Thursday, March 30, 2023

Comparative Redux

The 2023 legislative session will likely be remembered in the Florida legal world. It will perhaps have lasting historical importance due to the passage of CS/CS/HB 837. As a reminder, this designation means that the House Bill (HB) ultimately passed was changed in the process. There was a “committee substitute,” or “CS” on two occasions. “CS/HB837” would mean there was one committee substitute for House Bill 837. This is not of significance alone but is of interest. The CS denotes debate, discussion, and changes in the process.

There are various important aspects of this bill, but this post will focus on the sharing of fault when negligence leads to injury. In a simple example, two vehicles collide on a street. Driver ONE seeks damages from the other Driver TWO, and in our modern world from the other driver’s insurance company. For our example, we will assume that there is $100,000 in damages, and that Driver ONE is 20% at fault while Driver TWO is 80% at fault. Driver ONE files a lawsuit for damages.

As a side note, insurance is supposedly a secret that is generally kept from Florida juries that decide such cases, unlike workers’ compensation in which the carrier’s existence is not only known but usually stated patently in the case style. But see Winters v. Harper, 322 So.3d 192 (Fla. 1st DCA 2021). 

The English courts were confronted with such issues of multiple faults, and long ago established a legal doctrine called “contributory negligence.” This is said to have originated in England in 1809. Butterfield v. Forrester, 103 Eng. Rep. 926 (KB. 1809)(Plaintiff riding a horse a bit fast for the circumstances). The Florida Supreme Court adopted contributory negligence as the law of Florida in 1886, Louisville and Nashville Railroad Co. v. Yniestra, 21 Fla. 700 (Fla. 1886). Florida became a state in 1845. So, this was reasonably early in state history. 

Under that contributory analysis, Driver ONE would recover nothing. In contributory negligence, a party that is in any way at fault, even 1%, may not recover. This was once the majority rule in America. And there are states that retain this paradigm today (Alabama, Maryland, North Carolina, and Virginia). 

This is important in workers’ compensation. Workers’ compensation is a statutory derogation or departure from the tort system that evolved through common law. If in the accident hypothetical above Driver ONE was an employee and Driver TWO was her/his employer, then Driver ONE could not sue for negligence (tort) at all. Driver ONE would be limited to workers’ compensation benefit recovery for any bodily injuries. The foundation of this statutory change in rights and responsibilities is perceived as a “Grand Bargain” in which both employees and employers each gained benefit(s) and suffered detriment(s).

When workers’ compensation came to Florida in 1935, contributory negligence was the law. Thus, any employee might then have often struggled to recover in tort for employer negligence. Under contributory negligence, an employee deemed 1% at fault for an injury would recover nothing in a tort claim. Thus, there was significant benefit enjoyed by employees through the adoption of workers’ compensation, in which the employer was liable regardless of fault. Notably, that significant benefit came as a significant detriment (cost) to employers. There is yin and yang throughout. 

Over the decades of the twentieth century, contributory negligence was viewed critically. Notably, Florida's history is not unique. Various American courts had adopted that process, a product of English common law. And some criticize the courts for essentially legislating, making law in the process. Similarly, various courts across the country began in the twentieth century to retreat from contributory negligence in response to the criticism and complaints.

This retreat is viewed from multiple perspectives. Some contend the courts should not have retreated from contributory negligence, but should have left that to the legislatures. Others contend the courts should not have created contributory negligence in the first instance, but see no wrong in the courts retreating (two wrongs make a right). Others criticize the courts both for the creation of contributory and the later retreat therefrom. 

There are debates over the separation of powers as regards this whole history. Notably, the retreat was largely judicial, but there are also examples of legislative retreats in some states. In short, the Grateful Dead likely said it best in Truckin (Warner Bros. 1971) - "Lately it occurs to me what a long, strange trip it's been."

What emerged instead, what was retreated to, was called “comparative negligence.” In comparative negligence, each party was held to account for the percentage of fault for which she/he/it was deemed responsible. In the example above, without the added complication of the employer/employee relationship, applying comparative negligence, Driver ONE could sue Driver TWO, but would collect only $80,000. Driver ONE could not collect from Driver TWO for the 20% of damages for which Driver ONE was responsible. 

This was seen as more fair, equitable, progressive, and less harsh. Many labels and characterizations have been used regarding it over the years. The fans of comparative negligence were critical that any degree of fault (1%) in contributory negligence could bar recovery. Thus, comparative swung fully to the other extreme allowing a party 99% at fault to nonetheless sue the 1% party. In correcting the perceived injustice of contributory, some perceived creating just another injustice. The proponents of comparative argued that it was nonetheless fair because the recovery was still limited in that instance to the 1%. 

While the damages are a particular consideration in this analysis, that is not the solitary consideration. The 1% defendant nonetheless found her/himself being sued (or threatened) and was faced with the challenges of defense, including defense costs and attorney fees. And, potentially, a 0% defendant might in fact be sued and perhaps would resort to a settlement because of the potential of being found 1% at fault. In some instances, such a defendant might find her/himself responsible for the attorney fees of the 99% at-fault plaintiff. There are various potential or arguable misgivings about pure comparative negligence. 

Notably, Florida’s Supreme Court spontaneously changed course one day (87 years after adopting contributory in 1886), abandoned contributory negligence, and adopted comparative negligence in 1973 in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). It changed the law in Florida. The Court explained that the change was justified “in light of current ‘social and economic customs' and modern ‘conceptions of right and justice.’” That changed the way Florida tort law worked. It made recovery more probable in instances in which a plaintiff had some, or even much, fault. Is it interesting that justice is not viewed as a constant, but is something that may be "modern," "current," or not? Are "right and justice" absolutes or variables?

Critics will note that not one Florida Supreme Court justice was elected by the people to decide what the law would be, nor are they even subject to a confirmation process. The justices are appointed by the Governor. Others will say this is not a worthy criticism as the justices that created Florida contributory were likewise appointed. Still others insist that courts making law has long been accepted, since the Norman Conquest (1160) and the origins of the Common Law. 

The Supreme Court's U-turn on contributory impacted workers’ compensation momentarily. Based on that change, the constitutionality of Florida workers’ compensation was again challenged. Acton v. Ft. Lauderdale Hosp., 418 So. 2d 1099 (Fla. 1st DCA1982). The argument was simply that workers' compensation was a grand bargain in the age of contributory negligence significantly challenging injured workers, but there was some buyer's remorse expressed in the new era of comparative. The bargain looked a bit less advantageous, less "grand," and some injured workers wanted the deal therefore stricken for all. The Court was not persuaded, and Florida workers’ compensation was again deemed constitutional.

Thus, Florida had begun with a process in which an injured party 1% at fault would recover nothing. It evolved to a process in which a party 99% at fault could nonetheless sue to recover 1%. And as time passed, comparative negligence began to attract critics of its own across the country. Florida was not immune to such criticism.

Some states began to modify the concept of comparative negligence, and others did not. Those that retained the 99%/1% described above came to be labeled “pure comparative negligence” states. Just as contributory negligence had lost favor and been replaced by comparative negligence, so did “pure” comparative negligence lose favor. Bloomberg lists the following as "pure" states today: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington. Eleven states. They need to correct that "Florida" reference as it became incorrect last week.

Some contend that what emerged from the criticisms and evolution was “two types of modified comparative negligence.” While that generality is likely valid, it is also likely that some relatively minor distinctions exist within those two broad categories from state to state (perhaps there are more than two types in these two broad "categories"). 

With the signing of CS/CS/HB 837 Florida leaves the group of states that adhere to “pure comparative negligence.” Having judicially adopted "contributory" for 87 years, and judicially adopted "pure contributory" for 50 years, Florida's law is now legislated by the representatives elected by its people. This law brings Florida, legislatively, into a group of states applying one of the two “modified” courses. 

These two versions of "modified" are said to be “very similar.” In fact, the two that are described differ by 1%. The protagonist in television’s House once humorously stressed the significance of small differences and claimed “if her DNA was off by one percentage point, she’d be a dolphin.” The illustration is noteworthy, and despite seeming a small distinction, perhaps the difference of 1% may be of importance. But, this seems a small distinction nonetheless. 

