Tuesday, June 6, 2023

Fat Discrimination

Obesity is an issue in America generally, and it is becoming a workplace challenge. Unfortunately, many in society find themselves incapable of shedding the pounds. I have written significantly about the challenges, but in this context, perhaps the path to progress is to quit admitting we are obese? See Obescity Again (January 2023). See also What's in a Name (August 2020); The BMI Conundrum (August 2022).

Changing the name or definition will not change the fact that obesity affects people. There are health risks. Obesity can Kill me? What Could be Worse? (March 2015); Comorbidity of Obesity (October 2021). Obesity is dangerous. "A rose by any other name would smell as sweet." Billy Shakespeare (Romeo and Juliet, 1591). Regardless of how we label obesity, it will nonetheless contribute to and predispose to health problems (according to Harvard). 

Beyond denying obesity, there are many efforts at diminishing body weight. There is debate about the cause of our personal and collective gathering of weight. Disease or Choice (March 2023). There is advocacy for drastic approaches, including surgery. Obesity Yet Again (January 2023). There are billions (<$30) spent annually on fitness. And there are even some peculiar examples of procedures engaged to accomplish weight loss. Stool Transplant (October 2019). That is right, people tried feces transplants, but apparently, that did not help

And obesity has long been on the scope of employers. See How will risky Behavior and Choices Affect Employment Decisions (April 2013). For more than a decade, we have heard that employers will consider predisposition questions and issues in the hiring process. There is the risk of health issues associated with obesity. Should employers be able to choose whether to shoulder that risk, the same as they might if I am a smoker, a skydiving enthusiast, or pose other risks? I have heard no one persuasively argue that discrimination against smokers should be illegal (dope or tobacco). 

Well, not so in New York City. That glistening city in the north is a paragon of such policy failures as rodent control, Homelessness, crime, and more. The New York Times recently inquired "If you were mayor, what problems facing your community would you try to solve?" That expose discussed multiple pressing issues. It outlined a city with many large challenges. The Times ignored or forgot being fat. 

Despite not making the Times' list, according to British Broadcasting Corporation (BBC), the big issue in the Apple is obesity. More specifically, employment and accommodation decisions based on obesity. With a smorgasbord of challenges before it, Gotham decided that the most important, the one to deal with now, is that employers are (apparently) less willing to hire the obese. The solutions (hopefully) that were considered included weight loss and better health. But, in the end, the solution selected was to strive to force employers to accept the risks that may come with hiring the obese.

The BBC contends that this is a "growing movement" equating obesity "with race and gender." There was a time when we all assumed that those two were immutable and there have historically been great efforts in this country to prevent discrimination based on such characteristics. More recently, we have learned that in the perspectives of some both gender and race may be more changeable than we thought. 

Well, the philosophers are perhaps thinking that way. And don't try to tell Rachel Dolezal, Jessica Krug, or Martina Big any different.  Those examples are interesting and bring new meaning to mom's assurances when we were kids: "you can be anything you want when you grow up." You may disagree with the fluidity arguments, and that is your right also. Is it fluidity or is it appropriation? Ask St. Louis, The Academy Awards, or even cooks. There is not unanimity on the appropriation discussion. 

There is likely room for discussion of whether race, gender, and obesity share. Some contend they should be treated similarly, but there seems doubt and discussion in some quarters. As those discussions change, protections from federal laws such as Title VII. and Title IX. seem to be in flux. Women and other minorities remain challenged.  

But the "Apple in decay" (Foreigner, Long, Long Way from Home, 1977) is seemingly accepting that obesity is immutable, or is at least worthy of protection from discrimination. It asserts that there is a stigma attached to being large, and that weight discrimination delivers "pervasive stigma," "bias," "lower wages," and other "sharp costs." One advocate asserted that "weight discrimination was 'a silent burden people have had to carry.'" The burdened assert that being of larger size impacts a variety of activities. 

As a recovering "healthy" person (Oh, PC, you got me there with an antonym used coyly), I can tell you size does impact your life. Yes, the obese balk at being referred to with a variety of words. Their preference is to be called "healthy." Would anyone ever suggest that we refer to smokers instead as "healthy?" There is a move afoot to use that term for the obese. Perhaps some are merely healthy, and others are really healthy, or morbidly healthy? Do such word choices help us with battling the health risks or does this merely ignore the risks?

There are allegations of the "healthy" with challenges in finding accommodating "seating at restaurants and theatres," discrimination in housing, and even "weight limits on the city's bike sharing program." Such arguments led to the imposition of the new city ordinance banning weight discrimination (I guess you should buy bigger, stronger bikes, chairs for your business, etc.). This is the same city that solved obesity years ago by banning large soft drinks. Can I get a "Team Gulp? (July 2014). 

With a decade of smaller sodas, can this weight challenge still a thing there? They claimed the smaller cups would alleviate the problem. It was a weak-minded solution that blamed the food instead of those that consume it. The soda is not making us obese, it only affects us when we chose to drink it. The same may be said of candy (they never banned the large chocolate bars), and an assortment of other foods. 

Maybe it is a more widespread challenge. The BBC reports that "Michigan has barred workplace discrimination based on weight since 1976," but it identifies no other state laws in this regard (It notes bills have been introduced elsewhere, but a bill is but a bill). There is mention of discrimination bans in "a handful of other cities," but the two specifics are "San Francisco and Washington DC." Those are another two municipalities that perhaps have no larger challenges to tackle? (Crime, homelessness, feces on the streets, retail flight). It is perhaps hard for anyone to seriously consider recommending we look to those two as urban management leaders. 

The effort in New York is led by the "National Association for the Advancement of Fat Acceptance," NAAFA. I for one am not at all sure that this use of the "F" word is PC or acceptable. My righteous indignation is past simmering. This effort against F__ discrimination, the advocates say, is "a larger conversation of framing this beyond health." They say body size is "not a health issue. It's a civil rights issue." In the end, it is "about if people are safe and protected and have the right to be in spaces." 

I am persuaded by the arguments personally. I can buy that it is more important to accept these risks and accommodate size. Let's drop the efforts at fighting the weight and just be more accepting and accommodating. However, it is harder to negotiate with diabetes, heart disease, stroke, and cancer. We can be as accepting as we want of the weight, and it will continue to kill people. 

In our new world, perhaps people impacted by one of these diseases will simply explain to the disease how unfair,  discriminatory, and hurtful they are. Perhaps if we all look down on these diseases, they will just leave? Maybe we can legislate these diseases and make it illegal for obesity to impact diabetes? It sounds ridiculous, but no more so than regulating the size of soda cups (some critics back then cynically suggested people would buy two cups of soda to beat the size limit. for whatever reason, the cup-size legislation did not end the obesity). 

