronavirus "leapt from cows to people" in 1890 when Pfeiffer was studying the bacillus. There are symptom similarities cited between the 1890 event and COVID-19 ("including the loss of taste and smell, seizures, and long recovery periods"). Some therefore now wonder if "the 1889 pandemic was not caused by a flu virus at all, but by the CO43 coronavirus." Maybe humans have lived through other coronavirus "leaps?" Science, it seems, does not have all the answers, and in some instances perhaps even struggles with finding the questions (whether that event was a coronavirus is only now being considered over 100 years later).

The MSN article cites one scientist explaining that "it’s a modern mistake to think the researchers working during past pandemics were missing the obvious." Instead, the point is that much remains unknown, even now. He contends that even today
"we’re still in the dark about some aspects of COVID-19, including its origins, its long-term impacts on the body, and its ultimate evolutionary trajectory."
He contends that in another century, "there are definitely going to be insights that should have been quote-unquote ‘obvious’ to us now." And, he reminds us "that’s the way of science.” It is not exact, all encompassing, and conclusory. Science is evolving and developing. There are new discoveries, theories, and proofs. Despite the inclination to blindly and obediently "follow the science," and its best consensus of today, perhaps the better course is to challenge the science and seek further discovery and illumination? If not, we might still be treating the flu virus as a bacillus and how many more millions might continue to suffer without the now ubiquitous influenza vaccines that evolved from better study and focus?

The science has admirable moments. The miracles of vaccination and prevention are clear. But, the consensus of the moment can be wrong, has been wrong, and time will be required to validate or disprove that to which consensus leaps.  


Sunday, April 24, 2022

Medical Excuse

We are each a conglomeration of many factors. On a given day, I might be hitting on all cylinders and pushing the envelope. Yet, on another day it is possible that I might be tired, irritable, anxious, and a myriad of other emotional states all rolled into one. Bill Gates has said
"The human body is the most complex system ever created. The more we learn about it, the more appreciation we have about what a rich system it is."
And, he has dealt with some reasonably complex systems and challenges over the years. One source concluded that our bodies "contain() around 37 billion cells," and that therefore "there were about 37 billion billion (37 x 21 zeros) chemical reactions, taking place every second." Yes, we are complex in our physical composition, and all those little cells are acting and reacting nearly constantly.

Is it any wonder that sometimes "you are not you" for whatever reason? Or, perhaps you are are you at a given moment despite perhaps wishing no one would notice your behavior?

News 5 Cleveland last year reported Board recommends 2-year suspension for judge for misconduct. The Board is the Ohio Board of Professional Conduct, which appears to be similar to the Florida Qualifications Commission. The recommended suspension is a very significant period of time. Of equal note, however, the judge is accused of "over 100 serious incidents of misconduct over the last two years." This is detailed in "a 58-page report filed with the Supreme Court of Ohio."

The Board accused the judge of violations that are within the broad categories of: "issuance Capiases and False Statements," "Ex Parte Communications, Improper Plea Bargaining, Arbitrary Dispositions," "Improper use of Capiases and Bond to Compel Payment of Fines and Court Costs," "Public Confidence, Lack of Decorum and Dignity Consistent with Judicial Office," and "Abuse of Contempt Power and Failure to Recuse."

The allegations include persistent conduct of proceedings after the pandemic lockdown began. The judge is said to have refused to continue or "reschedule her cases and issued warrants for defendants who failed to appear." The article is quick to point out that the "administrative order" which was violated "was designed to ensure the safety of the public and the court’s personnel during the pandemic.” In addition, the Board alleged that the judge "lied about it to the press and to the presiding and administrative judge of her court."

The Board also accuses the judge of "routinely conducting hearings without the prosecutor present," and of "recommend(ing) pleas to unrepresented defendants with no prosecutor present." The absence of all parties is a clear warning that ex parte may be at least perceived, even in the best of circumstances. See Judicial Behavior and Ex Parte (October 2015), Ex Parte Yet Again (September 2019). 

The crux of ex parte is that conversations and communications that include the judge (or in may instances even judicial staff), but do not include all the parties are problematic. They are sometimes unavoidable, because someone declines to attend despite receiving notice. However, in such instances, if everyone was provided notice (the opportunity to attend), the judge may still proceed. Such communications should always be on the record.

Beyond the process issues alleged above, the Ohio Board also found issues with “lack of decorum and dignity consistent with judicial office.” It alleged that the judge wore "inappropriate attire to the courtroom," including "tank tops, shorts, T-shirts and sneakers." It has been a rare "casual Friday" on which I might wear jeans and sneakers to the office, but even that level of informality is inappropriate in the hearing room. Proceedings should be dignified and shorts or t-shirts are simply not in that category absent some exigent circumstance or emergency. 

The informality of such attire, in the Ohio case, was also allegedly verbal. The judge is accused of making "frequent" references in which she compared herself to a character in a cable television series "about a Mississippi strip club," "joking about accepting bribes and kick-backs," and "suggesting ‘hook-ups’ as a quid pro quo for lenient treatment." 

Some of the allegations are somewhat salacious and the sheer volume of cited examples is troubling. One must remember that the Code of Judicial Conduct cautions against many behaviors specifically, but has a "catch all" of concern: avoiding appearances of impropriety. Canon 2. Thus, even if the intent and action is all absolutely honorable, the appearance created can nonetheless be troublesome. The multitude of allegations in this case certainly suggests an appearance of impropriety, even if some particular instances of casualness, dress, or decorum were justified by some excuse or circumstance. 