It is likely that a civil jury will resort to round numbers, and thus 50% is a likely assignment of fault. Perhaps it is easy for a jury to say 50%/50%, It seems as likely that a jury concluding more fault will proceed from 50% to 55% to 60%, or some similar number. Absent some peculiarity, it seems unlikely a jury would randomly select 51%. 

Thus, “modified” comparative fault can be summarized - in some settings (“50 percent bar rule”), the party may not recover if “50% or more at fault.” In the second group, (“51% bar rule”), there is no recovery for a party “assigned 51% or more fault.” See Cornell Law for further definition and discussion. CS/CS/HB 837 brings Florida into this majority. The statute provides
“In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages. This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.”
Note, therefore, that if a jury sees equal fault, 50%/50%, in Florida there may still be recovery for the plaintiff. Fifty percent at fault does not bar recovery. The bar is for those "greater than 50 percent at fault." 

This is nonetheless undoubtedly a major shift as regards tort liability. But, from the perspective of workers’ compensation, the implications are limited. If the shift from contributory to pure comparative law did not change the Grand Bargain, it is difficult to see how a shift away from pure comparative (back towards contributory) to modified is a significant impact on the Grand Bargain. Thus, there seems little potential for any viable constitutional challenge of workers’ compensation based on this change.

It is important that workers’ compensation does include employer/carrier participation in tort recoveries. Section 440.39(1), Fla. Stat. (“such injured employee or . . . the employee’s dependents may accept compensation benefits . . . may pursue his or her remedy by action at law or otherwise against such third-party tortfeasor.”). 

Thus, when a worker is injured and entitled to workers’ compensation, she or he might also be able to sue some third-party motorist involved in the accident, the manufacturer of a machine that malfunctioned, or the owner of the premises in which the injury occurred. And, if the injured worker recovers in that suit, the employer/carrier is usually entitled to a share of that recovery.

The import, if any, of CS/CS/HB 837 in workers’ compensation will likely be in the probability that fewer such tort claims will be pursued. Before the change, an injured worker 99% (or allegedly 100%) at fault might nonetheless have sued for damages. The employer/carrier would have participated in that recovery, but because of the worker’s very high percentage of fault the repayment would be marginalized and likely minimal. That supposition is likely less valid in a case involving an injured worker 50% (or allegedly 55% or 75%) at fault, who may still pursue such claims. Therefore it is likely there will be fewer tort cases pursued to trial. Tort recoveries in settlements will likely decrease. Lien recovery will likely become less prevalent.

Thus, there is significance to the Florida personal injury law. CS/CS/HB 837 will affect many who are injured through their own fault. There will be some impact on workers’ compensation as a result of fewer tort claims and recoveries. And Florida joins the majority just as it did a few years ago with legislative and then judicial adoption of the Daubert evidentiary standard. That is another fine example of the debate on the separation of powers.

Some will complain about the legislation, but the consensus seems on the side of progress. The academics will point out that contributory was perceived as unjust, and that there are valid arguments that pure comparative is similarly unjust (equal and opposite, Newton's Third Law). The "modified" perhaps seeks the middle ground. That is little solace to the person injured, but 50.00000001% at fault. He or she is left responsible for their own outcome. Perhaps that seems unfair to the injured person. But, is it unfair to the person 1% at fault that an injured person 99% at fault could sue them? 

In the end, the law draws lines. They are often arbitrary. This "modified comparative" line is at work in a majority of states. This one was drawn by the elected representatives of the people, through the legislative process, and debate. This one became law upon the signature of the Governor. In the discussion of separation of powers, admitting the lines can be viewed as arbitrary, how should law be made? And, if the next "modern" decide in 50 years that there is some better approach, let them convince a court or legislature to make a new law. Progress, is, as they say, persistent. 

Tuesday, March 28, 2023

Insults and Indignity

It is not common for the nuance of workers' compensation to make the national headlines. And, arguably, Best Life is perhaps not the national news. Recently, the MSN news feed picked up a Best Life article concerning a man in British Columbia and comments a physician made that were documented "in his official workman's compensation file." That is not a typographical error. The publication used this antiquated and genderist term. I was unable to find references to "workmans" on the British Columbia website. Let's all get with the modern world  and use "workers'?"

The headline caught my eye as it referenced medical records. However, it is likely that references there to "uneducated massive redneck" and "playing the system" caught my attention. The author refers to these as not "mildly negative." The origin of this worker's challenges is somewhat typical. There was an injury at work, a claim filed for compensation, various medical care, and ongoing physical complaints and symptoms. 

The injured worker reviewed his "workman's comp file" (sic) and noted various allegations and observations. There were comments specific to medical evaluation, but also generalities regarding where the worker lived and his "lowlife style," as well as conjecture and dispersions (that may have been "low life," but it is less than clear). The worker was troubled by the comments generally, but also noted that "the doctor was really nice, to my face anyway." The worker contacted a caseworker at WorkSafeBC and complained. Notably, the British Columbia workers' compensation process is monopolistic (the government is effectively also the insurance company). 

The caseworker documented the workers' reactions and concerns with a complaint. The company through which the physician's care was delivered (it is not clear if the physician is an employee of that entity or a contractor affiliated with it) has expressed disappointment. Its spokesperson noted that the company has a "duty to be respectful and compassionate to the individuals we serve." Well, we could say that about any or all of us. This is a reminder that everyone in the workers' compensation community is a person, not a number. And that professionalism is virtuous and desirable. 

The worker's spouse focused on the references to where they live. She concluded, "I absolutely think this was a general discrimination against people who come from small towns." There are feelings expressed, of "upset," and descriptions of crying. The spouse concluded that while the workers' mental health was impacted by "not being able to work," the medical record statements were further detrimental. She characterized the experience as not "helping." The worker noted that despite the publicity and complaint, he has not heard from the physician. He notes that "a major apology would be nice." Is that not always the case when we are hurt by someone?

The coverage raises various thoughts. Some general, and others about the workers' compensation process and system. In a general sense, there is no reason to engage in generalities or conjecture as to people. That said, there is a myriad of potentials upon which humans may be biased. MasterClass notes "All of us, no matter our education, intellectual commitment, or good intentions, are susceptible to biases." That reference is specific to 14 particular biases. Are you biased? Is it worthwhile to ask ourselves that question?

The MasterClass article is a reasonable overview but is by no means exhaustive. Whether it is appearance, hometown, living arrangement, or any other observable characteristic, it is practical that bias or prejudice might exist with some. The challenge is heightened by the chance that this is as likely to be conscious or unconscious. How often do we make human judgments as to people, circumstances, and outcomes based upon underlying layers of preconception and assumption? You know, like if they have an "A" license plate on the front of their car? (Before you are offended, I did not say what that would make you conclude, good or poor). As there is this potential of unconscious bias, is it even possible for us to recognize how often it occurs in our thoughts? How often do you think about it?

Another general concern is that records in workers' compensation proceedings may well be public records. That they contain untoward or uncomplimentary descriptions is troubling in this regard. That said, there is often news and views that we might each dislike, reject, or regret. So, that is a reality in life. But, in a broader sense, this news story is a reminder that such documents are likely not a place in which unnecessary, ancillary, and superfluous observations need to be memorialized. If something negative is necessary - "the results were inconclusive," "the test does not support the complaints," "the radiology disproves the described mechanics" - then it is unavoidable. But let's keep those to the relevant and probative, not the demeaning and prejudiced. 

In a more specific sense, the article here highlights serious concerns. There is perhaps some merit in the spouse's focus upon geographic prejudice and potential discrimination. There is some "small town" bias perceived, and perhaps rightly so. But, there is also some background bias in the label of "redneck." There is much we might say about that term. In time, it is possible that merely the use of that term may be impermissible and shunned. As this post is read in years to come, my mere repeating of it may be perceived and attacked. Never mind that it is in the article headline, some may blame me for its use. 

