Is there Repair?

One might wonder at the mechanics of adapting to a pandemic. A recent article I read postulated that this is "the worst pandemic that most anyone living has experienced." Of course, the impact has been significant on life and livelihood. But, the Johns Hopkins data currently shows just over 3 million deaths related to COVID-19.

Most everyone alive has also experienced the impact of another pandemic that has been ongoing for almost forty years, which is a disease thought to have originated in 1920, but which became a human pandemic recognized in the 1980s. Of course, that is HIV, which has killed well over 30 million people. In 1999 it was the fourth most prevalent cause of death worldwide.  For some reason, the fund-raisers and discussions of this pandemic have subsided. It may be too easy to forget pandemics as they fade into our past.

Without a doubt, the SARS-CoV-2 virus and COVID-19 are impacting our society profoundly. Many things are more difficult. One that came to my attention last summer was the seemingly simple concept of administering an examination. When the normal time for The Florida Bar Examination approached, Florida and other states first strove to postpone. For those who have succeeded in forgetting the path we trod through this pandemic, many lived week-to-week in 2020 with hopes of the arrival of good news.

The state responses regarding a Bar Examination were varied. According to Justia, some states proceeded with such exams as scheduled, some provided alternate dates instead, some went online, and others simply decided that testing was not necessary, granting a license to practice on the strength of a diploma alone (Washington was among those, according to The Spokesman-Review; Oregon did also, according to the NCBE). According to Bloomberg, the states providing this included Utah and Louisiana. That is not unprecedented, there were times historically when various states utilized the "diploma privilege."  Over 1,000 lawyers were admitted in 2020 with such "privilege."

There was a lot of activity on social media about bar exams. Many students around the country felt very strongly that they should (1) not have to go to a public place to take an exam, and (2) should not have to wait to take an exam. When some states provided "remote" alternatives, there was also some complaint that students should not have to (3) have access to computers or the Internet, or (4) undergo the stress of a remote testing paradigm. One noted pointedly that the process, delays, and tribulations were simply not "fair." When others on social media ridiculed the "fair" statement, it soon became a finger-pointing free-for-all all. There were a handful of responses suggesting that the practice of law as a career might well provide a modicum of stress as these young lawyers move forward on their selected paths. 

In the midst of a summer of riots, some law students protested in front of the Florida Supreme Court. Some of the law students brought their mothers with them. They complained about delays and the impact on job offers or job prospects. Some complained of challenges with software selected by The Florida Bar Examiners to administer a remote bar exam. 

But, Kentucky had a different software glitch. There, graduates took a bar exam and were notified in early December of their success. The Courier-Journal reported that 15 applicants received an email informing of their passage. One was so excited that he proceeded to "send in his bar dues," before receiving a phone call about 4 days later that week informing him that "he had actually failed the exam." A "data processing error" was responsible for the misinformation earlier in the week. He expressed frustration, pain, anger, and embarrassment. The same or similar error had resulted in the opposite: three "told they had failed when in fact they had passed."

According to the Courier, the Bar Admissions apologized and "acknowledged no apology can undo the anguish and disappointment." Officials conceded that the data relied upon should have been double-checked. Politicians made public comments ("awful and unacceptable") and apparently social media participants "condemn(ed) the Office" of Bar Admissions. A law professor labeled the error "cruel and a disgrace." He argued that law students "deserve so much more" from the Bar Admissions office. 

A tragic error? Certainly. An embarrassment for officials? No doubt. An impact on the misinformed who celebrated, announced success, and focused on moving forward professionally? Absolutely. A simple human mistake? Absolutely. Those who made disparaging remarks about the Bar Admission Office, I am confident, are among the comfortable majority of adults who have never made a mistake. It is perhaps too easy for those of us who have never made an error to fault and pillory someone else when they do. And, with our access to the great broadcast capability of social media, that criticism of people in the minority, the mistake-makers, can be swift and absolute. 

The situation is troubling from various perspectives. Is there value in professional testing? Simply stated, does an examination have value in determining who may be a lawyer, a doctor, or an accountant? If there is no value, why do states utilize them in the best of times? If there is value, why would a state abandon them in troubled times? Are the perfect among us really the majority, or do we all make mistakes and errors every day? My guess is that those of us with human failings are in the majority (by a lot). I am guessing that even some law professors make periodic errors and mistakes. The pandemic added stress to many lives, of students, lawyers, professors, and likely even Bar Admission employees. It is practical to presume that stress brings with it some increase in our individual propensity to make errors. 

I heard a story recently of a motion to compel production hearing. The alleged behavior of one party looked egregious. Responses had not been forthcoming. Accommodations had been seemingly ignored. Commitments had not been kept. Despite the first blush of being contumacious, a different story emerged in the hearing. It was a story of a professional under stress, suffering life-disrupting circumstances, dealing with a myriad of unexpected and frankly overwhelming personal and professional challenges. That motion to compel was withdrawn. There was, through communication and empathy, a path to repair. You have no way to know what someone is going through until you ask and then listen to their explanation. 

As we stand on the brink of returning to normalcy, might we all admit that the last 12-14 months have been stressful? Could we acknowledge that mistakes were likely made, some undoubtedly worse than others? Those undoubtedly led to some disappointments, embarrassments, and even consequences. But our society has largely survived and we emerge hopefully stronger than we were. I commiserate with those whose professional paths were detoured, but I commiserate also with a great many people who strove throughout this pandemic to maintain a course, for themselves and others. 

There is repair. Does repair mean the damage never happened? No. We cannot, individually or collectively erase the past. But, we can come to accept it, accept both our own imperfections and those of others, and we can set out yet again a bit stronger than we were before the challenges. As we do, let us remember this pandemic and the people that it affected, personally and professionally. Though it is not yet of the HIV magnitude, it is likely to be with us for years. Though it is likely to threaten and affect less of us moving forward, let's remember that it is likely still affecting some of us. Let's try to stay off our high horses and admit that we all make errors; our focus should remain on repairing them. 

Complexity Analysis

Florida workers' compensation has made a shift to "objective medical evidence." Section 440.09, for example, uses "objective relevant medical findings" three times.  It defines 

"'objective relevant medical findings' are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing."

There are also references to "objective" elsewhere in the statute, notably in the requirements for our Florida Impairment Guides. 