Back to the complexity of the human mind and body. In this case, the Judge's attorney plead medical excuse. Counsel explained that the alleged behavior was caused by "the effects of sleep apnea and menopause," and "presented expert testimony and a report from a clinical psychologist" to support the diagnosis of “Generalized Anxiety Disorder.” The news reported that the Board was somewhat critical of the expert's process and conclusions. In short, it was not persuaded by the medical excuse that essentially argued that our bodies can be complex and at times out of balance due to our sleep and other complications. 

The Ohio Supreme Court will decide the Judge's fate. In a recent hearing, there was additional indicia of skepticism about the medical excuse(s). According to Fox 8 News, one justice asked “how does sleep apnea or menopause contribute to lying?” It is practical to conclude that we are complex, and may each have an off day from time to time. It is possible for medical conditions to affect our persona and demeanor. However, the proof of that for a given instance may be required. That is, something beyond the allegation. As in all disputes, the candor and credibility of any expert opining on such a defense may likewise be an issue. 

It will be interesting to see if the Ohio Supreme Court finds the evidence in this case, with so many individual instances and allegations, to be compelling or persuasive. In their deliberations, one challenge will be similar to what workers' compensation judges face daily: how do described symptoms match with diagnosis and which experts are most credible in describing and explaining the complex issues of the human mind and body in that instance? Is the judge simply not herself due to some cause(s) or is there a generalized lack of comportment that merits this significant suspension?

Thursday, April 21, 2022

Technology Dream or Nightmare

Remember the vaccine folks that were convinced that the government was conspiring to track us all through the vaccine program? There were a multitude of references, but this CNBC story provides some interesting insight: Why the COVID vaccines can’t contain a tracking microchip or make you magnetic. Make me magnetic? There is some appeal to that one. Remember when I discovered I was becoming cooler? See Changes Getting Cooler (November 2020). To be both cool and magnetic? Outstanding! But, alas, CNBC says that at least the magnetic part is not to be.

Oh, we can all be tracked. That has been in the news recently. See Tech Stalking News (March 2022). It is note even that difficult, apparently. Of course, the idea of being tracked has been a long-time Hollywood trope. Shows like Person of Interest (CBS 2011-2016), Stalker (CBS 2014), and One Hour Photo (Silverlight 2002). Furthermore, with the advent and proliferation of digital cameras we are all being watched much more than we might expect. See Evolving Issues of Bodycams (July 2018)

I must spend an inordinate amount of time watching movies? Perhaps. Hollywood is fairly successful with showcasing tech, but it is perhaps no Jules Verne. One intriguing device was highlighted in Total Recall (the remake, Columbia 2012 - Think Colin Farrell instead of Arnold Schwarzenegger). It was a telephone circuit implanted in the hero's hand. To make a call, he simply used his hand. This would be very handy for us forgetful folks since it is difficult to walk away and absentmindedly leave your hand on: the desk, the bathroom vanity, kitchen cabinet, top of car, etc. etc. But, I digress; we are not quite to phone implants just yet. 

However, in December 2021 it was reported that a chip could be implanted in your hand that would validate your vaccination status. France24 reported that over 6,000 in Sweden had such an implant installed. The story had breadth, and was covered in domestic sources such as the Orlando Sentinel also. The cost of this convenience was apparently about €100 (that[s 100 Euros to you or me). This would perhaps be a great convenience if you were living in one of the world's repressive regimes, like Philadelphia, but of no value here in the free state of Florida. See Pandemic Regulation a World Away (September 2021). 

And more recently still, the British Broadcasting Corporation (BBC) reports that folks are having implants installed that are linked directly to their personal finances. Gone is the need for a "bank card or his mobile phone to pay" at a business. With such a chip, one merely waives that implanted hand "near the contactless card reader, and the payment goes through." Pretty convenient. You don't have to remember your wallet, or have your cell phone (picture climbing from the pool or the sea to saunter to the bar, ala James Bond, and ordering a Vodka Martini, shaken not stirred, with a wave of your hand.

Wonder and intrigue are my first reactions. One of the most intriguing points in the article is that this is not all that new. People have had these implants since 2019; however the microchip idea dates to the 1990s. This little (about "a grain of rice") includes the chip, an antenna, and requires no "battery, or other power source." The company marketing this has not reached the level of the Swedish COVID passport folks, but claims to have installed "more than 500 of the chips."

Webroot notes that all the banks claim their chips are encrypted, but that 
"it's been proven that scanners—either homemade or easily bought—can swipe the cardholder’s name and number. A cell-phone-sized RFID reader powered at 30 dBm (decibels per milliwatt) can pick up card information from 10 feet away."
Seemingly, if such a scanner can read your phone or credit card as you walk through the airport or mall, it could similarly read your implant perhaps? Wired suggests you turn off Bluetooth and and WiFi when you are not using it. There is some suggestion that you can loose private data that way. How do you turn off the communication capability of a grain of rice implanted in your hand? Or, am I just being paranoid?

Well, those marketing this chip claim that "the reading distance is limited by the small antenna" (in the rice-sized chip).  Perhaps. They contend that the reader would have to get very close to effect a connection. Perhaps. And, possibly, I am just too much of a cynic and this is all both inevitably coming and undeniably positive. Perhaps it is the precursor to a cool phone implanted in your hand just like Collin Ferrell's Douglas Quaid in Total Recall (again, the remake, I generally hate remakes, with much more action and CGI, no offense Arnold). 

