The Perverse Upshot of the Internet

The world evolves around us. Technology is driving some of that change, but so too are likely generational, cultural, and individual factors. Recently, Fortune reported that the CEO of Twitter will appear before a Congressional committee in September to discuss "Twitter’s evolving, and sometimes vague, policies regarding what content is and is not allowed." Google CEO Sundar Pichai has declined to appear according to Bloomberg, leading to "bipartisan criticism." 

Free speech is an intriguing subject. In the current conversation, it is couched in terms of Internet platforms and logarithms, it also appears that some part of the national curiosity surrounding speech and the Internet may be based on our lack of universal agreement as to definitions and terms (what is "hate," or even "inappropriate" speech?). America seems unable to reach a universal agreement as to what speech is protected and what constraints should be imposed. There seems no shortage of those who would limit speech, but there is periodically criticism for a particular individual's motivation, or his or her focus on some specific topic (each seems eager to protect her/his own expressive rights, but as eager sometimes to stifle others). 

This is an issue for social media certainly; it affects platforms like Facebook, Twitter, Instagram, and more. However, the Internet is full of platforms with similar opportunities for commenting and rating of various professionals or businesses. There are platforms like Avvo, Yelp, Amazon, Better Business Bureau, and more. Hubspot provides a pretty good list. These all provide a platform to expound, to complain, but also for endorsement. Others see those postings and may comment either in agreement with or in opposition to those thoughts. There is an effect of generating debate, which draws eyes, and thus sells advertisements, 

Most of us realize that those platforms/softwares are protected from defamation liability by federal law. In 2015, I touched on the potential for defamation in The Internet, Evidence, and Defamation (April 2015), describing some of the history of defamation decisions regarding the Internet, and the implementation of the Communications Decency Act of 1996. In 2013, The Atlantic contended that this law "gave us websites like Reddit, Craigslist, Digg, and perhaps all of social media." While The Atlantic acknowledges this specific impact of the 1996 act, it expounds further in laudatory terms. The simplicity of this act, it contends, sent the message to entrepreneurs to "go innovate." 

The Digital Media Law Project provides an overview of this Act, and describes how this law deviates from "common law," our process of law constructed case upon case in which we strive to hold true in each case to the cases previously decided (we call each decision "precedent" and our striving to remain consistent with it "stare decisis" July 2016). While America was founded upon a common law model, over time we have changed, or "abrogated," common law repeatedly by legislation. The Project notes that: 

Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. 

Thus, in publishing a statement, a "book publisher or a newspaper" could generally be held liable for the statement under the common law tort of defamation. 

As the Project explains, this is based on the fact that ultimately a book or newspaper publisher has control over the content that is published. Such a publisher has the ability to read content, change content, and even reject content. Because the publisher has such control, it is seemingly appropriate for the publisher to share liability for the publication of false information.

This is not true for "distributors." As the Project explains, this logic does not support holding a bookstore liable for the content of a book. It notes "that it would be impossible for distributors to read every publication before they sell or distribute it." Furthermore, more practically, even if a bookstore owner did read the publication, would society expect that the owner would invest the resources necessary to fact-check the representations or statements in each book, or newspaper (it used to be common for publishers to print news stories and pictures on paper and the public would purchase it for home delivery or from a vendor or machine), or magazine? The distinction between "publisher" and "distributor" struck a compromise, based on facts and behavior.

In 1996, Congress stepped into the debate of Internet communications. The defamation subject at that time was not new. Back in those days, the online environments or platforms were sometimes referred to as "bulletin boards." These precursors of the current social media platforms, these "bulletin boards," allowed people to locate opportunities and conversations that were associated with their interests. 

For example, there might have been a bulletin board dedicated to modems, software, knitting, or something more mundane like workers' compensation law. People interested in a particular topic would search for and visit such a topic-specific bulletin board. There, she/he could read about the topic, share views, ask questions, and generally interact. Somewhat like a huge but specific "group chat" today, various visitors would post their thoughts, positive and negative, on these virtual bulletin boards. 

As the Project points out, Internet platform/software providers had been sued in the early 1990s for defamation based upon what Internet users had posted on their bulletin boards. The platform liability was analyzed under the same common law applied to others. Those providers had defended themselves arguing they were "like a distributor" as they "did not review the contents" of postings (as a "publisher" might). 

The Project describes how courts reached different decisions about whether such platforms were more like publishers (newspapers) or like distributors (bookstores). The extent to which platforms exercised "editorial control" whether by examining each post or through "content guidelines and software screening program(s)," was of some influence on the determination of the existence and extent of "control." What the Decency Act brought was more legally absolute. It merely said:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

And thus the platform/software/environment purveyors were essentially given immunity. The law made them "distributors" as a matter of federal law, and precluded the states from passing any law to the contrary. Congress can do that because the Supremacy Clause of the U.S. Constitution allows it to have exclusive authority in some instances. Admittedly, there are instances in which federal supremacy is nonetheless ignored.

The Project contends that this Act thus eliminated a "perverse upshot" that existed prior to the Act. It contends that this "perverse" outcome resulted when a provider attempted to keep things civil through the guidelines or software solutions. By attempting to keep things civil or to avoid the expression of hate or lies, the advocacy of violence or worse, the platform was seen as departing from the "distributor" role and assuming more of a "publisher" role. Thus, before the Decency Act, a platform was perhaps disinclined to exercise any control. 

The evolution of liability may be seen by some as a useful lens through which to appreciate the current state of the Internet in America. Certainly, there are "social media failures," instances in which companies have attempted to use (leverage) those platforms and failed to their detriment. There are also instances in which merely listing a business on a platform has led to regret. 

One interesting example is a frustrated small business owner complaining about Yelp on Yelp. One critical point of that post is the perception Yelp does "not filter negative remarks or comments, they do not verify them, they do not even know anything about whom or why the negative remark has been left ." In effect, the user complaint is that Yelp seems to act as a distributor rather than a publisher as regards negative reviews. However, the author of that post contends that Yelp contrarily filters positive remarks or reviews. Thus, that reviewer perceives that one platform selectively chooses which role to play depending upon the nature of the content. 