There is debate as to what causes obesity. Many claim it is a disease, many espouse it is a symptom of various disease, and some perceive it to be mathematical (calories consumed less calories burned equals either gain or loss). There is much to unpack there. Certainly, there are some that are not able to maintain an ideal weight despite their many efforts. I know some that cannot do so even with the help of various pharmaceuticals and surgery. I commiserate with them, understand them, and wish we could be better to them. I was "them" for many years. 

But, for employers in the Big Apple, there is now the potential for employers to be sued for discrimination "based on 27 characteristics" according to the BBC (without further illumination). A quick check of the New York City Equal Employment Practice Commission revealed the following 15 listed. It is not clear what the other 12 might be (although obesity is seemingly on the way).
"age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or status as a victim of domestic violence."
How this new effort will integrate into the fabric of employment in New York will be an interesting process to observe. Whether the NAAFA perceives an improvement in the situation of those who identify as obese "healthy" will be interesting as well. Will other states or cities follow the path as hoped and encouraged by this Big rotten Apple effort? Or is this just another cup limitation? Time will tell. 

For me, I have decided to drop ten pounds myself and see if that improves my lot in life. I have found late in life that the math works for me. It is painful to walk daily, to regularly deny myself foods I love, and to persistently watch my calories. That said, it does not mean the math works for everyone. Certainly, obesity is at least a medical result or symptom of many diseases that disrupt the math, the motivation, and/or the results. Some people cannot lose weight and that must be acknowledged and accepted. They should not be faulted for that. But, should employers be forced to accept those burdens? 

It is beyond doubt that we should not mistreat people based on immutable characteristics. There is a seemingly increasing willingness to discount the immutability of various characteristics. And there is room to discuss whether the government is capable of legislating away untoward or undesirable behavior. How many burdens must an employer carry in striving to keep a business afloat, employment available, and a market viable? 

Or, will legislative efforts at accommodation merely drive business from particular communities? There is much to unpack, and there are likely no easy answers. In a society, there will be interests that compete. For now, there is a new right for the "healthy," and time will tell. Can government legislate acceptance? Will people accept weight as immutable? 

Sunday, June 4, 2023

Fee Schedules Revised

This post continues the discussion of the impact of CS/CS/HB487 (2023). The first part, including reminders of the nomenclature and legislative process, is in Major Change in the EMA (May 2023). This bill is not a major revision of the workers' compensation law. However, the impact on provider fee schedules may be profound. In any event, the changes should help to attract providers to workers' compensation.

Some history will be helpful. In 2016, the Florida Legislature noted the fact that rules adopted by the Executive branch can have significant economic impacts. Therefore, the provisions of section 120.541 were amended to require agencies to address that potential whenever a new rule is proposed. There is a statement required, called a SERC (statement of estimated regulatory cost) whenever there is such a proposal.

There is a threshold. The rule must be predicted to
"have an adverse impact on small business or if the proposed rule is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within 1 year after the implementation of the rule."
If that threshold is met, then the SERC must be prepared. And, legislative approval of the rule may be required. This is mandated when the impact is expected to adversely:
  • "impact economic growth . . . in excess of $1 million in the aggregate."
  • adverse(ly) impact on business competitiveness . . . in excess of $1 million in the aggregate."
  • "increase regulatory costs, including transactional costs . . . in excess of $1 million in the aggregate."
Any such proposed rule:
"shall be submitted to the President of the Senate and Speaker of the House of Representatives no later than 30 days prior to the next regular legislative session, and the rule may not take effect until it is ratified by the Legislature."
Notably, the impact of this requirement will become increasingly stringent. In 2023, after inflation, the equivalency to 2016 dollars is $795,892.47 according to the U.S. Bureau of Labor Statistics. With each passing year, the scope of this constraint will increase as the cost in the present tense will be compared to this past-tense statutory figure. Some feel like it won't be too long before a dozen eggs satisfies the $1 million figure. Have you bought eggs lately?

CS/CS/HB487 ratifies the 2020 Florida Workers' Compensation Health Care Provider Reimbursement Manual filed October 2021. This is the first ratification of an adjustment 2016. And should provide some better standards for the providers that treat injured workers.

The process for these manuals has generally been through the "Three-Member Panel," which has long been part of our Florida workers' compensation parlance. Section 440.13(12), Fla. Stat. The panel will continue to be responsible for "statewide schedules" for "hospitals and ambulatory surgical centers." However, HB487 removes "physicians" and others from that responsibility.

Now, (line 563), the "department" (of Financial Services), essentially the Division of Workers' Compensation, will notify the public of "the physician and nonhospital services schedule of maximum reimbursement allowances" each year by July 1. This will not be "subject to approval by the three-member panel." It is also not applicable to "reimbursement for prescription medication."

As such, according to the legislative staff analysis, the process is removed "from rulemaking and the applicable legislative rule ratification requirement for rules that increase private sector costs more than $1 million." Thus, the Division will be empowered to adjust reimbursement for physicians and other care providers without the cost and technicalities of the rulemaking process, and the challenges of the SERC and legislative approval. 

It seems likely that fee schedule adjustments will become more frequent, focused, and regular. There may be benefit there in both the medical community and workers' compensation generally as more providers are available for injured workers. It is possible that time will bring significant shifts in reimbursement, and that unfettered discretion may eventually impact the ever-important insurance rates. It seems that when rates are affected, there is potential for further legislative consideration. 

Adoption now of the 2020 Rate Manual is predicted to affect a .2% increase in rates. That is likely to be viewed as a nominal amount. In an age of rampant inflation, there are many concerns. Americans are concerned about inflation. The last three years have been significant for inflation. A .2% increase in rates may pale in comparison to those concerns. But, in time, more significant rate increases may drive more significant concerns. 

Courtesy of https://www.usinflationcalculator.com/inflation/current-inflation-rates/

Thursday, June 1, 2023


In Major Changes in the EMA (May 2023), the news broke regarding CS/CS/HB487 and the end of the statutory EMA mandate. This is a very small (one-word) change from "the judge of compensation claims shall" to "the judge of compensation claims may." Seemingly gone is the mandate that has underlay so much litigation, appellate review, and angst. Seemingly.

The next question for the student is how gone is it? Or, perhaps more aptly "when is it gone?"

There is a distinction regarding changes in the law. We are persistently interested in whether a statutory change is "substantive" or "procedural."

It is beyond clear that "The date of accident determines the substantive law applicable in workers' compensation cases." See, e.g., Ace Disposal v. Holley, 668 So.2d 645, 646 (Fla. 1st DCA 1996); Paulk v. Sch. Bd., 615 So.2d 260 (Fla. 1st DCA 1993). Thus, if this is a substantive change in the law, then either party to a dispute might still have a right to the mandatory appointment of an EMA based on the law in effect on the date of accident being prior to May 25, 2023.

