Sunday, October 30, 2022

Exercise is Good

ABC News reports recently that the U.S. may be facing a "triple threat" this winter with respiratory illness. The trend is already apparent with cases of influenza, respiratory syncytial virus (RSD), and SARS-CoV-2 (COVID-19). The three are being discussed and feared as a "trilpledemic." The onset of flu and the RSD is perceived as being earlier this year than expected, and the numbers seem significant, particularly among the young. We need to protect ourselves, and a great potential reaction is at our disposal.

Recently, the
"pediatric bed occupancy in the U.S. is the highest it's been in two years with 75% of the estimated 40,000 beds filled with patients."
Some hospitals are faced with too many patients and are struggling to cope, according to National Public Radio (NPR). This is more predominant with kids. In some instances, children are being shifted to other hospitals, sometimes out of state. It may seem odd that such infections are increasing.

However, NPR quotes scientists blaming a "perfect storm" of circumstances. They note that isolation for two years prevented exposure to SARS-CoV-2 but also to other viruses. The impacts of that isolation have been discussed and documented. Organizations such as the Mayo Clinic have recognized and warned of emotional well-being challenges from the isolation that came with COVID-19. But, our isolation seems to have left immune systems unprepared for a return to normal.

The NPR article cheerleads for face masks and laments that people are "gathered again." Despite the reasonably widespread recognition of emotional challenges from isolation, there seems some advocacy there for isolation once again. While there are passing references to SARS-CoV-2, the present focus seems largely with the flu and other viruses.

There is, of course, the underlying theme of Covid vaccines, and some lament that enthusiasm for them has lagged recently. Kaiser Family Foundation (KFF) and others have noted the overall rate of inoculation in the U.S. remains somewhere close to eighty percent. However, the enthusiasm has not been uniform, and interest in the Omicron booster seems less enthusiastic.

Discussion of T-cells is not new to these pages. See Never COVID Cohort (February 2022) and Catch a Cold (March 2021). There is a real possibility that the human body has some natural ability to combat COVID-19 and other viral infections. Catching a cold periodically may actually make you stronger (isolating and having no exposure to minor viruses may not, see above). I have also written about a sedentary lifestyle and the health threat it may pose. Constant non-Trauma (January 2016) and How can they Both Increase (February 2019). Throughout the pandemic, I have been an advocate for getting outside often, exercising, fresh air, and sunshine. It is, truly, good for you.

And, I have repeatedly noted that research on this SARS-CoV-2 is really only just beginning. There are vast spectrums of people looking into various aspects of the virus, its impacts, and our health. Our path through COVID has thus far been challenging and left too many posts here. See Long COVID Seminar (April 2022).

Therefore, a recent study has been of particular interest. The Telegraph reported on its findings that may seem counterintuitive to some. They are in line with what I have been suggesting for two years, essentially that exercise is good. The import of the report is that those who isolated and avoided exercise in the interest of avoiding viral exposure may get less benefit from vaccination.

The vaccines appear to be of greater benefit to people who are active and exercising. This is of particular note as we contemplate whether to receive booster vaccinations and whether to get off the couch and get some exercise. This South African study concluded: "that people who got the most exercise responded better to the vaccine, with fewer ending up in hospital following the jab." This, it turns out, is true: exercise is good.

The difference in this study is not marginal or slight. In fact
"out of 100 people who would have ended up in hospital with Covid without a jab, 40 of the least active would still be admitted compared with just 14 of the most active - nearly a threefold difference."
Note that this is "without" vaccination. The odds of landing in the hospital were far higher for those who were inactive. The article is critical of "lockdowns" in this regard, concluding that they were "counterproductive from (an) immune point of view." The import is that active is good without the vaccination, and active is even better if you elect the vaccination. In short, being active is good. 

The scientists involved in this study suggest that "policymakers" were hamstrung by the information available when SARS-CoV-2 first emigrated from China in 2019. Reacting to the fear of infection and the potential for overburdening our health systems, there was an inclination towards "hard lockdowns" and isolation. It appears that a better reaction might have been to encourage exercise. The study authors conclude simply:
"We’ve always understood that physical activity has a protective effect against non-communicable diseases, but now we know we can protect against viral infection.”
Exercise, you see, is good. Perhaps the close proximity to other people exercising is a potential infection risk. Maybe, therefore, it is somewhat easier to be active in this way when you live in Paradise, and need not deal with snow, ice, and frigidity. That is fair to consider. So, don't go out for an hour, go for 15 minutes (then do it again). Pace a hallway, find a mall, there are lots of places to get in a few steps. 

If you can get to the gym, that is great, But, if you cannot get to or into a gym, exercise is still good. If you cannot walk 10,000 steps in day, you may some way to walk something less. During the early days of the pandemic, I often walked up and down the hall outside my office for 15 minutes each morning and afternoon. I tried to get outside, and when I could that was better. Get outside, but if you cannot get up and move anyway, anywhere, anytime.

What happened during the pandemic? The Telegraph reports that it appears "global levels of walking dropped 50 per cent in the month after the pandemic was declared." In the United Kingdom, "Step counts . . . dropped by 15 per cent by 17 days into lockdown." The volume of adults getting significant exercise decreased. One study documented responses indicating more people "reported exercising less than an average of 30 minutes a week." It seems people just quit moving. Motion is lotion, and you will likely feel better for it. 

That lack of motion was detrimental to our "dose response." The more active, the "less likely to be admitted to hospital with Covid infection." The level "of exercise in the years before the vaccine appeared to be key." The researchers note that we all know physical activity is good for us. They note that activity promotes the way our bodies produce "antibodies and T-cells." Those are the same T-cells mentioned above and in earlier posts. Exercise encourages the production of various cells that facilitate immune response, "the mitochondria."

In short, exercise is good. The benefits as regards COVID-19 are coming to light. The cold and flu season is upon us, and already there is an indication of increased respiratory infection in the U.S., particularly among the young.  You can consider the vaccine, a booster, or a Flu shot. And, you can perhaps elect to isolate more or don a mask. But, you might also decide to get outside and walk around the block (take the kids with you). I walk every morning, about three miles before breakfast. It takes a while at my age, but it is worth every minute. It is refreshing, healthy, and now perhaps health-enhancing way beyond the cardiovascular. 

Through almost three years of SARS-CoV-2, I have been blessed to avoid infection. I have persisted throughout in working at the office, flying, riding trains, attending events, and declining masks (unless mandated). But, I have persistently exercised. Anecdotal? Certainly. Good advice, likely so. I am not a doctor or scientist, but the proof is mounting. Exercise is good. Get outside today and find a way to walk a mile or two. 

Thursday, October 27, 2022

Science Evolving

Litigation is replete with evidentiary issues. The acquisition (discovery) and submission (evidence) are among a lawyer's greatest challenges. As I teach evidence, I find that students of the law struggle mightily with the issues of relevance and hearsay, as do many lawyers. However, a more sophisticated stumbling point is the expression and foundations of expert opinions. Expertise and science persist in litigation. 

In November 2021, the British Broadcasting Corporation (BBC) and others published news from Alabama of Curtis Means. As Harry Chapin sang, "He came to the world in the usual way." Cat's in the Cradle (1974). Though the timing of that entry is usual, it might also be said that young Mr. Means was in a rush. His birth is now in the record books as the "world's most premature baby to survive." His gestation a mere 21 weeks, just over half of the normal 40 weeks expected.