Note, however, that this Yelp user elected to list that business on Yelp. Perhaps not as purposeful as some of the more newsworthy social media failures that make the news, but intentional. There are also platforms that include businesses that have not elected to be included. Avvo is a lawyer rating platform. The National Jurist recently explained why all lawyers should claim their Avvo profile, noting "Nothing you can do, aside from abandoning your license, can remove your Avvo profile." If you are an attorney, you will participate in this platform. There is no election, no choice.

On Avvo, similar to other online review platforms, "attorneys cannot prevent a disgruntled client from leaving a negative review." There is the opportunity to respond to such a review, but Avvo chooses to engage a profession involuntarily. The ABA Journal has reported on various lawsuits filed against Avvo, mostly unsuccessful. That may be seen by some as a significant distinction from Facebook, Twitter, and even Yelp.

There are perceptions that platforms have evolved to now routinely exert editorial control over content. As in the Yelp user who contends that negative comments are unfiltered while positive comments are not. There are critics who contend that social media platforms like Twitter make value judgments about appropriate content, in effect undertaking a role more akin to a publisher than a distributor. 

In effect, critics argue that the immunity afforded by the Communications Decency Act of 1996 affords online publishers free reign to editorialize and control content with immunity from consequences. Whether a platform is a publisher or a distributor is not influenced by those editorial decisions regarding the content or even access. The Act removes any consequence for editorial decisions. Thus, after the Decency Act, a platform is now perhaps overly inclined to exercise control and enjoys near absolute immunity from the repercussions of those decisions. 

There are those who contend that this Act in its simplicity is the only appropriate course. They argue that the phenomenon that is social media cannot exist without this artificial, arbitrary, and near-absolute immunity for platforms. Others question that near absolute immunity, They contend that it artificially shields not only the neutral platform from the excesses of its users but also shields the activist platform now unfettered and free to editorialize with no potential of liability or responsibility. 

There will likely come debate over the Communications Decency Act of 1996; whether the broad protections are logical and appropriate, or whether they are too broad in protecting misfeasance, extending to absolutely also protect malfeasance. There may be those who see either the protection or the absence to each be a "perverse upshot." It may be that neither absolute immunity nor unfettered liability is appropriate, but instead, some compromise that is more moderate? Perhaps there will be a discussion of some more middle-of-the-road compromise between the absolute extremes of "all" or "nothing?"

FUI or FWI? Impaired Professionals

I was ruminating on the challenges presented by marijuana recently. Since writing But it's Legal, the plight of the Colorado family involved has made it to the fore of news coverage. As I have been reminded of the conflict of presence versus impairment, I have returned to this discussion repeatedly in recent days. It arose repeatedly in conversations at the recent WCI conference in Orlando. 

It also came back to mind when CBS News reported that "a former Alaska Airlines pilot" has been sentenced to jail time related to his consumption of alcohol. The 63-year-old pilot made two flights after he consumed alcohol. After concluding the second flight, he was "selected for random drug and alcohol testing by Alaska Airlines." 

That testing revealed he had been drinking. There were two tests, with results that were not identical. Reportedly, "he was found to have a blood alcohol level of 0.134 percent and 0.142 percent." In Florida, a blood alcohol of .08 will create a legal presumption of being alcohol-impaired, and driving a car is inappropriate. The pilot no longer works for Alaska Air (AKA), has lost his pilot's license, and is going to jail. 

In a similar case last June, Metro News reported a British Airways (BA) pilot was arrested when he arrived for a flight after consuming alcohol. He did not actually conduct the flight as the AKA pilot did, because his consumption was discovered. The BA pilot was similarly tested and found to have "86mg of alcohol per 100ml of blood in his system." Because he was prevented from flying the trip, the departure of his scheduled flight was delayed for about three hours. As a side note, much of the world now uses that metric system I was force-fed in elementary school on the premise that it would "soon" replace our American standards of measure. 

From the safety standpoint, it is a bit concerning that people we count upon to make a multitude of decisions and judgments may be operating aircraft while impaired, or even merely distracted. Reportedly, an Air China crew member was recently vaping in a cockpit. Not wanting the passengers to know of his vaping, he sought to turn off the air re-circulation system. By mistake or because of distraction, he instead turned off the air conditioner. This resulted in the plane reducing altitude dramatically to correct pressurization issues caused by the mistake, according to avweb.com. 

The vaping article suggests that it may be quiet simple in an aircraft to make little mistakes that could have significant implications. Travel and Leisure reported that the air conditioner debilitation led to a loss of cabin pressure and the pilots had to descend 20,000 feet on an emergency basis, with the passenger air masks deploying. Reportedly, the Civil Aviation Administration of China will take a "zero tolerance approach to the investigation" of the vaping plot. 

It is alarming that pilots, and professionals, would operate aircraft impaired by alcohol. Driving a car is a difficult task in the best of circumstances. It becomes more difficult when complications such as weather, traffic, or vehicle dysfunction are added. Many readers will acknowledge from experience if only to themselves, that operating a car after consuming alcohol is even more of a challenge. 

Operating a plane is somewhat more difficult than a car. Remember that cars are objects that travel forward and back, left and right (in two dimensions). They generally stick to defined routes that are often paved, painted, and provided with signage. Planes travel in three dimensions, adding up and down to those dimensions cars use. Planes travel in any direction, without the aid of lanes or signs. Anyone who has piloted one will likely admit it is a challenging avocation. The British Court noted this distinction: "A pilot in a Boeing 777 is somewhat different from driving on the road," according to Metro News. 

As an aside, the 777 is among the largest passenger aircraft in the world according to Antaeus Travel and Tourism. Boeing says that the craft is up to 242 feet in length with a wingspan of 212 feet, and about sixty feet tall. It weighs something close to 700,000 pounds, and cruises at over 500 miles per hour. This is a significant set of dimensions and capabilities. And, despite that a licensed pilot made a conscious decision to attempt to operate one after drinking. 