The BBC acknowledges that chips are becoming increasingly rich with data, personal data. And, those chips might be a path into the vendor's (seller's) data systems in which even more personal information might reside. In all, the cyber world is one of great opportunity and efficiency, in which lurk a vast array of miscreants and ne'er do wells. 

In the end, as the BBC author notes poignantly, we are all choosing to sacrifice some degree of the safety of our personal data for some degree of convenience and and access. We will each make such choices, and be challenged by the evolving world of data, the miscreants and malcontents, and our own feelings of risk aversion. I hope you will join me at the WCI in August for a command performance of the Cyber-Security breakout and strive for a better understanding of the risks and benefits we are all weighing each day.

Maybe this whole chipping proposal is all just a dream, as Quaid's recollections of his visit to Mars turn out to be. Or, perhaps it is more apt to describe it as a nightmare worthy of avoidance? For now, color me skeptical and for now not interested in being chipped for any reason. But, perhaps "time changes everything," or so Bob Wills and Merle Haggard claim. 

Tuesday, April 19, 2022

Long Covid Seminar

The American College of Occupational and Environmental Medicine (ACOEM) hosted a free webinar (with excellent written materials) on April 13, 2022 regarding the topic of "Long-COVID." Readers may remember that I first explored that topic first in COVID-19 Regressive Impact (May 2020), in COVID-19 in Comp - October Update (October 2020), Always on my Mind (February 2021), and Mental Health (January 2022). "Long-COVID" was a potential I identified early and have studied and followed now for almost two years. That is noteworthy: we feel like it has been forever, but SARS-CoV-2 has been with us only about two years. See Happy Anniversary (March 2022).

Through it all, COVID has graced these pages. In 2020, that word appeared in over 35 posts (catalogued and linked in Florida COVID-19 Litigation September Update (September 2020). The COVID posts since September 2020 are catalogued and linked at the end of this post. It is fair that the virus, its disease process, and impacts to our world of work and workers' compensation have been on my mind periodically in the last 24 months. Perhaps there is some name for such attention (obsession?).

The ACOEM presentation was absolutely fascinating, and involved multiple experts: Kerri Wizner, MPH, CPH; Greg Vanichkachorn, MD, MPH, FACOEM; Kurt Hegmann, MD, MPH, FACOEM; Les Kertay, PhD; and William Niehaus, MD. This was certainly a who-is-who. The discussion was detailed, focused, and supported by multiple statistics and reports. Ultimately, I concluded one critical point: Long COVID it is complex and disheartening. Ancillary to that is the conclusion that it may be significantly subjective, and there is potential for emotional factors to play a role in patient perspectives.

The entire COVID-19 community experience, without even personally suffering any infection per se, has been notably emotional for some, likely many, potentially even most. I touched on our expectations and anxieties in Mental Health (January 2022) and Uncle Buck to Ray Kinsela (July 2021); Some poignant reactions to anxiety are also discussed in Is there Repair (April 2021). Long before the pandemic, I penned Can We Help Each Other (January 2014). There I suggested that we have no way of knowing what people are subjectively experiencing; emotions and pressures surround us, and recognition of that can go a long way in working through conflict and litigation. That was true before COVID, during COVID, and will persistently remain now that COVID is largely fading in our rear-view mirror. 

Thus, the ACOEM inclusion of emotional challenges is appropriate. The speakers noted that clinicians are documenting a litany of symptoms and complaints being reported by various patients. Common "Long-COVID" symptoms include fatigue (80%), respiratory (59%), neurological (59%) subjective cognitive impairments (45%) sleep disturbance 30%), and mental health (26%). It is fair to say that I am not a medical doctor, and have no formal medical training. In fact, I have never played a medical doctor on television, and have not even stayed at a Holiday Inn express recently. Despite that deficit in expertise, I was able to reach some solid conclusions.

First, the research and investigation of this virus' physiology has just begun. There are a multitude of scientists and practitioners that are gathering data. There are teams working on isolating various aspects of both virus and disease process for further study. There are research projects underway intended to lead to better understanding of various intricate portions of the viral process, impact, and recovery. In short, the time seems long, but we have only just begun to fight the battles regarding COVID.

Intriguingly, one set of data demonstrated that the average time between evaluation for “Long COVID“ and initial infection was about three months. In that data set, it was demonstrated that 63% of patients had returned to work in some form by the time they were evaluated. Only 46% had return to work “at baseline.“ In this population, 34% were experiencing impairments in the activities of daily living and 82% were experiencing impairment in the IADLS (Instrumental Activities of Daily Living (more complex). For a simple explanation of the distinctions between those two task lists, see ADLs v. IADLs: Understanding Daily Care in Assisted Living (September 2019).

Thus, as subjectively reported, there are significant volumes of patients experiencing notable deficits long after initial infection recovery. Dr. Vanichkachorn described a decision tree being used for evaluation of such complaints. This begins with a general evaluation and testing, with focus on things like vitamin levels, blood count, metabolic panel, and more. The second stage is "psychosocial support," followed by more "targeted evaluation." It is noteworthy that the emotional component is addressed immediately in this process (at least in the Mayo Clinic process described by Dr. Vanichkachorn).

