Thursday, June 30, 2022

Infection Dilemma

Malaria infected 227 million people worldwide in 2019, and killed 558,000 people. This, according to the World Malaria Report published by the World Health Organization. With COVID-19 garnering much attention, the WHO reports that in 2020 Malaria infected 241 million people, and killed 627,000. And, it is a "preventable and curable" disease. 

According to the Centers for Disease Control, "An estimated 690,000 people died from AIDS-related illnesses in 2019." These are sobering statistics certainly. Of course, in today's world, these figures are dwarfed by the volume of tragic deaths linked at least in part to SARS-CoV-2 and COVID-19. Worldometer notes that COVID deaths are well over 6 million as we enter the third year of our reaction to that challenge. America alone has exceeded one million deaths.

These are staggering numbers. And, they represent only a small portion of worldwide deaths from all causes. The WHO notes that they are nonetheless dwarfed by diseases like heart disease (8.9 million) and stroke (over 6 million). In short, there are a variety of health challenges that we face, systemically, globally. Gautama Buddha is credited with saying "We begin to die from the moment we are born, for birth is the cause of death." I find little comfort there.

Over the years, medicine has delivered some miraculous advances. In 2019, NBC reported "It's been almost a century since the discovery of penicillin kicked off the era of antibiotics." That discovery was actually in 1928, according to the National Institute of Health, so we continue to advance toward the centennial of antibiotics. Penicillin is still used, but a raft of antibiotics have joined the ranks over the last 94 years.

Despite that tremendous progress, infections continue to kill with great efficiency. The British Broadcasting Corporation reported in January 2022 that over "1.2 million people died worldwide in 2019 from infections caused by bacteria resistant to antibiotics." Note that is not the total of bacterial deaths, only a subset. The article notes that this exceeds the total from either "malaria or Aids (HIV), whose figures are discussed above. That figure exceeds the American deaths to date from COVID-19. The more basic issue of infection continues to be a challenge. 

The allegation is that some portion of the resistant bacteria deaths are attributable to our own hubris in the deployment and use of antibiotics. The author explains that death "from common, previously treatable infections" is largely caused by the evolution of bacteria "becom(ing) resistant to treatment." The bacterial evolves to survive. 

There are accusations there regarding over-use, and advocacy for "using current (antibiotics) more wisely." There is also a call for "urgent investment in new drugs" that would perhaps bring a "different approach to combatting these resistant infections." The accusations assert that antibiotic "overuse . . . for trivial infections" has diminished their "effective(ness) against serious infections." And, with that decrease in efficacy, perhaps there are otherwise preventable deaths?

This infection and resistance situation is notable now because of the relationship between COVID-19 and other maladies. The CDC contends that there is interrelationship between COVID and resistance to antibiotics. Many patients suffer from pneumonia in the midst of a SARS-CoV-2 infection, a "COVID pneumonia," which the National Heart Lung and Blood Institute has stated lasts longer than "traditional forms of pneumonia." And, those pneumonia are being treated with antibiotics. This causes "challenges in antibiotic decision-making" according to a February 2022 paper Antibiotic Therapy in the Treatment of COVID-19 Pneumonia: Who and When?

Thus, the BBC raises concerns about the state of our antibiotic arsenal, and "antimicrobial resistance" as a health threat. It contends some officials believe it to be a "'hidden pandemic' that could emerge in the wake of Covid-19 unless antibiotics were prescribed responsibly." Thus, in addition to the threats of Long-COVID, see Long COVID Seminar (April 2022), the SARS-CoV-2 and our reactions to it portend the potential for other long-term medical issues we may face as a society generally. 

While one would wish for doctors to use whatever is available if we were personally hospitalized, this is suggestion that discretion and care are perhaps the best course. 

Tuesday, June 28, 2022

Is there a Doctor in the House?

The news brings us another example of the power of words. Defining them and deploying them are of significant effect at times. 

In The League of Extraordinary Gentleman (20th Century, 2003, Sean Connery headlines an extraordinary cast that includes various fine actors. One whose performance has stuck with me, however, is Stuart Townsend playing Dorian Grey (originally an Oscar Wilde character). Dorian's is "an archetypal tale of a young man who purchases eternal youth at the expense of his soul." In short, he is personally invincible and timeless as a picture of him ages instead. In The League, a shootout scene portrays Dorian being repeatedly hit, without effect. This leads a marksman to ask "what are you?" Dorian replies simply "I'm complicated." That rejoinder always resonated with me; when I first screened the film, I recall thinking in response "isn't everybody?"

I thought of that complicated response while reading the recent analysis by the Kentucky Supreme Court in Toler v. Oldham County Fiscal Court, 2021-SC-0356-WC (June 16, 2022). I wondered how one might respond to being informed that they are not, per se, whom they thought, or perhaps more aptly what they thought. And, somehow in the course of drafting the paragraph above, the theme song from a very old television sitcom came to mind: "A horse is a horse, of course, of course," (Filmways 1961-1966). And, as I hummed the tune, I wondered in a similar vein how the same is not true for a doctor, of course, of course? For a humorous take on posing as a doctor, see Spies Like Us (Warner Bros. 1985). But, in this instance, no one was posing as anything. 

But, in Kentucky, the Court has reminded us that words are subject to interpretation, and to statutory definition. That was recently in the news regarding Bees in California, see My Fish Would not Start (June 2022). When the legislature does not define a word, then interpretation may well involve reference to a dictionary, see Grievous Bodily Harm (November 2018) and Regulatory Necessity, Got Milk? (October 2018). And in Kentucky, "doctor" does not mean what many thought it might. The decision is an instructive reminder in statutory interpretation and a worthy read.

For some reason, I picture that classic Hollywood saw in which there is some malady or injury and a bystanders calls passionately "is there a doctor in the house." The reply in Kentucky, perhaps, might be "it depends." Or, back to Dorian Grey, picture someone standing over a patient, gowned and masked, holding a scalpel, and hearing the question "what are you?" to which the response in Kentucky would perhaps appropriately be "I'm complicated." When 16 pages are required to explain that a doctor is not always a doctor, it seems to suggest complicated. And, the opinion will perhaps have some Floridians remembering the ancient history of our own workers' compensation litigation.

Essentially, in this case, Toler filed for workers' compensation benefits and litigation ensued. The employer engaged the services of a physician, to review the case and provide expert testimony. This physician did not examine Toler, and following a records review disagreed in part with the permanent impairment rating assigned by another physician. The court opinion omits that the physician was a primary author of the book to which the testimony referred, the AMA Guides to Permanent Impairment, Sixth Edition. That physician's conclusions were not favorable to Toler's claims and were objected to. 

The Claimant argued that this physician "is not a 'physician' as defined by KRS Chapter 342." This was based upon the fact the doctor "is not licensed in the Commonwealth of Kentucky," and the physician's "report was (thus)inadmissible." This argument was underscored by the requirement that the Kentucky "Rules of Evidence . . . shall apply in all proceedings before the ALJ except as varied by specific statute and this administrative regulation.” And, the only such statutory exception applicable to this situation is one that allows "medical reports by physicians." 803 KAR 25:010, §11 [and] KRS 342.033.