However, the most surprising and intriguing part of the two articles about drinking pilots therefore perhaps lies not in the presence of alcohol. In the twenty-first century, perhaps we are all a bit jaded, less than surprised when we see someone acting inappropriately in such a manner. 

An interesting and important point from my perspective is that for pilots, there is no "zero tolerance" for alcohol. Presence is acknowledged and acceptable. The Air Alaska pilot tested "a blood alcohol level of 0.134 to 0.142. Both exceed the .08 limit for the far more mundane operation of a car. And, the CBS News story states that "the federal limit for pilots is 0.04." You may not be as inebriated as you may drive, but it is legal to consume alcohol and fly a commercial aircraft. That is also true in the United Kingdom, the Metro News noted that "the legal limit for a pilot is 20mg." In each country, there is a level of alcohol that is acceptable for pilots. 

Apparently, it is permissible to "drink and fly" an airplane worth at least tens of millions of dollars, and with hundreds of lives under your care. A pilot may legally drink and fly (would we call that FUI or FWI?), so long as she/he does not drink too much. Frankly, I find myself (as our British cousins would say) gobsmacked. There are a fair number of employers with "zero tolerance" for alcohol or other impairment, but there is a level of alcohol consumption acceptable for pilots. 

But it was exceeded in these two examples. The Air Alaska pilot was 3 to 3.5 times "the federal limit" that has been deemed acceptable. The British Airways pilot was over 4 times the limit. Thus, neither was safe to operate a car. The Air Alaska pilot has been sentenced to jail time and the British Airways pilot faces that potentiality as well. We learn from this that today we are confronted with professionals responsible for our safety, working under the influence. They take on complex and challenging jobs and disregard regulation and law. And, remember that the Air China depressurization reminds us of complexity and the ease of making a mistake without impairment. 

The presence of alcohol can be effectively tested. The current science affords support for equating various volumes of "presence" with "impairment." That testing plays a role in the fate of these two professionals who strayed. A challenge of the coming age of dope will be in the formation and enforcement of standards that likewise allow the detection of both the presence and impairment of THC. 

The challenge will be in defining appropriate standards that scientifically allow measures of impairment from cannabis. We see drinking news that leads passengers to perhaps fear for their safety, to distrust the supposed professionals at the controls. Those passengers, and the public on the ground, deserve to know that the pilot controlling this massive vehicle is not impaired. With the growth in non-alcohol drug use, how can the public be protected? Will governments adopt some threshold of "safe" marijuana use for pilots? 

How do passengers restore their faith in those at the controls? How do we assure the public of their safety, whether those around us drink, smoke weed, or are just distracted?

Kentucky's First Decision

On April 29, 2016, I was honored beyond description to be included in Kentucky's Workers' Compensation Centennial, held at the historic Buffalo Trace distillery, just down the road from the state capitol. The catering was an outstanding barbecue, the company was genial and friendly, and history was in the air. Florida has not reached the centennial of Chapter 17481, Acts 1935, § 1., the Florida Workers' Compensation Law, which remains 17 years off. 

I wonder what kind of celebration Florida might hold to mark the centennial of Chapter 5966, F.S.? That is a bit of trivia for the reader. Today in Florida workers' compensation is commonly short-handed with reference to Chapter 440, F.S., where the workers' compensation law has resided since at least 1955. However, the original Florida statute was in Chapter 5966; this blog recently discussed the early days of Florida workers' compensation in Florida's Supreme Court in Workers' Compensation (July 2018). 

Florida started with an administrative body, the Florida Industrial Commission. A commission chair appointed by the Governor for four years served as chair, with two designated members of the Governor's cabinet. The commission was responsible for administering the law and acted as the first level of appellate review regarding decisions on benefit disputes. As states adopted workers' compensation, there was a significant tendency to replicate other states' laws as workers' compensation was enacted. Thus, this commission structure was not uncommon. In Florida, it survived for decades but is no more. 

Kentucky has, to a large extent, retained some of the early structure. It does not have a commission for management, that is the role of its Commissioner. But, Kentucky has an appellate body for such administrative determinations, the Kentucky Workers' Compensation Board. Similarly to the early Florida Commission, that Board was charged with appellate review. And, recently, I was provided with a copy of what is believed to be the first opinion of the Kentucky Board, Frank Louis Enix v. Graf-Webb Iron Mfg. Co., "Accident No. 256 - - - -Claim No. 1." 

There are some interesting lessons that may be discerned from the brief opinion in Enix. 

The Board noted that Mr. Enix was "a laborer employed . . . in handling scrap iron." In August 1916, he complained to his foremen about swelling and infections of both hands. The worker "testifies that he received no accidental injury." That is, there was no event or happening that resulted in the symptoms, Instead, he described that this "condition simply developed gradually." There was no "certainty whether the beginning of this condition was in August or July" (a point whose relevance is later revealed). 

The Board noted that it was logical that "in handling the scrap iron" some "slivers" had "penetrated . . . his hands at various times." A physician "testified at the hearing" that "it was impossible to say with certainty whether the infected condition was due to" those slivers or "some other external cause." 

The Board therefore concluded that Mr. Enix had not carried his burden of proof ("not shown by a preponderance of the evidence that the cause of this disability is an accidental injury sustained in the course of employment.") And, that he had not proven that if there was such causation that it occurred on or after August 1, 1916, the effective date of the (then) new Kentucky workers' compensation law. The date was critical for invoking the jurisdiction of the new workers' compensation system. The "accident" date is similarly often critical today in deciding which law and thereby which quantum of benefits is applicable to an injury in workers' compensation. 

The Board included two paragraphs titled "Ruling of Law." It explained that the plaintiff had the burden of proof, and that to prevail "a preponderance of the evidence" must support injury by accident, arising from, and in the course and scope of employment. And, that the coverage of the law, that accident occurred when the law was in effect, must be proven by the same "preponderance." 