Note here that we are discussing, largely, "subjectively reported" symptoms. There is not, as yet, a great deal of objective testing with which to verify symptom causation, that is to directly tie fatigue to infection (an example only). I am often fatigued and have never been infected with SARS-CoV-2. There is certainly coincidence (had COVID-19 and now has shortness of breath, fatigue, brain fog, or other complaints). There is certainly some consensus (lots of people who had the infection are voicing similar or identical ongoing current complaints). But, as to science, experiment, and study, there is still much to learn and we are only in the beginning of what will undoubtedly be thousands of studies, experiments, papers, journal articles, and presentations. 

The "targeted evaluation" discussed in the ACOEM presentation next brings focus to specific complaints or deficits. This is largely in cardiac, pulmonary, neurological, or psychological specialties. A variety of symptoms are considered, as is the potential causative factor(s) for each. One obvious conclusion from this spectrum of specialties is that the "Long COVID" is notably complex and the investigation potentially extensive (and expensive). The discussion included references to the breadth and depth of medical investigation that is invested in the treatment of "Long COVID," and it is extensive. The panel did not address how this impacts those of us with less than "Cadillac coverage," except the oblique acknowledgement that testing and investigation can be expensive and a patient's ability to pay may be a factor in any plan for remediation of "Long COVID." For the younger folks, there was a time in America when "Cadillac" was synonymous with the epitome of luxury and perhaps excess; the younger generations might instead use "Mercedes," "Lexus," or other adjectives instead. 

Dr. Les Kertay provided an interesting and informative perspective regarding mental health in the wake of COVID. He noted that anxiety is a normal reaction to uncertainty and stress. The rapid and unexpected arrival of COVID, the rapidly shifting societal and governmental reactions to COVID, the 24-hour new service with politicized perspectives, and the various uncertainties of disease, economic impact, social isolation, etc. are all probable contributors to some level of stress and anxiety. In short, he emphasized that the pandemic was and is a stressor even absent personal infection or symptoms. Upon that foundational, societal, stress is layered the additional personal experience of infection, recovery, family impact, and then the "Long COVID." Dr. Kertay cites various studies in support of the prevalence of anxiety and other emotional challenges. His perspective is refreshing, informative, and worthy of consideration.

Notably, studies were cited in support of various characteristics identified with increased risk of mental health symptoms: gender, age under 40, pre-existing mental or physical diagnoses, unemployment, being a student, frequent social media exposure," substance abuse, pre-existing obsessive compulsive disorder, and occupation (specifically noting "healthcare workers." This portion of the discussion reminds us we are individuals with challenges, needs, and emotions that are personal and subjective, if not completely unique. And, our individual reaction to stressors may be influenced by any number of pre-existing stressors, emotions, feelings, and predispositions (and the same could be said of ongoing, but similar, comorbidities). 

There were various mentions of the process of forming opinions about "Long COVID." Speakers lamented the present lack of numerous peer-reviewed quantitative, scientific studies. There seems a great reliance on scientific consensus at this stage of the investigation, care, and treatment. I have repeatedly noted the potential pitfalls of consensus, but have noted that in certain situations we are left with consensus as our only guide post. See Consensus in the Absence of Proof (January 2021). From the discussion in the ACOEM seminar, it appears that consensus will have to tide us over until we gain better chronological distance from the pandemic, as well as the corresponding greater chronological opportunity for the completion, review, and publication of more empirical and qualitative data. Undoubtedly, greater scientific proof or disproof is coming in time, but in the interim consensus reigns. 

This webinar and the accompanying slides are worthy of consideration and study. It includes questions, doubts, and conclusions. The personalities are amiable and the dialogue valuable. There is much presented regarding the accumulation of data, and some edification regarding better understanding a portion of the complaints and symptoms being presented, and being blamed on "Long COVID." 

As this pandemic evolves to endemic, and the world increasingly returns to normal (the plexiglass is disappearing at retailers this last few weeks), there will be challenges with the physical and emotional sequelae in its wake. We will all either face ongoing challenges from the SARS-CoV-2 virus or know someone that is. Those who must then makes decisions as to compensability, care, and impairment/disability will be faced with questions, challenges, and disputes. It is, indeed, an interesting time through which to live. Surreal at moments, frustrating, stressful, but interesting. 

Fifty plus (approx. 57) Prior COVID Posts:

Florida COVID-19 Litigation September Update (September 2020) - includes links to 25 other posts.

We're Back (October 2020)
Incidence or Prevalence (November 2020)
The Future is so Bright (February 2021)
Vaccination Tribulations (February 2021)
Catch a Cold (March 2021)
We're Really Back (April 2021)
Is there Repair (April 2021)
Vaccines and Movies (August 2021)
Show me the Science (September 2021)
Comorbidity of Obesity (October 2021)
Mental Health (January 2022)
Never COVID Cohort (February 2022)
Happy Anniversary (March 2022)

Sunday, April 17, 2022

We Are Hiring

A deadline nears on April 22, 2022. Actually, two deadlines near. In short, this organization is in a transition marked by various long-standing district offices ceasing. Counties are being relocated to other districts, workload is shifting, and it is an interesting and exciting time of change. That is likely unsettling for some. See Consolidation, Mediation, and Remuneration (March 2022) and Consolidation Plans (March 2022).

Two deadlines near, for applications as either judges of compensation claims (x3) or state mediators (x2). There are two judicial positions posted in Orlando and one in West Palm Beach. The two mediator positions are regional and there is potential for any of the state mediators to work remotely and provide mediation through the video Zoom platform; therefore, these positions might be in either Orlando, Tampa, St. Petersburg (Central Florida) or in the West Palm Beach, Ft. Lauderdale (South East Florida) areas.