See Humor and Failure (August 2022); Funny or Offensive (October 2022); 

Famous comedian Jeff Foxworthy has made a fortune from ridiculing "rednecks." His approach was self-deprecating. He reportedly noted that "I always felt like you couldn't talk about rednecks unless you are one, and I are one." There is humor there, and many laughed as he recounted his observations about the manner in which real people live. There are a great many urbanites in this world, but a fair few still live in rural environments. And, the pejorative "redneck" might be thrown at any of them.  Regardless of where one lives, that term is insulting and perhaps worse. If you would not use other pejoratives, consider avoiding this one also. 

Is it any worse than occupational classifications? There is persistent humor heaped on various professions, trades, and vocations. Are those any less than derogatory stereotypes? Though they may be humorous in some context, are they simply illustrations of bias and preconception? Is there anything other than implied superiority that renders these observations somehow humorous? The role one has in our society and economy does not alter that she or he is or is not injured, restricted in terms of duty, or suffering an impairment. 

Most specific in the context of this example is the concerns of subterfuge, exposition, and inquiry. Are we better off when people openly express their bias? As offensive as the medical record notes are, is it better that such is illustrated, documented, and open? Without such inane and insipid statements, might we be left to wonder about the potential for bias impacting a physician's conclusions? After all, this physician was "nice" to the workers' face. Until the statements are read, "who knew?" They say "it is better to remain silent and be thought a fool than to speak and remove all doubt." Are we better off knowing?

That is, is the exposition better than the wondering. Perhaps we are better off in society if people wear their hearts on their sleeves a bit. Knowing people can be difficult. If they are willing to tell you upfront who and what they are, is that not a benefit? 

But, to the inquiry itself. Perhaps the most important lesson in this instance is the injured person that took time to review his own file. Even without the absurd comments located in this instance, what might be gleaned from such a review? What if the accident injured the right ankle and the medical records in the file all say "left?" Or, worse, they all say "low back." The review is of value. This is good practice for confirmation, but also perhaps to prompt more questions and discussion.

There is value in expressing your symptoms and complaints when seeking medical care. Likewise, there is strength to be gained from others accurately hearing and perceiving your expressions. There is communication necessary in the art of medicine. That, to be effective, will include accurate transmission and receipt. Whether that has or has not occurred may well be apparent in those records. How many patients have ever taken the time to review their own records as the protagonist from BC did in this instance?

It is troublesome that this instance occurred. It is positive that it made the news. There are lessons and reminders here that are poignant and pertinent. 

Sunday, March 26, 2023

Woodpeckers and Concussions

I am persistently surprised by science and scientists. As we live and breathe, there are thousands of people around the planet quietly and persistently pursuing little veins of knowledge that would struggle to interest the majority of humans. They are intrigued by things that perhaps would never occur to us. They are specialized, focalized, and engaged, but in their own world.

To be fair, their pursuits are likely no more recherche than this little world of workers' compensation in which we strive. Comp, like gravity, is all around and often ignored. But there is perhaps value in the study of our world. Which leads me to woodpeckers. What is the possible general-value result of studying these noisy, little feathered friends?

Earth.Com reports that Woodpecker skulls do not absorb the shock of hammering on trees. Who knew? Why does it matter? It turns out there has been conjecture, or "conventional wisdom" that the structure of the woodpecker skull must provide some manner of "shock-absorbing," or the resulting damage to neurons from that persistent pecking would mean brain damage. The impacts of the movement, accelleration and sudden deceleration, implicate concussion.

But, in 2022, Current Biology published a study that refuted the "conventional wisdom," and decries any notion of a "shock absorbing" skull. The researchers used "high-speed video footage" to test the "deceleration of the brain" in these rapid head movements. They hoped to identify anatomical "shock absorption," but instead found that deceleration of both beak and head demonstrated "no significant difference." If there were some absorbtion, the head would benefit and somehow decelerate less suddenly than the beak. 

The study authors concede that their efforts are laboratory and film-related. They note "hypotheses on shock absorption by the woodpecker’s cranial musculoskeletal system remain untested in natural situations." That is, the "real world." It is difficult to imagine how one might study this in the "real world," but it is perhaps possitive that these researchers are focused on any potential flaw or shortcoming in their process. 

The scientists went on to confirm that if the shock absorption theory were real, then the birds would not be very effective at penetrating the trees. They concluded that if it were true, "the bird would actually have to peck harder in order to perform successful pecks." The energy consumption necessary for that additional effort would alone lead them to doubt this shock-absorber head theory.

So, with the theory debunked, the question remains, why is this not damaging to the bird brain? The scientists measured the effect of the impact, and found that "the deceleration shock that causes concussion in monkeys and humans is around 103 kPa at the site of impact." This is the threshhold for dangerous trauma and shock. The woodpecker does not suffer brain damage because they "experience only between 40 and 60 percent of this pressure." So, through the study of these birds, we arrive at determinations regarding the severity of head impact and the odds of resulting concussions.

The news is of particular importance for humans as the subject of concussion and preventative measures is addressed. The scientists noted that "engineers have previously used the anatomy of the woodpecker’s cranial skeleton as a source of inspiration for the development of shock-absorbing materials and helmets." While the research does not support that this is harmful or inappropriate, the conclusion seems to be that mimicking such bird anatomy is not likely to prevent human concussion. That reliance has been misplaced.

Why is this important? There is a multitude of opportunities for head injury in the workplace. In a general sense, there is the belief that "5-10% of athletes will experience a concussion in any given sports season." That is significant. Sports involve moving objects, colliding people, and the chance of falls. But, in a less "contact" environment, where would such injury arise?

Eastern Kentucky University notes that the most common causes (all numbered are direct quotes) of workplace injury are:
  1. A bodily reaction to overexertion (such as when lifting objects or performing repetitive motions), which caused 31.0% of workplace injuries
  2. Falls, slips, and trips, which caused 27.5% of workplace injuries
  3. Contact with objects or equipment, which caused 25.8% of workplace injuries
  4. Transportation incidents, which caused 5.6% of workplace injuries
  5. Violence and other injuries caused by a person or an animal, which caused 5.0% of workplace injuries
  6. Being exposed to harmful environments or substances, which caused 4.2% of workplace injuries
The chances of a head injury are notable in 2, 3, 4, and 5 (which are about 64% of work injuries). Some contend that "24% of traumatic brain injuries (TBI) are work-related." Consistent with the University list above, they note these are "most commonly caused by falls, getting struck in the head by falling objects, or motor vehicle accidents."

So, as odd as it may seem for researchers to be studying woodpeckers so assiduously, the real point is that traumatic brain injury is a prevalent issue. While the shock-absorbing skull turns out to not be a path to preventing or ameliorating those injuries, the elimination of that alternative perhaps allows other scientists to formulate and explore different hypotheses.

Thursday, March 23, 2023

Call it Progress

There are a great many Americans that find some avenue to criticize the federal government. Goodness knows that government seemingly strives its best to provide those critics with ammunition and motivation. However, there are moments in which we may perceive a glimmer of hope from those that provide national leadership. That was the case back in the dark ages of 1987. It was a nascent moment in the information age.

PC Computers were gaining traction. We were connecting computers to one another using our telephones and amazing devices called "modems." We would communicate by "dialing up" another computer (host) and either pulling information from it or using its power and energy to accomplish tasks. It was indeed a golden age. We thought we had come so far. In fairness, our perspectives were limited to the contemporary use of papyrus tablets and mud. In that era, the United States Federal courts became enamored with a plan to eliminate the challenges of court record access. In 1988, there was a dream of "Public Access to Court Electronic Records," known as "PACER," according to an article on the United States Court website 25 Years Later, PACER, Electronic Filing Continue to Change Courts, December 2013. The goal was to democratize access to information, to decrease the expense of delivering, storing, and retrieving information regarding court files. It was, without a doubt, an inspiration.

The 2013 25th-anniversary article notes that the impact of PACER was profound. It "fundamentally changed how federal courts, and the lawyers, judges, and staff who work in them, perform their jobs." While the article acknowledges the 25th anniversary of the humble 1988 discussions and beginnings, it also notes that public access began in the late 1990s. There were challenges and evolutions through much of the early twenty-first century. But, in all, it has been an admitted boon to much of the federal litigation process.

