A Kentucky Constitutional Decision

The Kentucky Supreme Court issued an intriguing decision on April 27, 2017, Parker v. Webster County Coal, 2014-SC-000526WC. The Court concluded that Kentucky's workers' compensation law is unconstitutional regarding permanent partial disability benefits foreclosure by eligibility for social security benefits. Upon release, there were some excited statements about "age discrimination." The case is not about age discrimination, but the Fourteenth Amendment and "equal protection" are implicated.

To reach its interesting conclusion, the Court expressly overruled controlling precedent. Throughout its procedural history, it appears that Kentucky judges consistently followed the law as the Court had interpreted it. The Supreme Court then changed the law and reversed. In that alone, the case is intriguing. A major role of appellate courts is to bring consistency and predictability to the law. When courts are haphazard and erratic, public confidence is eroded, and both the people and the law suffer. 

The Court noted that KRS 342. 730(4) states in pertinent part that:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the employee's injury or last exposure, whichever last occurs.

The Court then detours into a discussion of age, disparate impact, and discrimination. The detour contributes to the initial confusion about this being an age discrimination case. The Court note the effect of Social Security is therefore that

a worker who is injured more than 425 weeks . . . before he or she reaches normal Social Security retirement age will receive all of the permanent partial disability income benefits to which he or she is entitled. A worker who is injured less than 425 weeks before he or she she reaches normal Social Security retirement age will not receive all of the permanent partial disability income benefits to which he or she is entitled. 

At the time of his injury, Claimant was 68 years of age and qualified for Social Security retirement. Therefore, after receiving "two years of temporary total disability benefits," he was deemed not entitled to any additional income benefits, including the temporary partial entitlement described. Claimant therefore was adversely affected by this limitation. 

The Claimant asserted that this difference in benefits is unconstitutional, citing "his right to due process," his "jural rights, and the Equal Protection Clauses of the United States and Kentucky Constitutions." The Court conceded that it had concluded the statute to be constitutional both in 1994 and 2002. See McDowell v. Jackson Energy RECC, 84 S.W.3d 71 (Ky. 2002); and Keith v. Hopple Plastics, 178 S.W.3d 463 (Ky. 2005). 

The Court espoused its respect and reverence for:

the strong presumption of constitutionality afforded to legislative acts.

the value of precedent 

and the doctrine of stare decisis. 

And then elected to ignore it all. I have commented on Kentucky's interesting take on stare decisis before in Stare Decisis, Goodgame, Livingood, and Westphal. The importance of stare decisis is discused in Kentucky, Stare Decisis, and Noncompliance Standards, but the importance of stare decisis is perhaps more of a general concept than a paradigm in Kentucky. 

While acknowledging stare decisis, the Parker Court noted that its allegiance is not absolute. It said that the "Court is not assigned the duty of maintaining the watch as the law ossifies," (meaning "to become hardened or conventional and opposed to change," according to Mirriam Webster). The Court then defended its decision to "re-visit McDowell," by noting that it had previously retreated from other precedent (in 2011). The implication is essentially "two wrongs make a right," and having legal abandoned principle once must make it right to do so repeatedly. 

The Court concluded that KRS 342.730(4) patently treats "older workers . . . differently from their younger counterparts." But, it recognized that "nearly all legislation differentiates in some manner between different classes of persons," and provided an overview of the three levels of scrutiny courts employ in a constitutional analysis such as this. This was interesting because those constitutional maxims are sometimes provided minimal discussion or respect in other state's court analyses.

The Parker Court reminded that 

Workers' compensation statutes concern matters of social and economic policy. As a result, such a statute is not subject to strict or [intermediate] scrutiny and therefore must be upheld if a 'rational basis' or 'substantial and justifiable reason' supports the classifications that it creates.

And, that proving the absence of such "rational basis" is "a steep burden; however, it is not an insurmountable one." The "rational basis" the Court held exists in this case is two-fold:

(1) it prevents duplication of benefits; and
(2) it results in savings for the workers' compensation system. 

The Court therefore did not find that a distinction based upon age was unconstitutional. However, that long discussion of the subject (arguably unnecessary since the Court elected another outcome of this appeal) likely led to the initial reactions concluding this is an "age discrimination" case.

Thus, the Court aptly identified the potential standards, correctly selected the applicable standard, enunciated the presumption of constitutionality, noted two acceptable rational bases, and rejected the Claimant's allegation of age discrimination. Poised on the precipice of a (perhaps boring) affirmance in Parker, following its established precedence in McDowell and Keith, and respecting stare decisis, the Parker majority instead made a 180 degree turn and concluded this Kentucky statute is unconstitutional for reasons unpled and untried. 

The Court concluded that the distinction between people of the same age rendered the Kentucky statute unconstitutional. It explained that this statute treats those who qualify for "normal old-age Social Security retirement benefits differently than it treats injured older workers who do not qualify" for that benefit program. 

The distinction failed, according to the Parker Court, to account for employees such as Kentucky's teachers, who "do not participate in Social Security." It is noteworthy that no teachers were involved in this case, and the "teacher disparity" does not appear to have been pled or argued until the Parker majority cited it as rationale. The Court concluded that "there is no rational basis for treating all other workers in the Commonwealth differently than teachers." The dissenting opinion takes issue with the Court insinuating this "teacher" argument into determination of law, viewing the present analysis "through the 'lens' of teacher retirement," an issue not before the Court. 

Florida similarly relies on Social Security regarding some indemnity benefits in section 440.15(1), Fla. Stat. This constraint does not apply to "permanent partial" benefits as were under consideration in Kentucky, the "Permanent Impairment Income" defined in section 440.15(3), Fla. Stat. But, for "Permanent Total Disability": 

Entitlement to such benefits shall cease when the employee reaches age 75, unless the employee is not eligible for social security benefits under 42 U.S.C. s. 402 or s. 423 because the employee’s compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits, notwithstanding any age limits.

Thus, the Florida statute's reliance on "social security benefits" might be similarly interpreted. Two 70 year old Florida employees might be treated differently, based upon ineligibility for social security for this specific reason. The Kentucky decision founds unconstitutionality on a distinction between the vast majority of employees and a very small minority, teachers. The minority in the Florida distinction would likely be even smaller, a point which could be pertinent.

