The Consolidation Caution

A recent case from Kentucky reminded me of the intricacies of case consolidation. On October 30, 2020, the Board rendered Nordmeyer v. Rosa Mosaic & Tile, Claim 201801085. It is a reminder that it remains imperative for counsel to be persistently cognizant of a case status. Secondarily, it reminds us of the importance of details. And, there is a demonstration of some effort by the appellate authority (In Kentucky the first appellate opportunity is the Board, an executive-branch review) to provide a broader edification or illumination than is perhaps inherently required for its decision. 

When providing analysis, such an appellate body may provide the explanation that the parties to a particular need, but may also provide some broader analysis in which the greater community may find guidance and assistance for future cases. Reading appellate decisions is therefore a useful tool for those involved in litigation within a community such as workers' compensation.  

In this Kentucky instance, the injured worker had two cases, claim number 2018-01085 filed July 24, 2018 (knees) and 2019-01095 filed July 26, 2018 (shoulder). For the purpose of litigation (trial), the two were "consolidated." That "consolidation" effectively merged the two cases. For the duration of the "consolidation," the two cases became one. Thus, a filing in either during that time was in fact a filing impacting or affecting each. This posture continued through the discovery phase and preparation, and even through trial. A trial order was entered to decide the issues. With the purpose of consolidation past (efficiency of process and for trial), the two cases were then "unconsolidated." Picture the two cases were married, lived together for a time, and then were divorced. 

Or, imagine a closet full of clothing, which includes two hangers; on one a pair of pants and on another a jacket. But, after a while the two are draped upon a single hanger, what one might colloquially refer to then as a “suit.“ Obviously, each part of the suit has its distinct purpose. And, each may complement the other. So long as they are hung together, and referred to as “suit,“ then they can be discussed collectively ("please take that suit to the cleaners"). 

However, if we elect to thereafter again remove the jacket and drape it instead upon a separate hanger, we again now have merely “pants,“ on one and a “jacket“ on the other. Though the material and style might lead one through examination to conclude the two elements could go together, their physical separation might nonetheless frustrate any effort to refer to the (now) two items as some collective label ("a suit").

That distinction may hold little or even no difference in some circumstances. However, in this instance of consolidation, it most certainly may. While the two are hanging together (“consolidated“), an instruction or request as regards that combined unit will be effective as to each (e.g. "please take that suit to the cleaners"). However, once you have placed the two items on separate hangers (unconsolidated), or if someone else has (the trial Judge), then the instruction ("take that to the cleaners“) may result in the appropriate action as to only one (the trousers perhaps), and in fact no action as regards the other (the jacket).

In the clothes example, the resulting harm is perhaps elusive. Upon discovery of that error, simply take the jacket to the cleaners and the issue is likely solved. Having expected a cleaned suit, it may be accomplished despite requiring two trips and perhaps some delay. But, in the realm of litigation, the implications may be more complicated and more lasting. 

That is essentially what occurred in Nordmeyer. Whether through inadvertence, or intent, counsel filed an appeal as regards half of the then unconsolidated litigation - one of the two cases. After these two cases were unconsolidated, counsel filed an appeal in one of those cases (the trousers). Counsel did not address the proverbial jacket - no notice of appeal was filed in that second case. Proceeding through the appellate process, counsel did make arguments as regards that second, unappealed case. That effort evidenced some intent to have appealed both outcomes. However, the Board explained that it had no authority to address those issues and assertions of error regarding the second case. 

The Board lacked authority, what the law refers to as having "jurisdiction," because no notice of appeal applicable to that second case had been filed. In the law, jurisdiction is created in the appellate court by the filing of that notice of appeal. The appellate body or court has no overall or automatic authority to oversee or be responsible for any and all litigation ongoing within its geographic area of responsibility. It is the act of one or all of the parties to a particular case, in timely seeking the appellate body's review, that creates the authority of the appellate body to act. And, that request is usually required within some set time period. 

If no timely notice of appeal is filed, then the appellate body lacks authority. This is true also in Florida, where the Supreme Court has held that the notice of appeal is "jurisdictional." Williams v. State, 324 So. 2d 74 (Fla. 1975). Furthermore, a notice filed after the time allowed for requesting that review, 30 days here, is not effective - does not create jurisdiction. Nelson v. State, 181 So. 2d 192 (Fla. 1st DCA 1965). Timing and process are critical in the seeking of appellate review. 

So, failure to deliver the jacket to the cleaners will result in the cleaners having no authority (or ability) to clean that jacket. Similarly, failure to appeal a decision in a timely manner will deprive an appellate board or court of the ability to consider those issues. 

The Kentucky Board explained this and that the error in this instance was likely harmless ("If that claim was properly before this Board, the ALJ’s decision would have been affirmed"). In that regard, it essentially analyzed issues over which it had no authority and explained why it would likely have not found errors had it been given the authority to decide them. 

It describes a review of that second case (unconsolidated), and explains that a timely appeal there would not have worked a different outcome - reversal of the trial judge's decision. This explanation perhaps is some balm for the attorney who did not file the second appeal. It is helpful to the parties in the case, but more so perhaps to the community of workers' compensation. Those who litigate would do well to learn from examples such as this, which illustrate the benefits of reviewing appellate decisions when they are rendered. 

The lesson is reasonably clear: verify twice what you are addressing in a pleading (whether motion, notice of appeal, or otherwise), and take the time to double-check that what you are doing will accomplish what you have set out to do. When important steps or actions are missed, there may be significant impacts on the clients that you represent. And, those may not be as easily remedied as taking half a suit to the cleaners. 

The Bridge that Isn't

Chevy Chase played Ty Webb in the 1980 classic "Caddyshack." A memorable conversation with the movie's protagonist, Danny Noonan, included a somewhat off-point quote. The point of it is that it is off-point, an element of the eclecticism that comprised the Ty Webb character (and perhaps Chevy Chase generally). He said: 

"The Zen philosopher, Basho, once wrote, 'A flute with no holes, is not a flute. A donut with no hole, is a Danish.' He was a funny guy."

I thought of that recently as I observed from a great distance the Pensacola Bay Bridge (which locals refer to as the "3-mile bridge," as it is precisely that long; or, was that long before it stopped being a bridge). My recent observations in January 2021 reveal gaping holes in the span, clearly visible from the shore in Pensacola. Standing and pondering, I wondered what Basho would say of a bridge with holes? Well, in the spirit of his observations regarding donuts, in the inverse, perhaps a bridge with holes is no bridge, but something else entirely? Hint, the hole alone does not qualify it as either a donut or Danish.

More than 120 days post-Sally, I look back now on the landfall. That storm became a potential risk to Pensacola on Monday, September 14, 2020, and a hurricane warning was posted. The courthouse announced closures for Tuesday and Wednesday. Following the OJCC disaster policy, the Pensacola district office likewise announced parallel closure. 