I was intrigued to run across a recent article When Complexity Science Meets Implementation Science: a theoretical and empirical analysis of systems change (April 2018). It is founded upon the study of implementation in "the evidence-based medicine movement" and the underlying "straight line," or "linear" process commonly relied upon in scientific progress. That is a process reminiscent of our recent COVID-19 experience: laboratory effort, clinical trials, and then "new tests, drugs, equipment, or procedures." 

The authors describe this as a "knowledge pipeline," and concede that it has "deliver(ed) huge advances in medicine over the last two centuries." But, they warn that this linear approach is not suited to the overall complexity that is modern healthcare. Their conclusion is that for these complexities, science must adapt. Critical to the approach is a broader understanding of "systems-level behaviors" and reactions from a more macro view.

The authors are critical of the limited potential offered by this linear model (which they describe as Newtonian) because they perceive the "clinical frontlines" as resistant to change when the most successful innovations are ultimately made available. However, they are more critical of the current methodology of research funding, the propensity of various hypotheses to fail along the development pathway, and the challenges in implementation that result. They characterize the medical delivery system as "socio-technical," recognizing some element of humanistic implication, perhaps emotion, involved in or influencing the science itself. They believe these influences may come from the researchers, implementers, or consumers. The resistance and complications are multifaceted and multi-source.

They contend that a theoretical approach called "complexity science" can be applied to this traditional "implementation science" to empower "more effective" evidence-based care. They conclude that system change is possible in large and complex systems such as medical practice, but that it is dependent upon some "triggering mechanism" that may be regulatory (top-down) or participatory (market up). The authors concede that change is complicated because our medical care system is complicated with a multitude of "forces, variables, and social practices." Whether the stimulus thus comes through direction or consensus, there is potential for changes to take hold, increase in momentum, and deliver improvement on a systemic basis. 

The complexity approach recognizes of these groups and their contributions to the science: "aggregating to be more than the sum of their parts." Their contributions or influences may be of varying intensities and particularities as regards any particular challenge or solution. Thus, progress is expected to occur in an environment of "variations, multiple pathways, unanticipated processes and results, and exhibit conflict between stakeholders." The participants and their humanity create and perpetuate uncertainties in substance, process, and pace. The seeming chaos of the human condition, coupled with the dynamic of both involved individuals and groups, thus makes progress somewhat unpredictable and a challenge to map or plan. 

They describe "the Greenhalgh model" on "diffusion of innovation," suggesting "pivotal systems factors" upon which implementation of change depend: (1) "the innovation itself," (2) "the system’s . . .  readiness for change, (3) the "implementation process," and (4) the existence of "external . . . context." That there is complexity does not mean that hypothesis cannot proceed to implementation ("from bench to bedside or test tube to needle"), it means that the path may not be the straight line that one might expect. The path may instead be "convoluted, imprecise, uncertain, ambiguous, and deceptive." We cannot conclude our trip from Colorado to Connecticut an unmitigated success if we describe our route through Anwar, Cape Town, and Beijing. 

The authors suggest that energy is lost in the scientific process through independent and focused study on "parts of a system . . . as distinct variables" that are combined analytically into a composite whole on an assumption of completeness and overall comprehension. In other words, what we gather and combine we assume to be all there is. It is possible our model does not include all possible or appropriate parts, but instead, the ones we located and chose to include. From the resulting product, causes and proposed solutions to systemic behavior are conceived, designed, and implemented. These largely focus on particular, discreet, variables. If those are confronted and controlled, then the composite whole is altered and improved. 

The authors do not decry that there is thus focus on these elements, but in fact concede "the agents and their artifacts, are important." Those may, seemingly, be any of the inputs whether theory, function, or the people that provide (or resist) implementation. However, they contend that it is more important to perceive and understand "the relationships between these components." In other words, it may be less about the ingredients in the recipe and more about the methodology or order of preparation and thereby the interaction of those ingredients. 

This article is a fascinating read regarding systems and the challenges that science faces. It is practical to accept that there is incredible complexity in the field of science, the practice of medicine, and the deployment/implementation of change. It is also practical to reflect on the authors' suggestions in a broader context. Might their observations of complexity, ingredients, contributors, constituencies, and challenges be as aptly applied to amalgam that is workers' compensation?

It is difficult to conceive of anything as complex as the human body upon which science is focused. Various functional systems (circulatory, nervous, skeletal, etc.) coexist in concert, in balance, and in interdependence. However, that may as aptly describe workers' compensation. This thing we all too often refer to in a singular sense is at least 60 jurisdictional systems, each comprised of various parameters (rules, statutes, precedent), each subject to influences regional, professional, financial, functional, and human. In discussing the various statutory reforms, a common illustration is of Comp being a balloon: "When pressure is applied to one part, the balloon neither shrinks nor grows, the volume shifts to some other part of the balloon." That may aptly illustrate the authors' warning about a singular focus on a mere element of the whole. 

The authors of this article provide insight into the potential for better scientific analysis through the adoption, or at least appreciation, of non-linear thinking. Their focus on the implementation of evidence-based medicine is critical in our community that has adopted such medicine into the standard. However, the broader appreciation of parts, interactions, complexity, and the resulting composition of the greater whole in our own system or community may be of greater value still.

The authors conclude with a warning that is therefore worthy of consideration:

"Complexity thinking adds a real-world, multidimensional appreciation of the system and its density and dynamics, but it does not make it easier to effect change; in fact, the opposite is true."

Thus, if we accept the applicability of these foundations, we may find a new and broader appreciation, itself another added complexity or challenge. 

Judicial Timekeeping

Seemingly in every exposition, we have become accustomed to the overarching disclaimer of innocence. The U.S. attorney regularly precedes listings of charges with something like: "The charging documents are merely accusations and defendants are presumed innocent until proven guilty." That is an appropriate reminder, and we must all maintain a focus on that reality. In this country, we are each presumed innocent until such time as the government proves us guilty.

With that caution in mind, a recent filing regarding a Florida judge is of interest. On April 13, 2021, the Florida Judicial Qualifications Commission filed a Notice of Formal Charges with the Florida Supreme Court.

This references multiple canons of the Code of Judicial Conduct, applicable to the Florida Courts through adoption by the Supreme Court pursuant to constitutional authority:

"Your actions constitute violations of the provisions of Canons 1, 2A, 3B(2), 3B(4), 3B(8) and 3C(1) of the Florida Code of Judicial Conduct and Art. V, §13 of the Florida Constitution, Canon 3A and Florida Supreme Court Admin. Order 2014-66, and Palm Beach County Admin. Orders 11.107-9/08 and 11.107-01/18"

The topic is worthy of consideration here because the same Code is applicable to Florida Judges of Compensation Claims through legislative adoption, see section 440.442, Fla. Stat.