The Kentucky distinction for teachers is patently more broad than the Florida law distinction. It positively affects some population of Kentucky teachers, and perhaps a few more. There are a reasonable number of people (some state workers in seven states), including teachers in at least ten states, who do not have to participate in social security according to USA Today. It notes that there are also exceptions in the Social Security Act for certain federal employees, ministers, and others. 

According to TeacherPension.org, the original legislative enactment of Social Security did not cover state employees, including teachers. When Social Security was changed in the 1950s, to allow state employee coverage, most states opted-in to the national scheme. But, a few did not and that is why teachers and state workers in some jurisdictions remain entitled to pension plans instead of Social Security. Through those decisions, Kentucky teachers are not eligible for Social Security.

Nationally, it is predicted that about 3% of workers will never receive social security. Of that three percent, two large populations are workers that do not contribute for sufficient periods of employment (81.6%), because of sporadic employment or beginning their employment too late in life. The state and local workers that are exempt from social security due to statutory provision and participation in other pension plans (including Kentucky teachers) is estimated at 11.4% of that 3% of retirees, according to MarketWatch. That is three-tenths of one percent of workers that are not eligible for social security because of statutory pension exceptions. 

The Parker Court logic is that two people (a mechanic and a teacher) might each be 70 years old on the day they suffer an accident. Each might thereafter seek "permanent partial benefits" or "PPD." The employee qualified for "normal old-age Social Security retirement benefits," presumably the Claimant (or the hypothetical mechanic), would cease to qualify for PPD, while the teacher, minister or others in the 3/10 of 1% would continue to receive PPD because of their individual failure to qualify for Social Security (despite their eligibility for the pension benefits that are a statutory alternative, and thus the potential for recovering double benefits). Theoretically, the result would include in "others" those whose work history has not satisfied the "quarters" of employment requirement for Social Security retirement (which is the presumably smaller population addressed by the Florida statute).

Kentucky Chief Justice Minton dissented in Parker, and was joined by two other Justices. The decision is thus a 4 to 3 majority. Justice Minton raises several interesting points. First, that the statute has not been changed, and the Court has previously held it passes constitutional muster. On the grounds of stare decisis, he would affirm. He notes that the precise issue was decided in 2002 and that the only change since has been in who sits on the Court. 

Justice Minton reminded the Court that "age is not a suspect classification' for purposes of the Fourteenth Amendment," coincidentally citing a Florida case. Notably, the majority agreed with that premise, and did not find age discrimination pertinent in this case. The recurrent discussion of age discrimination in the dissent only serves to reinforce the misperception that Parker is an age discrimination decision. 

Justice Minton contends that "the real question" is more likely "whether there is a good reason to continue to exempt" teachers from KRS 342.730(4). However, he notes that "simply is not before the court." He concedes that the PPD statute does not reach a perfect result, in fact he is critical of it. But, he contends that "the possibility that a classification might result in some practical inequity does not cause the statute to fail." He notes that "in exercise of its constitutional powers, a legislature is 'free to choose to remedy only part of a problem," and in the process may be "neglecting the others" (the 3/10 of 1%). He concludes that the state ignoring the teachers is merely the "underinclusiveness doctrine at work," and that it should not impair the statute. 

You will decide which side of these arguments is "right." In many jurisdictions, one might say that "right" is not an issue. One might say "the state's highest court has ruled and that is that, the law is now settled." But in Kentucky precedent has recently demonstrated fluidity, and stare decisis may merely be a quaint colloquialism in the Bluegrass state, where United We Stand and Divided We Fall. 

The Tone of Words

Trigger Warning: this post may contain words and phrases that could evoke emotional response, academic disagreement, and be offensive. Reader discretion is advised.

Do words matter? There seems to be a great deal of discussion about this in the media these days. When I was a kid, we used to banter the old "sticks and stones" back and forth. Supposedly that old saw was first printed back in 1862 (a few years even before "back when I was a kid"). We were convinced (or convincing ourselves perhaps) that words could not hurt us. The reality was that words often did back then, and there are still occasions when they do. However, a great many of us seem to have (or want others to think we have) developed tremendously thick skin.

I have been thinking of the impact of words for some time. A couple of years ago, Bob Wilson of workerscompensation.com published a piece in which he suggested a fatal flaw in workers' compensation has to do with vernacular instead of fact. He has focused us on several examples over recent years. He contends that "injured worker" should instead be "recovering worker." The emphasis shifted to the "recovery" instead of the "injury." He has suggested that "workers' compensation" should be "workers' recovery." Again, shifting the emphasis to a positive outcome and away from monetary recompense. 

This word selection analysis came back to me recently when I was privileged to speak at the Colorado Workers' Compensation Conference. It was  great gathering, populated by a very diverse crowd. After the panel discussion, I found myself engaged in a conversation with various Coloradans, and the topic was (of course) marijuana. Apparently, in the course of the panel, I referred to "marijuana" and they took umbrage at my choice of words. 

They explained to me that "marijuana" is derogatory at worst and dismissive at best. The substance that is being sold in Colorado, they assured me, is instead "cannabis." That has a nice ring to it. So the selection of descriptors, even if they are both technically accurate, may be important. It was important to them. One incredulously challenged me: "are you telling me that you never once in college smoked pot?" I confirmed I had not, and the conversation continued. Everyone else in the conversation admitted to recreational drug use. It was not until several hours later, sitting at the gate for my red-eye to Miami, that it struck me that the same person who took umbrage at my use of "marijuana" had thus used "pot" instead of the advocated "cannabis."

Words, word choices, perceptions, feelings, and much to think about. 

Later, I ran across a story on LinkedIn by an attorney. Someone applied for a job at his firm, and he had denied an interview. He did, however, return the applicant's writing sample with "editing," "redlining" and "comments." The applicant was troubled enough about this feedback to publish her perceptions of the interaction on Glassdoor (an Internet job and recruiting website/application). The LinkedIn article generated many comments and "likes." The comments I read went both ways, some supporting the author and others the job applicant. Some who supported the author nonetheless conceded that the applicant's reaction might have resulted from the author's word choices and tone. 

The LinkedIn author suggests that there has been a "generational shift." He recounts his college experience in a "sort of rough and tumble place," at a time (back in 2004) when "people had different ideas and might say stuff that offended you." He laments an "entire culture" that has been "created by being helicopter parents," who argued "with their (kid's) teachers to get them better grades," by parents "coddling them and holding their hand through absolutely everything." He mentions "trigger warnings" (such as the one that led off this post) and "safe spaces." In the end, the "shift" he describes is a dichotomy between the Millennial generation and seemingly everyone else. Millennials have received a dose of criticism, right or wrong, as discussed recently in USA Today. 