The Board explained that its role was not to "speculate between an alternative theory which would award compensation and another which would not." The Board saw its role as determining what facts had been proven (was there competent evidence to support the trial judge's conclusions), and then to decide if the judge had appropriately applied the law to those facts. Having determined that Mr. Enix did not meet his burden of proof in the two stated regards, the Board concluded that "the defendant is not liable for compensation upon the facts presented by this record." 

What lessons can be gleaned from the Board's decision?

I would suggest first that brevity is a virtue (yes, I realize that is an ironic conclusion for a Langham post). But, this first Kentucky Board decision is less than 400 words. It presents no extraneous facts whatever; it is succinct, to the point, and has handwritten corrections for typos. 

Second, it reminds us that then, as now, in every case there is a party with the burden of proof. In many settings, the party seeking benefits, the worker, has that burden. Presumptions in the law may change that balance, and thus there are instances in which the employer/carrier faces that burden instead. However, in every case, some party has that burden, and failure to satisfy it means defeat. 

Third, it is sometimes critical to effectively and clearly identify a "date of accident." Over the ensuing decades, legal standards for that determination have evolved and been refined. But, rights under statutes like workers' compensation are often dependent upon what the state's law said as of that date. Determining the date of accident may affect what law is applied and what benefits are awarded. 

Finally, there is value in history. It has oft been said that those who fail to learn from history are doomed to repeat it. That is a worthy admonition. Lawyers, parties, and the workers' compensation community learn from judicial decisions if they take the time to read and understand them. That is the point of this blog, and perhaps in the end someone learns something?

Shout out and thanks to Kentucky Chair Michael Alvey and Commissioner Robert Swisher for providing the Enix decision.

Gluttony in America

There are many things about which Americans can worry. Gluttony is unfortunately one of them. We are getting fatter. The State of Health reports that 15% of high school students are obese and another 15% are overweight. Don't lament just yet, that may be the good news in this paragraph. The same source says that adult obesity exceeds 35% in some (5) states, and 30% in many (25) states. 

According to Stanford Health Care, obesity is a "chronic disease." That may assuage us a bit, calling it a "disease" may help us to detach ourselves from the causes. And, undoubtedly there are a myriad of medical and genetic reasons that we each have the shape and proportions that we do. I know people who loudly lament gaining five pounds over the holidays, they diet and exercise for a week and return to their baseline seemingly with little or no effort. I can walk a hundred miles and not lose 5 pounds (I have proven that repeatedly). The point is that we are all different and our personal weight likely includes elements we can control and others that we simply cannot. 

Stanford Health says that a third of Americans are "seriously overweight." And, it cautions that we (yes, I am personally seriously overweight) face a significant risk of other health issues that are related to our body habitus. We can look forward to increased risk of diabetes, heart disease, issues with bones and joints, high blood pressure, sleep apnea, and even cancer. All of this is important in workers' compensation. Any of these results, or the obesity itself, can be what doctors call "co-morbidity," which can make recovery from an orthopedic injury more challenging, time-consuming, and expensive. 

This discussion is nothing new. We have seen a multitude of news stories about both causes and effects of obesity. US News reports that Americans spend over $60 billion on weight loss every year. According to The State of Obesity, the financial implications in health care are even more pervasive. It estimates that health care costs associated with obesity are between $147 billion to $210 billion per year." This does not include work absence and productivity costs which are also significant. reminds of that old saw, "a billion here, a billion there, pretty soon you are talking about real money."

This subject returned to the front of my brain in the spring when the new menu labeling standards from the Obama administration became effective. This is a portion of the Obamacare legislation, and "requires disclosure of calorie and other nutrition information by restaurants." According to Food Safety Magazine, the requirements were effective May 1, 2018. When that news was pervasive in national media, I wondered aloud if knowing what was in a meal would change behavior. 

In July, Forbes reported that Joey Chestnut had won the annual hot dog eating contest at Coney Island. He consumed "an event-record 72 hot dogs and hot dog buns in 10 minutes." I could not eat that many in a month (though I love a good hot dog). Forbes noted that Mr. Chestnut's foray into fame consisted of 11,520 calories, 1,080 grams of fat, 432 grams of saturated fat, 2,160 milligrams of cholesterol, and 39,600 mg of sodium. All of these exceed the recommended daily allowances significantly. That is over 17 day's worth of recommended sodium in one sitting! 

Just as that news had slipped my mind, The Center for Science in the Public Interest published its Extreme Eating 2018 awards. This list recognizes some of the more notable outrageous examples of unhealthy eating available in the American restaurant industry. As I read the 2018 list, it occurred to me that perhaps there should be a contest each year to see who could consume the worst of the worst all in one day. 

The Center highlighted breakfast at the Cheesecake Factory. The entree is called the Breakfast Burrito filled with eggs, potatoes, black beans, chorizo, and cheese. This provides 2,730 calories, 73 grams of saturated fat, and 4,630 milligrams of sodium (twice the recommended daily allowance). Apparently, this is the equivalent of eating "seven McDonald’s Sausage McMuffins." People need between 2,000 and 2,500 calories per day depending on which gender they identify with, according to Healthline. 

For Lunch, how about a Vampire Taco Combo at Yard House. This is two pork tacos that include chorizo sausage, cheese, guacamole, and more. These stack up an impressive 2,040 calories, 27 grams of saturated fat, and 3,829 milligrams of sodium. The recommended daily intake of sodium is 1,500 milligrams. 

For a snack, hit the movies and grab a "soft Bavarian-style pretzel, sprinkled with coarse salt and served warm with nacho cheese.” This treat weighs in at about 1.5 pounds. This will provide you about 1,920 calories, 15 grams of saturated fat, and 7,600 milligrams of sodium. 