The Notice, as quoted above, finds concern with three separate Canons, the Constitution, and more. Canon 1 is focused on "Uphold(ing) the Integrity and Independence of the Judiciary." Canon 2A is focused on "promot(ing) public confidence in the integrity and impartiality of the judiciary." Canon 3A is focused upon judicial "duties . . . tak(ing) precedence over all the judge's other activities. Canon 3B(2) requires a judge "shall be faithful to the law"; Canon 3B(4) requires a judge "shall be patient, dignified, and courteous"; Canon 3B(8) requires a judge "judge shall dispose of all judicial matters promptly"; and 3C(1) requires a judge "shall diligently discharge the judge's administrative responsibilities."

Specifics in the Notice are more focused, providing the following foundation statements:

Art. V, §13 of the Florida Constitution “All justices and judges shall devote full time to their judicial duties.”

Canon 3A “The judicial duties of a judge take precedence over all the judge’s other activities.”

Florida Supreme Court Admin. Order 2014-66 (‘Diligent Performance of Judicial Duties’) “The failure of any judge to comply with an administrative order or directive of the Chief Judge is considered neglect of duty…” “The chief judge in each circuit shall separately communicate to all trial court judges in that circuit the importance of a professional work ethic and accountability to the judiciary as a full-time commitment under the [Code of Judicial Conduct] and the Constitution of Florida.”

Being a judge is a full-time job. I know many judges, and I am persistently amazed by their perseverance, patience, and dedication. Their work ethic is often laudable and sometimes simply above and beyond expectations. I have known judges to wait patiently into the evening for a jury, all the while working on other orders, correspondence, and more in the interim. I have become aware of JCCs who work evenings, weekends, and early mornings to produce the orders necessary to keep this community functioning. That is not to say judges do not have slack time, or that they do not take leave. They do. But, overall, most invest incredible time and effort into their responsibilities. 

The Notice of Formal Charges in this instance alleges that a county court judge "failed to devote full time and attention to . . . judicial duties during" at times in 2016. The document notes that courthouse absences and work less than "full time" are alleged "on a recurring basis." There are similar allegations about 2017 and 2018 and 2019.

In addition, the Commission alleges that this county court judge failed to "properly notify the Chief Judge of . . . absences or keep adequate records of . . . leave time between 2016 and 2019." Judges keep records and report time away from the office. That may come as a surprise to some. 

The Commission concluded that these alleged absences and record-keeping allegations:

"constitute violations of the provisions of Canons 1, 2A, 3B(2), 3B(4), 3B(8) and 3C(1) of the Florida Code of Judicial Conduct and Art. V, §13 of the Florida Constitution, Canon 3A and Florida Supreme Court Admin. Order 2014-66, and Palm Beach County Admin. Orders 11.107-9/08 and 11.107-01/18."

The Judge is permitted 20 days in which to file a response with the Florida Supreme Court. The judge's attorney commented to the South Florida Sun-Sentinel that the judge "always, without exception, completed all her own work on the County Court." Furthermore, the attorney asserts that this judge additionally performed "hundreds of hours of additional work for Circuit Court Judges.” The attorney essentially asserts that this judge was working "remotely" before the COVID-19 pandemic made that paradigm familiar and accepted. Will challenges with time-keeping become more common to all employers as a result of this shift to a "remote" world?

Too many years ago for me to admit (candor), I was appointed to the bench with high aspirations. I was convinced that there was much that troubled the Florida Office of Judges of Compensation Claims. In those days, the work ethic of some of our judges was a frequent subject of both disdain and complaint.

There was the story of a judge who showed up late for a trial due to urgent Christmas shopping. Another was told of a judge adjourning a trial to accommodate a grooming appointment. Some recounted often finding a particular judge sitting in chambers reading a newspaper or book. Back in those days, as hard as it may be for the current practitioners to grasp, it sometimes took years for a final order to be issued after a trial concluded. We currently average well under 30 days; that remains true year after year.

When I was appointed, one of my first conversations was with a seasoned Judge of Compensation Claims. The judge offered me several suggestions, which were well taken. I relished the advice significantly, but I was more touched that this judge thought enough of me to offer advice. As Baz Lurhman taught me long ago:

"Advice is a form of nostalgia, dispensing it is a way of fishing the past

From the disposal, wiping it off, painting over the ugly parts

And recycling it for more than it's worth"

You have to be careful of advice. Baz acknowledges that: "Be careful whose advice you buy but be patient with those who supply it." But, I was pleased to have this advice. That judge told me: "Dave, just remember that half of this job is just showing up." The judge explained to me that the public needed to know that when they had needs, those would be met. I took that to heart and strove to be present in the district office persistently.

Many years have passed. For the last 14 years, the Florida OJCC has published aggregate figures regarding the time required to enter trial orders. The period for trial orders is also reported for each individual judge. For several years, the Annual Report has similarly included the average days from the filing of a settlement motion to the entry of an order. These figures support that tremendous progress has been made as regards timeliness. And, as important, the judges of the twenty-first century OJCC are known for their professional demeanor, timely adjudications, and efficiency. We have indeed come a long way.

I try to pass that senior judge's advice on to each new appointee: "Show up." In the midst of COVID, we had some judges, mediators, and staff telecommute out of necessity. Their reasons varied. The need was most often periodic. At the height of telecommuting, perhaps 20% of the OJCC staff was doing so on a given day. The OJCC never closed, though a couple of offices were shuttered for a day of deep cleaning here or there. But, the work was done, and demonstrably so. the Florida Judge of Compensation Claims is more transparent and apparent in terms of work accomplished than any other judicial officer of which I am aware. The Annual Report is encyclopedic and detailed, easily accessed, and broadly informative.

Throughout the pandemic, and for years before, the judges here accepted the maxim "show up." The work may not require it; we might write orders at home, the beach, or the mountains. But, the people who depend upon us expect it nonetheless: "show up." I am proud of the performance of this Office, the dedicated staff, mediators, and judges that not only saw you through a pandemic but continued each day before and since to "show up."

I will watch with interest as the Supreme Court works its way through the allegations noted at the outset. Will the issue in this case be time spent in the Courthouse or volume of work product produced? How will the Court view the "full-time" and "precedence" requirements of the Canons of the Code? What will the Court conclude as to the merits of the allegations the Judicial Qualifications Commission has filed? In any event, the filing is an interesting reminder of our obligations as judges, and the pride I have in those with whom I am honored to serve. 