Labels, words, tone, word choices, perceptions, feelings, and much to think about.

While all of that was rolling around in my head, I spotted a Detroit headline Michigan doctors charged in first federal genital mutilation case in US. This is a topic upon which there appears to be little "middle ground." One critic referred to the practice as "demonic" in a Detroit Free Press article.

The practice is variously described. Some refer to it as "mutilation," some as "female circumcision," and others simply as "cutting." The World Health Organization ("WHO") provides background and statistics. On its website the "WHO strongly urges health professionals not to perform such procedures." It notes that such procedures are "recognized internationally as a violation of the human rights of girls and women." The WHO information is forthright, direct, and uncompromising both in tone and content. 

Following that developing story, I ran across another headline New York Times scraps 'female genital mutilation' for being 'culturally loaded' term. According to FoxNews, the Times has "decided the paper shouldn’t use the term 'female genital mutilation' because the phrase is too 'culturally loaded.'” It "widens a divide between the Western world and 'people who follow the rite.'” The paper had decided instead to refer to "the act of removing the female genitalia of young girls" as “genital cutting,” so as to not widen that gulf between advocates for and opponents of what WHO calls "torture and cruel, inhumane or degrading treatment." Should anyone care about the perceptions of those who practice torture? 

Descriptions, labels, words, tone, word choices, perceptions, feelings, and much to think about. 

A blog post on the Huffington Post recently came to my attention because Mark Pew posted it on LinkedIn. The author of this piece takes issue with using the word "addict," because it is "a word with overwhelmingly negative connotations." The author notes that we do not refer to others by some malady or disease label, and that "addict" "is incredibly harmful and offensive." That seems a valid point. You might hear "my nephew, the addict," but unlikely would hear "my nephew, the cancer patient."

The HuffPo blogger suggests that words can hurt. The analysis questions whether words can be better considered and chosen. Can the decision not to use a term like "addict" be positive for the perspective and mindset of someone struggling with the challenges of substance dependency?

The upshot of all of this it that words do have the potential to offend and to hurt. One may be o.k. with being a "cannabis user," but hurt if called a "pot head." One might feel fine about being a "cutter" or advocating "cutting," but take offensive at being a "mutilator" or advocating "mutilation." 

There may be benefit in connoting positives, like the perception of improvement in "workers' recovery." There may be negatives in misdirecting focus with "compensation" or with "addict." 

It may be that some among us will not be able to look, or "hear," past words and phrases that offend or shock us. We are all likely to encounter words or ideas that trouble, confuse, or offend us. Some will work past that initial ("gut" or "emotional") reaction, and be able to consider statements on their merit. Others, it appears, will find it impractical or impossible to get past the offense. They will begin and end their analysis with hurt feelings, and whatever substance might have been conveyed will be lost.

Should we therefore couch our terms and words such that no one will ever be offended? Is it practical to strive for communication that cannot offend, and thus assure each and every listener will both receive and consider the substance of the message? It seems that it is neither practical nor even possible. 

We are a diverse species. We have a great many differences, in culture, beliefs, education, economics, and more. We are not going to always see eye-to-eye. Disagreements in perspective are frankly inevitable. A word that you find perfectly innocuous may nonetheless be absolutely offensive to me. With that in mind, we will all face word-choice decisions.  We simply cannot evolve to inserting "trigger warning" prefaces into each and every thought we express.

Should intent matter? If our intent is to motivate with "recovery," is that laudable? If our intent is to avoid stigmatizing a disease with "addict" is that desirable? If our intent is to avoid hurting the feelings of those who advocate "torture" and human right violations, is that appropriate? In a world awakening each day to hopefully greater appreciation of diverse feelings, cultures, and beliefs, does our individual perspective or intent with particular words matter, or will those words be judged solely by the perceptions of those who hear them? 

Descriptions, labels, words, tone, word choices, perceptions, and feelings will always matter. Generational differences in beliefs and values will persist, with each generation doubting the preparedness and competence of the next. Similarly, cultures will clash. There will be friction. And throughout, there will be the need to communicate, to share ideas, to convey perceptions, to express beliefs. 

Some of those will be offensive to others. It will be our individual and collective burden to listen past the offense, and to strive to also hear the message. Some will perhaps be substantively worthy of consideration, and others not. But to make that individual decision, which will contribute to the collective societal decisions that follow, we will all have to listen past the offense that tone, tenor, and word choice may inevitably evoke. 

Recognizing that our terms may offend is a first step. The term "addict" is one that I will henceforth strive to avoid. I understand that my acceptance of that change is perhaps facilitated by my experiences, education, and culture. The terms "mutilation" and "torture" are terms that I will conversely not avoid. I reject that change. I do so fully conscious that my background likely influences similarly. This distinction is a value conclusion, in which I accept certain changes and reject others. 

For me, this distinction is based on my personal conclusion that avoiding a word so as not to stigmatize or offend someone who is ill ("addict") is appropriate, and is different than avoiding a word ("mutilation") so as not to offend someone who hurts and mistreats ("tortures") other people. I conclude that those who torture are appropriately called torturers, and that what they do is appropriately labeled mutilation. I will strive to respect everyone, their being, culture, and beliefs. But, I will not always agree with their conclusions. Just as our judgment will lead us to eschew some words, it will lead us to retain others. And through them, we will express ideas. Others may find them disagreeable or offensive, but if we listen to each other we will grow.  

We will grow if we choose to grow. 

The tone of words will challenge us. Communication will challenge us. The art and skill of listening will challenge us. Time will tell if we stand up to all that implies. 

Hopelessness and the American Middle Class

In November 2016, I wrote Life Expectancy Changes. For decades, Americans have experienced increasing life expectancies. But, 2016 brought the shocking news of American life expectancy decreasing. Life Expectancy Changes notes a variety of potential causes for the decrease, and acknowledges that the reported statistics could evidence a true change in trend or may merely be a statistical anomaly. More time and more data will be required before an educated conclusion is practical on that distinction. 