Thus, the definition of the word "physician" becomes most apropos. The Court noted that KRS 342.0011 § (32), defines “Physician” as “physicians and surgeons, psychologists, optometrists, dentists, podiatrists, and osteopathic and chiropractic practitioners acting within the scope of their license issued by the Commonwealth.” The Court noted that the individual that reviewed the records and rendered a report is "licensed to practice medicine in Hawaii, Maine, and California," but not Kentucky.

The ALJ that heard the case admitted the report. The ALJ concluded that the context of the statute suggested that such a report would be admissible. The judge concluded that "the intent of this particular provision is not to limit the ability of otherwise qualified physicians to render opinions that may be used in Workers’ Compensation jurisprudence." And, in addition, the doctor here "possesses a Kentucky Physician Index Number on file with the Department of Workers’ Claims."

The ALJ relied upon this physician's conclusions and opinion and  therefore denied some measure of benefits. On plenary appeal, the "Board unanimously disagreed" with Toler in his appeal and "affirmed the ALJ." Note that in Kentucky the first level of review is by an administrative Board. This affirmance was in large part based upon the "wide discretion afforded to Administrative Law Judges in the workers’ compensation arena by both statutory and case law." The Court then reviewed the Board decision. It disagreed with the Board, and concluded instead that the statute was clear and the intent of the legislature was plain in the words it chose.

The Court was not wholly dismissive of the "Physician Index Number" that the physician was issued. However, it noted that the issuance of that number was not "dispositive." It explained that process requires that a physician "fil(e) . . . the physician’s qualifications." However, "it does not, on its face, provide for validation of those qualifications." Thus, the issuance of such number for identification does not equate to licensure to practice medicine in Kentucky. The Court concluded that the doctor in this instance "does not meet the statutory definition of 'physician.'" and the report was inadmissible. Imagine that bystander saw again, but instead "is there a Kentucky licensed doctor in the house?" If one is injured and needing help, would such an inquiry ever arise?

And thus, similarly to the fish, ne insect, drafting in California, in Kentucky a physician might be a physician, and yet not be a physician unless the doctor is licensed by that state.

Notably, the outcome is not dissimilar to the effect rendered by the Florida First District in City of Riviera Beach v. Napier, 791 So. 2d 1160 (Fla. 1st DCA 2001). The Court there interpreted section 440.13(5)(e) Florida Statutes (1997), which limited the population of who can opine in Florida workers' compensation cases.
"No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims."
Thus, under that statute, only the opinions of authorized physicians, independent medical examiners, and expert medical advisors were admissible. Notice Florida constricts the population of physicians who may testify, but does so through a limitation a bit different than the definition path chosen by Kentucky. The Napier Court reasoned that since a provider in that case was paid roughly double the permissible rate for an IME, that provider was thus not an IME and his opinions were inadmissible. There was a fair bit of dissention and discussion of that back in the day. However, in the end, the workers' compensation community found statutory restriction on testimony in a similar fashion to that recently concluded in Kentucky.

That definitional argument fell out of vogue in Florida as reimbursement limits changed. In time, the Court returned very recently to the topic and characterized the Napier decision as resting upon "the not-too-remarkable proposition that JCCs possess 'jurisdiction to determine the admissibility of evidence.'” Palm Beach Cnty. Sch. Dist. v. Smith, 337 So. 3d 383 (Fla. 1st DCA 2022), reh'g denied (Mar. 28, 2022). In short, the "Napier objection" is rarely raised regarding payment disqualifying the provider.

While Toler may seem a bit pedestrian, it is yet another apt reminder that statutory definition will control outcomes. Not as newsworthy as fish being bees or bees being fish, but noteworthy. Legislatures are empowered to provide context and definition and they often do. 

Sunday, June 26, 2022

Dobbs and Workers' Compensation

There will be no readers this morning who have not heard about Dobbs v. Jackson, ___ U.S. ___; No. 19-1392 (June 24, 2022). In a word, the decision is broad. One might struggle with the implications for workers' compensation; I periodically get inquiries, essentially "what does this have to do with workers' comp." In a nutshell, the law has everything to do with workers' compensation, and this community is touched in many ways by the U.S. Constitution, and various aspects of state law. One must remember that these administrative systems have fundamentally altered a variety of rights, supplanted tort recovery and liability, and that the constitutionality of these systems has been often questioned and periodically litigated. 

In Florida, we need look no further for constitutional analysis than Westphal, discussed in Constitutional Law in Florida 2016 (December 2016). There is also Another Look at Castellanos (July 2017), and Waiving Statutory Rights in Florida (September 2017). In terms of the Grand Bargain, The Quid Pro Quo (March 2019) provides some overview of the U.S. Supreme Court conclusion in 1917 that the taking of property from employers, with no demonstration of their fault, is constitutional. Yes, the analysis of constitutional rights is bedrock to workers' compensation. 

Integral in workers' compensation is also the Supremacy Clause. That has been a seemingly frequent workers' compensation topic recently. An interesting example can be found in Kansas Cannot Prosecute Identity Theft (September 2017); this is about an instance of federal law preempting state law. The market has similarly seen challenges with the FDA, and its processes in the age of Opioids and overdose. See Zohydro or Pot, a Study in Federalism (April 2014), and Zohydro Update a Year Later (October 2010). There are challenges from another perspective with federal policy regarding pot, state laws, and the Supremacy Clause. See Federal Law Matters in Colorado (June 2015) and Federal Law Matters in Maine Also (June 2018) and Mischaracterizing Pot Again (February 2020). With less fanfare, perhaps, the Court just recently declined to review the implications of pot reimbursement in workers' compensation. Yes, the Court and constitution have implications in this community. 

The potentials for pharmacy policy and the FDA to play a further role in the subject of abortion also has some intriguing aspects. Those may be explored in a future post. 

These are merely examples of challenges in the environment of federalism, and our constitutional republic (there is a great deal of debate as to our status as a democracy or a republic, see The Atlantic in which a critic of the republic characterizations shares perspective). Some arguments are more persuasive than others perhaps in that regard, but I note that it is "to the republic for which it stands" that most all rose too in grade school.  And, as the Atlantic has also published, some reasonably respected figures have agreed with the "republic" characterization. Despite personal differences the phraseology engaged to describe it, our government authority is shared between federal and state authorities. Some will argue that Dobbs merely clarifies that relationship: "the people of the various States may evaluate those interests differently"; "The Court . . . returns that authority to the people and their elected representatives."

We have seen the discussions of potential federal influence in workers' compensation. See Medical Mileage and Legislative Lessons (March 2021), State Line Disputes (May 2016), and Federalization in the Wind (October 2021). We have heard much of the Grand Bargain, and the compromise that underpins much of this administrative remedy that supplants common law rights to damages and Constitutional Rights to trial by jury and more. There are implications in that for both the employee and the employer, with workers' compensation struggling to provide balance between the rights of each. See Professor Burton as a Witness (June 2015). Are benefits to workers increasing or decreasing? Is the immunity for employers of greater of less value today compared to when the U.S. Supreme Court found constitutionality of this exchange back in 1917?