The story reported that Mr. Means weighed just 14.8 ounces at birth in 2020. Having survived and then "thriving at 16 months old, (he) set the new record." The experts afforded young Mr. Means "less than one percent chance of survival," and yet, he defied those odds. He required months of hospitalization and medical care, a ventilator, and the dedication of multiple experts, therapists, and more. But, in the end, he defied all odds.

As a human interest story, this is inspiring. It is frankly refreshing to see something in the news that celebrates survival and life. The story suggests that Mr. Means' challenges may persist and that further care will be required, but somehow the human spirit and medical technology combined to achieve a miraculous result.

There is a long history in America regarding the involvement of expert testimony in legal proceedings. The law is persistently dependent upon science and scientists, research, debate, and opinions. See Daubert's New Day (May 2019). Experts bring explanation, analysis, and opinion to our proceedings, and help the finder of fact to understand topics that are in their personal wheelhouse and largely outside of our own. And, from time to time they disagree with each other and we have to have "finders of fact" to strive to sort out what is real. As Billy Joel noted once "sometimes a fantasy is all you need." Sometimes a Fantasy (Legacy 1980). 

The Federal Rules of Evidence are reasonably strict regarding opinions. Rule 701 limits the scope of opinions by non-expert witnesses. Rule 702 allows the expert to express opinions, and expertise is constrained by "knowledge, skill, experience, training, or education." We thus legally define who has expertise, and we afford it deference in the expression of opinion. And, Rule 704 says that such opinions may even embrace the "ultimate issue."

And, we rely upon those expert opinions. Often, cases involve differering opinions. One doctor says a proposed surgery will help symptoms and another disagrees. One doctor says the cause of injury was the accident and another disagrees. There are challenges for the finder of fact in deciding which expert should be believed. Credibility is among the most frequent topics physicians want to discuss with me at conferences. Among the evidentiary challenges is the persistent fact that so many experts are articulate, prepared, analytical, patient, and confident. How does one choose? Science is hard. Determining a scientist's credibility or persuasiveness is perhaps even harder. See Magic Words (February 2021).

The BBC article regarding young Mr. Means quotes the "neonatologist who oversaw the delivery." He noted that in 20 years of practice he had "never seen a baby this young be as strong as he was." The entire story is amazing. As amazing, Mr. Means' record is only "24 hours off the previous record," another 2020 birth. Notably, before that, "the record had remained unbroken for 34 years," about 1986. That "record was 21 weeks and five days." Progress, you see, may not always be as rapid as we might hope. 

One might wonder, or conjecture, what the expert testimony might be if a patient found herself confronted with questions of viability at 20 weeks (beyond the end of the first semester, at essentially the mid-point of the second trimester). The question may one day arise, essentially, "will the fetus be viable" or "will the baby survive" at 20 weeks? What would a physician answer? The odds may seem to suggest the improbability of survival. The safe, scientific, answer seems to be no. 

But what opinion might the expert offer? What grounds and foundation might he or she provide for such an opinion? What science might he or she explain in that testimony? What is certain, is that many might have doubts, but Mr. Means has demonstrated that even the improbable or even the perceived-to-be-impossible, sometimes remains both possible and non-fantasy nonetheless. That illustrates that opinions, expert or not, remain opinions. And opinions can be hard to reconcile, hard to prove, and challenging to even fully explain. 

With the best analysis, and the best process, and vast expertise, there is perhaps always some consideration due to the potential that the ways justify the Means? Or, is it that the Means justify the ways? Perhaps one day young Mr. Means will happen upon this small note and be pleased to know that his birth and fame have caused introspection and thought. 


Tuesday, October 25, 2022

State Court E-filing Evolving

A recent story in The Florida Bar News provides some poignant reminders about the world as it is, and the challenges that some face. The system is being updated to distribute only document links instead of transmitting the actual documents as attachments. This will undoubtedly decrease the bandwidth required for the messages, and that is an important concern for the person (entity) sending the email. But, it is also a potential concern for those receiving it. We sometimes think relative to having up-to-date and leading-edge technology, but we must strive to remember that everyone in the world (in our own communities) does not.

The Portal Program, which coordinates the e-filing process for the state's courts (not the OJCC, we are not a "court"), announced that the "scheduled update" making this transition will exempt organizations whose technology is not up to the challenge. This reportedly includes "the entire Miami-Dade county criminal division." There are precluding "system limitations," according to those involved. There is, in this example, sound proof of the evolution of technology in its abilities, but also in our personal evolution of our individual adoption.

The News article notes that the goal will remain. The process will one day not include PDF attachments. There is some expectation that this might be achieved by 2025. The evolution of "document management" will continue, there will be adaptations, and there will be progress in both system capability and user comfort. Miami Dade county's reliance on paper files will diminish and progress will occur. Yes, Virginia, there are still processes and systems that are paper-dependent.

The News story also notes plans for the public to have free access to documents in the Portal. They envision people registering to accomplish such access. Their plan will include processes and procedures for "users to designate whether case-initiating documents contain confidential information." There will be burdens on parties and lawyers to provide analysis and identification in the court system filing process. Their goal is to provide some degree of public access to documents in days to come.

This is a somewhat stark contrast to the system that the Florida OJCC operates. E-JCC has existed now for over 17 years, and to say that it has evolved is an understatement. The robust functionality of 2022 is miles from where we started in the fall of 2005. But note that, 2005, we were first. Over that time, we have wrestled repeatedly with the fact that different people adapt to and adopt technology at different rates. Before e-filing was mandatory, I was confronted by an attorney who confided that he still used a dictaphone for pleadings, and his secretary listened to the recordings and prepared documents therefrom on a typewriter. Many of you will not be sure what a typewriter is, will have never depended on one, never stained your fingers replacing a "ribbon," or oiled a carriage. 

It is hard to e-file with a typewriter. The transition for that lawyer, from a typewriter to a windows-based computer was not evolutionary, but revolutionary. His office had remained with an aging paradigm for so long that the eventual necessary change was dramatic, organic, and traumatic. That is not a criticism. It is in our nature to find processes with which we are comfortable and to maintain them. Change is never easy, and thus it is uncomfortable and usually unwelcome. To persevere, we must all force ourselves to make periodic, minor, evolutionary changes or we will likely face traumatic and systemic change at some point. 

In the current workers' compensation practice, the computer age is adopted and accepted. We have been transmitting the document links through our process for over a decade, with no option for PDF attachments, as offered by the courts. The OJCC has persistently provided public access to various documents on the website, including most petitions for benefits, notices, and orders, for almost 20 years. Access to the full spectrum of filings is restricted to registered users, and the day may come when more access can be afforded or offered to the public. And, in that event, some process may be required of litigants and lawyers in designating what is or is not exempt from disclosure. The OJCC is ahead of the courts but has to remain aware that further change is likely if not inevitable. 

For now, it seems that e-JCC remains out front in the realm of electronic filing. Its processes today are where the Florida court systems hope to be by the time we reach e-JCC's twentieth anniversary in 2025. I am proud of the program, our evolution, and the benefits to the practice, practitioners, and the public. 

But, it bears remembering that some, perhaps many, non-attorneys may remain challenged in their adoption of technology. When we gravitated to video hearings during COVID-19, I received a complaint about a claimant that could not experience the video portion of a hearing because his/her cellphone was a "flip phone." The Claimant joined the audio, but was hindered in full participation. That "flip phone" potential had not previously occurred to counsel or the judge. There was a preconception that "everyone has a smartphone." That is not true. Even if it were, the odds are that not everyone has the latest and greatest smartphone. 