The Washington Post recently delved into the death rates and concluded The disease killing white Americans goes way deeper than opioids. It notes the presumption that "in rich countries, death rates are supposed to decline," and the truth that "in the past decade and a half, middle-aged white Americans have actually been dying faster." This reiterates the news from last fall. But, then it proceeds beyond the outcome and tries to answer why people are dying. I would suggest that its attempt fails. After pondering the Post's explanation, I remain as curious about the cause as I began.

A too-easy answer for the cause is the "three 'diseases of despair': drugs, drinking and suicide." These were mentioned last fall when this life expectancy curiosity was published. But researchers now conclude the decreasing life expectancy "can’t only be blamed on rising rates of drug overdoses, suicides and chronic alcoholism." Reminiscent of a quote in the 1990s, they posit that perhaps the answer is "it's the economy stupid." However, the evidence cited by the Post just does not support its hypothesis. 

The Post says that researchers now contend that "society has left behind the working class." This is an outcome precipitated, they say, by the "collapse of the white, high-school educated, working class after its heyday in the 1970s." The new analysis is not a repudiation of the earlier conclusions blaming "diseases of despair," but is an effort to move beyond that diagnosis, and explore causes or explanations of the diagnosis.  

The cause appears to be somewhat uniquely American. Certainly, the economic challenges of the "working class" are not uniquely American. The Post notes that "globalization and automation" are "economic trends" that have similarly "afflicted" America and "countries like the U.K. and Germany." However, for whatever reason, the death rates in those countries has continued to drop. 

Despite the similarity in the economic impacts, American "middle-aged whites are dying faster," while "mortality rates have been dramatically declining in nearly every other rich country." While mortality "rates in America rose slightly, death rates in" "European countries like France, Germany and the United Kingdom" "continued to plummet." This is not supportive of the Post hypothesis that economic strife is responsible for the decrease in life expectancy.

Americans are dying at greater rates compared to these "rich" European countries. The Post claims that some volume of the difference is "explained by the spike in deadly drug use, drinking and suicides." But, the researchers struggle to explain a large portion of the difference compared to other countries. They point off-handedly to heart disease as one cause, and lament that "improvements in heart disease (have) also slowed down." The suggestion is made, but no evidence is cited. If the American diet and lifestyle are the critical difference, the Post analysis certainly does not solidify such a conclusion.

What is known is that "most of the increase in white deaths is concentrated among those who never finished college." Researchers lament that these people have been "pummeled by the economy," and they find it "more difficult . . . to find jobs" that are economically rewarding. But, education and economy alone arguably do not explain the death rates. While death rates for "less educated" white Americans have increased, "the death rate among less-educated black Americans has actually been decreasing." That inconsistency likewise does not support the Post's hypothesis that economic opportunity explains the life expectancy changes.

Essentially, it seems researchers are not able to explain the increasing death rates among white Americans. They eschew "rising rates of drug overdoses, suicides and chronic alcoholism," insisting that there must be more to the explanation. They propose explanations, but those seem rife with inconsistency. They claim it is the economy, but cannot explain the absence of similar expectancy results in "rich European countries." They claim it is education, but cannot explain the decreasing mortality rates of "less-educated black Americans."  

The researchers therefore settle on the conclusion of "despair." They conclude that "white Americans may be suffering from a lack of hope." They explain their conclusion that the white American working class is suffering from "a 'spiritual' pain caused by 'cumulative distress, and the failure of life to turn out as expected.'” Does this explanation necessarily assume that other American groups and people in other countries perhaps start with less expectations, experience less stress, or somehow sustain more hope? Hope is hard to define and perhaps harder to measure. The cynic may therefore find "hope" nothing but a convenient excuse. 

The Post posits that restricting access to opioids will not reduce deaths. It suggests that requiring "insurers to cover mental health costs" will not reduce deaths (does this suggest that expectations and hope cannot be developed or encouraged?). It suggests instead that the death rate will maintain current trends because of hopelessness. That conclusion to me sounds just a little to much like "we don't know" why life expectancy decreased. It also returns to the article's theme, that the changes "can’t only be blamed on rising rates of drug overdoses, suicides and chronic alcoholism." Perhaps, in the absence of a credible argument supporting some other cause, the changes may in fact be explained by these three. Perhaps that is exactly the answer. 

However, if the Post's hypothesis about economic expectation or hope is accurate, then the future may be troubling. Economic opportunity is ever-evolving. Automation will increase in coming years, and I have questioned How Will Attorneys (or any of us) Adapt? The working world is going to change. The way we accomplish economic exchange may likewise change markedly (discussed in Universal Income, a Reality Coming). Those changes will affect us all, whether our future is dystopian or not. Admittedly, the impact of those changes may prove to be more intense on some particular economic sectors, professions, and industries. 

If the Post's "hope" or "hopelessness" hypothesis holds, then the challenges "of drug overdoses, suicides and chronic alcoholism" may become more troublesome. If the researchers' hypothesis regarding heart disease and other factors is eventually demonstrated, then challenges of diet and activity may become more troublesome. From a public health perspective, knowing the enemy would be a great advantage. It is hard to battle an adversary that is unknown or concealed.

But, in the end, it may be that what drives those challenges, or symptoms cannot be determined. It is possible that "drug overdoses, suicides and chronic alcoholism" themselves are the challenge that we must face, without knowing or understanding their cause(s). Alternatively, perhaps further research will do a better job identifying what underlies these symptoms than what the Post has recently reported. 

Regardless, America faces a challenge. I hope that it can find a solution.  

(im)Perfect Storm

Technology fascinates me. I have recently focused on artificial intelligence in Artificial Intelligence in our World, and Another AI Invasion, Meritocracy? I have contemplated chatbots, and research, self driving cars, and more. Recently, Bob Wilson wrote about technology and essentially concluded that the changes that face us will not come abruptly and so we will all adapt. I thought of much of this as I read a recent article about a young lady that died in a vehicle accident. Though the thoughts are not linear, there are multiple points there that bear consideration.

Casey Speckman died in a "fiery, explosive wreck." The article on freep.com leads with the fact that she had been drinking ("was drunk"), and that the destroyed vehicle was a Tesla. Many see the Tesla as a harbinger of the world to come, with direct current electrical cars replacing the internal combustion vehicles which dominated the world of our youth. 