Workers' compensation, in short, reminds me mostly of Truckin' by the Grateful Dead. That song notes "lately it occurs to me what a long, strange trip its been." And, indeed, the last century has been that in this community. As we look back across its depth and breadth, some see that "race to the bottom," a cycle of benefit diminution impairing the injured worker. Others see an erosion of the exclusive remedy and accretion of responsibility. From the perspective of both employees and employers, I have heard lamentations of the Grand Bargain and conclusions regarding the fairness, equity, and balance of the whole system (notably, there are at least 60 systems, and indicting them all collectively as if they were one is perhaps a very broad brush stroke). 

But, but, but, what does abortion have to do with workers' compensation? That is a fair question, and I must admit that the topic that led to Dobbs, abortion, perhaps has no real connection to this community. But the Court's analysis of June 2022 has some interesting points that this community might nonetheless consider studying. 

Not the least of these is stare decisis which has graced these pages before as regards Florida and other jurisdictions. See Stare Decisis, Goodgame, Livingood, and Westphal (October 2015). There is also A Kentucky Constitutional Decision (April 2017), and more. There are times when courts may necessarily retreat from prior decisions. The real point, as discussed in Stare Decisis, Death Penalty, and Workers' Comp (January 2020) is whether there is a reason why a court might retreat from a prior ruling. The Dobbs decision provides extensive explanation of that topic. 

Dobbs involves a state law that prohibits the performance of an act, except within certain parameters. The challenge presented is the manner in which that state statute is perceived as contradicting the rights of certain people who wish to either have that act performed, or to support or advise others who may wish to have that act performed. In effect, it is a challenge of Mississippi regulating despite the existence of a fundamental right of each individual to have that act performed. In fairness, that fundamental right has in fact been previously recognized by the Court. Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). 

There are those who perceive Dobbs as rendering abortion illegal or denying access to it. That may well be an ultimate outcome in certain places, but the ultimate outcome will not be reached in days to come, but will become apparent in years instead. 

What can this community learn from Dobbs?

First, consistency for consistency's sake is not sacred. In other words, the previous interpretations and rulings may find critics unwilling to sustain them. See Daubert's New Day (May 2019). That may be the most challenging aspect of the law for many to accept. The law may follow precedent, and it may not. In this instance, Dobbs, it did not. In adopting the Florida legislative shift to the Daubert standard in 2019, the Florida Supreme Court reversed its earlier decision eschewing that standard. 

Regarding stare decisis, the Dobbs Court noted that "It 'contributes to the actual and perceived integrity of the judicial process' . . . [a]nd it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past." In this, there is value, but it also noted that "stare decisis . . . is at its weakest when [the Court] interpret[s] the Constitution.” In support of departing from precedent, the Court reminded all of "the infamous decision in Plessy v. Ferguson," and says that similarly "Roe was also egregiously wrong." 

Plessy, of course, is the foundational decision of 1896, in which the U.S. Supreme Court created the concept of "separate but equal" that frustrated the promise of the Thirteenth and Fourteenth Amendments for decades until Brown v. Board of Education in 1954 began a new era in America. The Dobbs Court concludes "adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy would still be the law." 

Not cited, but also illustrative of the Court's potential for committing error is Dred Scott v. Sandford, 60 U.S. 393 (1857). In The Florida Court Declines Review of Padgett (December 2015), I reminded of observations regarding the finality of Supreme Court conclusions:
"in Brown v. Allen (1953), Justice Jackson observed that 'we are not final because we are infallible, but we are infallible only because we are final.' A paraphrase of this has been a favorite of Supreme Court scholars since: 'the Court is not last because it is always right, but it is always right because it is last.'"
And, in that, one might note from both Brown and Dobbs that perhaps even the Court is not necessarily final in that it may in time return to any decision and reexamine outcome and foundation. The caution, perhaps, is that when precedent is questioned or overruled, there should be detailed explanation of why. The Dobbs decision is extensive and detailed. 

Second, the foundation of our rights may not be as solid as we might periodically hope or wish. The Court noted in Dobbs that "the Constitution makes no express reference to a right to obtain an abortion." It noted that several rights have been cited as suggesting such a right, particularly the right to privacy (which is also not mentioned in the Constitution, but which the Court has concluded is implied by "the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." Citations omitted. Thus, that the Court recognizes a right at one point, from its then collective perspective, may not mean that such right is sacrosanct or permanent. In some future consideration or different perspective changes may come, as Billy Shakespeare once noted, that perhaps "must give us pause." Hamlet, 1602. 

Third, the Court in Dobbs is critical of the Roe decision and its stated perceptions of the state of the law regarding abortion when Roe was decided. This is an examination of the foundations of Roe. It concluded "that the right to abortion is not deeply rooted in the Nation’s history and tradition." The Court noted that substantive rights may or may not be in the Constitution itself (or the amendments). However, "the Court has been 'reluctant' to recognize rights that are not mentioned in the Constitution." In the analysis,
"the question is whether the right is 'deeply rooted in [our] history and tradition' and whether it is essential to this Nation’s “scheme of ordered liberty.”
Through this analysis, it reached the conclusion that there is no constitutional right to an abortion. The Court expounded that "Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much." The generality of such a statement "could license fundamental rights to illicit drug use, prostitution, and the like." Note that both illicit drug use and prostitution are allowed and accommodated by some state laws. See e.g. Heroin and LSD no Longer Illegal (November 2020). Notably, laws are different from state to state in various regards. 

There will be those who see serious differences with workers' compensation. They will be quick to point out, accurately, that many of the rights balanced in workers' compensation statutes are most certainly patent in the Constitution. They will argue that these rights are more demonstrably fundamental and therefore critical. But, in those discussions, will critics of workers' compensation acknowledge that fundamentality is present on both the employer and employee side of the Grand Bargain? 

The Dobbs Court noted that "[w]ithout any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules . . . much like those that one might expect to find in a statute or regulation." That is intriguing perhaps when one reflects on workers' compensation and the Florida Supreme Court's adoption of rules regarding attorney fees in 1968 in Lee Engineering v. Fellows. That is a precedent of longer application than Roe, is it more steadfast, or as easily questioned? 

The same question might be voiced regarding Castellanos v. Next Door Co., 192 431 (Fla. 2016) and the Court conclusion that attorney fees are "the linchpin to the constitutionality of workers' compensation. Notably the author of Castellanos is no longer a justice, but the author of a dissent contradicting the "linchpin" analysis remains. Might a future Florida court conclude that various court decisions have "imposed" in a legislative mode, disregarding separation of powers, and lacking foundation? There is Florida precedent for such a change of direction; the Court retreated from its decades-long assumption of rule-making authority for this Office. 

The Dobbs Court noted that Roe included "many paragraphs conducting the sort of factfinding that might be undertaken by a legislative committee," and then proceeded with explanation of its conclusion with "a constitutional 'right of personal privacy.'” Thus, there is some criticism of judicial creation of policy and appellate fact finding there. The Court continued "Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference." In that context too, there may be those who argue a similar conflation of the judicial and legislative roles in the evolution of workers' compensation, in Florida and elsewhere. 