In many other instances, with telephonic and virtual appearance, we have learned that there remain issues in 2022 with bandwidth and signal strength. There are times when connections are weak, calls are dropped, and there is difficulty in effective communication. We in Paradise are immensely proud of the (literally) hundreds of "5G" antennas installed here in 2020. But, over two years later, we franly yearn and hope that someday, someway, those antennas will be turned on and we will actually have access to the 5G that is already available in so many communities. When I tell people that Paradise remains mired in 4G, they are amazed. Expect the unexpected. 

We have been persistently reminded that technology can be challenging and that Murphy still holds great sway in our modern world. We must remember that geography, economy, and even personal preferences will potentially impact participation in legal processes. That technology exists will never mean universal acceptance, implementation, and comfort. Society and the practice of law will remain diverse, evolve at differing paces, and present us challenges. 

The future is likely to bring further evolution in technology. There is discussion, at least, of the metaverse and all that it might entail. See The Metaverse is Coming (October 2021). Will legal processes and proceedings be implicated? Will there come a day when participation is enabled with expensive headsets, specialized user interfaces, and more? The potentials exist. While the demands of practice will remain in the here and now, we must all remain aware that those sophisticated devices on our desks today may be the typewriter of tomorrow. While working today, we must have one eye on the horizon.

The News story reminds us that there will be differences in the pace of adopting technology. It reminds us that there may be times when the pace of evolution will necessarily slow to accommodate the needs of the broader community. It suggests that technology, community needs, and progress may be driven by a variety of factors. The story reminds that change will be persistent, inspiring, challenging, impatient, and at times frustrating. If we glean nothing more from it, let us grasp that patience and communication will remain critical as we follow the path to the future. 

Sunday, October 23, 2022

Hints and Thoughts

I’ve been having a great many telephone conversations recently around the central theme of professionalism. There is a sentiment that the detachment brought on by evolving technology, and accelerated by the pandemic, has led to a deterioration in interpersonal skills. Worse, there are perceptions that this deterioration is eroding professionalism in broad contexts.

There are a great many skills required for good lawyers and great negotiators. It helps to have knowledge. It is critical to be able to write. It is important to be analytical. Thoroughness is likewise a virtue. All of that quickly falls to the wayside if you are unprofessional. The skills will bring results, and the lack of professionalism will likely bring only grief. 

In one example, at a recent conference, a group of people was reportedly sitting in the first few chairs next to an aisle. Because that left the inner seats empty, people in the row behind them then had an on obstructed view of the speaker. As the room filled, other attendees came seeking those inner seats. Rather than have those attendees climb over them, the individuals sitting close to the aisle rose and shifted inward. It was simply the polite thing to do. Whether they shifted or not, those inner seats would have been filled. 

The attendees had no sooner sat again when one of those who then had the backs of their heads included in the view, out loud, and somewhat loudly uttered “a$%^&s,“ an untoward reference to anatomy (in the plural, the proverbial "A-bomb"). Hint, if you want an obstructed view of the stage/speaker, sit in the front row. Hint number two, calling a group of people “a$%^&s“ for accommodating other attendees is unprofessional. Hint number three, calling fellow attendees at a conference a$%^&s out loud in most contexts is unprofessional. Hint number four, using the word a$%^&s outloud in your professional life is unprofessional. Some, perhaps, will see a recurring theme in this paragraph.

I was, unfortunately, not present for this display. I have ruminated on how I might have reacted, and what the proper reaction would be. At first, I wondered where this young lawyer's mother was. I wondered what kind of environment the lawyer was raised in. I wondered if the lawyer has any mentor to help guide him/her in the challenges of professional interaction. And, I wondered if any of that would matter. 

Another instance recounted to me involved a young lawyer and a telephonic dispute with the opposing counsel‘s staff. Reaching a point of frustration in the discussion, this young lawyer allegedly dropped a "well F^&* you" (the proverbial "F-bomb."). There is an untoward and unfortunate bit of humor on the Internet regarding the very few times in history when the use of the F-bomb was appropriate. Let me correct any misconceptions that this attempt at humor may have left. The following is a complete and exhaustive list of the appropriate circumstances in which it is perfectly acceptable to use the F-bomb:
I can relate from experience that it is really a great feeling to graduate from law school. It is phenomenally exciting to pass an examination like the Florida bar exam. It is immensely gratifying to be entrusted with someone’s wealth or well-being and to represent them in a legal proceeding. They are entrusting their very livelihoods to your skill, intellect, cunning, and professionalism. What greater compliment might one ever receive? What are these worth if you lack the professionalism to do so appropriately?

As a young lawyer, I was periodically blissfully ignorant in the cocoon of my practice. I was perhaps too busy to adequately consider how others felt; my empathy likely often fell short. I had many chances to understand lawyers. I thought little, and frankly never considered how judges might be, or how they might think, or perhaps feel. 

It was common in those days for lawyers to meet socially, break bread, and enjoy a drink periodically. We spoke of the law, we spoke of those for whom we worked, and we talked about the peculiarities, foibles, and failures of judges. There were many. Some may avoid that admission, but take it from me judges are not perfect. There was admittedly a level of ignorance and arrogance in our youthful criticisms and conversations. Probably, we were often wrong and at a minimum, we did not understand the challenges those judges faced. 

Back in those days we often had something called an “open calendar.“ These would be times set aside for various litigants to meet with the judge for a ruling on a particular motion or agreement. One would arrange with opposing counsel and show up at the judge's chambers unannounced. We would wait our turns and we spent significant time waiting our turn. It was not uncommon for there to be tens of lawyers together at the Worker’s Compensation office, cooling our heels and waiting. We socialized, often anguished in our nervousness, and many times there was camaraderie and collegiality. 

I will never forget one instance, as I stood in the hallway waiting my turn, when two of my peers exited the hearing room and began to converse amongst themselves regarding their hearing. I advanced in the queue, and continue to wait my turn. Their case involved a prescription for an orthopedic mattress. Claimant's counsel advocated this was an emergency and had sought the judge's intervention without awaiting a trial. The employer/carrier did not dispute the need for a mattress but denied it was an emergency, preferring to conduct discovery and to have a trial. It had also offered a twin-size hospital bed. The injured worker was displeased and wanted a king-size bed. 

The crux of the dispute was that the claimant's spouse neither needed an orthopedic bed nor was necessarily entitled to one from the employer/carrier. The judge had split the proverbial baby that day, without a trial, and had ordered the employer carrier to provide a queen-size orthopedic bed. Counsel for the employer carrier was upset and decried the lack of evidentiary support for that outcome. The claimant's counsel, who had essentially succeeded, was equally upset at falling short of the king-size ideal. Both were angry with the judge. (hint, baby splitting can do that, as can premature benefit determinations without the due process of a trial). 

But as I waited my turn, these two lawyers stood in the hallway outside the judge's hearing room, and perhaps outside the judge's hearing (though I’m not sure), and proceeded to discuss the potential paths forward, including appellate review. In this conversation, which I will never forget, the Claimant's lawyer, who had essentially prevailed, responded to the other “I know, he/she (the Judge) is so stupid.“ I had heard that word before as regards that particular judge. Perhaps the sentiment was common among the bar. I had also heard much criticism of the judge's well-know tendency to find a way to split a baby. I was astounded, however, to hear this criticism at that volume outside chamber doors. 