The story describes a perfect storm of bad circumstances. First, Ms. Speckman was driving a borrowed car (her boss's Tesla), with which she was less than familiar. She had been drinking (.21 BAC, more than double the legal limit). As she drove appropriately on a one-way street, she was confronted (and likely alarmed) by another vehicle that was driven the wrong way on a one-way street, and directly at her. She evaded the wrong-way driver, but according to witnesses the Tesla she was driving moved very fast. 

It is sad to see a young life extinguished. I have had to confront in recent months that people my age are fragile, and are passing. Just today an actor of my generation, Erin Moran of Happy Days passed at 56. Last year was a tough one for me in that regard, and 2017 is not looking so rosy either.

But it is always a little harder to see someone young pass. Ms. Speckman was likely less than 30, she graduated college in 2007 and law school in 2014. She worked for a software company that provided case management for attorneys, and the founder and owner of that company was the "owner of the Tesla" and the passenger that died with her in the accident.  A bright, educated, young person out in the world being a success. 

I discussed the story with a group of young people. After describing all of this, I asked what the primary lesson might be. I was heartened that the immediate and unanimous response was a resounding "don't drink and drive." That is an important lesson, one that we cannot repeat to ourselves and others often enough. Curiously, the car's owner had only a .17 BAC; still too high for driving. Why did the car owner think the right solution for his inability to drive was giving the keys to someone he had been drinking with? Why would anyone, in the age of Uber and Lyft, in a city full of taxis?

The young driver's, Ms. Speckman's, father recently met with the press about this accident. He alleges "that her odds of surviving" this accident "would have been much better in any other car." He places that blame on two aspects of the Tesla. First, the technology for the electrical system, comprised of an array of batteries. And second, the high performance of the vehicle. 

History has shown us some interesting lawsuits regarding the safety of vehicles. The survivors of actor Paul Walker sued Porsche alleging the vehicle in which he died lacked "essential safety features," according to CNN Money. The survivors of actor Anton Yelchin recently sued Jeep for a wrongful death, alleging that the gear selector in his vehicle was "defective and poorly designed and manufactured," according to The Telegraph.

But it is the performance of the Tesla that is being called into question in Ms. Speckman's accident. A witness to the accident said that the Tesla was moving quickly. He said it "It passed me like a flash." So, it may be that speed is a factor in the crash. Speed encouraged perhaps by the confrontation with the wrong-way driver. Human inclination and reaction may naturally be to accelerate (the old fight or flight ingrained in us all). The inference is that this car might have been able to accelerate like few others. The Freep.com article says that one Tesla model "accelerates from 0 to 60 mph in 3.1 seconds," from a dead stop. That is fast. Experience teaches us that kind of torque may accelerate eve faster when engaged in an already moving vehicle.

Witnesses also said that an explosion very rapidly followed the Tesla collision with a tree. The explosion was massive, and the resulting  "debris field stretched about 150 yards." 

It turns out the Tesla is powered by a 1,200-pound battery pack made up of several thousand small lithium batteries. The force of the crash apparently broke apart the battery pack. The article alludes to exploding batteries in cell phones and other devices that have been in the news recently. It also notes that there was an investigation into other Tesla battery fires that was closed in 2014 after the company "strengthened the battery compartments." The innuendo is that when these compartments rupture, there can be problems. 

Of course the first lesson of the whole situation is do not drink and drive. The second is that if you cannot drive, handing the keys to someone with whom you have been drinking is not a a "go-to" solution. Even without the alcohol involved, driving a performance care with which you are perhaps not familiar may present challenges and could likewise be dangerous. And finally, it may be that electric cars present some dangers that are unexpected (at least I would not have thought exploding battery). Whether the vehicle itself was responsible in any way, whether batteries can be better protected or safer, are issues beyond my knowledge. It seem possible that over time that will be sorted through litigation. 

So many things could perhaps have been different for Ms. Speckman. Less alcohol, less speed, no driver illegally going the wrong way. It seems it was a perfect storm, and the outcome is tragic. What workers' compensation professional has not seen something just as tragic and preventable and wondered "why?" But hindsight is always 20/20 and the game always looks different from the comfort of your armchair on Monday morning. It is a reminder that the world we live in is dangerous, and the decisions we make may have tragic consequences for us an others. 

An Old War Story about Divorce and Workers' Comp

Remembering a case from years ago, I was representing a very large insurance company. They hired me to draft settlement paperwork regarding a fatality. The injured worker was undoubtedly killed on the job. No one had seen him fall, but several had been on hand when he landed. The only potential legal issue in the case involved the fact that he was wearing a safety harness, appropriately equipped with a cable and clip, and it was completely undamaged. So, there was some discussion of reducing the benefits for failure to use a safety device. But, when it got to me there was a deal. 

The adjuster had already reached a settlement with the workers' spouse, who was known to the employer. The settlement was a reasonable compromise, and all I needed to do was draft the document. Back then all settlements under Section 440.20(11) involved a detailed documentation of everything, called a "Joint Petition." I was almost finished with the documents about a week later when I heard from the adjusted again. It was one of those "huh?" moments when the adjuster explained that he had just heard from the deceased worker's "other spouse" in another state. Houston, we have a problem. 

Wanting to avoid any undue conflict in a sad situation that was surely just an error or misunderstanding, I asked the adjuster to call each spouse and ask for supporting documentation such as marriage license. I was confident that the situation would sort itself soon enough and decided set aside the Joint Petition, for further work after we heard from both (now) alleged spouses. Unfortunately, it was not a mistake. We soon received proof of two marriages, and could uncover no record of any divorces. 

This is the part on the late-night infomercial where the host says "wait, don't order yet." As we contemplated how to deal with the two spouses, the adjuster was contacted by the third spouse. She was a resident of a foreign country, and was contacting the carrier through a consulate in south Florida. upon request, she too provided proof of marriage. And thus, my simple assignment to draft a Joint Petition became an intriguing legal issue and a trial. 

In what way can one sort out entitlement to benefits among three spouses?

In Florida, death benefits are set forth in Section 440.16, Fla. Stat. It provides for benefits "on account of dependency upon the deceased," and sets out an "order of preference." The benefits hierarchy begins with "the spouse, if there is no child," and then provides for the "the spouse if there is a child or children," then to "the child or children," then to "the parents," and finally to "the brothers, sisters and grandchildren." It is a somewhat complex process, described in significant statutory detail. But, it does not have any reference as to what one does when "spouse" turns out to be "spouses."