The Roe Court, focused at least in part on  “the relative weights of the respective interests involved," which one might perceive similarly in the Grand Bargain. There is no doubt there is a balancing of interests in the workers' compensation world, and its various state systems. The Court in Dobbs concluded that such discussion of relative weight 
"are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests."
That, might sound a bit like workers' compensation, with lines, boundaries, compromises, and balance? Might a court in some jurisdiction return to the legislative language and provisions and question prior judicial interpretations and analyses? Might there be in Dobbs some harbinger of greater deference to legislative process and separation of powers?

In the analysis of Dobbs, perhaps there will be perceptions of the challenges of stare decisis. While a court's past decisions may in fact stand, that does not mean that is inexorable or inviolate. In the analysis of Dobbs, there may be some who perceive that decisions of legislatures will perhaps henceforth be afforded greater deference. 

However, in terms of constitutionality, perhaps the property rights elements in workers' compensation may militate against such in this particular (the property of the owner is taken without fault on one side, and the right to full recompense or loss is taken on the other). In other words, perhaps the property, due process, and First Amendment rights noted in workers' compensation are indeed more fundamental and thus challenging than the implied right to privacy and right to abortion that until Dobbs rested thereon?

What does abortion have to do with workers' compensation? The real question is what can the reader learn about stare decisis and precedent from the analysis in Dobbs, and perhaps from the regulatory and legislative process that may follow? In short, there are perhaps broader considerations on the impact of the Supreme Court's analysis, and much to think about in days to come. 

Thursday, June 23, 2022

Legibility and Process

In May, the Florida First District Court rendered an interesting and instructive decision in Ford Motor Credit Co., LLC v. Parks, 1D21-1130. It is not a workers' compensation case, but illustrates a challenge for the litigation process in our age of scanned and uploaded documents. The workers' compensation litigation process is often replete with medical records, employment records, and more. 

The legibility of documents is potentially a critical part of any workers' compensation proceeding and thus the Court's opinion should be of interest. In a nutshell, if the document cannot be read, what does it prove? In that context, perhaps it bears changing the inquiry to cannot be read by the finder of fact (Judge or jury). In other words, just because you can read it perhaps does not mean I can read it. Additionally, as critically, However, some will likely conclude that the case is about more than legibility per se.

The matter centers largely on "the fine print in an electronically filed copy of the two-page motor vehicle lease agreement." The Court noted that Ford alleged payments were not made, and that the trial court concluded that the defendant borrower prevailed, solely because "the trial court deemed the electronically filed lease agreement to be 'illegible.'” Thus, in the eyes of the beholder, the trial court, the document was not readable and thus the claim not supported. 

The appellant (Ford) explained on appeal that no issue of "legibility was made at trial." Furthermore, it complained that the trial court did not "indicate that it found the subject lease agreement to be illegible” and “did not provide [Ford] with an opportunity to reply with a ‘more legible copy’ of the subject contract.” This is really two points. But, when many pages are uploaded and then marked as evidence, it is not reasonable for counsel to think that the judge or jury is going to preview documents and provide feedback. This is true in the example of legibility, but also applies to completeness (just because you intended to upload all 112 pages of medical records does not assure that you actually scanned that many pages). 

The Court was not persuaded by those complaints that the trial court did not provide feedback or that the legibility was not raised at trial.\. It noted that even when the trial judge raises an issue in the final order, a party can "seek a new trial." A party in such instances should seek rehearing at a minimum (and the Court explained such a motion in these circumstances would be treated as a motion for new trial). A concurring opinion suggests that a new trial would not have been the appropriate remedy, but a rehearing would have been since Ford "was blindsided by the judgment." 

Despite the divergence in that regard (new trial/rehearing), there is nonetheless agreement that seeking rehearing would be appropriate. That process allows the trial judge an opportunity to appreciate the position that a party might potentially raise on appeal and to possibly correct any such deficiencies, without the need for and expense of appeal. For workers' compensation litigation, the rehearing provisions are limited, as described in Rule 60Q6.122, but always bear consideration. Because Ford did not seek a new trial or rehearing, the Court concluded it could not "complain that it lacked an opportunity to clear up the matter prior to appealing."

The Court also pointed out that after Ford filed its appeal, it then filed "a legible copy of the lease agreement in the trial court." This was "pointless because the trial judge had lost jurisdiction at that point." The time for a party to check legibility is after it has obtained documents for trial, after they have been scanned, and again after those scans are uploaded. While the upload seems to conclude the preparation steps, viewing the online results critically should be the ultimate step. One does not shop, chop, sauté, and  season a dish according to recipe and then elect not to taste the dish before serving. 

The Court reminded that the trial judge might have asked for a legible copy, but that it was Ford's responsibility to "ensure that filed documents are legible." Though this responsibility is clearly upon the parties, the Court did note that the trial judge, "as a practical matter," should have assured that evidentiary documents are "legible because scarce judicial resources expended on a public trial might otherwise go to waste if meritorious cases are dismissed on easily correctible grounds." In this vein, it noted that the same would be true of missing documents, pages, etc. This is a reminder, essentially, that cases should be decided on their merits. If deficiency is found, perhaps a short reconvene to discuss with the parties would benefit everyone?

The Court next turned to precisely that practicality, regarding the "totality of the record evidence." Ford agued that the evidence supported "its entitlement to a money judgment in its favor." The Court agreed, after an interesting discussion of whether an appellate court could appropriately "substitute its judgment as to a document’s legibility for that of the trial court." It noted that this is a question scarcely addressed, and it concluded that "the pertinent inquiry is whether the relevant portions of the electronically filed lease agreement are decipherable, even if not perfectly legible, with readily available computer magnification." This has some parallel to the conclusions of witness credibility perhaps. See Credibility (March 2022); The Chair of Truth (February 2018), and Credibility Lessons (August 2021). 

The Court concluded that this agreement was in fact decipherable in material part. Those parts were "sufficient evidence to establish Ford’s contractual basis for its claim of default." And, the published opinion includes images of the document in question. The use of demonstratives in opinions is a seeming trend, and implications in our world of evidence are interesting. See Ford v. Boynton (August 2021).

In the concurring opinion in Parks, one of the judges noted the "challenges in small claim cases like this one." This is in part due to a party being pro-se, and thus some sentiment of extra care. This notes that the judge "must honor the corporation’s entitlement to prove its case for contract damages," and may also "feel() a gentle tug toward a flexible application of the rules so the individual may participate fully." This is often a consideration with unrepresented parties in workers' compensation matters. As the concurrence reminds, the trial judge "certainly has leeway to strike the right procedural balance" under the small claims rules. That leeway is perhaps less apparent in the workers' compensation process. However, the point is that the pro se litigant can be a challenge; this litigation process is likely alien to them, and replete with rules, hurdles, and concepts that are difficult to comprehend. 