  • Would this depend upon when the accident happened (before or after the Governor signed CS/CS/HB487?
  • Would it depend upon when the medical conflict became known?
  • Would it depend upon when the party seeking an EMA filed the notice or motion?
The appellate court has already addressed the nature of the EMA statute. In Snider v. Mumford, Inc., 65 So. 3d 579, 580 (Fla. 1st DCA 2011), the court "conclude(d) that section 440.13(9) effects a substantive change." Thus, perhaps the question is answered. But, that conclusion of the court is based upon a far broader issue. 

That case addressed whether the EMA statute could be applied to a case in which the date of accident preceded the statutory creation of the EMA. In other words, could that (then) new innovation be applied to a case that began (date of accident) before it was enacted. In deciding it could not, the court relied on its earlier and similar conclusion regarding the application of an IME statute enacted the same year (1994) to an accident that occurred prior. Southern Bakeries v. Cooper, 659 So.2d 339 (Fla. 1st DCA 1995). 

Thus, the substance of the EMA (or IME), new concepts (or forms) were created in 1994. The court concluded it would be improper for that new creation to be applied to an accident that occurred before enactment.  

But, the EMA itself is not changed by CS/CS/HB487. The law still provides for appointment to resolve conflict. The resulting opinion remains admissible generally, and presumptively correct on the questions posed, e.g. the specific conflict. Lowe's Home Centers, Inc. v. Beekman, 187 So. 3d 318 (Fla. 1st DCA 2016). All that is changed by this bill is a once mandatory judicial obligation is rendered discretionary. From that perspective, there is seemingly room to view this change as procedural.

Or perhaps this could be phrased otherwise, a once vested right to an EMA determination is no longer vested, but is discretionary. Viewed from that perspective, it is perhaps more difficult to see this change as procedural. However, there still may remain some room for discussion.  The appellate court explained substance and procedure succinctly in Bell v. University of Florida, 652 So.2d 460 (Fla. 1st DCA 1995). It reaffirmed the "substantive rights of the parties are fixed by the law in effect on the date of injury." 

However, in Bell, it nonetheless allowed a penalty provision enacted in 1994 to a case in which the accident occurred in 1990. A penalty, one might argue, cannot be procedural. That law changed a vested right of the employer (to not be subject to a penalty). The court explained, however, that the event from which penalties flowed, a settlement order, occurred in 1994, after the law changed. Therefore, the court characterized those penalties as "a remedial enactment" that was applicable to "currently accruing liabilities arising out of earlier events or claims." Thus, it concluded the penalties applied to payments due after the statute change, regardless of the date of accident. 

In doing so, the court relied upon and quoted Litvin v. St. Lucie Cty. Sheriff, 599 So. 2d 1353 (Fla. 1st DCA 1992) regarding a statutory time limit on claim filing. There, the court concluded "this time limit applies prospectively to delinquencies occurring after its effective date, without regard to the" date of accident. 

All that said, it is perhaps unlikely that the "may" applies without question or analysis to any and all EMA requests or conflict notices. It is entirely clear that the "may" applies to any such EMA in an accident occurring after May 25, 2023 (when Governor DeSantis signed HB487). 

For instances in which the conflict was known to the parties, that is documented, prior to May 25, 2023, it may seem logical that this statutory change would have a substantive effect. For those disputes, perhaps the application of the "shall" would persevere. 

For those instances in which the conflict first arises after May 25, 2023, it seems that this statute change is arguably procedural in the same manner described in Litvin and Bell. For those disputes documented and presented after May 25, 2023, the "may" seems likely to control. And clearly for those disputes regarding dates of accident after May 25, 2023, the "may" is reasonably clear. 

For now, the best answer is perhaps "it depends." Or, perhaps the answer is more clear, dependent only on the date of accident being prior to or after May 25, 2023. Ultimately, the assigned judge, in any case, will make that determination and perhaps some will venture to the appellate court for clarification or explanation beyond. It is likely that litigation over the EMA has not concluded.

Tuesday, May 30, 2023

Major Change in the EMA

The 2023 Legislative Session closed on May 5, 2023. Each session of my career has been a learning experience. Each begins with so many big ideas. There is hope and enthusiasm and focus on this change or that. The capitol teems with activity, familiar faces, hustle, and bustle. As the session progresses, bills fall by the wayside. It is a function of time and distance. The path to passing a bill is long and challenging, and time is always limited.

There are many who watch for workers' compensation each session. They monitor the system for bills that touch Chapter 440. I often hear from them as regards this or that bill, its potential impacts, and perceptions of consequences from bills. There are many touched by this law, but relatively few can take the time to make workers' compensation their priority unless a systemic change is in discussion.

The 2023 session will not join the annals of Florida workers' compensation history. 2023 was no 1970, 1974, 1979, 1990, 1994, 2001, or 2003. Those were each watershed moments in our path to today. Each of those laws included broad shifts that altered our course fundamentally. That said, 2023 will be remembered for repair to the Florida process. CS/CS/HB 487 passed in the waning days, on May 3, 2023. It is a lesson in legislative process.

The name of the bill is instructive. "CS" denotes a committee substitute bill. That means that a committee significantly changed the bill during its passage through that committee's purview. That this bill says that twice, "CS/CS" denotes that this bill was significantly amended twice. The "HB" reveals that it was ultimately the House Bill that passed. We remember that to pass a law in Florida there must be committee consideration (usually) in each chamber and thus two bills are needed, one in each chamber.

The Senate path for this bill was CS/CS/CS/SB 1158. This started life as a Committee Bill, sponsored by the Fiscal Policy and Appropriations Committee. The nomenclature ("CS/CS/CS") illustrates that three committee substitutes were adopted over its life. It emerged from the committee process, was read twice in the Senate, and ultimately "laid on (the) table" on April 28, 2023 when the Senate took up consideration of HB 487 instead.

That is a great deal of detail and some will fault me for it. I can hear Horace Middlemier now ("Get to the point, what does it do?"). But, the point is that the path from introduction to passage can be challenging, can include significant changes, and can come down to the last days of a session.

HB 487 fixes two serious problems in Florida workers' compensation. The first dawned in the 1980s with an abiding distrust in judges. The Legislature was frustrated with the glacial pace of adjudications and was beginning to show some seeming disappointment with long-standing statutory meddling of adjudications generally. It created the "super doc" for resolving medical disputes in 1991. Section 440.13(2)(h)3.a., Fla. Stat. (1991). I was but a child then, but I recall some discussion of engaging this new process in defense of claims.

That "super doc" effort failed. There was never a list of willing and certified providers. The judges could not appoint a tie-breaking physician under that statute because there were no providers. It was a legislative action without enabling, efficacy, or consequence. I tried the issue once, before Judge Anderson back in the day. I can still see him looking at me with his palms held out before him, upward (a shrug, as if to ask "what can I do") as he noted, "there is no doctor list." 