We hired an investigator to travel to the foreign country. He reported back that marriages there were all recorded a large book, by hand, in a court clerk's office. And, the parties were given a document to memorialize their marriage (we knew that part, as the foreign spouse had sent us that certificate). Divorces, the investigator explained, were recorded in the same book when the divorce was granted. The court issued an order to each person memorializing the divorce, and then the clerk went to the book and page that memorialized the marriage, and put a line through the marriage record to memorialize the divorce. The date and clerk's initials were traditionally written at the end of that line.  

But, the investigator had not procured a copy of that page regarding spouse number 3 (in the order we learned of them, or spouse number 1 in the order of marriage occurring). The investigator did not provide this because, he explained, that page had been torn from the public records book and was therefore unavailable. There was no other legal record of divorce obtainable, because of the passage of time, except from the parties to the divorce. In our case, one of those was deceased and the other would be refuting her own claim if she admitted to a divorce. 

I performed a lot of legal research. A great motto for attorneys is to know the law, prepare fully, and be ready for anything. Good trial attorneys spend significant time preparing. We proceeded to trial, and the whole point was going to be, from my client's perspective, "pick a spouse judge." The carrier wanted to pay the benefits, but could not decide which person was the "legal" spouse. In a rare, small, victory no other claimants contacted us, and thankfully all three women denied there were any children, siblings or parents that were "dependent" in any way. At least there were only three potential dependents. 

After the extensive preparation, and dealing with the inevitable pretrial motions and discovery, we presented for trial before the Honorable Thomas Portuallo. My client's argument was simple in many respects. And, as we drove to the trial my conversation with the adjuster was mostly about which decisional authority might persuade the judge and which spouse would be the most credible. 

But, when we arrived, we found only one spouse present. Only the most recent spouse, married in Florida, had appeared for trial. For whatever reason the other spouses had declined to travel to the trial. Unsurprisingly, the Judge ruled in favor of the spouse that showed up. And despite my urging lawyers to always prepare, to know the fact, and the law, etc., it turns out that sometimes you win because you are the one that shows up. 

With the Judge's order in hand a few weeks later, I finished that Joint Petition and the case was soon settled and closed. As I reflect on various aspects of practicing law, a recurring thought is that no matter what you have seen there is a good chance you have not "seen it all."

PDMP Success and Doctor Shopping

Reuters reported in February that we are losing "91 Americans" per day to overdose. Interestingly, "since 1999, deaths from prescription opioids have quadrupled," and coincidentally so "have sales of opioids, including the painkillers oxycodone (Oxycontin) and hydrocodone (Vicodin)." This is not news. Overdose is a serious national issue.

The Reuters story goes on to describe that mandatory checking of prescription drug monitoring program (PDMP) databases reduces the "odds of doctor-shopping for opioid pain relievers." Generally, "doctor-shopping" refers to seeking a physician that will accede to the wishes of a patient. Doctor accommodation could be driven by a variety of factors including expedience, compassion, or profit. But the perception is that a patient may travel from physician to physician seeking one that will fulfill the patient's wishes.

This Reuters article highlights a recently published study by the "Substance Abuse and Mental Health Service Administration in Rockville, Maryland." According to the study, every state except Missouri has implemented a prescription-drug monitoring programs (PDMP). But, WorkCompCentral reported recently that Missouri seems to be making progress toward enacting this requirement. 

PDMPs are "state-run electronic databases designed to track prescribing of controlled substances." In the process of tracking the prescriptions, they also help "to identify people at high risk of using opioids for nonmedical purposes." Florida has had a PDMP for several years and has seen progress from the program. Other states are also seeing progress, and making adjustments to take advantage of the PDMP concept. 

The programs are categorized as "mandatory programs" and voluntary. The mandatory programs require physicians to check the database before prescribing potentially dangerous medications. Florida has a PDMP, but doctors are not required to check it prior to writing a prescription. Despite this, anecdotally it appears that pharmacists are checking the database prior to filling scripts. 

I am troubled anytime I see a discussion of prescriptions for "nonmedical purposes." That seems oxymoronic to me. Why is a doctor prescribing for "nonmedical purposes?" Doctors practice medicine, their purposes should be medical. This oxymoronic reverence is similar to statements recently voiced in regards to Ohio's efforts to stem overdose death. Ohio has legislation that bars "clinics that prescribe or dispense opioids without any legitimate purposes." Call me old fashioned, but I think that "legitimate purposes" would be a foundation of medicine generally. 

We have reached a point where medical doctors must be legislatively told to only medicate for "legitimate purposes," and not for "nonmedical purposes." That seems disappointing at best. Perhaps this is something that requires explanation, and perhaps some reader might respond and explain the reason for doctors prescribing life-threatening drugs for "nonmedical purposes." Would it make people safer if doctors writing such "nonmedical" prescriptions were simply removed from the marketplace?

Reuters reported that this Maryland study demonstrated that "in states where physicians were required to check an electronic database before writing an opioid prescription, the odds that two or more doctors would be giving pain relievers for nonmedical purposes to a single patient were reduced by 80 percent." This is a very persuasive statistic. There are effects demonstrated in non-mandatory states also. The study documented that voluntary program states saw a decrease of "doctor shopping" of 56% attributed to the PDMP.

Reuters reports that PDMPs result in the avoidance of 10 overdose deaths per day. The greatest success in decreasing death occurs in states with "the most robust" PDMP systems, and the systems in which information regarding prescriptions is most frequently updated and checked. Ten overdoses per day equated to 3,650 American lives saved annually.

There are those who believe that PDMP efforts successfully limit access to prescription opioids, but they are concerned that this success may drive users to illicit street drugs such as Heroin. Those street drugs are not supervised or limited by any physician or pharmacist observation or interaction. The cited study results did not support that fear. It contrarily "found that PDMPs did not lead to an increase in people starting to use heroin."

The gist of the study and the story is that PDMPs are a promising tool in the effort to address overdose and death issues. However, some caution that "they aren’t a panacea.” One doctor who treats the effects of opioid addiction counsels that "we really need a comprehensive approach. It isn’t one thing that will help get us out of the opioid epidemic.” So, there has to be a combination of efforts if the drug overdose pandemic is to end. But, it appears that the PDMP process is a step in the right direction, particularly for the 10 people who will live today as a result. 