The Florida OJCC began developing electronic filing and case management in 2002. We were fortunate to have a large and abled foundation. The Division of Administrative Hearings had been developing and using internal proprietary case management software for a few years when the OJCC was transferred there in 2001. The first OJCC case management program, called at that time simply "JCC," was largely an adaptation of DOAH's existing but nascent program.

Through the early twenty-first century, we began with accepting PDF documents by email, scanning old files for archiving, eliminating file rooms, surplussing file cabinets, and evolving to a digital age. We built electronic filing in 2003 and 2004. We deployed it finally in 2005, began promoting it in 2006, and never looked back. The combination of that technology and our foray into video hearings prepared us ultimately for the great pandemic of 2020. By then, every workers' compensation practitioner was using electronic filing. And, it was all free to the user.

Free to the user, and essentially to the system. The OJCC designed, developed, and deployed the database, the electronic filing, the digital record on appeal, and more without asking for a single dollar in additional funding. There were programming costs but in the scheme of things those were nominal and were absorbed by the existing budget. At a fraction of the cost incurred across other state systems, Florida deployed a dynamic and effective system. We never charged a single user a cent.

Not so in the PACER example. That electronic filing alternative, then mandate undoubtedly saved lawyers and litigants much money. The convenience, the efficiency, and the flexibility are all wonders. There were undoubtedly corresponding savings on the government side, with less need for clerks, file cabinets, file rooms, and more. But, the U.S. courts charged users. Despite the savings from such efficiency, there was a cost to the consumer.

Critics have complained that the PACER system is "is tremendously profitable." Though there was some contention that public access should be permitted, critics complain that documents are instead locked behind a "paywall." They allege that "the PACER site looks like an artifact of the 1990s," and that the profits generated are "not even improving the actual system." Wired published these criticisms in 2016, including reference to a lawsuit seeking change.

According to Wired, the system had recently (2014) generated user fees of "$145 million" compared to a projected "annual operating costs of less than $30 million." The lawsuit alleged that profits were used for various other niceities such as "$28.9 million for courtroom technology upgrades," "flat-screen monitors for jurors and new audio systems for courtrooms." The critics contended that public access should be less expensive and the profit margins of the government adjusted accordingly.

In 2022, News Leaders noted Congress Should End Restrictions to Public Records by Passing the Free PACER Bill. This critique in 2022 somewhat reiterated the 2016 complaints noted above. There are issues of "antiquated design, clunky search functions, and difficult-to-navigate software." The article is critical of the segregation of data into various databases, and subtle distinctions in the way information may be used.

But, the article is most critical regarding the cost. The author notes that "PACER charges fees for every search and document download, at a rate of $0.10 per page." There is acknowledgment that this is a minor sum and that there is a "per document" cap of $3.00. Despite this, the contention is "these fees add up." The author notes that when Congress enabled this experiment it constrained the charges, allowing them “only to the extent necessary,” and imposing a restriction of charges being “reasonable.”

There is acknowledgment of The Open Courts Act of 2021, a proposed effort to eliminate fees and modernize the PACER database system. Without doubt, such modernization would be a monumental challenge, and yet the resulting benefits would seemingly be as profound. The Congressional Budget Office characterizes the goal to be twofold:
  • to establish a centralized, cloud-based case management system for all public court records that is accessible to the general public at no cost.
  • That system would consolidate the dozens of case management systems currently in use throughout the federal judiciary
Critics of PACER advocate change. If the computer age has taught us all anything, it is that change is persistent, inevitable, and challenging. I have been through many rewrites of the JCC system. I have struggled with bits, binary, SQL, and a raft of other complications. I would be lying if I claimed to understand them all. I have tried, but let's be real. The (r)evoltution has been inspiring and rewarding (not $145 million rewarding; perhaps "gratifying" is a better word).

We now celebrate the last 20 years of OJCC electronic management, and harken back to those days in 2003 when the first iteration of our database system began to change how District offices worked, processed paper, and communicated with Tallahassee. We celebrate those days in 2003 and into 2004 when we discussed how electronic filing might work, raised objections, debated policy, and envisioned change. We struggled with the naysayers.

The world is full of naysayers. See Negativity and your Inner Pooh (January 2017) and The Eoyores Walk Among Us (November 2019). Those "it'll never work" ankle weights are a constant presence in the world. In their defense, they are often right and some innovation does not in fact work. There are many who can see the challenges, the roadblocks, and the excuses. But, fortunately, we have been blessed with a team that could instead see the promise and the horizon.

The OJCC electronic filing package is ready, willing, and able. It has been brought to you with no extraordinary expenditures, no usage charges, and fairly little fanfare. As I reflect on the last 20 years, I am proud of those that built it and the community that embraced it. As we watch to see how PACER will evolve next, I am grateful that our little experiment was as effective and as efficient as it was. I worry about the day when we are challenged to undertake a rewrite as grand and expansive as the Congress is now discussing. While that day may come, it is thankfully not this day. 

Tuesday, March 21, 2023

Cost, Economics, and Transparency

If you cannot see it, there is every chance it may nonetheless still be there. This applies to the oxygen you breathe, the gravity that keeps you from floating away, and more. If the world were more transparent, perhaps we could perceive such things more readily. So, while seeing is believing, there is some necessity perhaps to believing despite not seeing. I thought of this when I ran across an article on the Dailydot regarding a complainer on TikTok.

This TikTok influencer was troubled by a visit to a retailer. When the influencer checked out, there was added to the receipt a "public improvement fee, which was 2.5% per item.” That seemed like a tax, and the influencer questioned "wondering, like, ‘public improvement,’ isn’t that what sales tax is? Like, what do we pay sales tax for?” Like, it is like a tax in like that it is like a percentage. Like, totally. See also Valley Girl (Atlantic, 1983). 

But, does similar in math make it same? Is this the Associative principle? The article proceeds to explain that these "public improvement fees" seem to be an invention originating in Colorado. But, it is not the government that is seeking a little something on each sale, it is the landlord from whom the retailer has procured space. There are apparently several in that state and they have garnered some media attention. 

The Dot says "it all boils down to landlords who levy the fee," which shoppers pay (or don't). There are shoppers that find the fee troubling and complain. They think perhaps that landlords the world over do not share in the success or challenges of those to whom they rent space. While this example is perhaps apparent and noticeable, is it really a distinction? And, back to the "or don't," shopping is almost entirely a voluntary sport. If a retailer is not providing what and how you wish, wait for it and another retailer will be along in a minute. 

The Dot author notes that these landlords are getting "a slice of all the goods sold on their turf in addition to the monthly rent business owners pay." Would it make the consumer happier if the 2.5% was not on the receipt as a "fee," and the price of the products on the shelves was simply 2.5% higher? Would the consumer even notice? Some have noticed that shopping inland saves the beach tourists money. Groceries close to attractions and theme parks are apparently more expensive (maybe I should make a TikTok?). If the rent on the Colorado property was 2.5% higher, then the retailer would have to account for that in the price of goods or services, 2.5% higher prices. 

Is this the Associative property of rents and fees? In either instance, the landlord receives payment for the property. In one instance, that rent remains at a sum certain whether the retailer sells goods or not. If the rent is flat, perhaps the landlord potentially cares somewhat less about contributing to the retailer's success (cleanliness or safety of surroundings)? Does the 2.5% give the landlord some incentive to facilitate the tenant's success? Does that 2.5% reduce the monthly rent sufficiently to attract tenants in a marginally less desirable location? 

Is the challenge for the influencer and the customers generally in that they know about the 2.5% in this instance? Need the retailer make such a public display? How is the retailer benefit by selling a $10.00 item and then displaying the $.25 fee? Is the retailer not as well-served by charging $10.25 for the item?

Who else benefits or not? Is the sales tax in either instance different? In other words, if the product is $10.00, is the 2.9% Colorado sales tax calculated on that amount or on the $10.25 total after the contribution of the "public improvement fee?" The tax on $10.00 is $.29 and on the $10.25 it is $.30. That $.01 might seem inconsequential in this instance, but perhaps little amounts add up?