It is new. It is different, and it is now. Early in my blogging career, I penned Baseball, Hot Dogs, Apple Pie and Chevrolet. (July 2013). There, I noted
"change is part of our lives. While we may find comfort in the way things were, or our perceptions of the way things have always been, the truth is that there are few constants in the world, and our industry."
In 2019, I penned The Experience on our Bench (December 2019), and noted the fluctuation we have seen regarding the cumulative experience of those who serve as adjudicators. This illustrates change and evolution in the makeup of the OJCC bench. 

We have seen some judges serve with astounding longevity. Alan Kuker served for ten terms, forty years. I know that seems unique, and it is indeed notable. However, Judge Daniel Lewis has recently been reappointed and has served since 1988. When he next faces reappointment in 2025, and hopefully he will then seek yet another term) he will have served 37 years. Longevity remains, and he may yet surpass the Judge Kuker record.

When last I looked, only about 21 JCCs have ever served in excess of 20 years. The history of this agency has been far more dominated by judges serving shorter careers here. That 21 includes Judges Lewis, Anderson, Medina-Shore, and Langham. Roughly 20% of the longest-serving (that 21) judges are on the OJCC bench today. This role can readily be a long-term career choice. A great many more judges serve ten years or more.   

The Governor's recent reappointments were very broad. Governor DeSantis reappointed 17 Judges in a single group. The vast majority of those recommended for reappointment were afforded another four year commitment. In short, the odds on reappointment and the opportunity for long-term service are outstanding. How many law firms provide the certainty and stability of providing someone a four year commitment? There is stability and continuity in the role of Judge of Compensation Claims and stability.

After years of languishing salaries, the Judges of Compensation Claims will enjoy a significant pay increase in 2022. The salary adjustment has been a long time coming, but the process is now in place for more regular attention to this detail. The pay will not equal that of County or Circuit judges, but the new $160,000 figure is significant and evidences the judge's service is valued and appreciated. Certainly, one would make more in private practice, but the bench is a calling, a service, and a privilege. There is value here. 

Challenge? There are challenges, daily challenges. The world is a complex place, and workers' compensation is an intricate and sometimes convoluted little corner of the world. The questions that we are confronted with are a tribute to the ingenuity and intellect of the amazing lawyers that practice in this niche. Every little nuance and conflict in the law, medicine, and employment are brought before us as the parties seek the outcome that their respective argument supports.

Disputes? There are many. Trials continue to occur, but the frequency is perhaps decreasing. More cases seem to be settling, and the focus of many seems to be on issues other than remediation, rehabilitation, retraining, and reemployment. It is possible that those issues are more likely to take care of themselves than in decades past, but it is also possible that settlement is the easier path out of conflict with some measure of money being the right answer for all involved.

However, disputes remain. Some of the smartest attorneys I know practice in this little corner of the law. They are creative and imaginative. They bring well-organized, complex, and detailed disputes to trial. Unfortunately, some lawyers periodically bring half-baked, ill-conceived, or poorly defined disputes (in regard to both claims and defenses). Each category requires exceptional judicial intellect, patience, research, and effort. This is a challenging job in which there is rarely a dull moment, and there are daily intellectual challenges. 

Change? The world is undoubtedly changing. The law is seemingly evolving. See It's not That the Wind is Blowin' (June 2021). The world of medicine is changing, as is the economy generally. The world of work is undergoing transformational change, as is the practice of law. The work and practice worlds are in the midst of new demands such as Zooming, telecommuting, management of remote staff and more presenting challenges. The world is changing; so is the OJCC. Not more or less, but changing. 

The fact is that this is a new and exciting time. It is a time in which the OJCC needs the best and the brightest in order to thrive. I am proud of the many judges with whom I have served in my tenure here. Admittedly, I have had some animated conversations with a some. I have disagreed about the law with a few. I have certainly perceived some to have had and easier time adjusting to this role than others, but similarly I have witnessed great efforts in adapting and adjusting to this role. As I pen this, it occurs to me that I have likely supervised or practiced before well over 100 of those that have served as Florida JCCs. But, that will be a great topic for another day.

This Role. It is at various times, in a nutshell, exciting, intriguing, challenging, changing, routine, surprising, exhilarating, vexing, and in a word wonderful. It is a great job, which multiple judges have noted is the best they have ever had. See Perspectives on Being a Judge (April 2015). Unlike the practice of law, in which one might be economically constrained as regards legal research, the Judge of Compensation Claims can follow threads in the law, solve puzzles, explain distinctions, and bring certainty to workers, employers, and the community at large. It is, in short, a calling. Will you answer?

The mediator role is no less challenging, intriguing, and complicated. Those who thrive on facilitating compromise, conversation, and solutions could likely find no better profession. The OJCC mediator is busy, challenged, and in many instances revered. Our mediators help thousands of people to determine their own outcomes every year. They face workdays that include those intriguing challenges, legal conflicts, and evidentiary dilemmas. They provide a service and value that is undeniable and critical.

The deadline for Judicial applications is April 22, 2022. The details for applying are here. The mediator application deadline is also April 22, 2022, and details are available here for Central Florida and South East Florida.

I encourage you to apply. I am at your disposal if you have questions about either role and how you could fit into this team. 