Tuesday dawned windy and wet, with periodic bands passing over the area. Deciding that Sally might pose a significant threat, I went to the office Tuesday morning to reassure of preparations, and to obtain some digital documents upon which to work in the coming hours. That trip for me was a short seven miles; on a bad day, it might require 20 minutes in traffic, but closer to 10 was normal. 

As I drove north across the 3-mile bridge that morning, I encountered an FDOT Road Ranger truck with its yellow light flashing in the center emergency lane of the bridge. This is not an uncommon site. These individuals are on call for a variety of issues including accidents, breakdowns, and even the simple debris on the bridge. 

However, this Road Ranger was outside of the truck, had crossed the lanes of traffic to the east, and was leaning over the bridge rail looking downward. My first reaction was curiosity. Within less than a quarter of a mile, I happened upon a Pensacola Police Department cruiser likewise situated in the center lane of the bridge. Just as I passed, that vehicle's emergency lights came on and the officer likewise exited the vehicle, crossed to the rail behind me, and peered over. 

At the time, my immediate concern was that the authorities would close the bridge. Whenever the winds become sufficiently strong, they close the bridge. It has been a manual process but has evolved like so much else to rely upon technology. The FDOT decision is founded upon the conclusion that wind beyond certain parameters is unsafe for vehicle traffic. I have seen this occur similarly based upon wind in St. Petersburg, Jacksonville, and other Florida communities.

Having passed the commotion, I spent the next 3 miles to my office contemplating the probability that officials were either closing or beginning to contemplate closing this bridge. Knowing that my alternative route home was much longer, my time at the office Tuesday morning was very abbreviated. Within an hour, I was back in the car and headed for home. Unfortunately, I found the bridge indeed closed. 

As I sat moments later at a traffic signal, I received a text from a friend telling me a rumor that the bridge had closed because it had been struck by a construction barge. That seemed a rather incredulous potential, but the Road Ranger had been leaning over the rail looking at something. Why not a barge? Coincidently, the news later reported, and drone footage substantiated, that a significant portion of the 3-mile bridge had been damaged during the course of Sally by multiple barge collisions.

It is possible that the various barges in question began their escape conspiracy (by the storm's end 22 had made a break for it) about 24 hours before the storm made landfall. The result has been interesting. That fifteen-minute commute has become a minimum of 45 minutes, and 90-minute commutes are not unheard of. The 7 miles each way has become 35 miles daily. 

This all came back to me one morning last week because the sound of pile-driving to which the community had once become so accustomed during the years of construction had returned, at 3:00 a.m. After 120 days, it sounds like there was serious repair work underway on this span. 

See, this "new bridge" has been under construction for years now. There has been pile-driving and noise. There have been barges, and tug boats, and much to watch. In fact, what will eventually be the southbound span was opened to the public less than a year before Hurricane Sally. All traffic was diverted onto this span, in both directions, while the old "deficient" bridge was disassembled and the second (eventually the northbound span) was begun. Just over six months after the new span opened, Sally came and the structure was decimated. Going with "structure" now in the spirit of Basho (It is not a Danish - holes or not, but it is also not presently a "bridge").

There are perhaps lessons in the story. First, that nature may not necessarily be predictable. Certainly, Sally was anticipated in various Gulf Coast communities based upon the best efforts of the National Oceanic and Atmospheric Administration (NOAA). The storm could have made landfall anywhere on the Gulf Coast. That is a reminder to pay attention when storms form. There is heated debate now as to what could/should have been done when to secure the construction equipment and protect the bridge. But, recriminations and hindsight are not uncommon following untoward outcomes. Safety experts always perform analyses after accidents and strive to better prevent the next one. 

Second, though, it is a reminder that there is a benefit to workplace safety in planning before; foreseeing the future is impractical perhaps, but preparing for the potential is a workplace obligation. The safety and accessibility of communities was at stake in this instance. But, in many instances, in many businesses, every day there is the need for both individual and collective safety. While we might admit that it is impractical to predict and prevent every accident, safety experts nevertheless strive to do so and workers' compensation is a significant part of employee safety. 

Third, there are a great many people who rely upon structures like bridges. When you hear that a particular bridge has a traffic count of 50,000 vehicles daily that may seem abstract. That is the estimate that was quoted in 2010 when the news reported a new bridge must be implemented within 6 years, which did not come to pass. While 50,000 may seem like a lot of cars on a four-lane bridge, it seems like a great many more when diverted onto a two-lane road through the countryside, the only current alternative. Similarly, a business may rely as distinctly on various equipment or structures. And, as likely, on its workers. Safety is critical in maintaining productivity, and it is indeed "everyone's business." 

And, there may not be any real difference between a bridge (or whatever you might call a former bridge with holes) and any business. The fact is, customers, employees, and even communities rely upon businesses. Management that recognizes that and commits to the prevention of accidents, restoration of function for those who suffer accidents, and the return to work of employees are positive for those who depend upon it. In a general sense, that is the foundation of workers' compensation. 

In the end, perhaps a structure (formerly known as "bridge," sorry Prince) is actually a metaphor. Perhaps if we consider how it might be fostered, protected, and restored upon damage it might teach us all a bit about symbiosis, synergism, and community? Perhaps in observing the impact of planning, accident prevention, and the restoration process of this structure, there is an analogy to what a worker experiences in the event of an accident? Primarily, we want to prevent accidents. When they happen, there is much to do and restoration may take time, effort, patience, and more. The time element may surprise us (120 days later and still no bridge). 

While the injury may preclude being a worker thereafter for some period (total disability), there is hope that time and effort will bring restoration or even recovery, and a return to function and productivity. A concerted effort will make that structure a bridge again. The process may involve motivation, management of resources, and support of a community. That bridge is not that different from any one of us. 

Knowing "How Things Really Are"

I overheard a recent conversation involving our old friend Horace Middlemier. He was preparing a case for trial and was concerned about proving the elements of this case. He was curious about the judicial mindset, and asked a group of other lawyers "straight-up" whether they thought he could "count on" the trial judge knowing “how things really are.“

You see, Horace had been preparing this case for a fair few months. He is an experienced practitioner, well-versed in his specialty of the law. He well knows the elements which he will have to prove in order to both prevail (have the decision go in his client's direction), and succeed (have it do so in a significant manner sufficient to remunerate his client sufficiently). I was, admittedly, confused by his question. I was apparently not alone as one of the other layers asked: “what do you mean 'the way things are?'”

He explained that one item to be proven was the quantity of damages. His case would require the judge as a “finder of fact“ to place a monetary value on the damages. He explained that he had considered bringing witnesses to testify about the nature and extent of damage, and the cost which would be required to restore his client's structure to pre-storm status.

However, he explained, it’s somewhat of a hassle to arrange witnesses, prepare arguments, and submit evidence of such a detailed nature. He was therefore inclined, instead, to simply count upon the judge to “know how things are.” He mentioned how "long that judge has been on the bench" and that the judge "has lived around here a long time." He prognosticated then that: “After all, any fool knows it costs a lot of money to repair a storm-damaged house.”