I will not discuss the potential that this statement might or might not have been accurate; that is irellevant. I would, however, suggest and remind that derogation is dangerous in any event. Furthermore, it is exceedingly disrespectful to refer to anyone with that word. And, finally, it is even more disrespectful (and unwise) to hurl epithets or insults at the bench (or in its vicinity). 

Is it possible that someone claiming intellectual superiority,  decrying someone else’s intellect or intelligence, might seriously believe that there was some way that that comment would not reach the judge's ears, eventually? I would suggest there is reason to doubt the intellect of anyone who believes such a statement ("so stupid") uttered in front of a dozen lawyers will not find its way back to the judge (or other targets). Statements in public, insults and criticism, are highly likely to eventually find their way home. What will those statements say about the speaker?

And, above, I mentioned the naïveté of my cocoon, blinders of my busy young litigator existence, because it never occurred to me at the time. I was troubled by both of the lawyers' comments and demeanor. I was offended by their lack of professionalism. But one critical point never occurred to me at the time. Years later, I was honored to be appointed to the bench by Governor Bush. I had been presiding for less than a month when I got a phone call from a fellow jurist. The point of the conversation was whether I knew attorney so and so, and what did I think of her/his preparedness, ability, intellect, etc.? 

Imagine my surprise and the epiphany that judges talk to one another also. And they talk about lawyers. On the line are reputation, standing, dignity, and respect. Of course, anyone is welcome to say anything they wish. There is, ultimately, free speech that is constrained in this country by minimal exceptions. But, understand that upon the foundation of those communications will your reputation and standing be built. Will you survive in the practice of law for 30 years or 50 years? Or, will you fade into memory, the subject of cocktail party rembrances and stories? I wish I could relate that the lawyers in the "so stupid" example had grown and persevered. I believe, however, neither of those peers practices any longer.

So, if a group of judges sits down in the row of chairs in front of you, impeding your view of the speaker, you might think twice about dropping an A-bomb. If it bothers you that much, move. When you become frustrated with your opponent, circumstances, and events, you might think twice before dropping the F-bomb. If you must, hang up or get away and utter it somewhere alone. And before you demean or denigrate someone, you might consider what your negativity, expressions, and attitude may be perceived to say about you.

These pages have featured discussion of “keyboard courage," see Anonymity and Emptional Intelligence (July 2022).  I have written many times about the amazing transformations technology has brought to our world. Professionalism is suffering as a result of our lack of personal contact. But, the examples noted here are not the result of technology. They are plain and simple examples of poor personal decisions. They impugn honor and community, damage those involved, and they damage each of us, our community, and our profession. 

Baz Lurhman recited a piece called Wear Sunscreen, written by Mary Schmich. It concludes with  
Be careful whose advice you buy but be patient with those who supply it
Advice is a form of nostalgia, dispensing it is a way of fishing the past 
From the disposal, wiping it off, painting over the ugly parts
And recycling it for more than it's worth
So, perhaps you choose to not buy any of this nostalgia or advice. Reputation is a challenge. We cannot control how others perceive us. However, we can quite literally control the volume of our own mud handed to them to sling. Trust me on the professionalism. It is literally the most important skill of lawyering. Its survival and the future of this professions is literally up to you.

Thursday, October 20, 2022

Discrimination Law

In 1977, the Florida Legislature enacted section 760.10 Unlawful Employment Practices. There have been revisions in the interim, but a major revision was passed in 2022, referred to by the legislative action, "House Bill (HB) 7." This relocated two paragraphs of the existing bill, and inserted a new paragraph (8):
"Subsections (8) through (10) of section 760.10, 61 Florida Statutes, are renumbered as subsections (9) through 62 (11), respectively, and a new subsection (8) is added."
The new paragraph 8 is directed at actions toward "any individual," and precludes various behavior, defining that the words or actions in the subparagraphs to paragraph 8 "constitute(s) discrimination based on race, color, sex, or national origin." There are eight separate subparagraphs of criteria or categories, and "subjecting any individual" to the actions described in any of them is "discrimination" and unlawful if it is done
"as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe"
The foci of this statute are thus inextricably and broadly intertwined with the employment process in Florida. That "employment" itself is explicit supports this. However, it is deeper. The impact will also be intertwined in the education process, licensing, and credentialing. the broadest "catch all," incorporates "any other required activity." Thus the spectrum of employment processes and paths are implicated by these prohibitions on discrimination. 

In the event of a work accident, there may be litigation regarding statutory benefits. That is a workers' compensation reality with which most are familiar. However, it is not uncommon for such litigation to also include broader workplace issues including discharge from employment, wage and hour disputes highlighted by average weekly wave discovery, and discrimination. This statutory change is therefore an important topic for discussion as regards the workplace relationship broadly. 

The subparagraphs of the new paragraph (8) delineate the following as discrimination action that "subjects any individual . . . to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of" the particular subparagraphs (numbered paragraphs are direct quotes). On other words, the law forbids teaching, training, or directing that:
1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
In the press release regarding the signing of the bill, Governor DeSantis noted that this law "give(s) businesses, employees, children and families tools to stand up against discrimination and woke indoctrination." The release also noted that HB 7 "defines individual freedoms based on the fundamental truth that all individuals are equal before the law and have inalienable rights." That phrase is reminiscent of the Declaration of Independence written almost 250 years prior:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Inalienable and unalienable are essentially synonyms meaning "that which cannot be taken away," according to USHistory.org

America's history, both before and after that declaration, has fallen well short of the aspiration and vision of that sentence. There have been acts of discrimination carried out, from slavery to Jim Crow, and beyond. Discrimination has at times been part of the very fabric of America. There has been recognition of that in the highest echelons of our legal system, perhaps most notably in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)("a Nation confronting a legacy of slavery and racial discrimination"). The concept of affirmative action in America is largely rooted in the analysis of this plurality opinion.

The Constitution Center characterizes that the "fractured Court in Bakke came to a mixed decision on the issue of racial preferences." The plaintiff in the case, Allan Bakke, had sought admission to medical school and was rejected. He learned of a school process that "designate(d) 16 of the 100 spots in each class for minority students." Mr. Bakke contended that this action, this discrimination, violated the law, specifically the Civil Rights Act of 1964, which "outlawed discrimination on the basis of race." A broad proscription on discrimination was being used to justify discrimination aimed at remediation of the impacts or effects of historical process or procedure. 

Mr. Bakke was successful in the suit, and the California Supreme "ordered Bakke’s admission." The review by the "fractured" United States Supreme Court affirmed the order to admit Mr. Bakke, but concluded that discrimination based on race is not entirely illegal under the Civil Rights Act. It did strike down the quota process ("16 of the 100 spots"). However, four justices also concluded that it may be appropriate to consider race, that is to employ "a program that considered racial background as one of many holistic factors in admissions decision(s)." Mr. Justice Brennan's opinion stated it thus:
"The Court today . . . affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all."
That is, to discriminate based on race in specific, defined, and remedial methodologies. Affirmative action has persisted in higher education, and American workplaces, for almost 50 years since. The future of that remains to be seen, and a future post will address the interesting challenges with which the Court is expected to grapple in its current (2023) term.

In the Governor's press release regarding HB7, Florida Senate President Wilton Simpson is quoted:
“Every person is created equal and entitled to their dignity as an individual. We have heard concerns that students and workers are being pushed to adopt the personal or political viewpoints of employers, teachers(,) or textbook authors. This bill protects our individual freedoms and prevents discrimination in public schools and the workplace while supporting factual, educational discussions for our students.”
Thus, this statutory amendment is directed toward respect for individualism and opinion in "students and workers." There is a strong sentiment here of respect for the differences and beliefs of people in the context of a broad spectrum of issues that impact education and employment. The implementation of these individual protections may be challenging for employers. 