Thursday, April 14, 2022

New Section 90.2035 Judicial Notice

Judicial notice is not a topic of conversation in many groups, other than us law nerds. However, those who litigate for a living find some interest in the topic. From years of experience with litigation, there are indicators that the tool is underutilized and periodically misunderstood. Familiarity with Sections 90.201-90.207 is recommended for trial counsel.

Some judicial notice is mandatory ("shall take judicial notice") and includes constitutions, case law, statutes, and various rules of court. Section 90.201. Other provisions are seemingly permissive ("may take judicial notice"). Section 90.202. However, the "may" in 90.202 can be rendered a "shall" by an appropriate request as described in Section 90.203. This includes in section 90.202 a broader variety of court rules, foreign laws, court records, rules of governmental agencies (such as the 60Q Rules of Procedure for Workers' Compensation Adjudication), and "official acts" of the national and state governments. Often litigators forget that the OJCC is part of "state government" and takes "official acts" that might be worthy tools in a given case (notices, orders, etc.). Also included is a catch-all for "facts that are not subject to dispute." That last one is a bit subjective perhaps. 

The Florida Legislature took an interest in judicial notice in the 2022 session. Senate Bill 634 was passed and ordered "enrolled" on March 4, 2022. (It is labelled "CS for CS for SB 634," meaning that what passed was a "committee substitute" for a "committee substitute" for the originally filed bill - there were significant amendments during the process). It awaits presentment to the Governor for consideration.

The bill creates a new section of the Florida Evidence Code, section 90.2035. It is specifically focused upon the progress we have all lived through in the last 30 years, and the presence of information on the world wide web (Internet). It is permissive ("may"), and relates to "an image, map, location, distance, calculation, or other information taken from a widely accepted web mapping service, global satellite imaging site, or Internet mapping tool." The first notable caveat is that such image must "indicate() the date on which the information was created."

Section 90.2035, created by CS/CS/SB 634, is reasonably detailed. It requires a notification of the intent to "offer such information," which must include specifics regarding where the data may be located on the Internet. Moreover, the section is careful to remind that such a notification can be opposed by another party with an objection (which is seemingly absent from other judicial notice rules). Despite the right to object, the new Code section leans in favor of such information.

It provides that "in civil cases, there is a rebuttable presumption that information sought to be judicially noticed . . . should be judicially noticed." An opposing party would have to demonstrate by a "greater weight of the evidence" that the information is not portrayed "fairly and accurately" in order to overcome that presumption. There might be significant expense involved with travel to and photography of such a site to rebut the accuracy presumption. If such an objection is overruled, then the "may" turns to "must take judicial notice." In the criminal context, additionally, the "court must instruct the jury that the jury may or may not accept the noticed facts as conclusive."

It is notable that Florida has both an Evidence Code passed by the Legislature and Evidence Rules adopted by the Supreme Court. See To D or not to D? that it appears, is the Question (January 2016); See also Dissing Daubert (January 2019), and Daubert's New Day (May 2019). In short, it remains up to the Florida Supreme Court to incorporate the Legislature's Code change into the Rules, or not.

What is the practical impact of such a change? The appearance of an intersection or road might be pulled from such a web platform to help the finder of fact with context and background regarding an accident site. The appearance of traffic warnings, road markings, and more might be readily presented in such a form. This is likely why the new Code section requires the presence of "the date on which the information was created," because progress is all around us perhaps. In a more general sense, one might use such an image to portray the outward appearance of a business/structure (before a storm or after), the location of adjacent or close businesses/structures, and the general topography of the land.

The main benefit to the litigant, of course, is the ease with which such images might be obtained. The cost of travel to such a location, preparation of photographs, and then provision of an evidentiary predicate to admit such photographs is likely largely avoided by this new provision. See Internet, Evidence, and Admissibility (December 2019), Better Understanding the Hearsay Rule (March 2016) and Hearsay and Authenticity (March 2020). Smart litigators will take heed when this is signed into law.

The process, of course, is not concluded. The Governor has not been presented with the bill, and a veto is always possible. However, this bill is one that may create law that any litigator in Florida should remain aware of in preparing for trial. 

Tuesday, April 12, 2022

Timeliness, Tolling, and Disaster

The Supreme Court of Iowa rendered an interesting opinion in December 2021 in Askvig v. Snap-on Logistics. It is a poignant reminder of the challenges of timeliness, and the challenges of a pandemic. 

Essentially, an injured worker's application for rehearing was "deemed denied," and thereafter the worker's "attorney failed to file a petition for judicial review within thirty days." This was "during the early months of the COVID pandemic." The attorney was alerted by receipt of a letter from the employer's attorney, and immediately "filed a petition for judicial review." The inevitable motion to dismiss was met by the Claimant with two "supervisory orders tolling statutes of limitations, statutes of repose, and 'similar deadline[s] for commencing an action in district court.'” 

The trial court concluded that the "thirty day deadline for petitioning" was not a “statute of limitations, statute of repose, or similar deadline," and thus was not suspended by the Court's emergency orders related to the pandemic. Instead, the Court reminded, "it is fundamentally different. It is an appellate deadline." In this regard, similarly see Sections 440.25(5)(a), 440.271 and Florida Rule of Appellate Procedure Rule 9.180(b)(3). If an appeal in Florida is not filed within 30 days, then the court lacks jurisdiction to review a matter. 