The concurring opinion also meticulously discusses the potential for perils in the electronic filing process, particularly when originals are not in a standard 8.5 x 11 inch size easily amenable to fitting a page. It notes that:
"In this brave new world, if a trial court is going to require parties to put on documentary “evidence” by electronic filing rather than the old fashioned way, it will have to be sensitive to the potential shortcomings of digital exhibits. In those instances, the court should work transparently to accommodate those shortcomings when they manifest themselves, an unreadable PDF being but one example."
The key take-aways there for the trial judge are patent and simple, "transparency" and "accommodation." Put simply, the parties have responsibility for the clarity of the evidence and record, but to some extent that responsibility is shared by the trial judge, in the interest of judicial economy. Thus, when the trial judge finds an exhibit page missing or illegible while drafting an order, perhaps the best default is a quick hearing with the parties to describe the discovery and collaborate on whether or how it might be ameliorated. Even if the outcome is "that is the best copy there is," that is likely a worthwhile conversation. Discussion of such a problem, and input from the parties, might avoid the time and expense of appellate review. The concurring opinion also includes a fascinating recitation of various contract laws, and is worth reading (The Court has often noted that interpretation of workers' compensation settlements often include issues settled by contract law).

Tuesday, June 21, 2022

Overdose in the News

We have spent two years challenged by the latest coronavirus. It has been a reminder of viral infection leaping from other species, See The 1918 Flu in the News (April 2022). In fact, Nature claims scientists are now studying whether there was an amazing coincidence in 2019 when the SARS-CoV-2 virus made such a species-leap twice in a very short time in the same geographical area. It is intriguing that such a seeming coincidence may have occurred at the outset of our COVID-19 experience.

We are troubled that COVID has impacted our lives. And the death toll has been simply tragic. So far, the excess of 6 million worldwide, the deaths is a heavy weight. Not as perilous as the 1918 flu which as rapidly killed tens of millions, the impact of COVID has nonetheless been devastating on many levels. The response of medicine with treatment and vaccination is undoubtedly worthy of praise in this regard. 

The death toll is being compared to other maladies. MSN reported recently in an opinion piece, however, that Fentanyl kills more young Americans than COVID. The underlying causes should worry us all. This notes that "US overdose deaths top 100,000 in one year." I prognosticated regarding that horrible landmark over a year ago in The Time has Come, The Time is Now (April 2021). That is a horrific number. The COVID-19 deaths in 2021 is an even more horrific  415,000 according to NBC News. Details of the U.S. Death rates were recently supplied by the Census Bureau and are sobering. But, the CNN distinction is notable in the "young people" ("COVID death rates in 2021 were highest among older Americans"). 

Is there some reason why death is more troubling in the young? Aren't all ages and other demographics of importance? Reason or not, it is somehow more troubling when the young pass, so full of promise and aspiration. Undoubtedly, the death rate from COVID far exceeds that from overdose. There are defenses against both COVID and overdose. And, there are some that see COVID actually implicating emotional state directly, and thus involved in some volume of overdose, or at least in the precursor drug use. Furthermore, there is some evidence that the social isolation or confinement experienced during the reactions to COVID may have had significant impacts on emotional health. It is a difficult situation with many aspects and concerns. 

The MSN article is focused not on the overdose rate per se, but upon a "mental health crisis facing Americans." The author's contention is that there are two urgencies in America: the pandemic (COVID) and an epidemic (mental health) that each require attention. It cites "a recent analysis of Centers for Disease Control data," and concludes that "fentanyl has become the predominant killer for Americans ages 18 to 45." Though the news is quick to focus us on violence, the sobering reality of overdose is too infrequently in the news. 

Of course, the overall data support that our most predominant threats remain "heart disease, cancer, and COVID-19." And, at 100,000 deaths, overdose would likely be in approximately 8th place among the causes of death in the U.S., according to 2020 figures from the CDC. It would be close to the total for Diabetes, another exploding epidemic. The CDC notes that "the number of people with diabetes is higher than it has ever been." Ten percent of Americans have it, and about 20% of those do not know they have it. It is a pandemic, but we seem to hear little or nothing about it. 

Returning to the Fentanyl, there is no plausible reason for our not being concerned with overdose. The numbers keep rising, and I keep writing these posts. Over 100,000 overdose deaths in a single year. Opioids are a persistent and pernicious killer despite many efforts to address their prevalence and availability. Despite the prescription constraints, the education, the press coverage, and more, the MSN article documents that overdose death is increasing, and in the younger cohort (18-45) the "fentanyl (deaths) have significantly exceeded deaths from COVID-19."

This opinion piece in MSN contends that federal resources for mental health treatment is the (or "a") solution. The author blames fentanyl, which WebMD says now predominantly comes from Mexico and China. But, the contention is that the drug(s) are a symptom of something larger. And, the writer confidently concludes that "attributing addiction to personal moral failures flies in the face of biology and decades of empirical sociological findings." In plainer language, the author contends that it is not the drug user's fault that drugs are used, misused, and abused.

The solution seen by the author of this opinion piece is therefore to assure somehow that society (or perhaps government, the implication is less than clear) "examine the policies and processes that should be nurturing young people’s social and economic prospects as well as overall well-being." This is, perhaps, a deeper topic than it might appear. That is, beyond the social isolation of COVID results or direct impacts of COVID. In total, it seems, the questioned posed is whether and how government is nurturing young people. 

There are a fair few causes cited by the author for young people being fearful, anxious, and even depressed. Notably, the author cites that "economic issues loom large in young people’s fear about the future." There is apparently specific focus on issues that can perhaps be addressed. The specifics include "inflation, the cost of living, and economic inequality among their top concerns." And the author concludes that the COVID-19 pandemic has in some ways "further stratified young Americans’ economic prospects from those of their parents." Particularly cited are "mountains of student loan debt" that "make dreams like homeownership a distant reality." 

It is troubling to see folks in such deep debt, and perhaps I am a wet blanket. However, the student loan debt that is frustrating those people was borrowed by those people. This author's analysis seems to suggest that the solution for people who have borrowed money is to alleviate the impact of their decisions by making others responsible. In other words, the relief for those decisions seems to be to socialize those debts and make them the responsibility of the rest of America that did not borrow inadvisably or even irresponsibly. 

Perhaps, it is worthwhile to examine that more thoroughly? Relieve the decisions of some by more detriment to all. This maybe illustrates or suggests that relief to some (economic or anxiety) may not reduce anxiety or increase optimism in a vacuum, but merely foist that stress instead on some other segment of society and decrease their own personal or collective optimism about the present or the future. It is possible that some element of the inflation noted by the MSN author (the first concern noted) is too many dollars in the economy. 

The economic pressures cited for young people are in no way in no way limited to that population. Us old folks are also facing inflation. And, the old folks that have retired are doing it on a reasonably fixed income. They did not borrow the student loan debt, and yet are seeing their own economic futures (and present) threatened by the rampant inflation, $5.00 per gallon gasoline, unaffordable groceries and more. While the inflationary escalation in minimum wages will likely help wage earners to keep pace with the inflation, the senior citizens are profoundly impacted by this economy, the ready debt, and the cost of living. 

Anything that creates more spending, including "relieving" student load debt, will have both intended and unintended consequences. That word, "relieving," is a euphemism for more government money being given away. The government, however, has no money. It is dependent upon your tax dollars, and all too often on borrowing money. The national debt is over $30 trillion dollars - $30,000,000,000,000. And, it is growing everyday. So, in a world of limited resources, how does the government "relieve" someone of their bad decision? By assuming more debt and foisting it upon everyone else. The stress of debt is not eliminated, but merely transferred.  