HB7's amendment of section 760.10 brings focus to the challenging and conflicted times in which we live. There are a great many perspectives on race in America, discrimination, and various ideologies. Some extol history, others decry it, and some strive to rewrite it. The changes in section 760.10 may lead to classroom discussion of perspectives and conclusions regarding race, race relations, and more.

The Florida State University (FSU) Office of Faculty Development published an undated memorandum providing guidance to instructors. It says that
"this statute does not prevent discussion of controversial subject matter, nor does it remove or override instructors’ freedom to determine what and how they teach."
There is recognition there that certain academic freedom in the classroom is worthwhile. The memorandum notes that there are subjects and topics that "are controversial, and perhaps difficult and painful for some students." And, there is recognition that education is a foundation for life, a preparation for greater struggles and challenges in the real world. In order to "prepare students to thrive and flourish, it advocates classroom interaction providing experience with "civil dialogue, respect for others, and openness to new ideas" to that end.

The FSU memo perspective is not universally shared. Some have filed a lawsuit challenging the new law. WFSU reported on October 15, 2022 that some believe the new law suppresses free speech ("at least four lawsuits have been filed challenging the law."). the WFSU article notes that the law 
“does not prohibit discussion of the concepts … provided such training or instruction given in an objective manner without endorsement of the concepts.”
Despite that, and despite the plain language of the statute, some find the law questionable. There were recent proceedings as regards enjoining enforcement of the statute until litigation has concluded. The judge in those proceedings questioned whether the law might "result in the students' inculcation into certain beliefs." The law certainly provides some such parameters on not labeling people "morally superior," "racist, sexist, or oppressive," or "privileged or oppressed." There are statements regarding the broad assignment of race-based "responsibility for" and "discriminat(ion) against," as well as the assignment or assertion of "guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part."

Interestingly, the judge reportedly questioned litigants regarding "indoctrination," and seemingly labeled some state arguments regarding the law "dystopian." The focus of these particular cases seems to be primarily the potential for a balanced and respectful classroom discussion of disparate ideas and beliefs. Much of the judicial inquiry that was reported referenced classrooms, professors, and teachers. 

The judge even suggested that the "mention (of) affirmative action" might be actionable under the law. That seems at odds with the clear mandate that the law “does not prohibit discussion of the concepts." There was perhaps a hint of some flavor conveyed in this press report that suggests a perception of the judge straying from the role of impartial arbiter and undertaking the role of inquisitor as regards the impact and import of the statute. I have often discussed that subject, and advised many judges to avoid such an appearance. 

In the workplace, there will also likely be challenges. There is a current widespread effort to drive for diversity, equity, and inclusion in the workplace. See Diversity, Equity and Inclusion (October 2022). Those may possibly include affirmative action, as well as workplace discussions of perspective, perception, and belief. Those discussions may include training and continuing education that could face the same educational or instructional constructs discussed by the WFSU report. 

The legal parameters of discrimination as set forth in this statute may bring legal challenges, management challenges, and the more generalized challenges of a changing and evolving workplace and workforce. And, through various changes and challenges, there will be work for management in driving and facilitating conversation, dealing with competing perceptions and beliefs, and coalescing varied and diverse individuals into strong and cooperative teams that pull toward common goals. Management will perhaps struggle with the implementation of solutions, amongst the many other challenges such as workplace safety that already exist, persist, and confront.  

Perhaps the most important element of Section 760.10 is the balance provision mentioned above. The items in the eight subparagraphs:
"may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts"
Perhaps, it is permissible to discuss these topics? Perhaps one might have a personal belief that someone is "inherently racist, sexist, or oppressive" "by virtue of his or her race, color, sex, or national origin?" However, it is likely impermissible to condition someone's 
"employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity"
on some litmus test that they agree with that personal belief? The progress of this law's implementation and the outcome of litigation surrounding it will be of interest to those in the world of employment and education. 

Tuesday, October 18, 2022

Diversity, Equity, and Inclusion

A major feature of the 2022 WCI conference was familiarity. Certainly, we all returned in 2021, following the Great Pandemic. But, that was December, similar, but different. The 2022 experience was much more familiar, August, humid, kindred. The faces were similar, and there were many chances to rekindle connection, foster community, and exchange thoughts about workers' compensation generally, and our future challenges specifically.

And, yet, there were singularities, differences, and changes. One I noticed at the outset was the greater focus on "DE&I," the diversity, equity, and inclusion that is being discussed. Elite Personnel explains how these three concepts coalesce into a continuum. It asserts:
"Diversity refers to the many differences that exist between people."

"An equitable workplace is one in which all employees are treated the same —regardless of how diverse they are from one another."

"Inclusion means that all employees feel welcomed and valued by the employer and their colleagues."
The merits of each of these seem axiomatic. If anything, perhaps we might question why such a conversation seems to be only beginning in the twenty-first century? It is at best a bit embarrassing that this has not been a priority and rallying cry in the world of work all along, or at least that it has lacked such volume. Despite that, let us eagerly seize upon its opportunities now.

Notably, companies are striving to make this DE&I spectrum a reality in day-to-day business. It is likely accurate to describe diversity as a foundation, upon which equity and inclusion are structures that should co-exist with other elemental structures of any particular business model, including service, productivity, evaluation, and more. I find this a persuasive illustration as diversity (D) is the critical point from which, upon which, the E and I are to function. In other words, this foundation and these pillars are likely as important to the business's success as its product mix and other processes.

It seems to be a people mix, a background/experience mix, and a thought mix. Perhaps that description is not broad enough. The involvement of various perspectives within the organization will strengthen and enable the business in an equally diverse marketplace. The effort will bring greater understanding and better interaction. The result will be stronger teams, broader foci, and deeper perspectives. It will bring advantages to those who embrace it, but only if that embrace is sincere and genuine.

Why is it important? Forbes explains that "an effective DE&I strategy also improves a business's bottom line." It concludes that "the most diverse organisations (sic) outperform competitors by 33% and are 21% more likely to experience above average profitability." Thus, there is both moral imperative and base profitability as motivators in this effort. That is, DE&I are the right things to do in their own account but are also keys to more business success. And, Forbes provides some instructions on the challenges of "how to."

As I typed that, "business success," I was tempted to say "business/personal," but instead I add this separate paragraph to emphasize and stress that there is a co-primary benefit that is personal to the employee. Diversity, equity, and inclusion build team loyalty, productivity, and cooperation. As they do, cyclically, employees should better understand and embrace, making the DE&I goals and objectives more attainable through better team retention, interaction, and cohesion. In other words, these foci can bring an upward spiral of increasing dignity, respect, and success personally and institutionally.

Different. Thus, this is a discussion of different. And, while the 2022 WCI was familiar in many ways, it was also different. There is no inherent harm in "different," but we often fear change nonetheless. The only real "constant is change." See Negativity and your Inner Pooh (January 2017). The world is changing, business is evolving, and there will be greater diversity in workplaces, workforces, and customers. It is probable that the progress will change perceptions of interaction and even humor. See Funny or Offensive (October 2022). Jokes, discussions of punching up or down, are likely troublesome in the scope of "inclusion" and people "feeling welcome." Does it matter if humor is "racist" if the humor makes people feel unwelcome or unappreciated? I suggest that the unwelcome and unappreciated is enough to justify deferring the humor, without reaching the analysis of whether it is or is not perceived as, labeled as, racist. Workplaces will change. Professional interactions will change. Those who will strive will make the change.