The Legislature returned a few years later with the Expert Medical Advisor, section Section 440.13(9), Fla. Stat. (1994). The Division soon after deployed a list of willing providers and the age of the EMA quietly began. There was some early litigation surrounding the EMA, Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997); Walsdorf Sheet Metal v. Gonzalez, 719 So.2d 355 (Fla. 1st DCA 1998). Unfortunately, the EMA process' flaws were many. Its expense was significant. Its delays were regrettable.

CS/CS/HB 487 modifies the EMA process very slightly. In fact, it changes but a single word: "shall." Section 440.13(9)(c) is amended as follows (line 485):
(c) If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee's complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims may shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor."
The appellate court explained in Cabrera that the former "shall" was a mandatory requirement. That conclusion of the court was clear (despite there being no statutory language suggesting any consequence of not complying, see Brown v. Pumpian, 504 So. 2d 481 (Fla. 1st DCA 1987); But see Limith v. Lenox on Lake, 163 So. 3d 616, 617–18 (Fla. 1st DCA 2015)(holding that "may" sometimes means one must). 

The court later concluded that no party needed to move for EMA appointment, despite clear rules to the contrary. Rule 60Q6.115(1)(2010). Instead, the court held filing a notice of the conflict was sufficient. Banuchi v. Department of Corrections, 122 So. 3d 999 (Fla. 1st DCA 2013). In a single context, "shall" was exhalted in one instance and ignored in another. 

But, the impact of HB 487 (2023) is seemingly clear. Appointment of an EMA is now permissive. 

The Florida Supreme Court has concluded that “The word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla. 2002), But see Limith. It is of course presumed that the Legislature knew of that generally permissive connotation when selecting "may." In the event there is any doubt as to the Legislature's intent, the bill description should be of assistance. It states that this bill is (line 21):
"amending s. 440.13, F.S.; authorizing, rather than requiring, a judge of compensation claims to order an injured employee's evaluation by an expert medical advisor under certain circumstances;"
Thus, an excellent tool is preserved for the times when an evaluation is deemed appropriate by the assigned judge. The expertise, presumptive correctness, and impact remain. What has changed is simply that discretion has returned to the judge. Thus, the body of law that explains the need for timeliness of such requests remains, and may impact the exercise of discretion. Further, the law regarding payment of EMAs remains. The shift is not a watershed moment in workers' compensation, but it is an important change to be sure.

When is the bill effective? Well, it is a long bill and there are changes to the Florida Self-Insured Guarantee Association; those are effective January 1, 2024 (line 682), and others January 1, 2025 (line 2904). A portion regarding bail bonds also uses January 2024 (line 2588), but still other bail bond provisions are effective July 1, 2023 (line 2804, 2836), and some not until July 2025 (line 2860).  The provisions regarding fee schedules are specific for July 1, 2023 (line 3363)(see below).

But, as to the EMA change, for which there is no specific provision regarding its effective date, section 77 of the bill controls. That change from "shall" to "may" "shall take effect upon becoming a law" (line 3365). The change, you see, has already become the law when Governor DeSantis signed the bill on May 25, 2023. Is it substantive or procedural in application? Tune in for the second post about this bill, Procedural? (June 1, 2023). 

And, coming soon, the third post regarding this bill, Fee Schedules Revised (June 4, 2023), for the second major impact of HB487. 

As a side note, John F. Kennedy is credited with the quote "Success has a thousand fathers, but defeat is an orphan." Already, there are some taking credit for the end of the mandatory EMA. They are relating stories of their great contributions and striving to take credit for this change. The credit for this change lies with people that will not take credit. The law has been improved, and that is what matters. 

Sunday, May 28, 2023

Memorial Day

There is ample debate in this country today regarding government. There is discussion of scope, of role, and of purpose. There are unfortunately a slew of examples in which government of all shapes and sizes has failed undeniably. That indicts institutions and leaders. But, it should never change the way we feel about those who serve the leaders, follow their orders, suffer their failures. The Vietnam conflict taught us that dramatically, as did the traitors who posed on enemy weapons and seditionists that spat on the returning troops, and worse

I was reminded recently of the tremendous service and sacrifice of so many. They have volunteered in droves since the last cessation of the military draft in 1973. This year we celebrate 50 years without compulsory military service. Since then, in various uniforms, the volunteers serve in places exotic to mundane, from our own fruited plains to various foreign shores. We pause or strive to, each November in recognition of those who have served. Veterans Day is disappointingly ignored by too many, and too easily overlooked. 

Each May we pause in a more narrow context. Our focus for Memorial Day is directed to those who made the ultimate sacrifice. In grade school, we were taught about the Civil War and the many who laid down life and limb. Following that cataclysm, it became a tradition to emerge from each winter with the tradition of remembrance. Grave markers and cemeteries were rejuvenated in semblance. They were "decorated" and we came to the tradition of Decoration Day each May. In the North and South, so many struggled with the loss of spouses, siblings, and children, at the hands of ourselves, of each other. 

It was once famously said that “all gave some, some gave all." The attribution of that has been to a Korean War veteran, Howard William Osterkamp. In the world of words, his six are very powerful.

Veterans surround us. Many have endured sacrifices and tribulations. A few have served in comfort and safety, well away from the risks and challenges. But, they too have served. Theirs is Veteran's Day. We thank them for their service. Though few businesses recognize that holiday and too few of us pause to even utter thanks. That is sad. May is different. That is not where we focus in May. 

May recognizes the fallen. Statista says we have 1.3 million to mourn. Half of those from the Civil War alone. Those figures are apparently not exact; there are some that appear to be estimations. But, the figures are nonetheless staggering. We might do well to remember the astronomical loss that ensued between us here when temper flared, compromise faltered, and discourse failed. 

I recently attended an interment of a veteran. It occurred to me that it is likely lost on many that various trials and tribulations endured in the service of our nation, fall on those who serve, but also on those that love them. 

A conversation there recounted the familial frustration with military life and a particular duty station. It was recounted that this service member's spouse literally counted down day-by-day to the predicted end of that assignment, and escape from that location. The family does not volunteer, but they follow and endure nonetheless. 

It reminded me that we have no day that memorializes the sacrifice and contribution of those who love the ones who serve(d). This is more disturbing still in the scope of Memorial Day. This day recognizes those who gave all, and far too impassively fails to acknowledge those they left behind. It is impractical to communicate with those who gave all. And yet, there are many that loved them; they linger in our presence. 

Perhaps on this three-day weekend, we might acknowledge them also? This celebration certainly marks the start of summer. It is laden with merchandise, sales, cookouts, and more. But, it is bigger than that. And it is more than decoration. I am not sure when it began to morph into Memorial Day, but that evolution occurred. When Congress acted to shift various holidays to a persistent Monday observance, it codified "Memorial Day" in 1968. It is more than decoration, it is remembrance. 