My response (that I bit my tongue and kept to myself) would have been: “are you saying you hope the judge goes outside of the record evidence and makes decisions in your case based upon his or her own experiences, perceptions, or conclusions from unknown sources, predisposition‘s, or biases?“ I can just imagine old Horace replying with a chuckle “well only if they’re in my favor.“ Horace is the first to admit that he persistently eyes behavior in an "outcome-oriented" manner. The "right" and "wrong" in his perspective often depends on whether the action/words benefit or burden old Horace. 

Why do lawyers bring the evidence that they do? From a strategic perspective, how much evidence is appropriate? Or, for that matter, what are the risks that each element of proof may bring to accompany its benefits? That is one that young lawyers (and those who fail to learn from mistakes) often fail to appreciate - any witness can be grand or dismal, it depends on them, the questions they are asked, and their answers. Any witness might support an element of a case, bolster other evidence, or utterly undermine the theme or foundation of the case. It’s entirely possible for a witness to make a case, and just as possible for them to break it.

Lawyers decide what questions to ask, what witnesses to select, what order to present their evidence, and what arguments to make. It’s a foundational, elemental, part of our adversary system that the job of the lawyer or advocate is to present the case as they deem appropriate. It is not the role of the adjudicator to interject into that process and to provide, somehow, proof that was not presented. 

Can a lawyer count on the judge to “know how things really are?“ The answer to the question, from my perspective, is simple. Lawyers should be able to count on judges to decide cases based on the law and the record evidence. Lawyers should be able to count on judges to leave their biases, predispositions, and prejudice at home. Lawyers should be able to count on an impartial, consistent, and persistent bench. No, a lawyer cannot count on judges to go looking for facts and evidence that have been omitted by the lawyer (see Sleuthing Addressed Again). 

Judges should likewise be able to count on lawyers to bring their best case. They should be able to count on lawyers to be prepared, informed, articulate, and concise. Judges should stay in between the lines ("stay in your lane") and let the lawyers try their case. If the lawyers fail to bring the evidence their side needs, that may work to the detriment of their client, but is simply not the judge's (the impartial arbiter) role to fix such shortcomings. There is no way for a judge to know why some evidence was not brought, it may not exist, it may be perceived as too risky, and the strategy may not be clear. 

The judge and the lawyers each have a unique and important role in the litigation process. Each should be able and willing to perform their role, while confidently trusting in the other to do the same. No, Mr. Middlemier, you cannot count on the judge to make assumptions, go in search of fact, or make your case or defense based on what she/he "knows," has heard in other cases, or might assume. It’s not the judge's role, and it demonstrates nothing but a decision on the lawyer's part to perform their role.

Booms and Busts

There have been times in the course of human events when economies contracted. Certainly, it has happened on a national level, but many more times on a local example. Nationally, most will remember the "great recession" in 2007-09. Investopedia instructs that there is no standardized definition for "depression" versus "recession." Interestingly, it notes that the "recession" label for this particular downturn results from "a near consensus among economists." For more on the implications of consensus, see Consensus in the Absence of Proof. In a nutshell, we are prone to find some persuasion in the collective agreement of the purported experts. 

Merriam-Webster online defines "recession" as a "period of reduced economic activity," and "depression" as "a period of low general economic activity marked especially by rising levels of unemployment." So, perhaps unemployment is critical to a distinction. However, unemployment exceeded 10% during the "recession," according to Pew Research. 

President Harry Truman had a little different definition for the two terms. He proffered:

"It's a recession when your neighbor loses his job; it's a depression when you lose yours."

I have heard similar sentiments in various contexts, such as it is a shame when your neighbor's house is hurricane damaged, and it is a tragedy when your own house is. These examples suggest that there is some potential element of direct effect, or impact, that contributes to our own personal perception of both recession and depression.

There is a history in the world of various "booms" and "busts." When some resource or enterprise develops, that attracts people. Enterprise can find its niche and will then require a variety of skills, talents, and efforts to persevere, grow, and succeed. Businesses and industries grow, fueled by the propensity of consumers to demand particular goods or services. 

Many are comfortable from high school history with their understanding of the 1848 California Gold Rush. According to Britannica, about 300,000 people poured in from around the world to seek their fortune. Towns were born, grew, and prospered in the support of such efforts. But, as the returns diminished, the rush largely subsided. Towns declined, and some even failed. On a local basis, communities devolved through recession and into depression.

The gold rush is not the only example: another notable instance is the copper rush in Michigan beginning in 1840. According to the Detroit Free Press, mills were built and towns sprung up around them. People built houses, started various businesses, and economies of the small-town America flourished. However, some of those towns have now diminished. The article cites one example where the town is now "just a brief interruption in a corridor of trees along a narrow highway."

There are a variety of examples that can be cited. Travel.com cites various examples that are in the throes of demise. In some instances, some event or depletion can be identified and blamed. But, as I have traversed this continent, I have happened upon a great many crossroads and wide spots that piqued my curiosity. Along some byways in the countryside, I have happened upon large, boarded, and posted, facilities. They raise my curiosity. What was manufactured here? Who was employed here? What happened to change these circumstances? Where did everyone go?

Does it have to be a town? Absolutely not. Brands have similarly evolved. in 1886 a fellow started a mail-order watch company (for the younger generation, this was a device worn on the wrist or kept in the pocket that assisted with knowing the time of day before the cell phone was invented). That little shop evolved into one of the largest retailers in the world, Sears Roebuck and Co. It was America's largest retailer until the 1980s. Stores were built, catalogs were printed (an ancient form of web page that was printed on paper and mailed to people), customers were developed, and yet times changed. New paradigms and developments evolved, and somehow someone else built what the market found to be a "better mousetrap." 

More recently, some will remember the unheard-of innovation of watching what you wanted when you wanted in your home. Yes, in the 1980s we saw the birth of recorded programming, and stores popped up in every community. One, founded in 1985, was called Blockbuster Video. These stores were lined with shelves; each covered in VHS tapes (magnetic, upon which programming was recorded). Imagine a Redbox that was not automatic, and which you could walk inside of. We went, we browsed, we rented, and we watched. We often failed to return them timely, and we paid late fees. Then came Digital Video Discs (DVD). Then came on-demand movies and glacially slow downloads. Then came broadband, and streaming, and low and behold the demise of Blockbuster. Well, almost, there remains one store out there. 

Is it interesting that these examples have come, prospered, and gone? Note that the vast majority of them have not enjoyed some intervention of the government. Certainly, there have been examples of local governments striving to support some enterprises in hopes of retaining jobs and related economic activity. But did the federal government step in to save Brewster, Florida? No. Did it step in to save Sears or Blockbuster? No. The national government in no way stepped into those municipalities or businesses as their protector. Booms and expansions in those micro-instances slowed and eventually ground to a halt through exhaustion of resources (natural or human or imagination). 