 

Giggin' Again

No, we were not dancing wildly this week on the WC Hot Seat. We were not hunting for frogs or flounder with a pointed stick. We were discussing the practice of short-term jobs. 

April 21, 2021, brought another (the 17th) rendition of the Workers' Compensation Hot Seat. To say it was an animated conversation understates things a bit. We had two powerhouse guests from the American workers' compensation community. Professor Michael Duff brought his "Blue collar," Teamster shop steward, and progressive perspective. William Zachary brought his management background, legislative reformer experience, and workers' compensation passion. Each also has deep experience in the academic side of workers' compensation. They were a dynamic duo regarding the challenges of a gig economy and interrelationships with workers' compensation. Bob Wilson and I barely got a word in edgewise. 

The program started with a realization that defining what "gig" means is itself a challenge. The term is used often in the press, some would suggest at times indiscriminately. The takeaway, from my perspective, is that there is nothing new about "gig" employment. For decades, people have been alternative ride service providers, babysitters, handypersons, yard technicians, and more who perform various tasks "off-book." There was always some degree of concern about the nature of the relationship (employee, contractor, casual) with these folks. There seems some consensus that the technology of our App-driven world has merely accelerated this labor method and thus exacerbated the need for some discussions about it.

Bob Wilson made an excellent point regarding the broader concern of independent contractors (a more long-term version of the same non-employee). The implication of misclassification hung in the air, but was not raised per se in the conversation. I have written about it before. See Misclassification - Is It in Trouble in Florida? (2014); Misclassification - What is it? (2015); and Misclassification and Regulation - Will Government be Nimble? (2015). There are challenges presented by those who avoid the protections of workers' compensation, to their personal financial gain and probable comparative advantage in competitive pricing.

The Hot Seat progressed past these definitional points to a discussion of both regulation and perception. Professor Duff noted that any gig solution must be accomplished transparently. Otherwise, he cautions, that the labor side will be difficult to engage for support and participation in that solution. He conceded that there is similar doubt about how workers' compensation laws generally are motivated and enacted, but that is a larger picture than this Hot Seat anticipated. Mr. Zachary stressed that some solution must come and that the volume/severity of injuries occurring in populations not covered by workers' compensation will undoubtedly stimulate discussions and change because otherwise, they are a taxpayer challenge. He oft repeated, "nature abhors a vacuum."

The discussion diverged a bit from the "gig" to a related topic when we were focused on change and transparency. This issue is essentially who will sit at that table to have these discussions? More pointedly, who will speak for the injured workers, or workers generally? There was mention of organized labor as well as attorneys. However, there seemed some skepticism, with suggestions that some may have misaligned financial incentives for behaviors regarding the vulnerable workers. There was consensus on one point, any process focused on addressing the gig concerns has to include those workers.

I was reminded of a couple of parables as the conversation continued. As we voiced realizations about the challenge of defining the gig, of prioritizing, of motivating change, of getting a group to sit down and go to work, there was some sense of the enormity of such an undertaking, the complexity of such an undertaking, and the potentials for failure. I found myself wondering quietly if anyone has the wherewithal to both get this party started and see it through.

The first proverb that came to me is Confucius: "The man who moves a mountain begins by carrying away small stones.” In other words, let's get started instead of focusing on how big it is. One of the panelists suggested that we "not try to eat the whole elephant in one bight"; there is merit to that. The other parable in my mind though was "The Starfish Story," which presents a youngster striving to save many beached starfish. Ridiculed for attempting to save them, he is told by a seasoned citizen: "there must be tens of thousands of starfish on this beach. I’m afraid you won’t really be able to make much of a difference.” In response, the kid picks up yet another and puts it back in the sea, saying with a smile “It made a difference to that one!”

There is no doubt that workers' compensation is a difficult subject. Discussions are often perspective-driven, self-interested, and acrimonious. Regardless of how one feels about the manner in which this legislative orchestra was composed, in the end, there will be injuries to workers. We cannot regulate the question of whether there will be bills to pay as a result. We may regulate only who will pay and under what circumstances. In the end, as I noted in 2016, Someone Has to Pay.

Another thought that crossed my mind was stimulated by Professor Duff's mention of rights generally and their foundational status in much of what we discuss in the law, a constitutional concern as a predicate. What he did not add, and what bears mention, is that rights are virtually never absolute, whether you label them "fundamental," innumerate them, exalt them, or even if you "hold these truths to be self-evident." They simply cannot be made absolute.

Our rights are in constant conflict with government powers and unfortunately the rights of others. I tell my students that rights are like a pie. We have but one, and every piece you eat is one that I cannot. We are, like it or not, in competition. I have a right to the quiet enjoyment of my backyard, and you have the right to have Twisted Sister come bellow in your adjoining backyard at 200 decibels (150 decibels is generally enough to burst your eardrums). In this illustration our individual rights conflict. But, one of us might recruit the government to support our preference, and that would add government power (state action) to this challenge, in favor of one and opposed to the other. Almost all protection and recognition of rights is subject to the fact that there has to be inherent compromise in the process. That truth is immutable and inherent in our human nature. 

Mr. Zachary touted the solution of surcharges and coverage which is the hallmark of the Black Car Fund. I have written about this organization in The Gig Economy - Can it be Socialized (2018) and shortly thereafter Gig Economy Post - Redux (2018). The Black Car has a couple of things going for it. First, William Zachary is a fan, and having a scholar like that endorse your idea is a phenomenal advantage. Second, Professor Duff is not a critic, though he has questions about details and implementation decisions, he is not a critic. Third, it is not hypothetical and proposed, but a working model that is out there enjoying success and proving it can work. If it is merely a starting point, it is admittedly still a starting point.

The Hot Seat ended with some critical points. There were divergent views expressed on employment, rights, and even the role of government, some liberal and some conservative. People are different. There is an opportunity now to seize the day and brainstorm some ideas to build a better array of potential outcomes from injury, perhaps not utopian but better. Notably, there was consensus on some points despite the very different perspectives that were represented. We've proven that collective and collaborative discourse is possible. Now can we find some time to sit down and really talk?

Public Accommodation

Another case of statutory interpretation. The subject is intertwined with workers' compensation, which is itself entirely statutory. 