It is perhaps difficult to state a number like that above with any degree of certainty. There are conflicts that can be described and casualties that can be categorized. But these numbers likely understate the true volume. 

In that moment of reflection this weekend, give a thought also to those who survived conflict and returned. Acknowledgment of those that returned seems more like Veteran's Day, but think about them anyway. Undoubtedly, a significant volume of survivors returned to find disillusionment, disappointment, disconnect, pain, and worse. They carried wounds, exposures, and burdens, which we are blessed to not comprehend. They returned, but their service killed them nonetheless. Their certificates don't reflect it. But the truth is out there for all to see. 

In 2004, the National Park Service added a plaque to the Vietnam War Wall memorial. It reads simply
The park service explains "Since the Vietnam War ended, thousands of Vietnam veterans have died each year due to Agent Orange exposure, PTSD/suicide, cancer and other causes related to their service." Those who served in Vietnam are not alone in that they returned with burdens, challenges, and more.

People are largely enamored with "the wall" now. There are replicas in places like Pensacola (park pictured above) and Wildwood, New Jersey. There are traveling replicas that appear in city after city throughout the year. But I remember when the wall was criticized, the designer ridiculed. There were those who protested construction of that monument forty years ago. They were wrong. There is value in remembering. There is beauty in simplicity. There is catharsis in community.

Inumerable veterans have died here from the scars and exposures of their experiences elsewhere. Despite coming home, some war killed them. Some quicker than others, but killed nonetheless. Many of those that returned were greeted with scorn, hatred, and vitriol by people who lacked the intellect to comprehend them. The protestor and dissident disagreement with their government morphed into disrespect for those who sacrifice, follow orders, and serve.

As we pause in May, let us reflect on the phenomenal volume of rights, privileges, and opportunities, which we enjoy in this country. Let us forget for a moment that there are inequities, inequalities, and happenstance. Fear not that your life has been inequitable and unfair. Everyone's has been. There is dysfunction, pain, and chaos everywhere, whether you see (admit) it or not. Don't fall into the trap of believing your neighbor's life is flawless, or even better than your own. You cannot know what opposition and burden they face, nor are you prescient to compare them to your own.  

Let us focus on the fact that, despite our many challenges, failures, and disagreements, there is more freedom here than there has ever been in the world. There is the blessing of near-boundless opportunities at our fingertips. As we look around the world, acknowledge today's too numerous instances of war, famine, corruption, discrimination, slavery, pestilence, and worse. The world is a place where persecution and worse persist. Let us acknowledge that despite our imperfections, we are truly blessed. 

Those blessings were preserved by those who gave some (recognize them in November) and by many who gave all. Whenever, wherever, whoever - all. Take a moment Monday to recognize how fortunate we each are, and say a prayer for the many that blessed us with the right to disagree so vehemently, sincerely, and completely with each other. And remember the families of the fallen as well as those who suffer burdens we do not see or comprehend. 

Thursday, May 25, 2023

Built-in Loneliness Gene?

Nostalgia. It surrounds us. The older we get, the thicker it swirls perhaps.

Remember Mrs. Robinson? For that matter, does anyone even remember Simon and Garfunkel?
"Where have you gone, Joe DiMaggio?
Our nation turns its lonely eyes to you"
Joe was a baseball player. Baseball was a relaxing, some say tedious, method of passing an afternoon. It was once the national pastime, but that time has passed. People used to listen to it on the radio back before there was cable television, satellites, and other modern convenience. That radio was amplitude modulated, more on that another day. 

"Lonely eyes" of a nation looking to nostalgia. Remember . . .? Well the good old days are gone. And, Bill Joel reminds us that "the good ole days weren't always good" (Keeping the Faith, Vinyl, 1983). Nostalgia can be illusory, as Baz Lurhman warned us in Everybody's Free (EMI 1989): "Be careful whose advice you buy, but be patient with those who supply it; Advice is a form of nostalgia."

What a great day we had in Orlando on May 19! We had a great turnout for the first OJCC Workers' Compensation Academy. There were smiles, introductions, and conversations. There was commiseration with our self-imposed isolation and celebration of our reconvening for in-person conversation and proceedings. It reminded me of a recent article from MSN. This was a really exceptional piece about our collective disconnect.

The in-person drive is not new to this blog. I have been stressing our need for community. See When We Return to Normal (May 2020); We're Really Back (April 2021), Little Black Boxes (December 2021); Mental Health (January 2022), and Let's Get Together (May 2023). I have been preaching the need for community and engagement for a long time. 

The MSN article does a much better job of reminding us of the isolation than my May 2023 Let's Get Together, but it shares some points. It makes some exceptional points of its own, with movie references and everything. It suggests that Americans are stoic, self-sufficient, and a bit reclusive as a matter of choice. We "suck it up," do the job, and "ride off into the sunset."

But, is that the reality or just what Hollywood has sold us? The MSN piece picks up on the Surgeon General's recent warning about isolation. It notes some of our societal changes that are contributing factors in this discussion. These include technology, the assault of September 11, and the enforced isolation of the Great Panic. I cannot contradict the perspective, but I would suggest that these changes do not account for all the isolation and stoicism. 

In that vein, MSN draws us back 200 years to the 1800s and the perceptions of observers of this experiment in democracy. Observers back then wondered whether our pursuit of equality would facilitate or encourage our rejection of "the trappings of deep community that had pervaded Old World aristocracies for centuries." That is deep, prescient, and a bit scary perhaps.

According to those observations, Americans naturally see "themselves as standing alone." We perceive "destiny is in (our) own hands.” Well, admittedly there are a fair number waiting around on the sidelines for their lottery win or next government check. Nonetheless, we abandon our history too readily some think, eschew the connections too pervasively, and envision ourselves as independent pillars too persistently.

The MSN author reminds us that there is some myth here. There is stress on the role of community, the necessity of connection. There is emphasis on the role of social, trade, and other organizations in our collective well-being and progress. The suggestion is that we have not abandoned connection, it seems, but merely fallen into other habits.

For most of us, we need not learn new tools to re-engage in the community. We need only recall those tools and the benefits they brought. We merely need to rejoin the in-person community and re-engage. That is encouraging. But, for some, there may be some new skill education involved. 

There are those among us that need to be acclimated to the real world, engaged, and encouraged. They have no social experience to which to return. They grew up in the fake, lonely, and depressing world of social media and all of its failed premises and promises. These folks need more than the opportunity for in-person. They will need a push at least. Some will have to be dragged in kicking and screaming. But we need them to come.

There is no "built-in loneliness gene," according to MSN. We have the tools at our disposal to find "new alternatives to the old myths." We need to prioritize the work/life balance, encourage and facilitate in-person opportunities, and engage with one another. We have to accept that there is room for interaction, discussion and even polite disagreement. That disagreement bit is precisely what lawyers do. As a society, we need to do it more, more graciously, and more earnestly. Many lack intellect, logic, and common sense. We have to listen to them anyway. 