Is any of this really different from the Industrial Revolution, the advent of steam power, and the rapid diminishment of agriculture-related labor needs? As the industrialized, and later corporate, farmers gained sophistication and leverage, there was a displacement of the family farm, and its umbrella sustenance. Farmers' children and other young people departed the farm labor life for urban venues; families consolidated land, and often split with some portion of the family moving outward in search of larger land holdings – or some other opportunity for sustenance and a chance to compete.

Today, we similarly see booms. Amazon only began in 1994. Google started in 1995. Tesla started in 2003 and then became the most valuable car company in the world. The market-influencing leaders of today barely existed 25 years ago. As they have experienced a boom, other businesses have declined. 

All around us, there are modern-day "booms" similarly evolving before our eyes. They are changing how we consume, what we consume, and even where we consume. As a society and individuals, we are shifting and growing in our acceptance of change. Producers and servicers seem persistently shifting to meet both our demands and the potential competition presented by other businesses intent on shifting some portion of the market in their favor instead. We see grocery delivery and even "meal kits," massive online catalogs of goods, and sophisticated marketing efforts directed at our consumption. 

What businesses will survive and thrive? Some scholars suggest that time is the real test. Gary Hoover recently wrote "The Three Greatest American Companies of All Time." Might we guess which he selected? Are they the companies mentioned above? No, they are: "Pennsylvania Railroad from about 1870 to 1920, General Motors from about 1925 to 1975, and IBM from about 1930 to 1980. He demurs regarding alternatives such as "Apple, Google, Microsoft, and" others; he notes as regards those that "a company can appear great and permanent one day and be gone, transformed, or acquired not long after." (See above re Sears, Blockbuster, etc.).

Note that it is the General Motors of the last century, not the General Motors of 2009 that drove into bankruptcy. The General Motors of the last century was many brands (Buick, Cadillac, Chevrolet, GMC, Oldsmobile, Pontiac, and after the 1975 date cited by Mr. Hoover there was Saturn and Hummer). There was a time when it was said "GM is too big to fail," and that "as GM goes, so goes the country." 

This enterprise, to some, defined us. When the Great Recession knocked, the country answered and bailed out the enterprise. Todd Zywicki wrote an intriguing piece about the interrelationship of business and government. Some will perhaps see that as "big business," but might find some interest in the Cares Act response of government during the last administration. The federal government, in various instances, was perceived as flooding a marketplace with funds. Is there room in modern America for the "rule of law" in any event?

The fact is that evolution and even revolution is continuous and persistent. As workers' compensation faces the future, it must be with recognition that the workplace and workforce may likewise evolve and change. Employment may not mean the same as it means today in 20, 50, or 100 years. Your descendants may look back with some degree of mirth at the "backward radio phones" with which we were so enamored. We may ourselves look back in shock at how enthralled we once were with self-service food kiosks, in the same way we currently laugh at the "automat" of the 1950s (If you remember automats, let me remind you it is likely time to take your medicine). 

The point is that labor is a livelihood. Regardless of what we do to earn a living, there must be value in what we do. That is not merely value to us (fulfillment, self-actualization), but value to someone else such that they will consume our labor. The same remains for companies that must similarly deliver value to their customers. When we (personal or enterprise) fail to deliver that value, it is probable that some competitor will entice away our customers. They will peddle some innovation, perspective, or pitch that promotes their value over what we are striving to deliver. In effect, any one of us (individually or collectively) could be the Google of today or the Blockbuster of tomorrow. 

The workers' compensation community ("industry" if you must) will have to continue to evolve and grow. This concept of counterbalancing benefits and burdens for both employer and employee will have to accept that markets change, businesses change, consumers change, and preferences change. It will have to remember that some changes may make big splashes, but subside rather rapidly while other changes may be more seemingly permanent. This community will similarly need to remain conscious of its value and how it can continue to be relevant, to deliver value, or those constituencies may similarly find some relevance in someone else's innovation, perspective, or pitch. There may be comfort to some in the legislative process, but the voters in California recently provided cautionary notes about the people getting what they want. (See The Gig of Participatory Democracy). 

Will the "gig" economy continue to thrive and expand? Will "sticks and bricks" retail ever return to primacy? Will we ever return to movie theaters when the "great pandemic of 2020 (or will it be 2019)" subsides? Will telecommuting persist post-COVID and offices shrink? Will technology bring us other evolutions and changes that we cannot even yet predict or perceive? Where will there be booms, busts, expansions, contractions, false starts, and whole new races?

In 2016, an ambitious effort was undertaken to focus this community on where it is and where it might go. This directed analysis to where workers' compensation started, how it has evolved, and what might be next. The discussions lamented the fallacy and irrelevance of the National Commission in the 1970s. We questioned where are the challenges, or the vestigial tails? As we embark on the second decade of the new millennium, the time has likely come to pursue this conversation again. Whether in some formalized setting, or over a coffee at the annual Workers' Compensation Conference, it is time for critical thought and open discussion about how this community can and should evolve to remain vital, relevant, and purposeful. 

Will the national government become involved in the world or workers' compensation? If so will that be in riding to its rescue like General Motors, or regulating it into submission? These questions were on seemingly every tongue in 2016, but a great many abandoned their interest thereafter. A select few realized and voiced, even then, that there is already federal involvement, look no further than the Medicare Secondary Payer Act. While it is not an explicit effort to impact workers' compensation, it is significant in that way nonetheless. Will government become further intertwined in this community, purposefully or not? 

What will we see in the world of employment? Will the seemingly growing infatuation with, the revival of, socialism and communistic governance render workers' compensation antiquated and redundant? Will the micro-capitalism of self-employment, gigging, and self-determination render workers' compensation irrelevant? Will any or all of these potentials be booms or busts? As a $40 billion per year industry (approximately), is workers' compensation "too big to fail," or will it become some footnote in history to be studied and examined? Will the federal government play a role, will state systems evolve or decline?

The conversation continues. What will you contribute to the discussion?

Consensus in the Absence of Proof

Can consensus be a substitute for science? In America, we are persistently encouraged to "follow the science." And, there is a great deal that we have academically accepted through science. To be clear, the scientific method is one of hypotheses, "a tentative assumption made in order to draw out and test its logical or empirical consequences," according to Merriam-Webster. The scientific method is also defined by Webster:

"principles and procedures for the systematic pursuit of knowledge involving the recognition and formulation of a problem, the collection of data through observation and experiment, and the formulation and testing of hypotheses."

In essence, the scientific method is founded upon assumptions or predictions. Those assumptions are then challenged through experiments or other analysis that generate and collect data. Data is "factual information (such as measurements or statistics) used as a basis for reasoning, discussion, or calculation." 