Just what is a public accommodation and why is it important? The Americans with Disabilities Act (ADA) was passed in 1990 and quickly became part of the American legal lexicon. The implications in workers' compensation litigation were immediate and contentious. The law was intended to provide equal access to those who suffer disabilities, and too often work accidents/illnesses leave residual effects despite even the best efforts at medical treatment and care. It is common for a worker to suffer from "disability," in the course of a workers' compensation event. Through the 1990s there was significant focus on the subject as courts worked to interpret the provisions of the Act.

A very recent case from the Eleventh Circuit Court of Appeal provides an interesting analysis of a critical element of the ADA, the "public accommodation." In Gil v. Winn Dixie, No. 17-13467, D.C. Docket No. 1:16-cv-23020-RNS, (11th Cir. April 7, 2021), the court explained the "general discrimination provision" found in 42 U.S.C. § 12182(a), which provides:

"[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

The critical nature of the phrase "public accommodation" is immediately clear. It is in those "places" that discrimination is prohibited by this provision. In recent years, there has been significant debate and litigation over whether an Internet website is or is not such a "public accommodation." In the Gil decision, the Eleventh Circuit joins those courts that have concluded that at least some websites are not. That potential for some distinction will be of concern to some readers whose initial assumption might be a website is a website is a website.

However, the court begins its analysis with a careful description of the website in this case, noting:

"Winn-Dixie owns and operates grocery stores in the Southeastern United States. It is undisputed that Winn-Dixie only sells goods in its physical stores and does not offer any sales directly through its limited use website."

There are those who suggest that the court's determination of Gil is potentially not a broad pronouncement that websites are not "public accommodations" as much as it is a narrow determination that not all websites are "public accommodations." The distinction, perhaps, is whether a website is a substitute for, or adjunct to, a retail environment. If a website offers goods for sale on a website as a store would on its shelves, there is the potential for a different outcome.

The litigation began five years ago, which illustrates that our justice system takes time. The plaintiff was a Winn Dixie customer who is legally blind. He learned of the potential through the store's website to perform some shopping functions, including refilling medication prescriptions. However, when he attempted to use the website, he found that it was not compatible with the software he utilized to "screen read" on the Internet.

Alleging that the website was therefore inaccessible to those with visual disabilities, Gil sued seeking various damages including "an order requiring Winn-Dixie to update its website 'to remove barriers'" to "individuals with visual disabilities." The trial court concluded that the Winn Dixie website is a "public accommodation." In doing so, the trial court "acknowledged that the circuit courts," that is the federal appellate courts, "are split on the issue of whether the ADA limits places of public accommodation to physical locations."

The Court provides an expansive list from the ADA, locations that the legislature included in the statutory definition of "public accommodations." The list is 12 paragraphs long (lettered "A" through "L"), and includes "an expansive list of physical locations"; over 50 examples are cited along with many "or other" phrases of seemingly broad inclusivity. However, the Court noted, "the list does not include websites."

The Eleventh Circuit explained this split, noting that the Third Circuit has held that “[t]the plain meaning of Title III is that a public accommodation is a place.” Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998). The Sixth Circuit has concluded that the "plain meaning" of the law means a place. Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995). Even the Ninth Circuit has rendered decisions focused upon the more narrow "actual, physical places where goods or services are open to the public, and places where the public gets those goods or services.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

The Court explained that other Federal Circuits have viewed the language in a broader context: "The First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) has determined that that the phrase “public accommodation” “is not limited to actual physical structures.” Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994). Specifically referencing that decision, the Seventh Circuit (Illinois and Indiana) has concluded that the "core meaning" of the "public accommodation" language precludes any "owner or operator" of a business "that is open to the public" from "exclud(ing) disabled persons." Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).

The Eleventh Circuit reversed the trial court in Gil, concluding that "the plain language of Title III of the ADA, public accommodations are limited to actual, physical places." Thus, in the Eleventh Circuit (Alabama, Florida, Georgia), this is the law. The same applies in the Third Circuit (Delaware, New Jersey, Pennsylvania, and Virgin Islands), the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee), and the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Mariana Islands, Oregon, Washington).

Thus a conflict in legal interpretation existed before Gil was decided. Conflict between the Federal Circuit Courts can be homogenized in two ways. The legislature could react to these interpretations of the ADA and enact additional or amended language to clarify the law. Legislative action would apply to causes of action that arose after such laws were passed. Or, the United State Supreme Court could undertake review of one such case and provide an analysis and conclusion which would be applicable across the country.

With little explanation of why, some legal pundits contend that Gil is likely to be a case in which such conflict is brought to the U.S. Supreme Court. In terms of explanation, it is pertinent to note that the conflicting opinions cited by the Eleventh Circuit were rendered in 1994, 1995, 2998, 1999, and 2000. The split has thus been at least apparent for twenty years, though the Gil decision in 2021 certainly brings the issue to the fore again.

It is also interesting that this interpretation returns us to the "plain meaning" of a statute, recently discussed in Statutory Interpretation in Colorado (April 2021). When a statute's plain meaning is clear, the courts need not proceed to examinations of legislative intent or sentiment. The Gil court noted that the plaintiff "relies on legislative history to support the notion that Congress intended an expansive definition of 'public accommodation' in the ADA." The Court reminded that "legislative history is not the law,” according to the U.S. Supreme Court. There is also a citation to a concurring opinion of Justice Scalia regarding interpretation. He noted that a court's duty is to apply the plain meaning, and "if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it.” (Citations omitted).

For now, the law is somewhat settled in the Eleventh Circuit. A website that does not offer goods for sale is not a "public accommodation" under the ADA. Some writers continue to suggest that this may be a distinction addressed in future litigation. Similarly, some suggest that Gil is destined for review by the U.S. Supreme Court to resolve this decades-old Circuit conflict. The certainty in such prognostications is usually this, only time will tell.

 

We're Really Back!

On October 6, 2020, I attended my first in-person workers' compensation seminar in nine months. At the time, I blogged "we're back we're back" and then admitted that was an overstatement but concluded we were "returning." The OJCC annual seminar at the Florida First District Court of Appeal was on February 21, 2020. That was a great program, but no one imagined it would have to hold us over for eight months. I was fortunate to have the October opportunity, a great many could not yet travel then. A great many cannot travel even now.

In the 1993 cartoon "We're Back, A Dinosaur Story" children were provided an amusing premise:

"A time traveling scientist goes back to prehistoric times and feeds dinosaurs a magic cereal that increases their intelligence - next they land in modern New York City for a series of comic adventures."