The Court concluded that there are "practical reasons" why such an appellate deadline would be treated "differently from original deadlines", for the filing or service initiating a case. It noted that the record in the review or appeal situation is "already complete," and that the attorney/client relationship is "pre-existing," which suggests that there is minimized or no "person-to-person contact" necessary for the review or appeal. The Court explained that avoiding such contact was "the fundamental concern" that led to the administrative orders of the Court "tolling statutes of limitations, statutes of repose, and 'similar deadline[s] for commencing an action in district court.'” 

While that is undoubtedly true, it seems plausible that another concern was the work environment, office presence, lock-downs, etc. Iowa's Governor issued an emergency order in March 2020, and  a reiteration of constraints in April. In short, schools were closed, businesses restricted, and life became tumultuous in a very rapid manner. Though the Court recognized that turmoil in one respect, the filing of new  cases and related deadlines, it seems to acknowledge the general disruption of live and livelihood less. 

The Court explained the timing of the administrative decision awarding some benefits in this particular case, and the Claimant's request for rehearing. As in Florida, the rehearing request did not stay the commission order. That is a challenge for many lawyers, a mistake I have seen repeatedly over the years. The time for filing an appeal just keeps ticking while a motion for rehearing is pending. It is important to seek rehearing. Always allow the trial judge to correct any error when practical. This minimizes the necessity for appellate involvement. In fact, in Florida, failing to ask for rehearing may result in denial of relief by the appellate court, which may conclude that absent a rehearing request issues are not appropriately preserved for appeal.

In Iowa, the rehearing was "was deemed denied," because it was not acted upon. The outcome in Florida is similar, with Rule 60Q6.122 deeming such an order denied if it is not ruled upon within 10 days of service. In Florida, the thirty days to appeal begins to run upon issuance of the order. In Iowa, the situation was a bit more forgiving, with the appellate deadline of thirty days beginning upon that deemed denial of the rehearing. 

Unfortunately for the attorney and Claimant, that time began to run in mid-March 2020 just as the scourge of Sars-CoV-2 was upon us and efforts began for the "short pause" we were all told was expected to "flatten the curve" before we all returned to normal. In retrospect those promises themselves were a bit flat and uninformed. The Claimant's attorney pled those challenges, the fact that the attorney's staff was "working from remote locations," and how the pandemic challenged law practice. The Court was not persuaded. 

The Court explained that the review statute is "different from a statute of limitations or a statute of repose in that it is an appellate deadline." It noted that "the party petitioning for judicial review is not 'commencing an action,'" but is "continuing the action." Therefore, it noted that there is "often less tolerance for equitable modification of appellate deadlines." The Court perceived "real obstacles to filing and serving original actions" in COVID. It noted the challenges of meeting with clients, service of process, and the pandemic. However, it concluded that "these concerns do not apply to judicial review cases."

The Court also seemed persuaded by math and impact. It noted that extending a statute of limitations, which are typically calculated in years," by 76 days would be different than extending an appellate deadline that was only 30 days. Increasing a two-year statute by 76 days is a 10% increase; increasing the appellate deadline of 30 days by 76 days is a 250% increase. That may seems to some an argument of impact rather than logic. More importantly, perhaps, is the Court's reminder that the appellate deadline in Iowa, as in Florida, "is jurisdictional." Thus, it explained, the deadline "is not subject to equitable tolling doctrines like estoppel." Before COVID, the Court had previously concluded that courts "cannot expand their judicial review jurisdiction by allowing" late filed appeals. While the math might provide solace, it is this second explanation that more likely supports the Court's conclusion and decision. 

The Court was also critical of the Claimant's expressed reasons for delay. It noted that the Claimant did not assert "reliance on the Court's" tolling orders. Though Claimant argued those orders should afford her relief, she did not expressly rely upon them in consciously electing not to proceed in a timely manner. Claimant's counsel's arguments instead were related to deadlines "overlooked," the changes in workload, work assignment, and the more generalized challenges that COVID presented to the working world, such as shut-downs and sheltering. 

The Court found those representations of challenges believable and credible, and noted that they "could have justified the extension of any deadline." However, it noted that extension of deadlines is not what the Court had done in the two "supervisory orders." that it issued in April 2020 and beyond. It responded to the Claimant's assertion that despite not being a "statutes of limitations, (or) statutes of repose," that the Courts' additional language "'similar deadline' must mean something." Therefore, that "it must include appellate deadlines." The Court reiterated that this was an appellate deadline, and that Iowa law includes various other deadlines "that are more akin to statutes of limitations or repose." Thus, the meaning for "similar deadline" could be seen elsewhere in the law and therefore not specifically focused only upon the appellate deadline that would provide Claimant relief in this instance. 

The impact of the analysis is of course critical in Iowa. However, it is worthy of consideration by those in other jurisdictions. Certainly, one hopes to never face the challenges of another pandemic. However, the fact is many of us face the potential of similar challenges from things as mundane as weather emergencies. See Weather, Allegations, and Comp (April 2022). Would the Florida courts similarly view time extension and the jurisdictional nature of the 30 days for appeal? Undoubtedly, that may well depend upon the language used in any such tolling orders and the nature of such emergencies. That could also depend, as it apparently did in Iowa, on any argument of "reliance" upon such an order. 

In short, the best answer is "it depends." The fact is that the pandemic, particularly its onset, was stressful, distracting, and challenging in many ways. Similarly, so might be a hurricane, flood, or any number of similar situations or events. The Iowa decision reminds all that nonetheless timely filing may be necessary for the protection of a client's interest, and therefore attorneys and parties must remain focused even in the most challenging of times. In the era of electronic filing, such action is facilitated. Notably, perhaps such timelines should be among the attorney's primary concerns when disasters and challenges threaten.  