It is a relatively simple process in essence, though particular experiments may indeed be complex and challenging, as could be various hypotheses used as foundation. It is often so simple, however, that we encourage children to both accept and practice the process. Through this method, there is a requirement that facts and data support conclusions, that opinion is founded thereby or supported thereby through data. There is an inverse corollary that holds, however, that "the absence of evidence is not evidence of absence." So, when there is no evidence to conclusively support or discredit a particular hypothesis, some struggle with either adopting or decrying that initial assumption. Science, at times, may appear somewhat inconsistent in that regard. 

That many educated people believe the same thing does not make their conclusion science. In the absence of evidence, some might contend that science does not answer some question we may have. Some, in the absence of science, see their consensus or group agreement as supportive of their conclusion, but that does not make it science. In the absence of science, we are provided instead with consensus, that is the collective opinions of smart people, melded, combined, and restated until most of them can agree with some conclusion. 

Michael Crichton is an author and filmmaker by fame, with credits for The Andromeda Strain and Jurassic Park. He is also a medical doctor, lecturer, and teacher. It is fair to say that he has a scientific background. He is quoted addressing the challenge of groupthink, that is consensus. 

"the work of science has nothing whatever to do with consensus. Consensus is the business of politics. Science, on the contrary, requires only one investigator who happens to be right, which means that he or she has results that are verifiable by reference to the real world. In science consensus is irrelevant. What is relevant is reproducible results. The greatest scientists in history are great precisely because they broke with the consensus."

Nicolaus Copernicus struggled with the science of the world into which he was born. He struggled in an environment in which Aristotle, Ptolemy, and others simply and absolutely knew the earth was the center of the universe. Copernicus brought us the theory of a heliocentric system, and that was eventually published. His works formed a foundation for later study by  Galileo Galilei, whose study did not always sit well with the establishment or the consensus. There have been more than a few scientists over time who challenged the "groupthink" of consensus. 

Outside of the specifics of science, there are other warnings about consensus. Psychologists have defined a thought destination called "groupthink":

"Groupthink is a phenomenon that occurs when a group of well-intentioned people makes irrational or non-optimal decisions spurred by the urge to conform or the belief that dissent is impossible. The problematic or premature consensus that is characteristic of groupthink may be fueled by a particular agenda—or it may be due to group members valuing harmony and coherence above critical thought." 

Various business writings over the years have warned of the perils of groupthink on the management process. There is a danger perceived that the absence of critical thought and challenge can lead an entity into error or even destruction. The idea is not new. In 1837, Hans Christian Anderson penned the parable "The Emperor has no Clothes." It has become a children's tale. But, it is one that we might all perhaps be well advised to strive to return to periodically as a reminder of our own perils.

It is particularly interesting when people have discussions about differing opinions. Despite them being opinions, some people accept their own as facts. They will defend them as science, despite the absence or paucity of evidence. They will accept them as science, despite them being merely consensus. And, despite this, they are some of the most eager to urge others to "follow the science." A fair few will next (or instead) leap to invective, abuse, or insults as a method of winning friends and influencing people. Some are even surprised when their venom fails to persuade.

The fact is that we see the perils of groupthink outside of science; it persists outside of business, even in professions like the law. A good example is the long-held belief that Florida's Supreme Court had the authority to make rules for the administrative practice of workers' compensation. See Statutory, Inherent, or Delegated. For decades, the highest Court in Florida encroached on the Executive branch. Back in 1977 Justice England dissented and explained a different perspective, but it did not persuade. Not until 2004 did the Court end its involvement, recognizing "nor has this court ever had the constitutional authority . . .." Essentially, when smart lawyers believe a thing long enough, or if enough people believe something, there is a tendency for groupthink to permeate and influence the whole of some subject, like workers' compensation or even astronomy. Group think is demonstrable and in it, we might perceive danger. 

In our world, there remain determinations that elude science. There are questions that we are not yet up to answering. In the absence of science to address our curiosity, there is some potential or even probability for consensus to step into the resulting void. That is not necessarily inherently inappropriate. It is perhaps appropriate, when dealing with a challenge, to turn to some population whose experience, training, and education perhaps enhance appreciation for, or comprehension of, a topic. Those with such a foundation may be better postured to form opinions about issues. That said, what they provide us will remain "opinion," or even "consensus," and not necessarily "science," per se. In the absence of evidence, some might argue that a more appropriate entreaty would then be to "follow the consensus."

Consensus has, since the 20th century become a systemic pursuit. Among others think tank organizations such as the Rand Corporation have brought us "group think" consensus tools. Those have become accepted and adopted in pursuit of various questions. One of the more favored is the Delphi method, in which: 

"a group of experts . . . anonymously reply to questionnaires and subsequently receive feedback in the form of a statistical representation of the "group response," after which the process repeats itself." 

With no accountability for a particular opinion or foundation, anonymous contributors repeatedly pass around a belief until they refine it into a consensus. 

The potential failures of consensus process and groupthink are numerous. The Houston Chronicle cites examples such as America's "failure to anticipate Pearl Harbor." Entrepenuer.com cites a variety of examples including airlines, the American automobile industry, and more. These stories of groupthink, and its perils, return time and again to the concept of consensus and agreement. There is a tendency "to go along to get along." Anyone who remembers bell-bottom jeans, seances, streaking, and worse will recognize the potential for peril in group think. Remember when your explanation for some activity was all your friends were doing it, and your mom asked "If ________ jumped off a bridge would you . . . ."

We stand, as a community in workers' compensation, on the threshold of history. The first 100 years of this socialistic experiment lie in our wake, and the future is spread before us. We are confronted with a variety of supposed challenges. Industry experts warn us of perils, threats, and changes to work, the workforce, and the very concept of employment. Seemingly, these systems are persistently confronted with someone's perception that the challenges of today are somehow perceived as distinct or separate from what this system was designed to address, and has evolved to address. 

Certainly, innovation and evolution may bring new challenges. There may be distinctions, for example, between the 1918 influenza pandemic and COVID-19. Or, I suggest, there may be a great deal of similarity between them as well. As we reassess our world, community, and industry in 2021, I would suggest that we must all remain cognizant of the challenges of "group think," and the rallying cry to follow the consensus. 

Admittedly, consensus is not inherently a bad thing (collective thought may spur conversation and enhanced conclusions). But, let us not forget George Orwell and his warning "Some ideas are so stupid that only intellectuals believe them." Many years ago, I saw an advertisement in a national publication paid for by United Technologies: "When forty million people believe in a dumb idea, it’s still a dumb idea." Think on that one. Everyone in agreement is not necessarily confirmation that belief is sound or appropriate. Failure to encourage or support dissent is perhaps accommodating and peaceful, but is it productive? Consensus may result merely in all of us blithely thinking someone has new clothes, which are actually something else entirely. 

It is appropriate that we take stock on our past performance, which is common as the years end. We can make plans and goals for workers' compensation in the next year, decade, or millennium. However, let us not confuse consensus and science. Let us be honest with ourselves about the problems or distinctions, and whether our solutions are actually remedies or merely paths to substitute problems. Part of that may include questioning whether proponents of any particular solution have a personal interest in the "latest and greatest" innovation that it involves. Part of it will involve careful and respectful attention to those who would dissent and disagree. Regardless of one's (dis)agreement with the dissenter, listening will make us each think. 