As I wandered the strangely quiet halls of the Omni Champions Gate last week, I returned to the sentiment that "we're back." I no longer think that we are merely returning; We're back! And, with that realization, the cartoon returned to my memory. 

We're back! The Workers' Compensation Claims Professionals and The Florida Bar Workers' Compensation Section co-produce a great spring program annually. It has steadily grown from the old Board Certification Review Course that historically attracted 50-100 attorneys. In recent years, the crowd has been in the range of 400 by my estimate, and I am always proud to participate. Of course, in 2020 the program was canceled as was so much of our lives, and travel restrictions continue to somewhat mute us. But, yes, We're back!

In April 2021, we gathered again at the Champions Gate venue. There were masks and distancing as we have come to expect. There were vendors striving to give away hand sanitizer that at least seems to have lost its attraction. And, there were crowds, handshakes, hugs, and interaction. I was astounded at how many handshakes there were. The fear and trepidation seem to have evaporated. It was refreshing to see so many faces, sans-masks. 

Many stories were shared. The panel on which I was honored to participate addressed some effects of the pandemic on practice and process. After, an attorney confided that COVID-19 has become tiresome and the attorney was pleased to hear about the law and the practice again. This attorney lamented that we discussed COVID-19 at all.

I felt a bit like that "time-traveling scientist" returned to the days of yesteryear (yes, it was only in 2019 that we were last together like this at the Forum, but it seems so long). We partook for two days in the "magic cereal" of education and we "increased . . . intelligence." We, as a community, proclaimed with energy and verve that "We're Back!" And. I could not be more pleased.

There were stories. One attorney recounted how inoculations had been enjoyed early in 2021 despite being contrary to the government age constraints. Another acquaintance recounted vaccine doubts but admitted to recently undertaking the first of a course. In yet another conversation, I heard a recounting of an attorney's client who steadfastly intends to forego inoculation altogether. Another was proud of immunity ("I had my second shot on March 19, and I am immune"); I did not have the heart to remember that vaccines do not yield immunity, but only protection.

I was amused by a conversation with one vendor/sponsor, whose company is headquartered in a galaxy far, far away (up north). It was apparently somewhat difficult to convince those at headquarters (1) that there was actually a live program in Florida this month, (2) that people were actually planning on attending, and (3) that sponsorship and attendance was worthwhile. Thus, though we in Florida find ourselves blessed to be back (or nearing), perhaps we need to remember that this return towards normal is seemingly not progressing at such a pace everywhere. 

In the end, there were a variety of perspectives expressed. One news source recently highlighted a projection that vaccine interest is waning. The author says we may soon "hit a wall." There are doubts expressed that we will reach "herd immunity" due to some reluctance. As I enjoyed the return to a live conference, that potential concerned me. With herd immunity, perhaps things could become even more normal? Without it, will we live with the remnants of this SARS-CoV-2 for years? That is troubling. But, a significant portion of our population seems destined to forego the shot. Ultimately, that should be an individual's decision. 

So, thanks to all those who answered the call to normalcy. They prepared and planned, studied, and invested. They showed up in person and proved that we can return to a modicum of normal. Thanks to the following participants, and any I may have missed, for making this program real:

Leopoldo (Leo) Garcia Jr., Forum Co-Chair - Bar Section

Stacy Hosman, Forum Co-Chair - WCCP

W. Rogers Turner, Attorney,

Matthew J. Troy, Attorney,

Karen M. Gilmartin, Attorney

Kenneth M. Hesser, Attorney,

Heather Byrer Carbone, Attorney,

Paul M. Anderson, Attorney,

Philip Augustine., Attorney,

Michael J. Winer, Attorney,

Alan D. Kalinoski, Attorney,

Hon. Frank Clark, JCC,

Michael D. Rudolph,

Andrew R. Borah, Attorney,

William H. Rogner, Attorney,

Hon. Margret G. Kerr, JCC,

Kimberly J. Syfrett, Attorney,

George A. Helm, III, Attorney,

Kelli B. Hastings, Attorney,

David E. Perloff, M.D.,

Robert J. Rodriguez, Attorney,

Hon. Walter J. Havers, Jr., JCC,

Richard J. Manno, Attorney,

Philip Augustine., Attorney,

Hon. Iliana Forte, JCC,

Hon. Jonathan E. Walker, JCC,

Christopher J. Smith, Attorney,

Hon. Thomas Hedler, JCC,

Eric M. Christiansen, Attorney,

Thomas P. Vecchio, Attorney,

Jeffrey M. Friedman, Attorney,

Joanne M. Prescott, Attorney,

Karen J. Cullen, Attorney,

Christopher L. Petruccelli, Attorney,

Paolo Longo, Jr., Attorney,

Karen M. Gilmartin, Attorney, 

Glen D. Wieland, Attorney, 

Hon. Neal P. Pitts, JCC, 

Hon. Sylvia Medina-Shore, JCC,

Hon. Jacquelyn L. Newman, JCC,

Hon. Erik B. Grindal, JCC, 

GPS Surveillance Evidence

A 2020 decision by the Florida First District Court reminds us of various realities in our modern world. Bailey v. State of Florida, No. 1D18-4514, 45 Fla. L. Weekly D2559 (Fla. 1st DCA 2020). The trial there resulted in conviction "for first-degree murder, armed robbery, and possession of a firearm by a convicted felon." It is an intriguing look into the process of police investigations, but more so into the way technology implies itself into our lives.

Surveillance video from a hotel established the victim and defendant had departed together, but the defendant returned alone. The defendant's girlfriend testified that she periodically allowed him to use her vehicle. Coincidentally, on the night of the murder, she reported her car stolen and the next day used a "GPS tracker," of which she was aware, to locate the vehicle. The police later obtained these vehicle tracking records without a subpoena and used them to demonstrate the car had been in the area in which the victim's body was found. 

In particular, the vehicle was at a specific home early in the morning when the victim was found. Police visited that home and were given surveillance camera footage with the homeowner's consent. This demonstrated the defendant's presence at that home. A warrant was then issued allowing for a search of the home revealing clothing the defendant wore the night of the murder. A warrant for the defendant's cell phone records produced electronic records that "matched the timeline of the GPS (car) records."

The appeal centers on the appellant's contention that the "GPS records" regarding the vehicle should be excluded from evidence (as well as the warrants thereafter for the home and cell phone records, referred to as "the fruits thereof"). The trial court focused on the ownership of the vehicle, concluding that as it was not the defendant's car, he "had no expectation of privacy." The appellate court focused upon this expectation of privacy argument. 