Sunday, April 10, 2022

The Time is Now

Aging is not new. Generations before us have come, stayed, and moved on. In their wake, there has persistently been some population of the "next generation" (note that is not capitalized, and not "Generation Next") ready to step forward into leadership. The world of workers' compensation faces a cross roads of sorts. It is not new, we've discussed before, but it is time to get serious. We find ourselves surrounded by many greying and seasoned professionals, and we might well worry about the conspicuous dearth of the "next generation." Yeah, yeah, yeah - "OK Boomer . . .." But, seriously folks. 

I have counseled many young people, striving to be a mentor. See Bring Value (February 2020) for discussion of the various generations and how they may play in our future. We always have great opportunity to assist those who would strive to replace us in this (or any) community. See Reminders of the Value of Mentoring (September 2016). The Inns of Court movement has recognized that, and across the state and nation various seasoned attorneys have striven to advance the next generation. See Pet Peeves of Judges (February 2021). It is not limited to the legal community, various professions are struggling with their "next generation."

At the Forum in April, See Back to the Forum (April 2022), I was again struck by the collective chronology of the gathering (we are old). As one of the younger folks in the crowd (sarcasm), I noted that while we found ourselves back together and celebrating the pandemic's demise, there were not many new faces in the crowd. I say this not to offend you, and apologize if I have, but to strive to bring home the challenges we face as a community.

This is not a new issue. Bob Wilson and I addressed this on the Workers' Compensation Hot Seat in March 2020: Rise of the Millennials, the Passing of the Baton. Barry Bloom and Mark Pew wrote a compelling piece in Risk and Insurance in 2020. They noted:
"We are confronting an existential threat to the long-term viability of our industry due to the huge and complex passing of the torch to subsequent generations."
Yes, we are old, worn, and perhaps a bit jaded. We may be set in our ways, despite our self-congratulations at having weathered the recent SARS-CoV-2 storm, and brilliantly innovating in the process. We may feel we are "with it," that we innovated, that we improvised, that we overcame. But, at the end of the day, I might suggest that as I look around - "Most have seen too many winters . . . or too few." (The Two Towers, New Line, 2002).

This theme was illustrated in various exchanges. Mark Touby noted, in introducing the Current Trends panel, that Dawn Traverso has served for 17 years as the Continuing Education (CE) Chair of the Section. While that is laudable, why has no one from the "next generation" come along to assist her and to grow into leadership? Notably, Rogers Turner is taking over this CE responsibility, there is change, but he is more of my own generation. Where is the "next generation?"

There are the typical explanations or excuses to which we might retreat over cocktails (the more cocktails, the more philosophical the conversation seems to become). We might lament "these kids today," and we might assuage our sensibilities with self-justification of the merits of our own experiences and perceptions. But, in the end, however we explain or cast blame, the fact is that our community is seemingly not attracting young people. Or, are they just not interested in hanging out at conferences with us old people? I look up and down the convention center at the Forum and I ask aloud "will this event occur in 2032?" Will the current leaders like Stacy Hosman, Leopold Garcia, Mark Touby, and others still be producing such content? Call me skeptical. So, if not them, then who?

There are apparently not as many young people in this community. I can accept that. So, it may be that the "next generation" finds value in things we may not (or less so). It may be that the "old ways" are not necessarily the best ways for the "next generation." And I am certain we can all find plenty to lament, to doubt, and to denigrate ("You kids get off my lawn"). We can be cynical, delusional, or worse. But, at the end of the day, none of us is going to be here forever. Who is the future of workers' compensation?

We have asked this rhetorically for years. We have lamented, prognosticated, discussed, and published. A generation or two ago, Theodor Geisel penned Marvin K. Mooney. In it, he expressed immediacy, "The time has come. The time is now." How many companies, law firms, or organizations brought the "next (comp) generation" to the Forum? I met one young attorney. It was a delight. She was lauded by, accompanied by, introduced by, a partner for whom she works. She is being supported and integrated into our community. That is heartwarming. But, when I note "I met one," the tragedy is that I met only one.

"The time is now."

It is time for the "older adults" to focus.

The "next generation" is seemingly not coming looking for us. We must go looking for them. How do we hire them, motivate them, and retain them?

The "next generation" may not share our values, see our imperatives, or appreciate our lessons. But, we pre-geriatrics are fast collectively approaching irrelevance, and they are the future. Like it or not, it is their values, imperatives, and lessons that matter. We have to get over how "they" are not like "us." They will take the wheel, and we must adjust to them. It is their values that will be the future, whatever they choose. 

How do we pass on what we've learned in a manner that brings them value, appeals to their needs, and affords them growth? How do we show them why we appreciate and value what we do (gathering, collaborating, educating), so that they might come to value something similar?

How do we pass the torch, recognizing that the future is not ours but theirs? I tell my students I want them to succeed (so they can pay taxes and support me in my old age - I am only half joking). 

We antiques ("classics"?) can fade into the past sitting in a circle and complaining to each other and telling war stories. There will be a future with or without us. Or, we can find ways to connect with the young now and provide them support, encouragement, and growth. We can be a part of their future as they choose it or consign ourselves to sit on the porch and yell as their future happens without us.

Like this, or don't. Tell me I'm wrong! Or, send me a note and let's start talking about how we help the "next generation" or Next Generation build a foundation for their future in the law, claims, medicine, risk, or beyond.

"The time is now."