And, if you are inclined to disagree with me on these points, please consider first that forty million people already agree with me. Does that influence or persuade you? Would it help if I told you that four out of five dentists recommend this post for their patients who read posts? Of course, doctors (scientists) once were perceived as similarly endorsing smoking also, not through or based upon science - consensus (likely not that either). Let's each ask ourselves periodically if the emperor has clothes. 

If we are told of some outcome proposal or process change, let us ask if there is proof (science, math) to support that, or whether it is merely consensus. Let's be skeptical of the consensus and challenge whatever foundations are purported. Before we turn to consensus, maybe we can find a methodology for gathering data, such as a trial or test of such proposals. If we see success from such experiments, should that make us more accepting of their premise? Let's ask ourselves whether the method of consensus is relevant to us in deciding whether we go along with those four dentists. 

In the meantime, if no one would be offended, I would like to hear from that fifth dentist. She/he might be the next Copernicus or Gallileo. Maybe it would do us all some good to hear from the so-called heretics and to give them an honest listen, regardless of whether their conclusions make us uncomfortable? Perhaps the next Louis Pasteur walks amongst us, ignored and unheralded. Groupthink and consensus may be diminishing her or his impact today. If we are truly concerned and interested, we will take the time to hear dissenting voices, consider their merits, and struggle against "we have always done it this way" arguments of great consensus. 

Will we look back one day and award her/him, that "next Louis Pasteur" we have ignored, some posthumous recognition? Or, shall we open our minds today and think for ourselves about the real science, that has proof and support of method and experiment beyond the group think? How we each choose to receive and consider information remains up to us. Whether we have the integrity to consider dissenting thoughts and new ideas is up to us. Our propensity to either run with the herd or consider being a maverick is our decision. 

Maybe remember Albert Einstein's suggestion: "The person who follows the crowd will usually go no further than the crowd." Where will you end up? Will you lead this industry to greater performance? Will you buy into the groupthink of lemmings (no, they do not commit group suicide), but they also do not "fall to the earth like rain" as consensus once suggested. No, they merely travel in herds assiduously sticking to the groupthink that I am suggesting we might perhaps validly question. What can we do better?

 

Repose and Stare Decisis in Kentucky

The Kentucky Supreme Court recently decided Calloway County Sheriff's Dept. v. Woodall, Case No. 2018-CA-1509. This is an interesting decision regarding the provision of workers' compensation benefits, time limitations, and survivors. 

The worker, Mr. Spillman, suffered a motor vehicle accident in 2007. He was later awarded permanent indemnity benefits in 2010, and additional benefits were awarded in 2013 ("the remainder of the 425 weeks that he was entitled to"). Thereafter, he underwent surgery, suffered a complication, and died in January 2017. The worker's wife (Woodall) and daughter "were named co-administrators of" the estate. 

The workers' estate moved to "re-open" the workers’ compensation claim, and sought some benefits, while the wife also sought additional "income benefits," on her own behalf. Both categories of benefits were denied at trial. The Board (in Kentucky, the first level of review is an executive-appointed Board) affirmed the trial judge on one category (denial of benefits to the estate), but reversed on the other (death benefits to the spouse). The parties sought further review and "the Court of Appeals affirmed the Board on both issues." That decision led to the Supreme Court review. The Supreme Court likewise concluded that the death benefits to Ms. Woodall were appropriate. 

In an interesting argument before the Court, the widow argued that the employer did not "preserve" the argument that the case would have to be reopened in order for benefits to be paid. She argued that to preserve that argument, the employer would have to appeal the trial judge’s ruling in its favor (cross-appeal). The Court dispelled that argument. It explained that a party that prevails at trial is allowed to argue in support of affirming that trial determination, with no requirement that it first file its own appeal of the trial outcome.

The employer's argument in seeking Supreme Court review was the assertion that "a widow cannot claim death benefits after the deceased’s 425 weeks of PPD benefits have been paid in full." This would require "reopening" the case after it had closed through the exhaustion of those benefits due to the injured worker. In its defense, the employer sought to "retroactively" apply a statute passed in 2018 to preclude this reopening. It also argued that the widow's claim was time-barred. 

The Court affirmed the re-opening of the case for further benefits to the estate. However, it explained that a widow has rights to death benefits independent of the benefits due the injured worker, and thus she may file a claim in her own behalf as she did here. These are pursuant to KRS 342.750. These benefits include such specific periodic "widow or widower" benefits as well as "a lump-sum" payable to the workers' estate which includes "cost of burial" and other benefits. This lump sum is specifically limited to instances in which death occurs within four years and is “a direct result of a work-related injury.”

The Court concluded that this four-year limitation applies to the estate, by its specific provision. However, that does not apply to the other widow or widower benefits. This, it said, is clear from the “statute’s plain text.” The Court interestingly relied upon dicta in an earlier decision, Family Dollar v. Baytos, 525 S.W.3d 65, 72 (Ky. 2017). The Court notes that the case was not about this legal question, but that it was nonetheless “addressed” in that case: “albeit in a footnote as it was not material to the Court’s decision.” That is an interesting concession as regards the nature of dicta. Often courts refer to such prior expressions not required for the determination of some case as "dicta" and instruct litigants that such is not controlling of the outcome of future cases (stare decisis). 

The Court explained that in both the precedent (Baytos) and the current claim under review, the benefits due to the injured worker had been “closed.” In Baytos, that was through a settlement and release, and in Woodall through exhaustion of the entitlement to benefits. It described no distinction in how the closure had occurred. The Court explained that regardless of how closure occurs, it did not preclude the independent claim of a person entitled to death benefits.

The Supreme Court therefore affirmed the appellate court’s remand of the case to the trial judge for determination of entitlement to those independent death benefits.

The Court also addressed the estate’s contention that the four-year limitation was unconstitutional. The estate contended that this constraint violated the Equal Protection Clause. The purpose of that clause is to “keep[] governmental decision makers from treating differently persons who are in all relevant respects alike.” In this instance, the estate of someone who passes more quickly (within 4 years) is treated differently than someone whose death occurs after a more extended period. 

There is a delineation in Woodall of the “standards of review” that are applicable in such constitutional challenges: “strict scrutiny,” “heightened scrutiny,” and “rational basis.” It is worthy of review in this context alone. The Court explained that “[w]orkers’ compensation statutes concern matters of social and economic policy.” Therefore, generally, the “classifications” found “within our workers’ compensation statutes only need to satisfy rational basis review” (the lowest standard). In order for such a classification to be constitutional, therefore, it need only “be rationally related to a legitimate state interest,” (federal), and “supported by a ‘reasonable basis’ or a ‘substantial and justifiable reason’” (state).  This is the lowest of the standards, the "rational basis."