Both Lex Luthor and the crew in Office Space (20th Century, 1999) thought those pennies would add up. And, they likely do. Perhaps the landlord's effort with the "improvement fee" is a detriment to the government in terms of diminished tax revenue? Perhaps the government has noticed and levies the taxes without regard to this accounting decision?

But, in the end, it is likely that the improvement fee is not making products more costly to any greater degree than the premises rent generally. The cost of the rent is going to be reflected in the price of goods and services. The difference with the "fee" is that its appearance on the receipt raises awareness of the premises' cost. And that, may, like totally lead to questions. The "add-on" at the register perhaps makes the shopper angry, or at least surprised. But, it is unlikely that this fee actually changes the price. Thus, we return to the questions at the outset. If you cannot see it, is it still there? The question in this regard is likely yes.

How does this influence the rest of us who are neither in Colorado, subject to such "fee," or perhaps even attentive enough to notice? It is a reminder that in all things consumed, there are various costs. These may be apparent as in this example, or the costs may be less obvious, integrated into other totals or components. Those costs are there, nonetheless. If you cannot see them, they are no less real. 

In the world of workers' compensation, the convenient location of a service provider may influence cost. When a law firm hires a paralegal in Kansas because that is a less expensive place to live than Tampa, that savings is in the price of services (the customer price is lowered or the law firm profit is increased). When an MRI is read by a radiologist around the world, the impact is similar. In this marketplace of workers' compensation, examples such as this abound. To compare prices, one must compare totals. 

In a great variety of instances, there are economic choices, contributing costs and savings, and complexity. A great many factors are part of the resulting economics and expenses. Just because you cannot see them, that does not mean that they are not there. The point is, there is much to consider in the economics of any situation. There is both benefit and cost in all things. This remains true whether we see them all or not. That is worthy of our consideration periodically. 

Aren't we fortunate to have influencers? Without their wit, wisdom, and curiosity, such examples might require so much more of us. In the old days, I would have had to like totally venture to Colorado to learn of such questions. Now, I can sit on my couch reading the Internet and accomplish similarly? But, I miss the beauty and peace of Colorado. Perhaps I should be comforted knowing that despite my not seeing the beauty, snow, and nature it is all still there?

Sunday, March 19, 2023

Who do You Trust?

There is so often discussion of the reputation of lawyers. Bad lawyer jokes are a staple of the unwitting. Without fail, when introduced at a cocktail party, some hapless attendee thinks I need to hear the latest slur. My favorite is that "99% of lawyers give all the rest a bad name." HAHAHAHAHA. (Not funny). Unfortunately, there are some lawyers out there that do not do much to enhance the public image.

Last year, I noted the Disciplinary Revocation petition of one (August 2022). That story had some similarities to a Disciplined Attorney and Repercussions (September 2018), followed by Then Arrested (August 2020). I have written on how discipline impacts Public Confidence (July 2022) as regards judges. Judges and their public image seem to find the news readily. See Revisiting Judicial Discipline (May 2022) and Sign Language and Curiosities (July 2022). Why do we focus on these people? Simply put, you can learn a great deal from a bad example.

I recently ran across a headline for an article about ethics and public perception Nurses Retain Top Ethics Rating in U.S., but Below 2020 High (Gallup, 2023). It details a poll conducted by the good folks at Gallup in late 2022. This is part of an ongoing effort. The organization began gauging American trust in professions almost 50 years ago (1976) and found the subject worthy of annual attention over 30 years ago (1990). 

The question posed to survey participants was reasonably simple 
"Please tell me how you would rate the honesty and ethical standards of people in these different fields -- very high, high, average, low or very low?"
The results are interesting and perhaps enlightening (disturbing?). In order of their ranking for "Very High," the following list ranks the top ten: Nurses, Medical Doctors, Pharmacists, High School Teachers, Police Officers, Clergy, Judges, Accountants, Labor Union Leaders, and Bankers. It is gratifying to be in the top ten. If the "Very High" and the "High" are combined, we Judges slip back one slot under Accountants. Is it possible that the poll results are based less on personal experience than perceptions from the news or other sources? Seriously, when was the last time you met a "labor union leader" at a local holiday reception?

Attorneys did not make the top ten. They came in number 13 on the list following Bankers and Real Estate Agents. They proudly bested Journalists, Advertising Practitioners, Business Executives, Car Salespeople, and Members of Congress. Don't think that our elected representatives are the least trusted. They edged out Telemarketers, but only slightly. Members of Congress were in a five-way tie for last place in the "Very High" category with 2% (Advertising Practitioners through Telemarketers). But, they edged out the Telemarketers with a 7% "High" rating compared to Telemarketers' 4%. That reminds me of the persistent, and unfounded slurs against the great state of Mississippi. 

Another way to look at these numbers is the "Low" or "Very Low" ratings. Both Telemarketers and Members of Congress were tied with 25% "Very Low." But Members of Congress edged them out with the "Low" by 37% to 34%. Members of Congress combined in these two categories for 62% negative perceptions regarding "honesty and ethical standards." Telemarketers had a slightly less pervasive combination in these two negative categories, only 59%. That has to be tough to accept if you are in the marketing profession. 

One wonders, perhaps, how these combine. If you are Congresswoman Lauren Underwood, a nurse, do we average the scores? Is your primary occupation a balm for the affiliation with Congress? That is likely as irrelevant as the fact that almost all judges are also lawyers, or that most telemarketers are also champions at interrupting my dinner. A generality, unfounded perhaps?

In comparison regarding the "Very Low" ratings, consider both lawyers (9%) and judges (6%); these are not so dissimilar. The "Low" are likewise similar lawyers (19%) and judges (13%). Thus, when these two are combined we see judges are ranked "Low" or "Very Low" by 19% of respondents while lawyers are ranked in those categories by 28%. Neither is an admirable position. I will gladly take the lower, however. 

Comparing the "Very High" with the "Very Low" is interesting. For judges, this is a ("Very High" - VH) to ("Very Low" - VL) comparison of 8% ("VH") to 6% ("VL"), near parity.  For attorneys, it is this is a 3% ("VH") to 9% ("VL") comparison. Neither is very flattering. If the favorable ("Very High" - VH and "High" - H) are compared to the unfavorable ("Very Low" - VL and "Low" - L), Judges are 39% (favorable) and 19% (unfavorable). Lawyers are 21% (favorable) and 25% (unfavorable). That imbalance might be telling in the broader context. 

In all, the numbers can be tortured into a variety of comparisons. At the end of the day, it turns out that the legal profession is not so admired or trusted. It is possible that the smiling pictures on the side of buses, bus benches, and more contribute to that, or the increasingly low-brow advertisement campaigns we see and hear in the media? As the legal profession is perceived by some as increasingly acting like Telemarketers and Car Salespeople, are these comparable numbers unavoidable? And, is that the fault of Lawyers or could we blame the Advertising Professionals instead? How much of public image is media related, whether news or advertising?

That said, it was a glorious day when I "cut the cable" and no longer had to endure the base advertisements of the Alabamians I will not label as a profession. Those ads are unfortunately so sad that they cannot even be parodied. They are parodies already. Why do those buffoons embarrass us all with their horrible and demeaning ads? Well, simply stated, because they work. Perhaps not for those who respond to polls, but for those who respond to ads. Trust me, if the advertisement onslaught for any business did not bring customers, the companies would stop paying for the ads. 

Who do you trust? An interesting and informative effort from the Gallup poll. If your profession is not listed and the topic comes up at a cocktail party, tell them you are a nurse. If someone tells you they are a lawyer, give them a break and tell an "Advertising Professional" joke. 

Thursday, March 16, 2023

Women's History Month

March is Women's History Month. In the course of scanning the news, an intriguing timeline was recently published by U.S. News. It was written by Susan Milligan, and contends that there have been "two waves of feminism in history," and neither has been very recent. There is no mention of geography in the introductory paragraph, but the title clarifies that the focus is on the United States. The two eras cited are interestingly about a century apart: "in the 19th century, growing out of the anti-slavery movement, and  . . . in the 1960s and 1970s." I struggle with how long ago the 1970s were. Will the next wave wait another 40 years, or is one dawning now? 