It does not escape notice that there are challenges in the world regarding recruiting and retaining the best employees. It is a broad challenge of business, and a reality of the twenty-first century and post-pandemic world. Workers' compensation is neither immune from these challenges nor in any way uniquely qualified to meet them. But, this community is very broad and includes many perspectives. It has great heart and comprehension. There is much we can do to build diversity, equity, and inclusion into the business of workers' compensation, and all of the ancillaries that it touches.

As with other trends we have experienced, it is possible that some companies will adopt but not adapt. Their acceptance will be for appearances or self-satisfaction. They will print workplace posters, endorse slogans, practice public relations, and even write checks. But will they embrace DE&I in spirit? Near the turn of the century, an interesting perspective on corporate culture was described by the Harvard Business Review. It criticized corporate value statements, which were then quite trendy, noting that "most values statements are bland, toothless, or just plain dishonest." Advocating for sincerity in both statement and practice, it warned
"Empty values statements create cynical and dispirited employees, alienate customers, and undermine managerial credibility."
Those who preach DE&I but do not practice them will not succeed, except in inhibiting the process or building criticism and cynicism. Those who embrace only the name or labels of DE&I, will likely encounter challenges with sincerity, perceptions, and progress. They will demoralize and destroy teams. Insincerity and superficiality will not suffice or succeed. Those who genuinely and enthusiastically embrace the concepts and benefits of DE&I will build and refine dynamic organizations that are persistently strengthened by the benefits described by Forbes. Actions, progress, and innovation will build success that will be apparent and perhaps even obvious.

I came away from WCI 2022 enthused and encouraged. We are, alas, neither perfect nor even approaching it. We are, however, cognizant, comprehending, ambitious, and a community. In ever-growing numbers, we are convinced that this community can do better, will do better, and sincerely wants to do better. Through innovation, inclusion, and contribution this community will find a path forward to the goal of recruiting and retaining the most capable, diverse, and respectful cohort to build upon the fantastic foundation that lies before us.

It is both inspiring to watch and motivating. The world is changing. It presents a plethora of new opportunities and alternatives. As the next generation takes the reins, change is in the air. Whether change is embraced with sincerity or insincerity is seemingly up to each of us. We all know the benefits that DE&I offers, but will we embrace it and develop it? Will we live it, or merely talk about it?

Sunday, October 16, 2022

Funny or Offensive?

I recently heard from Horace Middlemier, an old acquaintance in the world of legal practice [1]. He had attended an educational gathering and had a strange experience that he wanted to relate. The question he posed was intriguing and I really had no answer. Essentially, it comes down to "is it ever acceptable to appropriate an accent for the purpose of humor?" It seems someone had ended a presentation with a joke in an accent and Horace was perturbed, on the edge of offended. I did not see or hear it, and so I am left with forming opinions secondhand. 

The circumstances are interesting in that the presenter was a member of a minority group, and undertook an impression of another minority group in presenting this intended-to-be humorous anecdote. Horace was a bit taken aback at what he perceived as a lack of respect for the imitated group, which he perceived as ridiculed by the joke. Curious and careful, as Horace always is, he had bounced his feelings and perceptions off of some other attendees, and related that he perceived he was not alone in his discomfort.

The conversation reminded me of a news story that came across my feed some time ago from the great Downunder. In October 2020, the Sydney Morning Herald headline read "Speaking in tongues: Is it ever OK to do a foreign accent for laughs?" The story involves a "Sydney radio presenter," Erin Molan, that was "accused of being racist because she has, more than once, put on accents." The matter was in litigation because Ms. Molan apparently sued "the Daily Mail" for "call(ing) her a racist" as a consequence of these appropriated accents. 

The Herald examined the issue interestingly. Its article features quotes from Diana Nguyen who "uses heavy accent when she performs as her Vietnamese mother" in various formats. Ms. Nguyen asserts that there is an element of intent in accent use. She says one must ask "why are you using the accent." Ms. Nguyen denies mocking her mother or culture. She explains that "white people us(ing) Asian accents in the past, it was punching down." This, she concludes is inappropriate and wrong. Ms. Nguyen says that "When white people use accents, and particularly Asian, the question has to be why." She characterizes this as disrespect and asserts that "It's a universal human right to have respect."

Another comedian, Simon Hall, told the Herald that he "understands why accents are so appealing to comedic performers." Despite that lure, however, he conceded "they can also be highly problematic." He also contended that context is important and that "Intent is important, too, but it can be easy to misinterpret." Mr. Hall opines that who is performing has great importance, "as does the power dynamic between the performer and the performed; punching up is very different to punching down."

Mr. Hall says "a white . . . doing an Indian accent . . . feels mean in the context of the world as it is." This seems tied to his perceptions of equality and society, as he adds that "If the world was equal, then everyone could do everyone's accent and it would all be funny." He admits that he has "performed as a hillbilly American, and it's a characterization that draws on shared understandings around poverty, lack of education, and a proclivity for Deliverance-style violence." Reflecting on this, he tells the Herald "On reflection . . . 'it feels a bit off, and maybe it is.'" Curiously, Mr. Hall's perspective on punching down on the economically disadvantaged seems different than his perception of other punching down. Some might say hypocritical?

The Herald described an Australian who is "the stand-out example of performing outside your cultural comfort zone." This Mr. Mitchell, it said, "has come to be seen as the benchmark against which all transgressions are measured." His portrayals focused on Greek culture, and when asked about it, "Mitchell claimed (this character was) also a character to whom Greeks gave 'an enormous high approval rating.'" Thus, there is some apparent perception that it may matter whether the group that is being mocked approves of being the butt of a joke. But, does how the ridiculed group feels change whether everyone else perceives the speaker as a racist or worse?

The Herald addressed another broad "school of comedy, that was perceived as different because of who was speaking." This example involved when "Anglo-Saxons pretend[ed] to be ethnic in a very stereotypical way." This resulted in derogatory labeling of people, and some appropriating a particular term to label themselves. There is a perceived difference in the use of derogatory terms, and some see no issue with people self-derogating. A word that is perhaps generally or even universally offensive may be excused or permitted when used by someone of a particular background, ethnicity, national origin, or otherwise. What may be inappropriate or forbidden for one speaker might be permissible for another. 

The Herald notes that "the mood of the nation (Australia) has turned." This includes that "the mood has inexorably shifted on the question of whether doing an accent outside your own cultural zone is racist." It cited a survey of 1314 people, which "included a 'significant' number of people from non-white backgrounds." This concluded that half of the respondents said that "'imitating an accent associated with another racial group' was either always or usually racist." However, "40 percent said it was never or usually not." That survey did not, apparently, consider the race or national origin of the speaker in specific terms, but seemingly presumed in the question that the speaker was not of the group being imitated ("another racial group").

One might cast that as a close decision. Or, one might see the 10% difference as a compelling margin. And, the whole issue leaves the Herald's query:
"It's a question we might all reflect on. Is doing an accent inherently racist?"
Whatever the answer in the broadest context of society, the conclusion of the Erin Molan trial may be viewed from various perspectives. The outcome was a court victory for Ms. Molan and an award of $150,000 (presumably Australian Dollars, which is approximately $96,000 U.S. Dollars), according to The Guardian. This does not answer the question of whether appropriating accents is or is not acceptable, or even racist. It concludes that in that case, on particular facts, a court concluded that labeling the person using such accents as "racist" was inappropriate and somewhat expensive (it was not as notable as the $1 billion ordered in the recent American "hoax claims" litigation). 