This illuminates the potential periodically discussed regarding statutory benefit distinctions across the country. In various contexts there are questions about the manner in which state’s presumption statutes exalt various roles and occupations, providing disparate treatment in their favor for specific diagnoses or conditions, based upon such arbitrary classifications. The Court’s explanation may lead some to conclude that the potential for success in any challenges to these presumptions is dubious. Others may contend that the placement of such benefit distinctions in other state statutes, outside of workers' compensation but affecting those benefits, might make for an equal protection distinction. 

In Woodall, the Court rejected the argument that there is no “rational basis” for treating workers’ estates differently based upon the passage of time (4 years). It concluded that this limitation is rational as it “serves to bar stale claims, which provides stability and foreseeability to claimants and employers alike.”

The Court took the opportunity to again explain misconceptions regarding time limitations. The employer in Woodall argued the statute should be upheld as it is akin to a statute of limitations. The Court patiently reiterates that this time limitation is not such a limitation. Such “limitations limit() the time in which one may bring suit after the cause of action accrues.” These prescribe the period during which a claim may be made. Conversely, “a statute of repose potentially bars a plaintiff’s suit before the cause of action accrues.” That is, the passage of four years forecloses the entitlement to benefits even though the time to file a claim cannot even begin until that death occurs. The limitation on the lump sum in this instance, the Court concluded, is a statute of repose. Those who practice law would do well to strive for a stronger understanding of the distinction between repose and limitation. 

Reiterating prior precedent, the Court reminded that it has regularly upheld the constitutionality of repose “provisions in the workers’ compensation scheme.” The Estate argued that a prior decision, Vision Mining, Inc. v. Gardner and Parker v. Webster Cty. Coal, LLC, 529 S.W.3d 759, 770 (Ky. 2017) compelled a different result. The Vision decision is discussed at length in Equal Protection in the Bluegrass State (July 2018).

However, the Court concluded that the repose provision here, “the four-year limit” does not apply differently based upon the classification of the worker, but “applies equally to all injured workers.” The Court thus found no constitutional infirmity.

The Court noted also that some have “muddled” distinctions and categories as regards constitutional analysis in Kentucky. There is precedent cited in Woodall in discussion of category or classification distinctions, and some confusion in the state’s decisions regarding federal and state constitutional constructs. It seems to conclude that use of terminology, and “short-handed” references to “special laws” may have led over time to misconstruction and misconstruing. There is, in this, some suggestion it seems for careful use of words in both litigation and legislation. The decision conducts an intriguing and lengthy tour of Kentucky constitutional determinations dating back to the 1800s, and the state’s achievement of statehood. The history lesson alone is worth reading the full 26-page decision.

The Court’s outcome is unanimous (all agree with the result. However, Justice Keller wrote a special concurring opinion which itself continues another 19 pages. Justice Keller takes exception to and expresses “strong disapproval of the majority’s decision to purge sixty-five years of our jurisprudence in this area.”  This is a defense of stare decisis, a topic previously addressed in this blog, as regards Kentucky. See Stare Decisis, Goodgame, Livingood, and Westphal (October 2015)

The concurrence is focused upon the Court’s discussion of “special laws.” The opinion cites the “universal disapproval of every person in Kentucky,” an intriguing characterization, and suggests that “the inequality of laws so passed had produced the grossest of wrongs,” such that “the demand for a change on this subject was absolute and universal. It is perhaps difficult to imagine any legislative question upon which any state's populace is in unanimous agreement. Justice Keller describes the effort to curb such “special laws” as a “primary motivating force behind the enactment of the new Kentucky Constitution of 1891.”

Its “primary purpose” was “to prevent special privileges for those with wealth and power sufficient to sway the Assembly and to ensure equality under the law.” In that regard, Justice Keller suggests an obligation of “courts to analyze such legislative actions when undue privilege or discrimination is alleged.” That should begin with “the plain language of the applicable provisions,” but the Justice advocates should extend beyond “to determine if the provisions fail to operate uniformly.”

Justice Keller accuses the majority of “dismantling” Kentucky’s “longstanding test for special legislation,” and asserts that step is unnecessary to the resolution of the dispute in Woodall. There is insinuation of inconsistency, with Justice Keller citing the Court’s recent rejection of similar “dismantling” in other contexts.

Justice Keller’s concurrence is an interesting reading. It includes the admission that “stare decisis is not inviolate or inflexible and it does not require the perpetuation of error or logic.” However, it takes issue with the methodology of the majority, and an apparent perception that the decision in Woodall moves the law in Kentucky without need and without some conclusion that “such rules have shown themselves to be “unworkable or badly reasoned.” Justice Keller does not find in Woodall “an urgent need to move from one rule of law to another,” and thus rejects the majority explanation as regards “special laws.”

In all, it is an educational opinion of the Court from several perspectives. Those who would practice in the challenges of workers' compensation benefit constraints, the constitutional challenges of equal protection, or the challenges of "special laws" could find instruction and insight here from various perspectives. The decision is worthy of consideration. 

 

 

COVID-19 in Florida, A December Update

The Florida Division of Workers' Compensation began tracking the incidence of COVID-19/SARS-CoV-2 last spring. It provides monthly updates of the manner in which allegations of COVID-19 diagnosis or SARS-CoV-2 exposure are being made in the workplace in Florida. There are other states doing similar survey reporting, California among them. However, none is doing a better job of keeping the ongoing situation described and reported. 

This blog has striven to provide analysis and update on that data periodically. The following provides links to both the various reports (left) and the blog posts which address each (right). 

Report June 2020 – COVID-19 in Florida Claims

Report July 2020 – Florida COVID Claims June

Report August 2020 – COVID Florida Filing Update August

Report September 2020 – Florida COVID September

Report October 2020 – COVID-19 in Comp

Report November 2020 - COVID Update November 2020

Report December 2020 - 

Analyzing the November Division report, I noted that the media and pundit predictions of increased prevalence had not materialized the prior month, noting the "568 new COVID-`9 work injury claims in October 2020 was the lowest since February." That result is antithetical to many, and in conversations since, I have had people express their surprise that the work-related reporting was so low that month. I also noted in COVID Update November 2020 that the reports for "exposures" that month should be expected to grow, and the December report proves that prediction. The total for October was reported in the December report as 1,316. 

The November "exposures" reported in the December report were 1,016 (note that with an "occupational disease," the exposure is used as the "date of injury," or "DOI." It is the "accident date" equivalent for disease allegations). Thus, in the next immediate month (November report), the October "accident dates" related to COVID were only 568. In the next immediate month (December report), the November "accident dates were significantly higher, 1,016, but not double that. Frequency, one might conclude, increased some in November. 

However, in the December report's most up-to-date figures, the prevalence or frequency of reporting COVID-19 diagnosis in each of September, October, and November are notably lower than in any month from March through August 2020. Any focus on November alone should include consideration of the marked decrease in prevalence since August 2020, and that this trend of moderation in work-related exposure allegations appears to persist for now. 