The MSN author presciently notes "Solitude and isolation do not automatically equal loneliness. But they all live in the same part of town." There is no harm in solitude. There is no foul in enjoying your virtual work environment, your quiet family room, your own backyard, pool, or kayak. There is no harm in ice cream, but you cannot make it 100% of your food consumption either.

And a final thought, "Coo, coo, ca-choo" to you too. We are having a live roundtable lunch in Tampa next Friday, June 2, 2023. Be there. Bring someone young with you. Let's reminisce. Let's share some nostalgia (you don't have to buy into it, see above), but listen and share nonetheless. Come tell a story, share a recollection, and ask a question. We need you. But don't get too conceited, you need us too. 

Tuesday, May 23, 2023

Work Comp Academy 2023

The Work Comp Academy 2023 came off last Friday (May 19) without a hitch. It was billed as bringing over 1,000 years of workers' compensation experience to benefit the next generation in this space. It may have fallen short of that mark with last-minute withdrawals of a couple of speakers, but it came close nonetheless.

It was attended by a spectrum of lawyers from across the state, from Panama City to Jacksonville, and south to Miami. Geographically, this group was as diverse as any. It was split about 60%/40% defense and claimant practice. The response to our invitation was responded to more readily by defense lawyers. It is possible more defense firms hire fresh from law school. It is possible more defense saw the advertisement. But, in the end, this was reasonably diverse.

Faculty? That was magnificent. There were some from the past who linger in the present, and many from the present that will be the strength of our future. And they brought advice, commiseration, and value. They were genuinely and actively engaged with the newer lawyers. There is an honest interest in their success. More on them follows.

The program opened with news from Neal Ambekar. He is leading the formation of an Emerging Leaders committee of The Florida Bar Workers' Compensation Section. That is a noble, worthwhile, and long-overdue effort. The leaders of tomorrow will not emerge if we make it a point to ignore them today. I know the effort it takes to get involved in the practice. I lived it. I would have been so grateful for the opportunity that the Section is creating here.

Paolo Longo introduced the attendees to the Section. He will take over as chair in a few weeks. He overviewed the many efforts to draw people into social and interpersonal engagement. We need to be engaged, and the Section is working on this with Meet and Greet lunches around the state (Tampa is June 2, 2023), Town Hall meetings held virtually, the Forum, and more. This Section is active and eager to engage.

Finally, William Rogner spent a few minutes talking with them about the Section Trial Advocacy Program next May in Miami. They do this every other year. They provide a hands-on trial experience with challenging facts, difficult legal issues, and real judges. If that is not enough, imagine getting critiques from some of the legends of this practice.

If you did not know, the DOAH also has a trial academy each winter in Tallahassee. The food is almost as good as it is in Miami, but the temperatures are a bit cooler. It is a similar opportunity for a trial experience complete with many judges, seasoned attorneys, and challenging legal issues. The best part of the DOAH experience is that it is free. That is a great price.

The organizers of the Work Comp Academy last week were:
  • Natalie Cavallaro
  • Ana Gonzalez-Fajardo
  • Hon Margret Kerr
  • Lindsay Koppelman
  • Javier Melendez
  • Tara Pachter
  • Hon. Neal Pitts
We are grateful for their attention, patience, and contributions. It would have never flown without them. We are likewise grateful for the careful preparation and tutelage of the faculty. I pointed out several times during the day that the faculty was confabbing in the hallway during the opening session on professionalism. I apologized to the attendees for the noise. But, I stressed that they could learn from that. 

What can we say about these varied and diverse folks from all over Florida? They like each other. You gather them and they talk, laugh, and commiserate. Their persistence (I kept shooing them down the hall and shushing them and they kept coming back) and their engagement speaks volumes for this community. 

They like each other. They got together in this environment and it was like a family reunion (without the fried chicken, deviled eggs, and aunt sally's coconut creme cake). It was like old home week. It was enriching, empowering, and rewarding. I appreciate their presence and contribution. But I really appreciate their sense of community and commitment. We are truly blessed. The faculty was:
  • Catharine Frances Agacinski, Esq.
  • Holley Akers, Esq.
  • Judge Wilbur Anderson
  • Judge Brian Anthony
  • Judge Robert Arthur
  • Courtney Collins Bahe, Esq.
  • Caitlin Beyl, Esq.
  • John Paul Brooks, Esq.
  • Jessica Carrier, Esq.
  • Judge Barbara Case
  • Natalie Cavallaro, Esq.
  • Amie DeGuzman, Esq.
  • Linda Farrell, Esq.
  • Ana Gonzalez-Fajardo, Esq.
  • Karen Gilmartin, Esq.
  • Kristen Gottfried, Esq.
  • Silvia Maria Hoeg, Esq.
  • Judge Jill E. Jacobs
  • Daniel Todd Jaffe, Esq.
  • Judge Margret Kerr
  • Ryan Michael Knight, Esq.
  • Lindsay Jo Koppelman, Esq.
  • Judge Sylvia Medina-Shore
  • Javier Melendez Santiago, Esq.
  • Gary Alan Miller, Esq.
  • Judge John Moneyham
  • Ivan P Morales
  • Tara Pachter, Esq.
  • Judge James “Pete” Peterson
  • Judge Neal Pitts
  • Barbara Richard, Esq.
  • Grethel San Miguel-Callejas, Esq.
  • Judge Lourdes Sancerni
  • Judge Megan Silver
  • Carolyn “Lyn” Slowikowski, Esq.
  • Judge Timothy Stanton
  • Dawn Traverso, Esq.
  • Judge Rita Young

Sunday, May 21, 2023

Jon Wheeler

I hate these posts. I am compelled and driven to write them but hate these posts. 

In January 2022, I marked the passing of Judge Dietz. I admired him and his quirky humor. I noted then the death of several others such as Douglas Myers, Jack Langdon, Bob Barrett, and Hon. Joseph Farrell. I am tired of these events and feel the weight of age each time I sit to pen one. It is a cost and burden of becoming old, seeing your friends and peers pass from this earth. 

I got an email several weeks back. It advised me that Jon Wheeler was not doing well. I have known former Clerk Wheeler for several decades, and that was bad news. It seemed like only days thereafter before I received word that he had passed. 

I suspect many will not remember Jon. He retired from the Court in 2017 and faded into his favorite pastime, supporting FSU sports. I heard of his travels (family mostly) and retirement through mutual friends but lost touch with him as the years passed. Certainly, COVID did not help in the "keeping in touch" realm either. 

I ran into him early in my career and found him somewhat larger than life. He was the Clerk of the Florida First District Court when I wrote my first appellate brief. I sent it to the Court on the final day before my deadline, by overnight delivery. But, I made a technical error. I was proud when Mr. Wheeler called me personally to compliment my prudence with the delivery method and embarrassed by his explanation of my very simple error. He helped me rectify my mistake and was patient and kind in doing so.  