Perhaps the greatest success will come from continued attention to the issue of overdose death. More education, greater awareness, and further discussion cannot hurt the cause and it might just save someone's life.

When Justice Sleeps

Back in the day, I was called upon to "second chair" a trial in Circuit Court. The circumstances were intriguing and the facts of the case were complex. It was a medical malpractice case in which a partner in my law firm, Deborah Smoot, was defending a physician. There were multiple live witnesses, complex legal issues, and I was a young lawyer eager to be involved. 

Although several witnesses appeared live at that trial, there were some experts that were not available. Of course the jury could read the deposition transcripts of those witnesses that were placed in evidence. However, Attorney Smoot thought it best for the jury to hear the testimony. The practice was to read the depositions to them. To make that reading experience more interesting, I was called to the witness stand. Ms. Smoot read the questions and I read the answers. As I recall, I was three different experts during that trial. 

The experience has stuck with me over the years. I had been coached on reading, and encouraged to make eye contact with the jurors as I read. Because of this, sitting in the witness box, I was somewhat turned toward the jury on my left, looking at Ms. Smoot periodically towards my right (standing near the end of the jury box), and the judge was just behind me. 

I recall being several pages into one of the depositions when a strange noise crept into my consciousness. A dull, low-pitched sound coming from behind me. I was focused on my role as Dr. "Something," and it took several pages of this incessant noise before I comprehended that someone was snoring. I am not sure if that realization came from my accumulating cognitive recognition, or if it was because over time the snoring seemed to become louder. I wish I were joking about this. 

The snoring came to an abrupt stop when the attorney for the plaintiff rose with an "objection your honor . . ." I do not recall the basis of that objection, but as I recall it the judge made a ruling without any pause or indication that he had not been with us all along. I recall the "objection your honor" interruption being employed more than once that day in the face of recurrent snoring. At the time, I frankly wondered how anyone could sleep through anything as compelling as my reading. 

Attorney Smoot left that law firm, and opened a practice of her own. Within a few years, she was involved in an automobile accident and passed. As I write this, I realize that I have not thought of her in a number of years, of her advice and support when I was a young attorney full of ideas and ambitions, and lacking the kind of practical experience that only an engaged mentor can provide. She was a good mentor, the kind for which every young attorney should hope.

That trial experience came back to me when I recently saw an article about a Texas judge who was filmed sleeping during a hearing. As United Airlines has reminded us recently, we must all Assume Everyone is Watching us (and recording on their phones). According to a blog post, Judge Larry Craddock slept through the testimony in a case about a suicidal teenager. The story says that people in the hearing unsuccessfully "tried all of the polite ways of nudging the judge out of his sleep like coughing and moving around books loudly." Apparently, no one thought of the more blatant "objection your honor" approach. According to the Daily Mail, the judge "slept through a quarter of the three-day hearing." 

In the digital age, with a video recorder in every cell phone, the judge was confronted with video evidence of his snooze. He resigned and apologized. He noted that his drowsiness resulted from medication he was using. The Daily Mail reported that this was not the judge's first instance of falling asleep during proceedings. 

It is also not the only instance of alleged snoozing in the courtroom. WorldNetDaily reported that a U.S. Supreme Court justice dozed during oral arguments. In her defense, an witness noted that "the subject matter was extremely technical,” and the justice used the "bench as a pillow." I do not recall the judge in my trial actually putting his head down to snooze, but perhaps that is a privilege reserved for Supreme Court Justices?

An Australian physician has published a paper about judicial sleepiness. He noted that "in 10 cases, judicial sleepiness resulted in a retrial and, in up to 5 cases, resulted in dismissal or retirement of the judge." The doctor's conclusion is that "judicial sleepiness is not uncommon and is viewed negatively." He added that generally "sleepiness-related errors occur predominantly during exposure to monotonous activity." 

What can we learn from these anecdotes? It is critical that a judge remain conscious and focused on the matter at hand. People wait extensively for the opportunity to tell their story and seek redress. Judges owe it to those people to be alert, attentive, and engaged. Whether one is a supreme court justice or not, there is no excuse for politely ignoring a sleeping, or otherwise inattentive judge. 

That material being presented is technical, or repetitive, or otherwise is no excuse. All of the evidence presented at trial is relevant, pertinent, and critical. That is why the attorney is presenting it. If the evidence were otherwise, then the opposing attorney(s) would certainly object ("irrelevant," "cumulative," etc.). If such an objection is well-taken, and sustained, then questioning may be adjusted and the matter moves along. But in the absence of such an objection, the evidence is relevant, pertinent, and critical. In a workers' compensation proceeding, with no jury, it is particularly critical for the judge to remain attentive; to both hear and fully understand the evidence. 

Another lesson might be in dealing with an outlier situation. What should parties do when a judge is inattentive or asleep? In some instances, noise may be effective. However, the attempts in this regard were ineffective in the Texas situation. Perhaps interrupting the proceedings with a firm "objection your honor . . ." will do the trick. Perhaps it is best to request a recess, and maybe everyone involved will benefit from the opportunity to arise and move around some? Should the parties video the judge? That is a difficult question. Undoubtedly, that course was effective in Texas. However, various states may have laws regarding recording someone without consent. However, it may be difficult to contend one has an expectation of privacy in a public judicial proceeding.

In any event, attorneys and parties might face such a challenge. How to regain attention in the moment (that trial, that witness, that argument) is one issue. How to deal with a pattern of behavior over time may be a larger issue. In that larger context, parties owe it to the system to report inattentive behavior that is recurrent or persistent. Systems cannot address situations that are not reported. Certainly, there may be reluctance, but that should be overcome. Bad behavior should be reported so that it can be addressed. 

We owe full attention and respect to the people that appear before us. Hey! Wake up, this post is over. Get back to work. 

When is Profanity Appropriate?

A CBS news story, How to get ahead at work; Learn how to cuss, caught my attention recently. I had decorum on my mind when I saw the headline. I have increasingly been hearing profanity in professional settings. Advice to "learn how to cuss" intrigued me; I think most of us learned how to cuss early in life. The learning for adults is perhaps more likely focused not on "how to," but on when "not to" cuss. 

A few people who visit our offices do not display appropriate decorum, and their actions/words concern me. In a recent conversation about our offices, I was asked "when is it appropriate to drop an f-bomb in a professional office." The easy answer seems to me to be "never," and I would hope that everyone would feel similarly. 