The timeline is intriguing, informative, and comprehensive. The exposition is well worth the read. I focus here (all bullet points are direct quotes from the article), a blog about workers' compensation, the workplace, and the law, to address some of the milestones noted in the chronology; those that are pertinent to the law in particular. I can hear my friend J. Horace Middlemier, III now ("what's this have to do with comp? Hey, you kids get off of my lawn! Did I turn off the stove?"). 
  • 1777 – All states pass laws which (sic) take away women's right to vote.
There is a great deal taught in high school history about the suffrage movement. However, I was unaware that women in some jurisdictions enjoyed the right to vote long before that movement. New Jersey was an example located with a quick Internet search. 
  • 1839 – The first state (Mississippi) grants women the right to hold property in their own names – with permission from their husbands.
There is a tendency to deride Mississippi; the state suffers a lot of abuse in the national media. I have had many a soul make a derogatory remark about this state and its people. Did you realize it was a pioneer in this regard? The Library of Congress says the majority of states followed in the 1850s. 
  • 1866 – The 14th Amendment is passed by Congress, with "citizens" and "voters" defined as "male" in the Constitution.
The Fourteenth missed a great opportunity to put much to rest in terms of equal protection. Certainly, this amendment has done much in the realm of our national identity and function. But, as this illustrates, what if those broad references to "any person" in Section One had been used instead of "male" in Section Two? The comparison has to lead to the conclusion of intentional distinction.  
  • 1869 – Arabella Mansfield is granted admission to practice law in Iowa, making her the first woman lawyer. Ada H. Kepley becomes the first woman in the United States to graduate from law school.
The first in Florida was Louise Rebecca Pinnel, and not until 1898 according to The Florida Bar Journal.  That is a long span behind the pioneering spirit of Iowa. Maybe the Supreme Court had something to do with it, see below.
  • Susan B. Anthony casts her first vote to test whether the 14th Amendment would be interpreted broadly to guarantee women the right to vote. She is convicted of "unlawful voting."
In the 1970s and 1980s the U.S. minted a one-dollar coin that commemorated Ms. Anthony. It was not well-liked because we confused it with a quarter due to similarity in size. People also disliked the Eisenhower silver dollar as it was too big. You cannot please people sometimes. I became aware of Ms. Anthony then, so you cannot discount the power of recognition and publicity. But, I never knew she was a pioneer of civil disobedience. 
  • 1873 – The Supreme Court rules that a state has the right to exclude a married woman from practicing law.
This was Bradwell v. Illinois83 U.S. 130 (1872). The actual holding was limited to whether the Fourteenth Amendment precluded states from excluding a married woman. It is intriguing that the distinction of marriage apparently bore such significance in the minds of people. 
  • 1890 – The first state (Wyoming) grants women the right to vote in all elections.
Wyoming? Think about the expansion of Americans westward, the timing of the end of the Civil War, and where this country was in 1890. Coincidentally, Wyoming also became a state in 1890
  • 1900 – By this year, every state had passed legislation granting married women the right to keep their own wages and to own property in their own name.
That is an intriguing date. The timing is so clearly late in our national history. But, again, the emphasis on "married" is difficult to comprehend in its own context. The point was subordination to a husband, a diminution of rights upon marriage. It is difficult in retrospect to grasp it. It harkens to the "obey" in traditional marriage vows perhaps. Read on. 
  • 1920 – The Nineteenth Amendment to the Constitution is ratified, ensuring the right of women to vote.
It is hard to imagine what all has changed in the last 100 years of this republic. But, as we strive to comprehend the last century, a great deal is likely attributable to the contributions of the Nineteenth. 
  • 1923 – The first version of an Equal Rights Amendment is introduced. It says, "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction."
The high school I attended taught about the ERA. Not this one though. The focus was all on the 1970s version. I will never forget Mrs. Stiffler and Mr. Kuhn who taught my Junior-year American History class (one each semester). They each were enthralled with the then-debated ERA. How did they miss telling us about the 1920s?
  • 1933 – Frances Perkins becomes the first female cabinet member, appointed secretary of labor by President Franklin D. Roosevelt.
If you don't know of Ms. Perkins, you don't know workers' compensation. As to this socialistic experiment, she was a pioneer and champion. It is troubling to me that our little corner of the legal world, in which she is so intertwined, is not mentioned here. Before her history-making appointment, she was a champion for working people in New York, a lobbyist, and more.  Perhaps she should be on a coin?
  • 1963 – The Equal Pay Act is passed by Congress, promising equitable wages for the same work, regardless of the race, color, religion, national origin or sex of the worker.
The 1963 Act was, without a doubt, a start. The timing is again notably late in our national history, and almost a century after the Civil War, the Fourteenth Amendment, and more. According to Pew Research "In 2021, full-time, year-round working women earned 84% of what their male counterparts earned, on average" in 2020. When, exactly, will the 1963 Act kick in with the "equal?"
  • 1964 – Title VII of the Civil Rights Act passes, prohibiting sex discrimination in employment. The Equal Employment Opportunity Commission is created.
  • 1972 – Title IX of the Education Amendments prohibits sex discrimination in all aspects of education programs that receive federal support.
You cannot overstate the effect of Title VII. It is, undoubtedly, one of the most empowering and influential laws of the twentieth century. Title IX is of narrower scope, education. Each has been important in its own way, but each is as clearly imperfect, as are all laws made by humans. But, despite the challenges, they have done much for sex equality. There are potential threats to such equality and these laws may struggle to encompass our modern dilemmas, confusion, and worse. 
  • 1973 – Landmark Supreme Court ruling Roe v. Wade makes abortion legal. The Supreme Court in a separate ruling bans sex-segregated "help wanted" advertising.
The phraseology of this point is intriguing. The Supreme Court "makes" a legality. The author's election not to accuse the Court of creating a right is perhaps telling? The second ruling was intertwined with the National Organization of Women and the misogynists at the New York Times. 
  • 1975 – The Supreme Court denies states the right to exclude women from juries.
In the hundred years following the adoption of the Fourteenth Amendment, a jury of your peers under the Sixth Amendment was a fiction? Undoubtedly so. Incredibly difficult to grasp the exclusion from jury service. 
  • 1978 – The Pregnancy Discrimination Act bans employment discrimination against pregnant women.
This is nearing its 50th anniversary. There was a time, so recently, when those who are responsible for each of our presence in this world were discriminated against for that? Somewhere, there is a pregnant woman responsible for your existence. Ponder that. I am told by those in the employment law field that some of this discrimination remains today. More subtlety and with more secrecy, but present nonetheless
  • 1981 - In a break with tradition, Lady Diana Spencer deletes the vow to "obey" her husband as she marries Prince Charles.
This one has nothing to do with the law, perhaps. But, it does have some rather important implications as regards the married women and property discussion above. That Ms. Spencer was a forward thinker and an inspiration to many. If she could have held on, she might perhaps have saved the British monarchy from itself.
  • 1982 – The ERA falls short of ratification.
This is incredibly interesting. First, in that it was not ratified. Many do not know that the last amendment ratification, the Twenty-Seventh took a long while. Britannica illuminates that this proposal was the second of the first twelve amendments (ten were ratified and became known as the Bill of Rights). The Twenty-Seventh languished for 203 years from 1789 until 1992. It languished but persisted. The ERA, instead, was passed by Congress including a short deadline for ratification. Many ask, simply, can "Congress do that?" If enough states eventually ratify, that question of authority may well see the light of the U.S. Supreme Court's door. 
  • 1984 - U.S. Supreme Court bans sex discrimination in membership for onetime all-male groups like the Jaycees, Kiwanis and Rotary clubs.
The author concedes in definition that the "second" of the feminist "waves" was in the 1960s and 1970s. That this occurred in the 1980s might suggest the wave was a bit longer. Or, in the admission of how long cases require to reach the Supreme Court, perhaps it is merely an after-effect of the 1970s? Regardless, this decision reverberated in the world of work. These organizations were bastions of networking and interaction. While there was camaraderie and social interaction, these groups were largely about doing business in a community and their insularity was a major detriment to outsiders that would compete for commerce. 
  • 1986 – The U.S. Supreme Court held that a work environment can be declared hostile or abusive because of discrimination based on sex, an important tool in sexual harassment cases.
This 1986 decision perhaps did as much to address harassment as any of the more formal efforts in that regard. The hostile workplace became a legal buzzword. Thereafter, the concept was readily and repeatedly raised in a variety of employment settings. I defended a great many such complaints in my career, and the sheer volume was intriguing. The allegations of poor behavior, for whatever reason, seemed to be readily intertwined in the world of workers' compensation, particularly in the challenges of return to work, accommodation of restrictions, and the organized labor that was prevalent in various workplaces. 
  • 2022 – The Supreme Court overturns Roe v. Wade, the landmark case that established a right to an abortion nearly 50 years earlier.
The author's list concludes in 2022. The language, again, is interesting. In this instance, the case is viewed as establishing a right, rather than the earlier reference to legality. Does the Supreme Court "establish" rights? Is it a super-legislature that is empowered in some manner to make law? Or, is it more accurate to cast it as an interpreter of law? There are various perspectives on the law and the impacts of both legislative and adjudicatory bodies. But, in the end, it is intriguing to consider the language engaged in describing and discussing. 