For Dinner, it is off to Chili's for a "creative mashup" called the Honey-Chipotle Crispers & Waffles. This entree is waffles topped with fried chicken, bacon, jalapenos, and ranch dressing sauce. Don't worry, it also comes with fries. This one brings you 2,510 calories, 40 grams of saturated fat, and 4,480 milligrams of sodium. The Center claims this is the equivalent of "five Krispy Kreme glazed doughnuts smothered in 30 McDonald’s Chicken McNuggets and five packets of barbecue sauce." 

For dessert, it is on to BJ's for a "Peanut Butter S’mores Pizookie." This is part cookie, part ice cream, and part "vanilla fluff." This little treat will add 1,580 calories, and 31 grams of saturated fat, but surprisingly no significant sodium. 

The Center report includes other similarly troubling menu items. The selected combination outlined above provides us 10,780 calories (4 to 5 times the recommendation, depending on which gender is identified), 186 grams of saturated fat, and 20,539 milligrams of sodium. That is all about the same calorie content as Joey's 72 hot dogs, half the saturated fat, but almost ten times the sodium. Of course, this latter plan would be more time-consuming with all that time wasted in driving from trough to trough. 

The real point is that perhaps it is not so mysterious why we are fighting an American obesity crisis. The food we consume is loaded with sodium, added sugar, and fat. Perhaps the Obamacare requirements will save us (doubtful), but more likely those menu listings will at least force us to accept the reality of what we are eating. Maybe we will make better choices overall, or at least choose to only eat half of whatever monstrosity they put in front of us (share that entree, take half home for tomorrow, etc.).

The New York Times recently published an opinion article regarding the costs of all this obesity. The author claims that the "total impact of obesity and its related complications on the United States’ economic output has been estimated at between 4 and 8 percent of gross domestic product." That is a significant sum. For clarity, the author equates this to other national expenses, noting that at 4%, "that’s comparable to the 2018 defense budget ($643 billion) and Medicare ($588 billion)." For emphasis, fat is costing us at least the same as defense and Medicare!

A major focus of the Times article is a description of disparate impact. It claims that "as disposable income declines, so too does the ability to afford a nutritious diet." The author also complains of the high cost of medications for ailments like diabetes, of which obesity is a risk factor. The author contends that processed foods are cheap, while nutritious foods are beyond the economic grasp of some. The suggested solutions include the imposition of "a tax on processed foods and use of the proceeds to subsidize whole foods." 

Perhaps those who advocate tax plans like that will remember the Federal gas tax. As we drive on crumbling roads and bridges, some may wonder where all that federal gas tax money is. Is it all being devoted to the infrastructure for which it is raised, or is some of that money going elsewhere? Similarly, if there is a tax on cheap food, will all of it be consistently focused on subsidizing "good food?" 

So, obesity itself has a financial and personal impact. There are related potential financial personal and financial impacts from disease, social isolation, and more. And, the impacts on American society as a whole are likewise significant. Perhaps what will save us will be awareness. That is the goal of the Obamacare menu information requirements. 

And, I have done my part on that front, as have you in reading this post. Perhaps we will all think twice about whether we really need that Pizooki after our Honey-Chipotle Crispers & Waffles? Maybe we will get out and walk a mile or two each day, skip the fries, and substitute water for soda? Maybe we put down the salt shaker, read the menu more carefully, and pay attention? 

We have to accept that our DNA and heredity play large roles in our shape, our health, and sometimes even our happiness. But we have to start seriously asking: are we able to affect our own health? What little things can we each do to decrease the risks to our own health despite things like our familial DNA that we cannot change. Obesity is killing some of us, hurting others of us, and costing all of us. Let's figure this out. 

DNA, Pharmacogenetic Testing, and Louisiana

I recently posted regarding patient privacy and data harvesting, see Big Data in Health Insurance (July 2018). I received some interesting feedback. One reader essentially cautioned me that there is perhaps no such thing as privacy anymore. There may be some truth to that. I also posted this summer on the use of DNA databases by law enforcement in Science, the Right to Privacy, and Big Brother (June 2017). Our world is certainly changing; some change is driven by technology and some we drive by our behavior. 

In a July 30, 2018 post, the Louisiana Workers' Compensation Blog addressed concerns of the Louisiana Workers' Compensation Advisory Council (WCAC) regarding a third-party administrator (TPA) and its engagement of a laboratory to conduct pharmacogenetic testing. That post informs us that there is discussion and disagreement on this topic since 2017, that the WCAC lacked the quorum to take any "action," and that there is therefore continued WCAC debate. The post really does not help us to understand what pharmacogenetic testing is. My curiosity was piqued. 

WorkCompCentral reported in 2016 that pharmacogenetic testing is touted as aiding in patient care. It reports that this testing was "a hot topic in workers’ comp." I am somewhat surprised and chagrined that two years later this is just now something about which I am conscious and curious. I suspect I read about comp as much as anyone, but this escaped me. 

Pharmacogenetic testing is apparently similar to other genetic testing. A cheek is swabbed, and the patient's DNA is analyzed. The results are touted as providing physicians with information upon which to make treatment decisions. The process is said to seek to assess and predict how a particular patient will respond to "a variety of drugs, including those used to treat anxiety, depression, and substance abuse." The analysis points out that we are each individuals, with unique attributes that are predicted and defined by our own genetic code. 

Therefore, as individuals, we may each "metabolize a drug" somewhat differently than someone else may. The potentials are "the drug has the desired effect, little to no effect, or causes an adverse reaction." Reportedly, "pharmacogenetic testing can provide a physician with information upfront" regarding a particular result or reaction in a particular patient. The purported goals for this are "eliminating guesswork, reducing drug spending, and providing better treatment." 

However, the patient testing practice was questioned in 2016 in Washington state. There were concerns about whether the testing is efficacious, and "whether physicians change their prescribing in response to the results of pharmacogenetic testing?" But, it seems from all this reporting that adapting prescribing for a patient is the whole purpose of testing? 