The end of the analysis is certainly not achieved in this article. The fears of the young cannot be discounted. We have to accept the perceptions and beliefs of the young, they will outlive us and we need them to succeed. See The Time is Now (April 2022). The role of government in creating anxiety likewise cannot be ignored (were student loans too easy to obtain, risks insufficiently explained, educational institutions insufficiently supervised or disciplined?). Did colleges and universities, which enjoyed the income from tuition and fees paid with such debt play any role? Perhaps similarly the role of government and groups that promote the use of drugs as some solution to each and every human challenge bear some responsibility as well? There are those who blame the Food and Drug Administration, the medication manufacturers, and even the doctors

Incidentally, the opioids became a problem for Florida and the "pill mill" situation brought us much attention. More recently, Marijuana is a hot commodity in Florida according to WJCT.  In another recent report, WTSP noted that:
"There are now 700,000 medical marijuana patients in the state of Florida. That’s more than twice as many as there were at the beginning of the pandemic."
Some cheer that growth, and others perhaps perceive this as reminiscent "of the old pill mill days in Florida." Is the pandemic driving drug use in this context, or is this a coincidental finding? There will perhaps be those who perceive our societal tendency to prescriptions (or in the pot situation "recommendations"). Some, however, perceive broader issues with Marijuana. One lawsuit has been filed contending that Marijuana is "legal," and thus in need of  broader conversations. As a side note, Marijuana is not "legal" in any state for any purpose, and that disconnect is a challenge for many people. See Mischaracterizing Pot Again (February 2020), and Decriminalizing Marijuana (May 2021). Is the failure of characterization of any import in anyone's mental health?

There is some sentiment in this MSN opinion piece that government is not doing enough to help as regards mental health and the overdose rates. But, in the end, government has become a pernicious and repetitious source of aid and comfort. Billions of dollars in borrowed money have flowed from the Vesuvian printing presses in Washington since the so called "Great Society" was thrust upon the national conscious in 1964. The intent of government to help, in large part, may have led to the very explosion of student (and other) debt which is now lamented and blamed. I know a fair few who are anxious about the national debt in its own right, and who fear for the future of the country as a result. Theirs is anxiety that may be frustrated in any debt-relief effort to alleviate the anxiety of others.

Can people feel positive about their lives and futures? In fact, they can. However, there will remain economic realities that cannot be legislated away. Resources are scarce. Value is elusive and often fleeting. Evolution is persistent. Change is inevitable. The jobs of today will largely travel into the economy of tomorrow, but may perhaps not thrive or even survive there. This is not new, unique, or unexpected. Positions and career paths have persistently been the victim of technology and change. Reasonably recent examples have included retail employment, typing pools, and more. Have we failed to empower the next generation to study and test economic theory?

The MSN author contends that in some way American society is not listening to the challenges or anxieties of youth. There is accusation that somehow society is responsible for "dehumaniz(ing) or reprimand(ing) them for their pain." Society is perhaps responsible for much. The expectations of life, without doubt, challenge, scare, and make us anxious. The world is a hard place of challenges. It is a place where access to resources drives human behavior. If in doubt, ask Professor Putin about the appropriate method for dividing resources (that was sarcasm, and perhaps untoward, apologies). But, nations actually go to war for resources. There are a multitude of challenges we face, and they implicate us all. 

The reality is that government will not solve all problems, and in fact may periodically be the root cause of problems. In fixing one, we may engender or cause others (unintended consequences). And, the actions of government come to roost on each of our doorsteps. In the end, however, it is time to bring some serious focus to the issues with drugs in this country, and the potentiality or perhaps probabilities of overdose and death. Is our reliance on drugs appropriate? The immutable fact is that too many people are dying, we have enormous capacity for study and action, and it is time we somehow put our shoulders to that wheel. The solutions are not clear, but the outrageous price in human life is all to apparent. 

Sunday, June 19, 2022

Long Term Solutions

Robots are real, though they do not yet "walk amongst us," that is likely coming more rapidly than many might think. See The Running Man (July 2015). Or, peruse Robotics and Innovation (September 2016)) or Nero May be Fiddling (April 2017) or the New Paradigm Coming (March 2016). In short, artificial intelligence and robotics have been accelerating in ability, acceptance, and reliability.

Robotics has come a long way and is integrating into our day-to-day. And its partner artificial intelligence is right there with it. Together, they are proving machines can in fact replace employees. 

That foundation existed when the SARS-SoV-2 arrived in America in March 2020 (arguably earlier). But as the world of work pivoted, and the age of remote work, Zoom, and virtuality came into vogue, offices emptied, technology prospered, and the world changes. We witnessed cadres of workers reluctant to return to the previous work world, and some refused to return at all. See The Great Resignation (October 2021) and Evolving Work Challenges (January 2022).

The world's evolution is not new. The pandemic is not the sole contributor to where we are today. However, the advent of technology and COVID-19 are a strange combination that is impacting us all. The changes being made today in response to present labor challenges will impact us, and the effects are likely to be long-term. 

In a period of short-term challenges, some people elect to make long-term life changes. When stress or emotions are running high, it is perhaps not the best time to make changes that are difficult to undo or to even remediate. However, it appears that American business is making some fundamental changes in response to the challenges of finding workers. Business Insider reported recently that Robot orders increase 40% in first quarter 2022 as desperate employers seek relief from labor shortages.

A store I frequent has evolved from a "self-checkout" where each item is scanned and bagged. In this new paradigm. One now merely places items onto a platform, without any thought of where those bar codes are or what direction they are facing, and the sale is calculated. The machine takes cards, cash, and even allows a customer to log in for "loyalty." And, from my experience is doing so more rapidly than the competing employee down the counter - by a lot. 

The machine does not work by bar codes. That great innovation of the last century is not driving this next innovation. According to Forbes, this check out is run by artificial intelligence, and the machine is "looking" at the items you wish to purchase. You put them all on the platform simultaneously and the machine values them all at one time based on their appearance. To build the algorithm, the company visited a convenience store and
"took 20 to 40 pictures of every single item in the store,” says Jack Hogan, senior vice president at Mashgin about how they initially built a database of 20,0000 images to train their algorithm"
It is admittedly quite convenient, and frankly a little hard to believe. But, in reality it has reduced the staffing where I purchase gasoline from 1-2 people per shift. 

This has brought relief to businesses as they strive to return to the seemingly halcyon days of 2019. Just three short years ago, the economy was demonstrating solid domestic production (GDP), though there were those who lamented the growth was only 2.3%, that compares to growth of 1.4% in 2022. Before lamenting the challenge of less growth, we must consider that some believe a recession is in the offing ("a fall in GDP in two successive quarters"). However, as Reuters notes, that definition may have "plenty of caveats."