Jon was sometimes sarcastic and even sardonic. He was persistently outgoing and helpful though. I recall another instance I became involved with in my early career. A senior lawyer and I disagreed on a rule interpretation. I suggested we "call the Clerk." The older lawyer mocked me and advised quite imperiously (1) that the Court Clerk would not take my call and (2) that I was being naive. Guess who took the call, listened patiently to a very new lawyer, and provided sound and patient advice? Guess what an old lawyer's face looks like when an authority figure behaves with grace, poise and patience?

I did a fair number of appeals in my practice. Hint, it happens when you lose a lot at trial. I was likely someone the various clerk staff at the Court had a few laughs about. What I lacked in talent and intellect, I sometimes partially made up for with energy and persistence. Other times, I likely just frustrated those poor clerks. 

I have two more very vivid memories of Jon. The first involves the Legislature's 1994 decision to compel the Court to have oral arguments via video conference. The Court was tied into a network of video facilities owned by the state. The oral argument notice told us where to go and when. I was comfortable in my office one morning in lovely downtown Ponte Vedra (back then, that was two grocery stores, a gas station, and a couple of restaurants). The phone rang, and it was Clerk Wheeler calling.

He said, literally, "Mr. Langham, where are you?" Keep in mind folks, back then most phones were connected to the wall with a wire. You could walk around with it but could not leave the building. Cell phones existed, but they were expensive (we paid by the minute), analog, and people rarely shared their numbers widely. Thus, he well knew where I was, and I found the question confusing. 

As I sputtered and strove to respond, he clarified "You are supposed to be in an oral argument, the judges are on the bench, where are you?" Fortunately, the case was not mine. I was listed on the paperwork, but my partner was handling the argument. Jon and I worked together and soon learned that all the lawyers were in a hallway in downtown Jacksonville. They could see the bench through a narrow window in the locked door. With some effort, the bench managed to bring the camera to see that little window and the frantic lawyers. I would not have wanted to be on the other end of Mr. Wheeler's next call to the Jacksonville building manager. 

Years later, having worked on many projects with Mr. Wheeler, I ran into him one evening in a hallway at the annual workers' compensation conference. He was adorned with his nametag, dressed in a Hawaiian shirt, and wore several bright, neon "glow sticks." I remained in my usual suit and tie. We paused for a moment, and I asked him if he was having a good time. He complimented the food available in a particular suite down the hall, and said to me "You should get some, and try to lighten up a little." I guess my face did not reflect comprehension as he dryly and critically added "Lose the tie judge, office hours are over." After a short pause, he added "live a little."

I am fortunate to have known Clerk Wheeler. I enjoyed his stories of the Air Force, the Judge Advocate's office, his family, the Court generally, and the challenges of implementing e-filing there. Many may forget that the First District led the way to appellate e-filing, and he deserves some measure of credit. Many may forget that Mr. Wheeler was a person that got the job done. 

He was persistent and insistent. He was collaborative and helpful when asked. However, he did not suffer fools lightly. I learned much from him over the years and am troubled by his passing. My thoughts are with his family, and all who were touched by his professionalism, friendship, and presence. Goodbye, Jon. "May the road rise up to meet you," may the good Lord keep you. You will be sorely missed. 

The following are thoughts shared with me in recent days
  • Impish smile.
  • Passed after coping with a nagging illness.
  • Clerk for almost 30 years. After retiring from USAF as a JAG Colonel in the Pentagon.
  • Avid, almost fanatical, FSU sports fan.
  • FSU Law Grad, in the first charter class.
  • After retirement, he devoted time to his family and grandkids.
  • Supported the annual educational efforts of the OJCC with appellate tips and stats. And managed the First DCA oral arguments during the annual WC conference in Orlando.
  • Very nice, professional, and just a good person.
Word quickly spread, and the dreaded "reply all" began. My inbox was periodically populated throughout the following days with emails from legends in the world of Florida workers' compensation. Tales were related, accolades expressed, and condolences offered. The following excerpts are from some of those, reprinted here with permission.

William Rogner noted:

Jon was a big part of my development as a young appellate lawyer. He always greeted the attorneys before oral arguments and put them at ease. He demonstrated the mechanized podium and walked us through what to expect once the “all rise” was called by the marshal. He knew that we were nervous and he wanted to help us do our best. Later, he would call me and run ideas by me and he seemed to value my feedback. He was also very important in the development of the relationship between the Court and the Section. Without Jon, I doubt we would have ever developed the tradition of holding oral arguments in Orlando twice a year.

Of course, he was a military man and that part of him never went away. I once had a 2 p.m. argument and I decided to take the early morning flight from MCO that would get me to Tally at 8am. As luck would have it, the Tally airport was fogged in and my flight kept getting delayed. Fearing I might be late I called Jon and asked him what could be done. His reply was essentially, “Mr. Rogner, I suggest you find a way to get here on time or it will be a very one-sided argument.” 

Fortunately, I did catch my flight eventually and later sprinted into the old 1st DCA building (after parking remotely as was required), covered with sweat, at roughly 2:30pm. Fearing the worst, I soon discovered that Jon had moved me from argument #1 to argument #3 for the afternoon session, which gave me several minutes to calm myself before presenting my case. I recalled that story with him several times in subsequent years, explaining to him that after that day, I never arrived in Tally on the same day as my argument.

Hon. Stephen Rosen (Ret.) noted

I got to know Jon in the early 1990s and then we still remained friendly several times a year after the 1993 significant legislative changes to Chapter 440. Then when I became a JCC we would see each other at least at the annual convention in Orlando. He had a wicked sense of humor often filled with sarcasm and a contagious laugh. One time, about 2013 or 14, he said "Steve I saw they reversed you AGAIN but don't take it personally." I missed him when he retired and I will miss him even more now. Great guy, great administrator, great loss.

Thursday, May 18, 2023

The Postman Rings?

It all started when some fellow from the federal government showed up at my office. We were initially surprised and somewhat taken aback. He explained that response is not uncommon. He was here to bring us something called "mail." This involves someone putting pen to paper, applying a stamp and address, and providing this all to the government. They truck the paper all over the place, sort it, and then deliver it. Right to your door, I kid you not. 

It became apparent to me from my conversation that this fellow does this on a daily basis. There are apparently some people that do a lot of this paper sending. He explained that much of it is "junk" and that it should not concern us if we do not see him for long periods. Somehow, the fellow looked like Kevin Costner to me, but I cannot place why. 

Facetious? Guilty. 

But, the Postman does not always ring twice (great title, but the film is not even about mail, go figure). It is rare that we see a Postman at all. The days of paper are behind us. Us dinosaurs lament it, but we understand it nonetheless. 

What did the Postman deliver? 