The Court explained that the privacy argument in this context is founded upon the Fourth Amendment to the United States Constitution. This precludes "unreasonable" searches. Such searches, conducted "without prior approval by judge or magistrate, are per se unreasonable." However, there are exceptions. The Court also explained the origins of the Fourth Amendment, and its "redefinition" in 1967 that "expanded the protections." Thereafter, the standard has become "the ‘reasonable expectation of privacy’ test."

If one feels somewhat unclear on the legal standard, the First District seems sympathetic, characterizing the standard as suffering from "murkiness of its application." In part, that seems intertwined with the technological (r)evolution through which we have recently lived. Despite the modern "subtler and more far-reaching means of invading privacy," the courts nonetheless strive "to ensure that the progress of science does not erode Fourth Amendment protections.” 

Thus, the analysis has evolved into two potentials for challenge: physical intrusion of the government and intrusion where "a person possesses a reasonable expectation of privacy." To prevail on this second potential the defendant must show:

he/she "sought to preserve the information in question as private," and "exhibit(ed) an actual, subjective expectation of privacy," and this "expectation is one which society recognizes as objectively reasonable."

Whether a person allows information to be revealed may be relevant in determining this expectation, however, the Court explains this is not "a mechanical" analysis. The context and expectation are critical. 

The Court turned to the specifics of the allegations in Bailey, and Supreme Court precedent in which a tracking device placed upon a vehicle was a "trespass" and thus its yield was deemed inadmissible. There were conclusions in that analysis (Jones, 565 U.S. at 430,) that hinge on the duration of such surveillance, and whether it might be characterized as "long term" or "short term." Essentially, the distinction there lies in what might be demonstrated by repeated visits to a particular venue as compared to a singular instance. 

The court here affirmed the trial court's decision not to suppress the GPS data. It noted that the evidence in this instance was "business records that might incidentally reveal location information." There is also an explanation of the distinction between tracking related to a cell phone (which "the overwhelming majority of individuals more or less must own") and how that is "distinguished from cars, which contrarily have “little capacity for escaping public scrutiny.”). In effect, vehicle GPS data is less subject to privacy concerns than cell phone GPS. This seems to be a reasonably general conclusion.
In summary, the Court noted 

"The fact remains that Appellant chose to operate a car on public roads - a car owned by another who consented to GPS tracking. The police played no role in the recording of the information and simply availed themselves of the advantages afforded by the (existing) electronic recording. Under these circumstances, any expectation of privacy on Appellant's part was not objectively reasonable."

The Court panel was unanimous in affirming the trial court. However, one judge wrote a special concurrence to express a different foundation for affirmance, the "good faith exception." Here, an interesting analysis is provided regarding the timing of the murder investigation (before Carpenter v. United States was decided by the Court - the expectation of privacy regarding cell phone information). More interesting, however, is the explanation that the vehicle in question had been "reported stolen to police," and that the police efforts to use the GPS with "the owner's apparent consent," was consistent with locating the car. The use was an "objectively reasonable response of law enforcement."

This analysis regards a criminal case, suppression of evidence, and constitutional rights. But, the analysis is pertinent to the broader world of litigation, including workers' compensation. The points to take away are that appellate decisions, even from the United States Supreme Court may present parameters and considerations that are not contained or defined by "bright lines." What is or is not reasonable in the context of privacy may be a similar trial proceeding determination to any issue requiring reasonableness. There is nuance and distinction in litigation, and therefore there will likely be facts that are pertinent in most disputes, subject to the interpretation of the trial judge. 

In this decision, there are two examples of thought processes through difficult precedents. There is discussion and edification of the role of trial court and appellate review. There is a discussion of how the concept of law struggles with the inescapable fact that our world is evolving and that technology may periodically create as many questions as it resolves. And, finally, there is reminder that a there are factual distinctions that require analysis, such as people's affinity for and dedication to their cell phones compared to their ability and willingness to park their car and walk away. The analysis of that distinction in terms of privacy and expectations is fascinating.

 

Statutory Interpretation in Colorado

The Colorado Court of Appeals rendered an interesting decision in March 2020: Kerry Fisher, v. Industrial Claim Appeals Office of the State of Colorado and State of Colorado Department of Corrections.

The central issue focused on the assignment of an impairment rating by the treating physician. The Court recognized that the American Medical Association Guides to the Evaluation of Permanent Impairment have been in use for years, and that reference to various editions of those Guides may result in various impairment ratings for the same malady and complaints. It is somewhat intriguing as consistency is one of the overarching goals of the Guides. 

The Court explained that the inconsistencies between various Editions result from “emphasis of certain areas," and as "a reflection of the latest consensus in medical science within its subject matter.” The Court noted that the Colorado statute "mentions" the Third Edition, which was published in 1988. Colorado's court concluded that the statute states that "impairment rating guidelines ... shall be based on the revised third edition of the [Guides] in effect as of July 1, 1991" (when the statute was enacted). 

This form of adoptive language is a contrast to the language used in states such as Pennsylvania and New Mexico. See Pennsylvania High Court Magnifies Protz (June 2017) and As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional (September 2015) and Will the New Guides be Lost in Translation (January 2021). States continue to struggle with the use of impairment guides while ignoring the fundamental issue.

At the core of this issue is an admission that impairment and disability are two distinct constructs. Impairment is a measure of bodily system function. It is focused on what an injury, or the residual of an injury, affects in terms of bodily function loss. That is distinct from whether a person with such an impairment can or cannot perform a (or any) occupation or job. I recently sat with two workers' compensation scholars for a discussion of comparative law in Florida, California, and Texas. The engaging conversation included highlights of how our three largest states have had different approaches to such Guides. There are intriguing differences in state approaches. 

  

Colorado's issue in Fisher Focused upon the legislature's intention when it adopted those Third Edition requirements (or "mentions" them as the Court phrased it). The statute says that impairment “shall be based on the revised third edition.” The Court struggled a bit with what that sentence meant. Essentially holding that the plain language of that sentence is unclear, the Court concluded that this language does not mean that the Guides must be used. When a statute is clear and unambiguous, the courts' analysis should end with the plain meaning. When there is ambiguity, however, the analysis should continue. 