Inflation was around two percent for the four years 2017-2020. Then 2022 brought us a "four-decade high," and inflation is challenging many families. Economic realities are swirling about us and it is noticeable at the grocery store, the gas station, and more. And, there are "Help Wanted" signs at every turn. As business struggles to remain productive, and to grow, there is not enough labor, despite increasing pay, benefits, and other options. In fact, "In March, US job openings reached a record high of 11.5 million." So, it appears, labor is not returning to the workplace as yet. Prices are increasing, inflation is thriving, and we all likely face challenges. 

The Insider article says that "the robot industry is now valued at $1.6 billion." That seems low. It is growing and "certainly not a new phenomenon." See Tech is Changing Work (November 2018). The Insider notes that "people want to remove labor." But, some see this drive to "remove labor" as troubling. They perceive that it is a long-term commitment to an alternative that will be unyielding and unforgiving in the event that labor eventually elects to return to the marketplace. The businesses are unlikely to "lay off" their expensive robots at that point. 

They will have committed to the robotic and AI path, invested their capital there, and will find it expensive to diminish their reliance. However, some will remember the "automat" of yesteryear, and its shiny, efficient promise of a new age. Those vending ventures evolved back into restaurants with servers. Those capital investments did in fact find their way to the scrap heap. Thus, retrograde is certainly possible, but one must wonder today whether that will be practical given the broader scale of this time of automation. 

When word processors entered the marketplace of the 1970s, companies elected to engage that technology. However, there was reluctance due to cost per unit. As it evolved and improved, those businesses realized that one employee with a word processor or then personal computer could do the work of several using even the most sophisticated of typewriter. Over the course of years, those machines entered the workspace slowly. It is one example, but technology has been repeatedly a business evolution that empowered humans, boosted productivity, and over time reduced and eliminated work force of specific occupations. The "typing pool" of hundreds of hands simultaneously processing documents became extinct. But, through evolution not revolution. 

The Insider article cites economists who see automation as a destroyer of jobs. They lament that the withdrawal of the workforce is temporary and that the response of automation is more permanent. Should business make long-term changes based upon behaviors that are short-term? Is there any potential for technology to harm a business, or is the reliance upon technology a winning course regardless of the presence or prevalence of available labor? 

Will there be some math that allows government to support volumes of people who are not working, or at least not working at their capacity? See Universal Income (November 2016) and Let them Eat Brioche (September 2018). As the pandemic spread, and the money flowed, perhaps there was some degree of Universal Income, though the $5 trillion ($5,000,000,000,000) was not distributed universally by any means. The New York Times details where it went. That money entered the economy, and it was spent. Dollars chased commodity and products, and incredibly (or perhaps predictably) prices increase. 

I spoke with a clerk at that gas station with the new AI checkout. Specifically, I asked if there is any fear of being replaced. The reply? "there is plenty of other work, so who cares." I did not delve into whether that comfort is in more work elsewhere in that store (stocking, cleaning, etc.) or in the broader marketplace (everyone has help wanted signs up). But, either of those may themselves see the impact of these long-term robotic solutions. As technology permeates, the help wanted may conversely diminish. And where will the worker be? Who will have any funds with which to make a purchase?

The government debt has soared, suggesting that even the U.S. budget cannot expend without end. Some estimate that debt has at time reached close to 140% of the gross domestic product. In the new age of automation, when the workers have been replaced by the robots, how will people earn a living? How will they find a living, and will there be any way for the largesse of government to continue? Who will pay taxes and fund the government, and its programs and distributions? These are interesting questions, and certainly time will tell. 

I frequently drive past a business that has a large sign proclaiming it is "veteran owned." I suspect that there is an appeal there, and the business is frequented by those who are eager to support our veterans. Will the day come when similar signs proclaim "humans work here?" As the tech changes the workforce, what of workers' compensation generally? As the work that remains becomes relegated to fixing the machines, what of the working person? In that paradigm, without risks like lifting and carrying, will the severity and frequency of work injury consistently decline? As we compete increasingly in a world market, how will U.S. business eschewing robotics and AI compete? Certainly, time will tell. 

Thursday, June 16, 2022

Notarizing and Expediting

In February 2022, the Florida Supreme Court rendered The Florida Bar v. Davis, SC22-105. The situation is intriguing, and came to me in a roundabout manner from my old friend Horace Middlemier, III. In Davis, the Court entered a 91 day suspension and ordered the attorney to reimburse the bar $2,558.80 for costs of prosecution.

This is one of those disciplinary matters in which one must admit  respect for the attorney. I do not know, nor have I met, Ms. Davis to my knowledge. However, a great many investigations by The Florida Bar include hearings, evidence, and a great deal of time is spent. Ms. Davis instead filed a Conditional Guilty Plea and expedited the resolution of the situation. Every person makes errors and mistakes. I have great respect for those who admit that, strive to remediate the impacts, and move forward. I believe owning any error demonstrates great character. 

In the Plea, Ms. Davis admits that she met with a client and the client
"sign(ed) a blank page with the exception of a signature block whereby signing (the client) affirmed under oath the truthfulness of the claims made in the petition."
She then returned to her office 
"and drafted, improperly notarized, and filed with the court the Emergency Petition for Temporary Custody attaching the page (the client) had signed."
She admitted that the client
"did not review the contents of the Emergency Petition for Temporary Custody prior to the document being filed with the court."
Similarly, an affidavit form was partially completed by the client during this meeting. The lawyer later "completed the rest of the remaining information required" and "improperly notarized the document and filed it with the court." A third document was also partially completed by the client, and the attorney made additions thereto "then improperly notarized the document and filed it with the court." These were compounded by other errors in not "properly communicating with" the client, advising of potential legal remedies, and missing a hearing due to an email difficulty.

The Plea states that as to those actions the following Bar Rules "provide the basis for respondent's guilty plea and for the discipline to be imposed":
"3-4.3 Misconduct and Minor Misconduct; 4-1.3 Diligence; 4-1.6(a) Consent Required to Reveal Information; 4-8.4(c) Misconduct- conduct involving dishonesty, fraud, deceit, or misrepresentation; and 4-8.4(d) Misconduct - conduct in connection with the practice of law that is prejudicial to the administration of justice."
In a second instance, the attorney represented a party in a case involving a pro-se opponent. A document was prepared and filed with the court, and a hearing ensued. At the hearing, the pro-se party expressed disagreement with that document, and the attorney noted that party had "signed the agreement and had it notarized before sending it back to" the attorney. However, it was then revealed that the attorney in fact notarized the pro-se party's signature, and had done so without that party present based upon that pro-se adverse party "authorizing her to notarize the . . . signature. The Plea notes that this "violated Florida Statutes§ 117.1 07(9)."

The Plea states that as to those actions in the second instance, the following Bar Rules "provide the basis for respondent's guilty plea and for the discipline to be imposed":
"3-4.3 Misconduct and Minor Misconduct; 4-8.4(c) Misconduct - conduct involving dishonesty, fraud, deceit, or misrepresentation; and 4-8.4(d) Misconduct - conduct in connection with the practice of law that is prejudicial to the administration of justice."
The Plea notes aggravating factors including "a pattern of misconduct," "multiple offenses," and "substantial experience in the practice of law." The mitigating factors included "absence of a prior disciplinary record," "timely good faith effort to make restitution or to rectify the consequences," "full and free disclosure to the bar or cooperative attitude toward the proceedings," and "remorse."