The Guardian article includes perceptions of the Australian case, and quotes from the (presumably) presiding judge, Justice Robert Bromwich. This includes the perception that "each side had a 'measure of success and a measure of failure'" in the case. There were conclusions regarding whether Ms. Molan's humor was directed at ethnic peoples, or at a co-worker who struggled with pronunciations. In the end, the conclusion was that “'the most serious pleaded imputation,'” that Molan is a racist, was not conveyed." Thus, the point of the Molan litigation may be about who did or did not satisfy the burden of proof in that setting as much as it is a generalized statement on the appropriation of accents. 

Thus, in the Australian court, the conclusion to the "inherently racist" question is perhaps "no," and perhaps merely "not in this instance." The conclusion of the "inherently racist" question in the poll cited by the Herald is more likely a significant "yes," unless perhaps you are ridiculing your own culture or its foibles. The conclusion in the broader court of public opinion is perhaps harder to measure, as it seems to be among the public figures interviewed by the Herald, perhaps a resounding "it depends." While that "depends" seems equivocal, Horace and other legal practitioners might remind us that "it depends" is likely not consistent with "inherent." The word "inherent" is a "permanent, essential, or characteristic attribute." 

In the end, perhaps the best advice is rather simple. Imitating someone's accent, whether you are "punching up" or "punching down" is fraught with the risk that you will be seen as "punching." That is belittling, ridiculing, or demeaning someone. Whether you are making fun of your own, or of others seems a fine line distinction that you may not find support for in your audience or the public generally. Despite how hour audience responds, how will those who learn of your "humor" secondhand perceive it. Will they laugh, or without the context of your joke will they simply conclude you are a racist? 

The best advice seems to be to find some less potentially insulting, or at least distracting, way to grab that laugh. "Is it ever acceptable to appropriate an accent for the purpose of humor?" That will be up to the listeners who hear the joke and who learn later of your humor. Whether you or the audience perceive any racist intent or effect, your reputation may suffer. It did in the instance Horace described in starting this discussion. It is possible in this world that perceptions can be as important as the reality that we individually perceive or discern. As such, appropriating someone's culture to demean them may be troubling regardless of your intent, personal background, or perceptions regarding the direction of punching. 

[1] Horace is not a real person, but a fictional perception of a variety of people conglomerated as a literary tool. 

Thursday, October 13, 2022

More Rust

The subject of gun safety is not new to these pages. See Safety First (November 2021) and Workplace Gun Safety (August 2022). Essentially, workplace safety is everyone's job. Period. There have been investigations into the workplace shooting of Halyna Hutchins, and according to NBC News, it remains under police investigation. Civil suits were instigated against several, including the movie's producers, which is of interest. However, there are also ancillary legal proceedings worthy of discussion.

The intriguing tragedy in the killing of Halyna Hutchins made the news again last week. The movie will still star Alec Baldwin who was undoubtedly holding the gun that killed Hutchins. TMZ says Ms. Hutchins "was shot and killed by Baldwin"; Reuters says "Halyna Hutchins, who Baldwin shot dead." However, Baldwin swears that he had nothing to do with her death as the gun simply discharged of its own free will. For some reason this morning, I keep replaying a song in my head - John Lennon's 1974, post-Beatles, hit Whatever Gets You Through the Night (Apple Records). It is likely artifact, but one wonders.

The movie will begin production again with Ms. Hutchins' widower as one of its producers. It is said that "to err is human, to forgive is divine." The clarity of Ms. Hutchins' widow is perhaps inspiring in that regard. He is quoted that he has "no interest in engaging in recriminations or attribution of blame" for the killing. He concludes that there is unanimity ("all of us believe") in the conclusion the killing was "a terrible accident," and is focused upon "com(ing) together to pay tribute to Halyna's final work." That is an inspiring sentiment in any perspective. 

That news story was characterized in various outlets with surprise. TMZ characterized it as "shocking news." Other outlets such as Reuters also covered it, and seemingly placed more stress on the potentials still on the table "Baldwin and others could still face criminal charges." The potential for workplace safety liability is a near constant in discussions of workers' compensation. But, there was simultaneously another Rust story in the news regarding the killing of Ms. Hutchins, which received seemingly less coverage. It involves a workers' compensation claim that is instructive in its various potential points of discussion.

NBC News reported that the potential for claims from Rust extends beyond Ms. Hutchins, and Director Joel Souza (who was also struck by the allegedly magic bullet, or the banal bullet that came from the magic gun; remember My Cousin Vinny, 20th Century 1992, and the "magic grits" scene?). Mamie Mitchell is seeking damages in a Los Angeles court for a personal injury stemming from the shooting. This is the first interesting point: the case is being pursued in California regarding an allegedly magic misfortune in New Mexico.

The producers of Rust have reportedly asked that this litigation be dismissed arguing that Ms. Mitchell's only recourse if any, should be through the New Mexico workers' compensation system. The producers assert that the killing of Hutchins and "wounding of director Joel Souza were the results of a 'workplace accident.'" In the workers' compensation and litigation arena, this is referred to as "exclusive remedy," and it is one of the pillars of workers' comp. An employee gives up the right to sue in tort for workplace injury, part of the "Grand Bargain."

But, why California? What we refer to as "a" system of workers' compensation is really many "systems" that are each defined by state law. What is or is not covered, burdens of proof, and definition of benefits are all among the details that may differ from state to state. A workers' compensation law such as California's may exercise jurisdiction over accidents in that state, as one might expect, but also over accidents that occur elsewhere if the contract of hire occurred in that state, an injured person lives in that state, and/or various other criteria.

Similarly, a state may exercise jurisdiction over tort or contract claims based upon where a contract was entered, where the parties are, and various other intricacies. In this instance, Ms. Mitchell has selected California and civil court and the producers of Rust disagree. They are essentially asserting exclusive remedy as regards the type of potential liability and argue for New Mexico law. These are not mutually exclusive. They may find themselves in New Mexico or California workers' compensation, or civil court before it is all resolved.

The second point of interest is the NBC description that Ms. Mitchell was not apparently struck by a bullet, nor alleging a fall or other physical trauma in responding to the fear or confusion or fleeing the scene. She was reportedly "standing next to Hutchins." From that proximity, she alleges she "suffered 'serious physical trauma and shock and injury to her nervous system.'”

There are states that allow workers' compensation benefit entitlement only as an adjunct to a physical injury. These are referred to as "physical-mental" states. Others allow compensation for benefits related to emotional injury without physical trauma. These are referred to as "mental mental" states. See The Debate of Mental Mental and PTSD (January 2017). Several are discussed in a Connecticut workers' compensation analysis here. California and New Mexico are each among the states in which "mental mental" claims are potentially recognized.

Similarly, states have varied views on tort liability for emotional injury also. This is referred to as the "impact rule," and can impose a similar requirement for physical injury or at least "impact" in a variety of claims for emotional injury. Florida has such a rule. It is a worthy reminder, as to the foregoing, that following any injury counsel should always remember: (1) that laws differ from state to state and (2) any event may be subject to the laws of multiple states (thus a good attorney can study and select the best state in which her or his client might proceed).