In all, an impressive list of achievements from the "waves" perceived by the U.S. News author. A bit troubling in the various descriptions of timing. Some will struggle to comprehend that the Fourteenth Amendment was ratified in 1868 (155 years), and yet the years since have been punctuated by many ongoing victories, great and small perhaps, but victories. In the eyes of young people today there is some view of normalcy. But, there has to be some appreciation for the Susan Anthonys and Francis Perkins. 

There have been efforts, anguish, and undoubtedly progress. That said, there is much left to do. Remember the focus here is on America, that there are a great many places on this planet in which discrimination and violence are far more prevalent, accepted, and sanctioned. We must lament our imperfections, but also be grateful for the progress and efforts of (and for) so many. Happy Women's History Month! Read the full article

Tuesday, March 14, 2023

COVID as a Comorbidity

In June 2022, the Kentucky Worker’s Compensation Board rendered an intriguing reminder, vacating and remanding an order by the administrative law judge. In Sourcehov v. Bustle, Claim 201997527, the judge awarded various benefits to the injured worker.

The issue on appeal was an allegation by the employer that the “ALJ decision is arbitrary, capricious, and clearly erroneous.“ The foundation of this allegation is that the ALJ order was inconsistent and failed to consider an unrelated health condition.

The foundations of the claim are essentially consistent with so many that work their way through various workers' compensation litigation processes across America. The worker suffered a fall, visited an emergency room, had an MRI, underwent therapy, had surgery, then completed more therapy. She eventually returned to work, though with activity restrictions and ongoing symptomatology. There were also complaints of an emotional nature, and one visit with a psychiatrist regarding anxiety and depression that the decision intimates may be related to the work accident.

This path from injury, through care, to return to work is not uncommon. The worker here, however, returned to work in July 2019. You remember those halcyon days before you heard of SARS-CoV-2, COVID-19, masking, distancing, plexiglass pods, deep-cleaning, and so much more. And that timing is a significant part of this decision.

The worker remained at work for the employer thereafter. When the pandemic led to workplace struggles, in "March or April 2020," she began working from home. That transition is known to many. She remained working in that capacity until December 2020 when she was unfortunate to contract COVID-19, was hospitalized and then continued to use oxygen and medication "for ongoing problems associated with that disease."

Thus, we see COVID in workers' compensation. Not in the setting of allegations of work-related infection, but with this pandemic interfering with lives and implicating other facts and circumstances. The matter went to trial on the workers' claims for temporary total and permanent total disability benefits. In the normal course, there were medical evaluations, expert testimony, and a trial.

The Board noted the ALJ findings of witness credibility. The judge "found Dr. Roman's opinions most credible." However, "in the next paragraph found the exact opposite." It is likely that is not what the ALJ found, but is what the order said. This is likely not an issue of uncertainty or contradiction in fact, but inconsistency in the drafting and proofing of the order. That said, what the order recites is important. That is an important reminder for all judges particularly. In fact, we might agree it is important for the lawyers that write arguments, doctors that write office notes/reports, in fact for us all.

The ALJ awarded benefits. This included the compensability of psychological injury and indemnity benefits. The employer reacted appropriately. That is not an endorsement of the arguments it raised, but the procedure. The employer sought "reconsideration." It is appropriate to raise issues with the trial judge. Resort to the appellate process should not be step one for a party that perceives error. That is a waste of appellate resources. Always give the trial judge a chance to address any perceptions of error. But, do so rapidly as time is usually limited.

Despite that opportunity, the trial judge did not see merit in the arguments and concluded it did not demonstrate "patent error." The matter thus proceeded to the Board for appellate review.

The Board reversed. As to the temporary disability benefits, the Board noted that the worker returned to work without restrictions in July 2019 and continued thereafter through the onset of COVID-19. An award of TTD (and PTD) during a time the worker was actually working was error. Disability connotes an inability to work. The award of benefits may be based upon expert opinions of ability and perceptions and conclusions. But, the facts of any case may override such opinions. The Board suggested that permanent partial benefits might instead be due during the period of actual employment.

And, the Board suggested that further analysis and explanation were appropriate as regards the cause of the worker's permanent total status following the time she ceased working. The Board restated precedent reciting Kentucky's test for such entitlement, which includes: "whether the total disability is the result of the work injury." The Board noted that there was evidence that the worker was employed and working until contracting COVID-19. It cited evidence that her inability to work might be "in part due to that condition." The Board did not conclude the disability was disease-related.

Instead, the Board instructed the trial judge, on remand, to "perform an accurate analysis." The question is "whether she is totally disabled due to that condition" (COVID) or the work injury. It noted that such distinctions are "particularly important" in circumstances that involve "both work-related and nonwork-related" symptoms, restrictions, and challenges.

The Board's opinion provides five important reminders for the workers' compensation professional. First, medical opinions can be crucial in benefit disputes, but facts matter. Second, effective writing and proofreading are critical in avoiding contradictions - in assuring clarity. Third, that rehearing or reconsideration is the right path. It may not be successful, but it is the right path. Fourth, judges can get it wrong. We are no more perfect than anyone. That is not a fault or an indictment, it is a reality. That is what appellate judges are for. And finally, the causation questions can be complex. COVID is a vivid example of unrelated issues (comorbidity) complicating benefit entitlement questions. There are many such potential complications. The parties and the judge must remain attuned to them, address them, and explain their (ir)relevancy.

The troubling aspect of our day-to-day may be that such decisions and their poignant reminders may too often elude our attention. There is much to learn and be reminded of, in such appellate decisions. Those who would avoid error would do well to find a moment each day to quickly review such appellate decisions and to ponder their implications.

Sunday, March 12, 2023

Permanently Deactivated

I am not a Luddite, but change and technology trouble me. Through my adventures with automation and leveraging of technology, I have driven to detach myself and others from the world of paper and postage. Inadvertently, perhaps that drove us all away from people, from each other? We have seen technology accomplish radical changes in our society and community over the last 30 years.

In 1990, the Internet, as we know, it was unknown. Electronic mail was a rumor. Computer–based legal research was a luxury, an expensive one; books were cool. The age of the cell phone was upon us, but the expense associated with cellular still deterred many from its use. The first law firm for which I litigated declined to reimburse attorneys for cell phone bills. They did not see a positive cost/benefit analysis.

In the 21st century, we have seen algorithms, apps, and innovation drive the so-called "gig" economy. The world of work has been impacted by so many changes, and technology permeates so much of that innovation, evolution, or devolution. 

Certainly, these applications have revolutionized much, including shopping, food delivery, and more. The result has been, at times, confusing and frustrating. And the change seems persistent. I had fallen into the habit of making purchases from one retailer and enjoying home delivery. However, on recent purchases, upon reaching the checkout page, I would learn that a variety of products were available only by driving to the local store for “pick up." Thirty years ago my reaction would’ve been driving to the store. This time I just switched to a different shopping experience. Brand loyalty? Convenience? How will people make their decisions? If that original retailer mends its ways, will I go back?