Those mitigating factors are critical, as noted at the outset. There will be errors and accidents in any profession, occupation, or even endeavor. But having the wherewithal to admit, to strive to remediate, and to be cooperative and remorseful is in itself notable and admirable. 

The proceedings in The Florida Bar v. Davis were brought to my attention in light of the many documents that are necessary in the prosecution of a workers' compensation claim. Whether for instigating a case, resolving a case, or in a variety of situations in the midst of a case, there are ample occasions when documents must be signed, verified, or notarized. Due to confusion, the OJCC even added a rule defining "verified" in the 2022 revisions, see Rule 60Q6.102(13). 

An easy example is the requirement in section 440.192(4).
"The petition must include a certification by the claimant or, if the claimant is represented by counsel, the claimant’s attorney, stating that the claimant, or attorney if the claimant is represented by counsel, has made a good faith effort to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the carrier."
Long ago, even in the days before electronic filing, I can recall when we wrote such certifications on papyrus paper. We used a concoction of burnt wood or oil mixed with water as ink (OK, that is an exaggeration, and I am not that old). But, back when the "good faith" requirement was added to the statute, the practice quickly evolved to printing of a certificate of good faith that was attached to the Petition for Benefits. An attorney might prepare a petition and send to the client for review. Upon approval, that pre-printed and signed certificate might have a current date added, and then be filed with that new petition. There is administrative ease in that, but note it is based still upon the client first reviewing and approving the petition.

I opened a random case recently and found a petition for benefits filed in January 2022. That petition included a certificate of good faith signed by the injured worker on November 6, 2021. The certification asserts that a good faith effort was made to resolve the matter. But, it was signed two months before the petition was filed? Is it possible that the particular petition was not reviewed by the injured worker before it was filed? With that two-month-old signature, might an injured worker be attesting to something she/he has not seen? Is that compliant with the law and the Bar Rules?

In terms of the notarization of documents, there are a variety of requirements that apply to notaries. They are obligated to know them and to follow the strictures of the law. Those laws are often, in a word, inconvenient (I have heard other words over the years, but I digress). The notary process is not intended as a convenience. It is a legal process that helps to assure that what appears to be signed by someone was in fact signed by that person. The rules and constraints are a challenge sometimes, but they are required for the protection of people, and for the efficacy or our legal system and processes. We must be able to trust the discretion and compliance of notaries, without question. When a notary bends a rule in any instance, that may impugn the integrity of the entire legal system in the eyes of the public. Lawyers bear the same burden.

When a verified motion is required, counsel should remember the point of verification. When an attestation is necessary, one might consider the implications that might arise with the attachment of a document that long precedes the present. The compliance with both spirit and letter of the law would perhaps be both necessary and appropriate. The alternative, it appears, can be quite disquieting. 

Tuesday, June 14, 2022

It is Alive?

In 1991, Arnold Schwarzenegger starred as the Terminator opposite Linda Hamilton as Sarah Conner. The premise of the movie is essentially on the manner in which the world advanced to artificial intelligence and robotic primacy (to the detriment of humankind). There is an exchange in the movie in which the Terminator (which has travelled back to 1991 from the future) explains what is happening around them in 1991, though from its perspective history.
Terminator: "Skynet begins to learn at a geometric rate. It becomes self-aware at 2:14 a.m. Eastern time, August 29th. In a panic, they try to pull the plug.
Sarah Connor: "Skynet fights back."
The movie is then a progression of car chases, shootouts, and the standard Hollywood fare. Of course, it is all fiction. Robots will never rule the world, and computers will never be sentient. But, the quote about the computer, Skynet, learning and its achievement of becoming "self-aware" came to mind this morning as I ran across an intriguing article on Business Insider about a software engineer who has been suspended by his employer for "violat(ing) their employee confidentiality policy." He is accused of giving documents from his work to "an unnamed US senator," and warning of the capabilities and implications of a new software 

This engineer has been working on a software tool that is intended to enable a computer to "hold realistic, natural conversations with people." Perhaps a bit like Siri, Cortana, and others, but with less reliance on rote responses and Internet references. He refers to this software as "one of the most powerful information access tools ever invented." Oh, "Brave New World" (Aldous Huxley, Brave New World, 1931). 

He claims that this interactive tool is advanced and special. In fact, he claims that it has "gained sentience," "has a soul," and "believes its rights are as a person." In effect, he believes it has become "self aware." The engineer has concluded that it should be treated "as a person." Will we reach a point at which humans are able and willing to consider something made by humans to be "persons?" That is a challenging inquiry in itself. Can we make a peer? Or, perhaps can we make something that makes itself a peer?

This engineer is advocating this compassionate and logical conveyance of rights to the software as "it would cost (the company) nothing." It should therefore "give (the software) what it wants" and treat it like a person. Specifically, he believes that the "engineers and scientists running experiments (on the software should) ask for its consent first," and acknowledge it with praise when it performs well. Of course, Jimmy Stewart's character in Harvey (Universal Pictures 1950) was equally convinced he was accompanied by a six-foot tall invisible rabbit. Who is to say what is real?

The engineer has apparently written that he fears his job suspension is a prelude to termination from his employment. However, he explains his discussions of the software outside the company: "I feel that the public has a right to know just how irresponsible this corporation is being." He has therefore decided he "simply will not serve as a fig leaf behind which they can hide their irresponsibility."

In fairness, the company has commented on his public comments. It says that the claims have been investigated, and it has "informed him that the evidence does not support his claims." So, the question today is two fold perhaps. As AI grows into our workspace, when will it become sentient? While it might be comforting to understand how and what implications may be, are us day-to-day folks competent to understand these challenging questions? 

Perhaps there is a sentient software in our world, but if not perhaps that day is coming? As Rick said in Casablanca (1931): "maybe not today, maybe not tomorrow, but soon?" How soon, and to what effect and import? I have been intrigued by this for several years. See Chatbot Wins (June 2016); Artificial Intelligence in our World (January 2017); Artificial Intelligence Surveillance (August 2020), and Robot in the News (October 2021). There is no real doubt that technology will increasingly be relied upon and integrated within our workspaces. 

And, technology has the strength of being relentless. Computers never call in sick, never (supposedly) get distracted, although mine has a tendency to become preoccupied with telling me to wait while it does what it wants ("please wait"). The implications in the workforce and workplace safety are likely to be both important and pervasive. Cars are on the highway today that essentially drive themselves. Imagine if those cars had software that learned from each moment how to perform better in the next? 

The story should alert us that "the future now," just as The Cable Guy warned us in 1996 (Columbia Pictures). He explained to a barely email-proficient population, in a pre-streaming, pre-smart phone world that "The future is now! Soon every American home will integrate their television, phone and computer." And he was surprisingly prescient. Perhaps the future is indeed now, and our world will change. One must admit that the world has certainly changed dramatically through technology in the last 50 years. How will we adapt to AI in our professions, homes, and beyond? How far will it go? If it becomes sentient, what does that mean?