WorkCompCentral cited a report by Optum, which expressed recognition of the benefits of this testing in certain settings. Optum cites potential benefits when "choosing drugs to treat cancer or heart disease." However, there was less enthusiasm from Optum regarding workers' compensation. The conclusion is that this testing is "not generally recommended in workers’ compensation.” In that regard, Optum's report does not conclude that such testing is not efficacious but expresses doubt that there has been a demonstrable benefit sufficient to justify the related expense of this testing, which might be up to $1,000. 

WorkCompCentral (WCC) reported in 2016 that perspectives on this testing were varied; it has both proponents and critics. The issue resurfaced in WCC last November: Laboratory to Be Told to Cease Requests for Genetic Testing of Injured Workers. This story focused upon Louisiana, and a decision by the WCAC "to send a cease-and-desist notice to" Insight Labs. The WCAC instructed the lab to stop "conducting genetic testing on behalf of workers’ comp third-party administrator Broadspire." The action by the WCAC was reportedly not a decision about the test's efficacy, but about concerns of patient consent; it was concerned "doctors and injured workers might believe they’re required to comply" when a laboratory requests such testing. 

As an aside, it is curious to me that an "Advisory Council" would have the authority to tell a market participant to stop doing something, The term "Advisory" seems suggestive of a role that is neither regulatory or legal. The Workforce Commission provides meeting minutes regarding the Council on its website. According to the published bylaws of the Council, its purpose is 

"to review and make recommendations to the governor, through the Louisiana Workforce Commission, on any proposed legislation and rules, affecting the administration or resolution of claims provided for in the Workers' Compensation Act."

There is no specific reference in the Council bylaws to the WCAC having authority to direct market participants or to issue cease and desist instructions (it is not the police, not a regulator, and not a court). The focus of the Council described in the bylaws is specifically and seemingly only upon legislation advice. 

However, the November WCC story says that the Council voted to prohibit Insight Labs from corresponding with injured workers to request this DNA testing. A representative of The Workforce Commission explained this is appropriate because while the Insight letter "appears to grant discretion to the (health care provider) and his patient" as to whether to test, some physicians have reported "they feel coerced to perform the test." There is apparently a perception that failure to perform the testing could affect payments to the doctor for services "and/or future indemnity payments to the (injured worker).” 

Then the Louisiana Comp Blog reported on July 30 this year that WCAC discussion continues over the testing and that the specific focus remains Broadspire and Insight Labs. It noted that the Council again expressed concerns about “adjusters who might use the information to sidestep the Medical Treatment Guidelines,” and questioned "who determines the criteria that makes a particular injured worker a candidate for the testing." There is seemingly no suggestion in any of the Louisiana news coverage that there is pending legislation or even proposed legislation upon which any Council recommendation, "advice," or action might be focused. 

The fact is that DNA has become increasingly ubiquitous in society. See Science, the Right to Privacy and Big Brother (June 2018). DNA is being increasingly engaged by the government in investigating crimes. Familial DNA from voluntary databases is being used to solve decades-old crimes. Familial, in that the accused has not submitted DNA, but some relative has done so. That family member, in search of edification about their roots and history, has voluntarily provided information that in effect invades the privacy of a relative perhaps. 

Similarly, millions of people are voluntarily submitting information to Facebook and similar applications. They describe what they like, where they go, what they eat, who they follow, and what they spend money on. That data is, similarly to the DNA submitted, voluntarily provided, by us or our friends or relatives. We have recently learned that such information, voluntarily submitted to Facebook and similar, is sold to people who wish to influence us with news or advertising. 

Clearly, we may each decide to give up our rights to privacy. We may Snapchat a picture of every meal we consume if the inspiration takes us. But, when we submit our DNA, we have seen that we waive individual privacy and perhaps that of our relatives. In conjunction with the implications of Big Data in Health Insurance (July 2018), what service are we thereby providing to others (or a disservice to ourselves and our relatives)? There is a fear that insurance companies might make coverage or pricing decisions based on their perceptions of our personal risk. And now concerns that some may feel coerced to participate or at least may participate without full understanding. 

Our DNA might reveal things to others that we do not know or recognize ourselves. Some "risk factors" in my DNA might lead an insurance company to decline me coverage. It might lead some decision-makers to deny authorization for some procedure, modality, or test. It might lead some doctors to conclusions or predictions about my care or future. And, it is entirely possible that my DNA could lead to conclusions about my relatives instead. 

We are in the midst of a rapidly evolving age of information. There are vast and amazing potentials that this information and technology can work to our benefit. However, there also appear to be a multitude of potential risks to our health, welfare, and privacy. In that regard, it seems prudent that anyone be somewhat protective of their personal information. It is up to the individual to protect privacy in the first instance. It is perhaps prudent that patients are fully informed of the potential implications of medical care, and that should likely include the risks and privacy concerns of DNA testing. Personally, I am concerned about DNA testing, databases, and privacy?

That all said, I remain dubious that an Advisory Council may undertake the role of police officer or regulator. Certainly, a regulation or statute might address such concerns. However, it may also be that such regulatory authority cannot be delegated to an advisory group that possesses, by its own bylaws and definitions, only specific authority and power. An appropriate question may be "Do I agree with the Council"; but for others, the more critical question may be "Can the Council legally take action?" And that may be for some court to sort out one day; litigation is unfortunately not an uncommon occurrence in the world of workers' compensation.

Give Kids the World - Our Community

A few weeks ago, I highlighted A Comp Laude Overview (June 2018) and the efforts of WorkCompCentral to recognize service and excellence in workers' compensation. And I stressed that workers' compensation is a "community." I mentioned in that post that my voice recognition software insists on typing "comp loudly" when I say "Comp Laude." In that regard, technology remains a challenge, and I am sure others experience similar tech issues. 

Though I am a perennial attendee at WCI each August (having missed twice in about 25 years), and though the WCI started sponsoring "volunteer work days" at Give Kids the World (GKTW) several years ago, I never made it to GKTW. Until yesterday that is. I had heard about it, repeatedly, from many people and perspectives, but I had not been there. To a person, everyone that attends raves about their fulfillment from spending time there. In addition to the work day, each year the WCI also sponsors a GKTW Gala to raise financial donations. 