A recent Huffington Post article listed 25 Reasons why the F-Bomb is Appropriate at Times. I read that list with great interest. Frankly, there is not a single instance on the list in which I could not think of something more appropriate to use than an "F-Bomb." I think it is not that this word is useful or incomparable to other words. I think we could all find better words with which to express ourselves. 

The CBS article seems to contradict my knee-jerk reaction of "never." It suggests that "profanity doesn’t have to be a liability in the workplace." Instead, it contends that profanity "can be a persuasive tool that conveys enthusiasm and honesty." And, believe it or not, some insist that there is science behind this, according to a "cognitive science professor," Benjamin K. Bergen, from the University of California San Diego. He suggests that cursing "can hurt and offend" but can also "unite and inspire."

Professor Bergen argues that "profanity is about expressing emotion." Since work places are "emotional too" the use of profanity is effective for engaging "with other people in more familiar ways, more engaging ways." He says that in a situation of "social closeness," the use of "profanity is more likely to be perceived as an indicator of a level of comfort and informality." That someone would swear around you is suggested to be a signal of acceptance and effectively collegiality. But, Bergen admits, it is possible that persons who use such words can be "perceived as out-of-control, unhinged, uneducated, unaware of social rules." 

Bergen contends that while in "same-sex groups," the use of profanity is equally likely by male and female speakers. However, the "strongest negative impact" is not when used within a group, but "across groups, and often across genders." Women find negative connotation in male swearing, and men find it in female swearing. While those perceptions may seem unfair, they exist. The professor's conclusions regarding gender raise interesting questions. Do people inquire regarding the gender of those in a particular group or conversation? Or, do people make assumptions about the gender of those around them based on physical appearance? 

Age groups are also believed to perceive offense differently. Professor Bergen says that millennials (born after 1980) are less likely to be offended by the words which offend Baby Boomers (born 1946-1964), such as the "F-Bomb." Millenials, he says, are more likely to be offended by "slurs -- racial, ethnic, sexual slurs." For example, polling indicates that the "strongest 'F' word, according to millennials, is not a four-letter one," but "a three-letter one, a slur for homosexual people." Essentially, "younger Americans focus on words that are insulting, that denigrate particular groups," more than upon words offensive to Boomers, such as the "F-Bomb."

Professor Bergen says that there is a "democratization of media." He claims that profanity is so prevalent in media, including Internet games, that "you get desensitized to it." He argues that perceptions about language are fluid; that words and phrases are not themselves "inherently bad," but are bad in a particular moment and context. His argument seems to be that words gain acceptance through repetition and conditioning. 

In this final conclusion there seems common ground. The Huffington Post author has concluded that the "F-Bomb" is appropriate in daily living. The instances in which she finds it "appropriate" are interesting, and whether someone else would find those instances compelling or trivial is a subjective conclusion. But, my question was not whether the use of such language in one's home, like her example of "when you cannot fold the fitted sheets for your bed," is or is not appropriate. In essence, I really do not care if you drop an "F-Bomb" in your linen closet. 

My question is "when is it appropriate to drop an F-Bomb in a professional office." I have carefully considered Professor Bergen's thoughts, and the Huffington Post essay. I remain convinced that the only appropriate answer to this question remains "never." My reflection has not changed the conclusion that this language is not appropriate for a professional environment. It will not make me feel more comfortable with you, nor build collegiality between us. 

The fact supported by Professor Bergen's research is pertinent in three significant points. First, other people will decide whether they are offended by our language. We do not decide what offends others. The others make that subjective decision for themselves, and we may very well demean ourselves with poor word choices. Conversely, I am doubtful anyone thinks less of us when we fail to drop "F-Bombs" ("gee, if he liked me more he would have used the F-Bomb there"). 

What brings people to the Office of Judges of Compensation Claims? Conflict is the usual answer. What do they seek? They seek resolution of conflict, through convincing others to either compromise in a mediation setting, or to agree with their advocated positions in a hearing setting. 

When attempting to influence others, odds are not enhanced by offending them. Though Professor Bergen cites data that supports there may be acceptance of certain words within ages or groups, it seems impractical to assume that such acceptance is universal. People come from various backgrounds and are simultaneously members of various demographics. Is use of an expletive like the "F-Bomb" worth the risk of offense?

Second, Professor Bergen's contention is that profanity can "unite and inspire." He believes that dropping the "F-Bomb" in the work place can motivate positive behavior, that it can build a comfort and camaraderie. But, it is impossible to know the predilections and perceptions of your listener. The intended "compliment" of camaraderie may instead be perceived differently. The listener may not be complimented by your willingness to speak with your "guard" down, but may just be offended by your words and their subjective perception of your lack of couth. 

Finally, and perhaps most importantly, it appears that different people have unique perspectives about words. One might be fine with the four letter "F-Bomb" and yet put-off by the three letter "F-Bomb." Remember, your listener will be an amalgamation of her/his perceptions, beliefs, and values. The person whom you are trying to convince or persuade may or may not share your conclusions or feelings about words. Your intended message may or may not come through as you wish, and may be a distraction. 

I return to the initial premise. When is it appropriate to drop the "F-Bomb" at the Office of Judges of Compensation Claims? The answer is "never" and it does not matter which "F-Bomb" you mean. Using language that has the potential (not probability) to offend the audience is not likely to move the day in your direction. This is true if you are dropping such expletives in the lobby, a private mediation room or hearing room. Once the listener is offended, your chances of persuading them is potentially compromised. If you find you must drop the "F-Bomb," I recommend doing it in your linen closet at home. 

Recently, I wrote Challenges in Policing Appearance. It it, I suggested that "if your appearance is professional and clean, it will demonstrate respect for the process, your clients, and the people (employees and employers) that it is meant to serve." Likewise, I would suggest that if your language and demeanor are professional that will also demonstrate respect for your client and those around you. If you language is perceived as abusive or foul, you risk alienating your audience and complicating your odds of success. 

If you have an affinity for the "F-Bomb" (either of them) or other potentially degrading or insulting language, embrace it. But, for the sake of the others that visit and use our public facilities, please embrace (and use) that language somewhere else (at home in your linen closet). Your listeners will appreciate the respite, and your chances of persuading and prevailing are enhanced.


After this post was published, this interesting story about college professors, tenure, and foul language came to the fore and is perhaps of interest in this context.