After the civil court in California decides on the exclusive remedy question, the litigation will proceed there or be shifted to a workers' compensation system. There will likely be inquiries and analysis and then selection of some state based on the contacts of this movie with that state (California by contract, or residency; New Mexico by occurrence; perhaps others).

Whether the appropriate law to be applied is California's or New Mexico's, the potential appears to exist for Ms. Mitchell to claim entitlement to workers' compensation benefits. This, of course, will be defined by and controlled by the particular law in the jurisdiction that is elected. It is a fundamental truth about these laws that benefit entitlement and procedure differ from state to state, and even within a state may differ from event to event and from year to year. In short, it is a potentially complex and intriguing puzzle that any workplace injury presents.

Tuesday, October 11, 2022

Emotional Health

A notable recurrent theme in workers' compensation recently is mental health. This dovetails into aspects of the broader focus that has been proposed and advocated in the claims business in recent years. There are those who see the worker as needing broad attention in the course of recovery. They advocate a process of Treating the Whole Person, as Roberto Ceniceros Wrote in Risk and Insurance back in 2015. 

Some of the focus there was directed at more visually apparent co-morbidity issues like obesity, but the underlying theme is similar regarding any conditions or predispositions of the worker. The point is that treating the underlying comorbidities or pre-morbidities may be a method to indirectly attack the results of an injury and facilitate recovery or remediation. It is a sentiment that recognizes the fact that humans are each unique in various ways, and that such singularity carries through following an injury. Our individual predispositions, including emotions, may influence our individual perceptions, reactions, successes, and challenges. 

Many discussions I have at conferences and meetings focus on emotional or mental health. Many contend that the distinction between positive and negative recovery/outcome following an injury comes down to mental health. While they accept that mental health issues may follow a work injury, some stress that such reaction or evolution may as likely be founded in mental health, coping, and conditioning that pre-exists, at least to some degree. They describe various potentials for outlook, motivation, and perception that may be influenced by the way an injured person reacts to injury, perceives pain, reacts to support, and the complex community of personal perceptions of work, family, and more. They argue a worker's existing emotional perspective and disposition to coping may support or impair efforts at recovery. 

A corollary of emotional reaction may be aptly illustrated in a larger sense by comments in The Guardian regarding the aftermath of Hurricane Ian (October 2022). That story recounts a litany of challenges faced by survivors as they emerged from sheltering and re-entered the community to find devastation. If you have never lived through a natural disaster, the feeling may be unfamiliar, but it is likely everyone has had life events that may engender commiseration for the reaction. The article notes that people become "frustrated, agitated." They have expectations of progress in recovery; "They think the power’s supposed to turn back on,” and respond with frustration to the situation not meeting expectations. 

Following an injury, patients may similarly have recovery or restoration expectations that are not realistic but are nonetheless sincere. The result may therefore be frustration and emotional stress. A local government official is quoted by CNN: "People need to take care of their emotional and mental health because we’re really going to need to work together on this.” Certainly, that seems good advice following a massive tragedy. Is it any less apropos regarding a work injury? Wouldn't it make sense following an injury, work interruption, or alteration of our personal "normal" to "take care of . . . emotional and mental health?" Wouldn't it make sense to undertake a collaborative path to recovery?

To say that emotional well-being is "potentially" complex is perhaps akin to suggesting that Euclidian geometry is "potentially" frustrating. I had a professor once who explained my failure with an equation noting that "geometry may or may not be linearly dependent." And I was irretrievably lost to mathematics thereafter. I still have no idea what she meant. For some reason, various of my peers were less confused by that statement, and even seemed inspired by it. We are each, it seems, different. Some differences may be in reaction and others in predisposition. Perhaps my peers were merely better prepared to receive the advice that professor was providing?

So, step one in considering the impacts of emotional predisposition or comorbidity might best be to agree that the issue is potentially complex. It is possible that there will not be a unanimous agreement on various issues of presence, severity, impact, and more. It is possible that the convoluted interrelationship of emotions will be less apparent to some than others. It is possible that there will no sooner be unanimous agreement on the topic than there will be on deciding "the best" college football team.

The numbers are challenging. The National Institute of Mental Health (NIMH) suggests that America has significant challenges with mental illness, estimating that "nearly one in five U.S. adults live with a mental illness (52.9 million in 2020)." That is significant, 20%. In illustrating a similar statistic once, a comedian said (essentially) that you can "think of your five closest friends. If one of them is not ________, then it's you." That is troubling. But more troubling is the fact that it may be one of those friends and either you have not noticed or they are really good at hiding the struggle they live. Or, it is possible that I know two such people and you know none. Or, perhaps the one suffering is you. Statistical analysis can be helpful, but not always definitive.

The broadest definition in this grouping is referred to as those with "any mental illness" (AMI), and it "can vary in impact, ranging from no impairment to mild, moderate, and even severe impairment." Note that, some of the 20% may have absolutely no knowledge they are suffering and have no impairment. Remember the "predisposition" discussion above? What if that is the worker that gets injured and thereafter the predisposition manifests or complicates recovery?

There is also a subset that is referred to as "serious mental illness (SMI)," which is a "disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities." Despite that this level of impact may be notable and even potentially debilitating, such a person receiving active care might nonetheless be functioning and working well until an interruption event like a work injury. Thus, the severity of what that 20% suffers can be spread across quite a spectrum. And, it seems practical to anticipate any particular level of severity may exist in a given workforce.

Notably, the 20% is likely a slight understatement of the reality. The survey specifically does not include any assessment of "persons who, for the entire year, had no fixed address (e.g., homeless and/or transient persons not in shelters," according to NIMH). That population is estimated to be around one-half million Americans. Adding some or all of them to the analysis might not change the percentages substantially, but it is important their existence and struggles are similarly considered and discussed.

What is certainly worthy of consideration are statistics about the workplace. Notably, 100% of workers' compensation accidents are suffered by working people. While that is axiomatic, it bears noting. The working population is broadly defined as those between 15 and 64 years of age. Obviously, there is potential for workforce participation beyond those two poles, but, the statistic is intended to provide consistently defined parameters by which we might express and consider this group in a broad sense, the "working population."  

The U.S. working-age population has ranged over the last 50 years between 62% and 67% of the overall population. Thus, it is possible that this group might include none of those suffering with AMI (20%). But, that is not the case. AMI is unddoubtedly among the "working age population."

The figures reveal that the working population is: 25-29 years old = 23.24 million (m); 30-34 = 22.84 m; 35-39 = 21.83 m; 40-44 = 20.31 m; 45-49 = 19.97; and 50-54 = 20.39 m. These age groups coincidentally include individuals with AMI: 30.6% of 18-25 year- olds report the presence of AMI.  In the 26-50 age group, the reports equal 25.3%, and for the over 50 age group, the reports equal 14.5%. Thus, there is a coincidence and therefore probability that some in the workforce will suffer from AMI, and some may already suffer from SMI. 

The analysis here is not to suggest that there are individuals with challenges in any particular workplace, but to state it. The probabilities are that there are employees in any workforce that suffer at least AMI. They may display symptoms, they may seek accommodation, and they may be absolutely undetectable. In the wake of some traumatic event, be it injury or hurricane, the stress and reaction may therefore manifest in different individuals in different ways. 

Whether that is reason to "treat the whole person" or not is left to the reader. However, whether care is undertaken for comorbidities or not, there is the distinct probability that those will impact and influence recovery, whether it is diabetes, obescity, emotional challenges, or otherwise. Whether the whole person is treated or not, the whole person will impact and influence the course of recovery, palliation, and return to work.