I had received an email several weeks back. A law school was having a competition for first-year students. They were delivering closing arguments in a mock trial setting. They wanted volunteer judges, and I am a sucker for students. So, I clicked to volunteer. 

That was a lesson in itself. I learned about an app that lets me read shared spreadsheets on my phone. I learned how to make alterations to this sheet in the cloud, and add my name to the volunteer list. I am struggling with evolving technology, but it is so worthwhile to be challenged and to learn. The young people running that competition forced me to grow. God bless them.

I tuned in as instructed, scored the round, and took some time to provide feedback. Both of the competitors were well prepared, and had memorized their material. Both were somewhat nervous and seemed to dislike the virtual experience a bit. Each was outstanding overall but had some elements that might benefit from some further work. In all, I was impressed, proud, and encouraged.

That was weeks ago. This was in early April. The experience had slipped my mind after a few days. I remembered to wonder a couple of times if one of the students I mentored had progressed or even prevailed. But, it was all soon relegated to the warehouse in the back of my head as new challenges took on my daily attention. 

Then this Postman showed up out of the blue. The envelope (a contrivance of paper folded and pasted for the sole purpose of containing and conveying another piece of paper) was addressed by hand, in cursive, with an ink pen. That was intriguing. It contained a simple card with a reminder of the "1L closing argument competition." It said "your feedback was very encouraging and I am very grateful." 

You guessed it, it made my day. 

The week after, this Postman showed up again. This second envelope had my name printed on it, in ink. They say many young people do not write in cursive anymore. I get it. Where were the anti-cursive forces when I was in school? This one was a pre-printed "Thank You." Inside it acknowledge my volunteering and said "I found your advice to be helpful," and closed with "thank you."

I doubt either of those cards took more than 2 minutes. I suspect that in their own day-to-day neither of those students will look back much on the 30 minutes we all spent together on Zoom. I doubt sincerely that I provided any real wisdom that will alter the trajectories of two young lives. In short, they each did more for me than I did for them.

That said, there is a glimmer in the dark recesses of my mind. I am hopeful that they wrote because they deemed it the right thing to do (not just because someone said to). I am grateful that someone likely did suggest it; that means that teaching is not dead and law school is doing more than teach technical and analytics. Courtesy, you see my friend, matters. Cordial and careful communication is a powerful tool.

I was deeply touched by the occurrences, the deliveries of these notes. I was impressed that someone would take the time to say "thank you." I was enthused (again) that tomorrow's leaders are showing such promise, poise, and persistence. I was pleased and compelled to write this down. 

How much can you accomplish with a "thank you?" How much can you do with a simple card? What does it say about you when you take the time? Our focus this year has been on professionalism. I experience it every day, and hope you do also. But, these two examples are noteworthy, empowering, and special. I hope every one of us learns a lesson from their example. I have sent a link to this post to the Dean of that school. It is my hope that every dean is receiving similar positive feedback recognizing those who will replace us all, and the careful hands that guide them. 

Tuesday, May 16, 2023

Let's Get Together

I landed last week at Southwest Florida Airport (RSW). They are celebrating 40 years. Imagine that in 1983 Ft. Myers' airport opened. Don't misunderstand, the town was there long before. The old timers will reminisce occasionally about Page Field. There may have been some romance to that old spot, but their recollections may also be shaded a bit by nostalgia and denial. 

Ft. Myers in the springtime. There is construction everywhere. Sure, the winter crowds had eased by mid-May. The Hoosiers and Buckeyes have migrated back north. Sure, there are the lingerers. The town is not deserted by any sense of the word, but the congestion is decreased. Did I mention that there is construction everywhere? 

Quick Ft. Myers joke - How can you tell when the seasons change in Ft. Myers? That's easy, the colors on the license plates change. 

Ft. Myers was hit pretty hard in September 2022. Ian arrived with a fury and delivered significant devastation around town. It was one of those modern hurricanes that somehow devastated one house or side of a street and ignored others. It was described to me by a local as "surreal." The explanation was visibly difficult, stilted, and halting. The residents of the area were traumatized and impacted. by the storm or its sequela.  

As I reflected on that conversation, I realized he described Ian much as I had Ivan so many years before. Most Floridians have a storm they remember. Sure, we recall many. We discuss many. But, we each seem to remember a particular one. We each have our hallmark, our nemesis. It is the one that we somehow dodged, lived through, and reflect upon. Over Ivan? No. I understand the sentiments and emotions. The Ian survivors are recovering, as did the Michael survivors before. They will progress and time will pass. But they will likely remember nonetheless. 

We are accustomed to hurricanes in Florida. Not accepting. Not welcoming. But we are accustomed. We live with them in our thoughts. We wonder what is coming next, and we persevere, we rebuild, and we prepare for the next one. See Its that Time Again (April 2023).  

I was in Ft. Myers for a lawyer gathering. This all started in December with a roundtable program in Orlando. The tip of the spear on that project was Paolo Longo, who will soon take the helm of The Florida Bar Workers' Compensation Section. The idea is an informal lunch. There is camaraderie and conversation. The judges rotate from table to table or room to room. There is collegiality, reminiscent stories, questions, and community. That last is the key, community. 

The Orlando event in December was wildly successful, drawing more than 50 lawyers. There is a palpable desire to get back to the face-to-face. The success was noted, and plans began. Mr. Longo and Judge Humphries produced a great gathering in Jacksonville in early April. Ft. Myers last week was the third example, thanks to Mr. Longo and Judge Weiss. Tampa remains in June, and then a hiatus is predicted until the writer's strike is over. You don't think we make this stuff up ourselves do you? Seriously, we will break for the summer and all that entails with family, the WCI, and more. 

But first, we will be in Tampa on June 2, 2023. This event is at the workers' compensation office at noon. Thanks to Judge Arthur for his effort on this iteration. No, there is no agenda. Yes, everyone is invited. No, there are no power points. Yes, any questions you bring will be addressed. That is not to say everyone will love the answer(s) perhaps, but there will be an answer. 

This is a great opportunity to rejoin your community. It is high time we appreciate our community, The workers' compensation professionals have a great deal for which to be thankful. And though there are some perhaps eclectic community members, it is a very collegial group to engage with, to practice with, and to enjoy. 

The pandemic should remind us of the importance of community. The experience of our neighbors with Ian should remind us of our interdependence and community. We should be celebrating the fact that this practice survived and thrived in recent years while other practices, communities, and jurisdictions failed, utterly. We persevered. Come join us for a light-hearted and interactive gathering in Tampa. Let's talk about what is right (or not) in Florida workers' compensation. 

The opportunity is important. The need for us to be face-to-face is critical. We are, at our core, a simple community. We need to appreciate each other, our contributions, our successes, our failures, and our interdependence. We need to gather and focus on how we can be successful today, recruit and retain the best for tomorrow, and build a new future. I hope to see you there.