GKTW is a Village developed by Henri Landwirth, a holocaust survivor. Decades ago, he learned about kids who came to Orlando for their wish trip, through organizations like Make a Wish. He heard that accommodations were an obstacle to such trips. He therefore built his first duplex (called "villas"). Then he built another, then another, and now it is an 84-acre resort with 168 villas. This is where kids fighting for their lives come to escape, however briefly, their challenges. 

Their motto? Turn no child away. These people find a way to accommodate every family that wants to come. If no villa is available, they have deals with a number of local hotels to accommodate the overflow. They take care of families that struggle, whatever that takes. Children, as Mr. Landwirth says, who "had something happen to their systems." These kids are ill, or they have a sibling who is, and they come to GKTW to escape, eat ice cream for breakfast, ride horses, and more. 

Remember in the old days (1970s) a football player known as "Mean Joe Green" starred in a "Coke and a Smile" ad that featured a young fan? In it, Joe Green limps toward the locker room and is stopped by a young man. The boy asks "Do you need any help?" Joe declines. The boy offers Joe: "Want my coke? It's O.K. you can have it" (holding the coke toward Joe). It is a heartwarming moment. Hold that image (below) for a minute, I'll get back to it. 

We had heard earlier in the week that over 1,000 people had volunteered for the 2018 Give Kids' the World (GKTW) workday. Saturday morning I entered the continental breakfast hall at the Marriott, swimming through a sea of people. Many had matching shirts (different companies provide t-shirts for their GKTW teams). Over here was Quintairos, Prieto, Wood & Boyer, over there was the McConnaughhay firm, here was Orchid Medical, and seemingly everywhere was Sedgwick and Gallagher Basset.

Our leader for the day was Doug Clark, of Sedgwick. He was the cheerleader and organizer, the director of a huge cast, and a complex play. It was an Oscar-worthy performance. I complimented him later in the day, and he emphasized that it was a team effort. He was humble and gracious, characteristics I value in a team member. 

We deployed in groups, with preassigned tasks. There were gutters to clean, posts to paint, furniture to clean, sidewalks to pressure wash, plants to plant, mulch to spread, trash to haul, pillows to assemble, shuttles to operate, and even a carousel to staff. I am sure that is not an exhaustive list, but it is a start. The logistics were fantastic. They were ready for us when we arrived, and they supported us throughout (water deliveries, equipment, safety goggles, gloves, sunscreen, you name it). 

I was assigned to a pressure washing team, two of us taking turns with a washer. That led to significant downtime, during which I carried some mulch, guzzled water, and took some pictures. And, as we worked, there were guest families among us, or passing by us. No pictures of the Village guests are allowed, but remember the picture above of Mean Joe Green? 

At one point, I turned from my work to see a mulch volunteer in front of a villa confronted by a young child guest. This tike wore a "Make a Wish" shirt and held out a large glass of water to the volunteer. I instantly recalled the Joe Green Commercial. I don't know if that child is ill, or has a family member who is. I just know that kid recognized people were working hard, he appreciated it, and he stepped up with a thank you. It was fleeting, genuine, and touching. It will remain forever seared into my memory. He is why we were there, and yet he wanted to help us. 

We gathered for a group photo when we finished. 

We learned that the volunteer total for the day had exceeded 1,100. There was no way to fit everyone in a picture. We returned to the conference, exhausted and hungry. 

Last night, I attended the Gala, courtesy of the National Association of Workers' Compensation Judiciary. It is a Gala sponsor and therefore received some tickets. There, we were reminded that the WCI has donated over $200,000 to GKTW over the last 5 years. Then we were informed that the 2018 Gala would raise more than $100,000 more. That is in one night, a significant impact. It is due in large part to various sponsors committing to the cause. 

We heard from Doug Clark (our cheerleader and organizer), explaining that 187 companies had participated at the Village that day. I am proud of them all. However, I am particularly proud of the Kids' Chance of Florida team. We were over 40 strong, wearing matching t-shirts proclaiming "I'm helping Kids' Chance of Florida help Give Kids' the World." A catchy phrase compliments of the Kids' Chance of Florida president, Bob Wilson. Think on that. Yesterday 1,100 people, representing 187 companies, gathered to provide service to the benefit of kids and their families. That is community. 

At the Gala, we also heard from Diane and Jim McClusky. These two have led the Gala charge for WCI. I cannot fathom the hours these two have invested in supporting GKTW. It is in large part their success that we celebrated as they announced over 800 people attended the Gala. We heard from Pam Landwirth, who showed us a video of Henry. The interview described why he founded the Village and why it is so crucial. She read a letter from a family, describing their wonderful week, and the memories it built. I suspect that there were only a few dry eyes in the room when she finished. 

We heard from a mother, with her leukemia-survivor son standing next to her (barely visible because of the podium, a small child). She described the challenge of these diagnoses and the impact on the family. Her story was poignant for me. It made me recall a good friend, Steve, that I had not thought of in years. I recall our mutual interests and friendship. I remember grass sledding on boxes (yes that's a real thing), tether ball, and four square. I also remember we were about 6 then, and Steve's little sister of about 3 was fighting leukemia. I watched that family contend with disease, a concept that I frankly did not understand at 6. I still remember when she passed, my first realization was that dying was not just for old people. 

This GKTW mother talked about what families experience. She described the many doctor visits, the treatments, and the challenges. She talked about the contributions of her neighbors, pitching in with child care and so much more as she devoted years to her son's recovery. She was emotional, inspiring, and real. I struggled to focus on her story, but my thoughts kept returning to my own recollections of Steve and his sister. Her description of what GKTW meant to her family, and others she knows, was outstanding and touching. 