We have been told that the "gig" economy would be the end of conventional taxi and car services. Uber, Lyft, and others crashed upon our consciousness and made immediate impressions. It has only been about a decade ago. Though I am enamored with technology, I was reluctant to engage these services. Certainly, the news coverage of aberrant behavior was anecdotal, but it was a deterrent. In fairness, I’ve never been a big fan of commercial taxi cabs either. The price is simply difficult to justify in a world of inexpensive rental vehicles.

For a trip last fall, I found myself with a 5 a.m. airport report time and was hesitant to request a 4:30 home departure imposition from my family. I, therefore, strove to obtain a rideshare commitment for that 8-mile ride. One application offered me a $50 fare, And another a $43 fare. Both of these included long delays, which would potentially frustrate my airline departure. I eventually elected another path. In fairness, my attempt to hire a taxi cab that morning was no more successful. The promise of a ride app was elusive. 

Recently, upon return from a trip, I found myself unable to get a ride home from the airport. In a fit of inspiration, I decided to try rideshare. One of the apps provided me an $82.91 fare, advising a weight of approximately 10 minutes. I switched and tried the other application, and received a more reasonable quote of $28. However, I spent the next 15 minutes repeatedly trying unsuccessfully to get that app to verify and accept my credit card. 

I returned in frustration to the $80 app and put in a new query. Inexplicably, it then quoted a $35 price, which I accepted. There are frustrations with using these applications. People in my age group want predictability. We like order, repetition, and consistency. Don’t get me wrong, if you wanna give me a discount price I won’t complain. Want me to pay $10 a mile for a ride home, you may see me just log out. If the next app fails me, I might come back. 

These thoughts came to me this week as those who drive for the two major ride shares, Lyft and Uber, are garnering press coverage. They are lamenting their oppression at the hands of these applications. An ABC News story focus solely on pricing and noted a demonstration occurring at a big city airport in support of unionization. I discussed that January article with my recent Uber driver and he expressed no knowledge of either the demonstration or any complaints. 

More recently, news coverage has focused on the manner in which Uber and Lyft drivers may be permanently deactivated, which some see as a euphemism for "fired." This article turns to an analysis of the earnings of the application owners (Uber and Lyft), and the earnings of drivers, and the inevitable discussion of fairness in the grand scope of economic exchange, our equitable and socially accepted economic wonderland.

The complaints of the drivers are intriguing. Having entered into an “independent contractor“ paradigm for work, they are seemingly angry at what that means. One complained that all of the expenses associated with operating and maintaining the vehicle are upon the driver. Newsflash: the very definition of independent contractor means you are responsible for all of the expenses associated with your tools and equipment. This should not be shocking.

Others lament the optics of the economic split. They note that consumer cost for rides recently increased by 50%, but driver compensation concurrently increased by only 30%. Thus, the somehow surprising news is that workers do not enjoy commensurate earning advantages with the businesses for which they labor. How many people received a recent 30% increase in pay?

Some would say that this difference, 50%/30%, is due to the inherent risk of the business, and the disproportionate freedom of association enjoyed by the worker. Others would say it is inherent inequity. There are various perspectives from the socialists, the capitalists, and those that fall in between. 

Many don’t realize that a worker may leave employment or an independent contract or relationship more readily and freely than perhaps a company may. Businesses face financial costs for unemployment compensation, notification expenses, and severance packages, for which there is no corresponding benefit or right when an employee elects to leave work. Employers take on risk and are responsible for a myriad of details. Workers should understand that. Similarly, workers have a myriad of concerns and responsibilities of which employers should remain conscious. 

The employer/employee relationship is currently inherently symbiotic. Employers may be able to use technology, artificial intelligence, and robots to replace labor. That is happening today and the pace is seemingly increasing. How will labor replace employment? Government? Anyone that has not noticed should read up on the state of the U.S. budget. We are broke. Existing programs are in financial trouble. Check Social Security or Medicare. The day of reckoning I have long lamented is coming. With a soaring debt and troubled budgets, only the deluded will see a potential for more government support. 

But the focus of this recent article is on the permanent deactivation of gig drivers. One of them felt strongly enough to file a lawsuit regarding the termination. That ended in judicial enforcement of a contract to which the driver had agreed. The company and the driver entered into a contract, and the contract defined the circumstances and relationship between the two. That said deactivation was a potential. The driver's lawsuit was dismissed.

Though viewed as unfair by the press, that worker found themselves bound to that contract, to which they had agreed. One might argue that outcome is not unexpected. Although, in our modern world, we do see a great deal of expectation that consequences should not flow from what we agreed to. A great example is the hue and cry regarding student loan debt. 

In a recent article regarding the Supreme Court’s consideration of the debt relief plan legislated by the executive branch, one of the critical elements discussed is whether a state may have standing to challenge this based on its own decisions regarding taxation. This is referred to as the “self-inflicted harm“ doctrine. Essentially, the states may not have standing if the harm suffered was their own doing. And yet, somewhat ironically, those who asked to have their debt erased at taxpayer expense, did precisely that. They signed contracts, made commitments, and undertook to obtain benefits they now wish others would pay for.

Thus, perhaps we are in an age in which contractual commitments are less than absolute?

But, as to the labor disputes in rideshare, we see the potential for the demise of the rideshare platforms as we know them. The algorithmic revolution of ground transportation may evolve into a mirror image of taxi cab alternatives. Legislation, regulation, and constriction may render these services no different than taxi cabs, and we will return to the government regulated monopolies, the "gypsy" cabs, and more. One can have the convenience of an app and yet a conventional cab. Or, perhaps, the driverless car will upend it all? Will the government mandate a "driver" in each driverless car to preserve and protect employment?

A spokesman for one of the app companies issued a statement, quoted in the article, and essentially said things aren’t so bad. The statement points out with the American economy is amazingly ripe with unfilled job opportunities. Without the expenses associated with vehicle, maintenance, a driver could accept employment in a multitude of jobs, earning minimum wages in excess of their claimed Uber or Lyft hourly rate. And yet, they continue to drive.

That recent trip I took from the airport was 8 miles. The charge was $35.00. The trip concluded with the suggestion that I provide a tip for my driver. As it’s customary in such settings, I did. See Tipping (February 2023). However, I did not elect the ridiculous high-end range the app suggested. I tipped eight dollars (about 22%). 

In the course of 20 minutes, my driver earned about 8 dollars ($1 dollar per mile) and an eight dollar tip, or $16. Admittedly, not every minute of every hour will produce revenue. But, if the driver does that only twice per hour, that is effectively $32 per hour. Certainly, from that, there are expenses. However, I am reasonably confident, that Uber driver earns more than the minimum wage, substantially.

And, notably, the driver is seated most of the time. The driver works in air-conditioned comfort most of the time. The job involves little to no lifting, no set work schedule, no dress code, and it is apparently somewhat enjoyable (my driver chatted gregariously throughout the trip, sharing his views on professional sports, local, and national news, and more. Perhaps there are more difficult working environments. 

In the universe of my rideshare experience (one), I can honestly say I’ve never had a bad experience. I say that recognizing that others very well may have. In the universe of my experience, one ride, I’m confident drivers can make money in this endeavor. It will be interesting, to see the extent to which government (city, state, or national), intervenes in the driver/app, contractual relationship, the potential unionization, and the re-definition proposed. 

But, my advice, old people like me may abandon an app over challenges (won't take the credit card, charging $80 for an 8-mile trip). Once we leave, we may not come back until we get frustrated enough with the next app. Old folks can be loyal, but we can be cranky, proprietary, and resistant to change also. The app might find that a consumer permanently deactivates it. 

The only constant is change. I’m confident the rideshare business is not immune. The source and direction of change remain to be seen. In the changes, we will all face challenges. We will all be making economic decisions, leveraging technology, and facing change. It will be interesting to watch. Maybe I will try a food delivery company next. Or perhaps not.