As an aside, the end of 2020 brought an end to some provisions of federal aid to those impacted by COVID-19, but others were extended. There are those in the workers' compensation community who suggest that there is some level of suppression in the reporting of COVID-19 diagnoses as the alternative federal benefit safety net provisions, particularly the expansion and compensation of Family Medical Leave, provide(d) supplemental welfare support in a paradigm that does not present evidentiary issues that may be present in workers' compensation. That perspective perhaps bears consideration and discussion.

The December report notes that so far, there have been 25,784 claims for Florida work-related SARS-CoV-2 exposure resulting in the diagnosis of COVID-19. The Bureau of Labor Statistics reports that there are 9,384,918 people employed in Florida. The total reported "lost time" claims, 25,784, amount to about .3% of the working population. Thankfully, though the number of diagnoses in the state continues to rise, the prevalence of workers' compensation has not kept pace. The New York Times reports 1.5 million Floridians have been diagnosed with COVID-19, out of 21.5 million residents, a frequency to date of about 7%. 

The total benefits paid on those 25,784 claims is $46,165,960, which is a significant amount of money. This total is about 7.6% of the overall total benefits paid on all 2020 workers' compensation claims in Florida through the end of November 2020 - $604,065,335. Consistent with the trend demonstrated in prior Division COVID-19 reports, and discussed previously in the blog posts linked above, the financial expenditure ratio of COVID-19 to "all" is markedly inconsistent with the total "claim count ratio" that compares the number of COVID-19 claims (25,784) to the total reported work injuries 83,259 (31%). Thus, the COVID-19 reports represent a far more significant portion of overall claims (31%) than their portion of costs/expenditures (7.6%). 

In plain English, there are a significant number of COVID-19 claims, but their overall cost is far less significant in total and on average than other work injuries occurring in 2020. 

This is also illustrated in the Division's breakout of claims into financial categories. As described in previous posts, there is a trend demonstrating the vast majority of COVID-19 claims result in expenditures of $4,999 or less. In the December report, the frequency in that category is 24,380 (94% of the 25,784 total). For those 94% of claims, the payment total has been $17,079,409, an average of about $700 per lost-time claim. With the cost associated with a single physician visit being at least $70.00, this average is notably low. 

Similarly consistent, the volume of more financially significant claims is relatively small: fifty thousand through ninety-nine thousand dollars (51, or .20%); one hundred thousand through two hundred forty-nine thousand dollars (33, or .13%); two hundred fifty thousand through four hundred ninety-nine thousand dollars (12, or .05%); and, over five hundred thousand dollars (6, or .02%). All of these expenditure-level categories combined only account for .4% (102) of the total reported COVID-19 claims. For those 102 claims, the average expenditure is about $167,332. Thus, while there are various very serious lost-time COVID-19 claims, they are a very small minority of the overall picture presented at this time. 

These November conclusions in the December report are likewise generally consistent with the trends demonstrated in the prior reports. The preponderance of such COVID-19 claims (11,186, or 43%) were identified as from Dade, Broward, and Palm Beach counties. If the "not indicated" (no county reported to the Division) are included, those four designations account for 12,796, or 49% of the statewide total (25,784). There is support for the conclusion that the work-related allegations are predominantly in southeast Florida. 

A similar conclusion can be supported regarding the propensity in more urban areas. Including Duval (1,055), Hillsborough (879), Pinellas (856), and Orange (1,037) in that calculation with the four designations above (Dade, Broward, Palm Beach and "not indicated"), results in a total for the eight designations of almost 65%, two-thirds, of the Florida totals. The other 59 Florida counties simply do not illustrate the volumes seen in these urban areas such as Miami (Dade), Ft. Lauderdale (Broward), West Palm Beach (Palm Beach), Jacksonville (Duval), Tampa (Hillsborough), St. Petersburg (Pinellas), and Orlando (Orange). 

The total frequency of lost-time claims in the lower half of the list of Florida counties (the 34 of 67, or 51% of counties), totals only 1,805 of that 25,784, or about 7%. The lower two-thirds (45 of 67, or 67% of counties), total 3,812, or about 15%. The distinction between rural and urban is notable and distinct. 

The news, in a nutshell, is that the December report does not bring indicia of significant change in the COVID-19 picture in Florida workers' compensation. The data suggests that the financial implications remain consistent, as do the moderate frequency of reported claims in the three months ending with November. The time is currently ripe for the Division's January report, which will provide better edification of the most current status. That this post has awaited its turn through the holiday season is attributable to distraction and relaxation at the end of a long calendar year. 

How the reported frequency for October and November may have changed through more recent reporting will be pertinent to review when the next report is issued. Whether the December reports in the "next immediate month (January) remain generally consistent with the overall trend of frequency moderation will likewise be of interest. 

The issue on the horizon may be the impact of various vaccinations as they become more widely available. In the current phase of deployment, their primary effect will be in the "first responder" populations. There were early reports of less than pervasive participation rates in some populations. There have been some anecdotal stories of vaccine fears or anxieties. People are striving to make individual decisions about their willingness to vaccinate. However, the vaccination impact on the workplace will be muted in the first phase, as it is limited in some degree to these first responders and older workers. 

Other than the medical community and first responders, the other eligible workers in this first phase will be those over 65 years old. The volume of Florida residents over 65 (the current vaccine parameter) is only 20%. The vast majority of Florida's working population will thus continue to await their turn for the vaccines. Until the time arrives when the vaccine is more widely available to working Floridians, their impacts will perhaps not be apparent. It may take several months of vaccination in broader occupational and chronological categories to illustrate the impact on the prevalence of COVID-19 in workers' compensation. 

Perhaps another issue to be observed will be the potential for work claims related, instead, to the vaccine itself. Some marketplace pundits are already expressing opinions as to whether an employee reaction to such a vaccine would itself be a compensable workplace injury. There are some who believe that this question will turn to some degree on whether such vaccination is or is not employer-mandated. There is also discussion in that regard of the "reasonable accommodation" of the Americans with Disabilities Act and other such laws in the event an employee demurs the offer of inoculation. And, there is a discussion of the employer's liability for the cost of the vaccine and missed work for that shot, should they elect to require inoculation.  

What is certain, perhaps, is that interesting times continue to lie ahead. The reader is reminded of the potential for "long COVID" discussed in COVID-19 in Comp - October Update, and  COVID Update November 2020. The evolution and progression of the impacts of this virus have many potentialities worthy of monitoring. Furthermore, the recent appearance of "variant" strains demonstrates perhaps that the virus itself has yet to complete its cycle of evolution. There are those who felt 2021 would bring closure; mine will be a voice of caution - there may remain much to require our attention this year. The world of workers' compensation and safety may need to continue to devote significant time and resources to COVID-19/SARS-CoV-2 as we progress through this new year.