WCI impacted GKTW yesterday, again. A crowd of people, old and young, tall and short, fit and frail worked, contributed, and supported. The money will benefit GKTW, and there is value in that. But, I would contend that the greater value is in the community. Eleven hundred workers' compensation people found a commonality Saturday; "community." There was camaraderie, contribution, work, laughter, and conversation; "community." WCI brings us together each August to learn and teach. But for the last 8 years it has also brought us together in community. We are greater, if only for a moment, than the sum of our parts. We are incredible, and powerful, and kind to each other; "community." 

I am proud beyond description of the 1,100 volunteers, particularly Doug Clark, Diane, and Jim McClusky. I acknowledge that this is a team effort, and thank all the volunteers, but cannot name them all. I am proud of who we are and what we did. I am grateful for the reminder of our humanity, our energy, and our community. 

Below are additional shots of volunteers at GKTW. They don't do it justice. You sort of have to be there to get it. As I conclude this post, I figured out that my dictation software is correct after all, it is "comp loudly," and our community supported that yesterday. Comp shouted yesterday that we can be together; we can set aside professions, competition, and disputes for a day and our community can rally to a common cause. Thank you GKTW, WCI, volunteers, and organizers. You made us better yesterday. See you next year!

The Funding of Florida Workers' Compensation

There are a variety of methodologies for financing government operations. Taxes can be collected, fees can be charged specifically to those who consume services, or certain market segments can be assessed. I am persistently surprised by how many people do not know that in many states no taxes are used to support the regulation, education, prevention, and adjudication functions of workers' compensation. Florida is an example of this.

The option of taxpayer support is easy enough to understand. State government is replete with agencies that are apportioned some part of the state's "general revenue" from taxes or fees. Those various agencies' share is decided annually by the legislature in a difficult assessment of need and apportionment.

In Admission is Free but You Pay to Leave (January 2014), this blog described one "fee for service" method of funding. In South Carolina, lawyers wishing to withdraw from a case pay a $25.00 fee. The general structure of funding for Florida's court system is built around charging "filing fees" when cases are first brought. Those fees then serve as the revenue for related expenses like record keeping (clerks), adjudicating, and more. Such a "filing fee" system could be employed similarly in workers' compensation. Recently in An All To Common Problem (July 2018) Iowa's plan of collecting penalties or fines is discussed, another methodology for deriving revenue based on specific cases. 

In 2017, in Financing Work Comp Regulation (October 2017) this blog overviewed the "trust fund" method. This is the third alternative mentioned above, and the one employed by Florida. The Division of Workers' Compensation is responsible for administering, maintaining, and monitoring two important trust funds: The Workers' Compensation Administrative Trust Fund (WCATF) and the Special Disability Trust Fund (SDTF). The latter is focused on state liability for certain reimbursements to employers and carriers in specific injury cases. Though it has been "sunsetted," there remain cases subject to reimbursement and the  SDTF is for that purpose. 

The former, the WCATF, is responsible for funding the various operational elements of Florida workers' compensation. The Division describes the fund on its website, and provides a visual graphic from 2016-17 to explain where that money goes each year:

Roughly a quarter of the expenditure is used by the Division for its regulation and monitoring of the workers' compensation system; the Division is also engaged in issues of medicine, education, re-employment, and assisting injured workers with issues/questions, among other things. Estimating values from this chart, it appears perhaps another 16% is utilized to pay permanent total disability supplemental payments (in some cases, based on older accident dates, those benefits are paid by the state rather than the employer), and another 8% is transferred to the state's "general revenue." It appears approximately 25% is required to fund the Office of Judges of Compensation Claims and Florida First District Court. 

As an aside, the Florida First DCA funding comes as a surprise to some. Florida's courts are funded primarily through user (filing) fees, described in a recent report, and mentioned above. Therefore, many are unaware that the WCATF provides financial support to the appellate court on the logic that this court is statutorily responsible for reviewing workers' compensation determinations. In that regard, the First DCA and WCATF relationship seems at least somewhat unique. Does any other state funding mechanism provide direct financial support to a specific court in this fashion?

The 2015-16 Division of Workers' Compensation Results and Accomplishments report provides more detail. Similarly, the 2016-17 Results and Accomplishments (page 24) breaks down both the income and expenses of the WCATF, but does not provide the figures related to the overview chart shown above:

Thus, in 2016-17, the WCATF was financially solvent with a surplus of about $24M. And, none of this money comes from the Florida taxpayers. The income to the WCATF comes from assessments levied on the workers' compensation community: employers and companies that provide workers' compensation insurance. It is a self-supporting cycle in which the community that is served provides the funding necessary for the regulation, administration, and adjudication of disputes.

Assessment rates are determined periodically. The WCATF rate is currently less than 1%, but has been as high as 1.75% in the last decade. The Division publishes all of the historical rate data. The WCATF traditionally maintains a surplus. In a January 2016 legislative analysis, the prediction was that the "WCATF will maintain a positive surplus cash balance of $161.1 million in FY 2016-17, $162.4 million in FY 2017-18, and $163.7 million in FY 2018-19." An email from the Department of Financial Services on August 16, 2018, informed the current surplus is $173,799,898. Thus, despite moderate assessment rates, the financial health of the trust fund process appears strong. 

Noted in the 2017 Office of the Judges of Compensation Claims Annual Report (page 2) the total OJCC budget was $17,430,852. Though the budget has fluctuated, it has been overall reasonably consistent in recent years. The report provides an overview of where those budget dollars are expended (page 7), and it illustrates that $13,317,923 (76%) is payroll and benefits. Thus, the majority of the OJCC budget is expended in the seventeen communities around Florida in which OJCC District offices are located. The same is true for the 16% of the OJCC budget expended on real estate premises and security services for those locations. 

These are three points worthy of note. The Florida workers' compensation system is self-supporting, not reliant upon the Florida taxpayer. Furthermore, that self-support is not through filing fees or other burdens on the injured worker. Finally, the expenditure of those resources is throughout Florida, in the very communities in which accidents and injuries occur, and in which adjudication and mediation services are needed.