The question arose because the treating physician assigned a 13% impairment rating, which was contested by the injured worker. The worker contested the physician's use of a method called "normalizing the impairment," which the worker contended was a departure from the method described by the AMA Guides Third Edition. The worker asserted that as the method departed from the Guides, it was inconsistent with the statutory requirement ("shall").

The “normalization” was described as the physician comparing the range of motion (the movement ability) in the patient/worker's injured joint (left knee) with the range of motion in his other (uninjured) knee. In this manner, the physician is not comparing the actual result in the injured knee to some overall population studied by the authors of the Guides, but to the more focused example afforded by this particular patient. The treating physician essentially concluded that the "normal" range of motion for this particular patient was less than "normal" in the large sample relied upon by the Guides. The physician therefore reduced the impairment rating for the injured knee to reflect the injury's effect upon that personal normal.

The practice of "normalization," the Court noted, is not the creation of the treating physician. It is quoted from a state publication, the Desk Aid, that identifies and describes the process. The publication asserts that such a practice "may be 'a better representation of the patient's pre-injury state than ... [the] population norms.'” There is also criticism of the methodology of the Third Edition as compared to the discussion of "normalization" found in the Fifth Edition. 

The Court concluded that the statute which says the impairment "shall" be based upon the Third Edition does not "bar the physician from employing the process of normalization. " The Court focused not upon the "shall," but instead upon the "based.” That word, it concluded, "is critical to interpret(ation)." The word, it explained, "as a verb" means "“to find a foundation or basis for; to find a base for” and “to make, form, or serve as a base for.” (Citing the dictionary). As a noun, the Court noted multiple definitions including "a main ingredient”; “a first or bottom layer of something on which other elements are added”; “the fundamental part of something”; and “the starting point or line for an action or undertaking.” 

Therefore, the Court concluded, that the legislature's intent in enacting the Colorado statute was that the Third Edition is to be "the starting point, not the exclusive fount, of impairment rating methodology." Had the legislature intended more limited reliance only upon the Third Edition, it would have used more concise language than "based on,” such as perhaps the word "only.” The Court noted that Kansas has reached "the same conclusion" regarding "based on" earlier in 2021. 

The injured worker raised interesting arguments about the State's adoption of the Desk Aid. He contended that this was essentially the adoption of a regulation or the promulgation of a law. The Court conceded that it might be so if doctors were required to follow the Desk Aid or if it had been created or adopted using the "rule-making process of the Administrative Procedure Act." However, the Court concluded that this publication does not  "require doctors" to use the Desk Aid or to depart from the Third Edition. The Court found no support that the State "intended it to serve as a rule that would mandate a particular result in all cases."

Alternatively, the Court explained, that even if the Desk Aid is a rule, it is not an inappropriate rule. Rather, it is a guide or interpretation that does not mandate an outcome. Therefore, it is "an 'interpretive rule' . . .  which is not subject to the formal rule-making process." Finally, the Court noted that whether a physician has appropriately "applied the Guides" is a question of fact in any case. Therefore, the trial judge's determination in a particular case should be affirmed if it is "supported by substantial evidence." Thus, the chance of a worker to challenge a physician's impairment assignment is essentially limited to the trial process rather than the appellate process in most instances. 

The Time has Come, the Time is Now

The title of this post is a quote from "Marvin K. Money will you Please go Now," by Theodor Geisel (also known as Dr. Seuss). 

The protagonist in Groundhog Day (1993), Phil Connors (Bill Murray), noted that "When Chekhov saw the long winter, he saw a winter bleak and dark and bereft of hope." That quote returned to me as I read the sobering news recently of addiction and worse in the time of COVID-19. It has been a long winter indeed. Certainly, there is much for us to celebrate in the spring of 2021, see The Future's so Bright (February 2021) and A Great Hamburger with a Smile (April 2021).  

For much of the last year, there have been prognostications that COVID-19 could result in personal and societal issues beyond the immediate scope of infection and treatment. ABC News reminded last year of concerns regarding "suicides, drug overdoses, and domestic violence." There were those who raised concerns about mental health repeatedly throughout our recent isolation and constraint secondary to COVID-19. I say "our" but some of us were fortunate to weather the year in a relatively open and free Florida. I cannot imagine the stress of living in those more constricted states, territories, or countries often featured in the news. 

I heard from people in response to the Great Hamburger. They assure me that the lockdowns, isolation, masks, and other challenges are not over everywhere. Some expressed envy that Florida's economy is running wide open and lamented their own local inability elsewhere to enjoy dining out, retail shopping, and other social interactions. But, in short, we will all eventually put COVID-19 behind us. It is not yet, by any means, over everywhere. I feel for you if you remain masked, locked down, and unvaccinated. Hopefully, however, we can each see signs of hope and improvement.

I have focused on overdose death before. In January 2017 I posted Like a Broken Record regarding overdose deaths. I lamented that the American death rate was an excruciating 55,403 in 2015. I recounted the history of increasing deaths (2012 = 33,775; 2013 = 37,542; 2014 = 42,225). The Center for Disease Control reports that "Nearly 841,000 people have died since 1999 from a drug overdose." In 2019, the rate of overdose death was 70,630, double the number in 2012. The situation, it seems, has not been improving.

Statnews reported in February 2021 that in the "12-month period ending" June 2020, there were 81,003 deaths from overdose. It says that reflects "a 20% increase and the highest number of fatal overdoses ever recorded in the U.S. in a single year." The Commonwealth Fund report is more dire still. It says that "September 2019 through August 2020" recorded 88,295 predicted deaths." It notes this is "a record high," perhaps when the final figures confirm this prediction it will be about "27% (higher) than the prior 12-month period."

The drug overdose situation, it seems, is getting worse. As a nation, we near one million overdose deaths since 1999. It is entirely likely that we will reach one million by the time we are 25 years into this still new century, 2024. At our current pace, with it nearing 100,000 annually, it is almost a certainty. And, if that rate continues, the path to the second million deaths of this millennium will be shorter still. 

In February 2021, we collectively lamented that the SARS-CoV-2 coronavirus, COVID-19, had killed over 500,000 Americans. Flags were ordered to half-mast. We were encouraged to remember the suffering and death wrought upon us by this virus. I do not suggest in any way that we should not acknowledge and mourn those losses. However, it seems that we remain inclined, societally and individually, to ignore or overlook that we lose so many Americans to overdose. 

Will recognition and flag lowering occur when we hit 100,000 per year? 150,000? At what point will we decide that society cannot endure the loss of these people, these thousands of people, each year? Why is there not a similar focus on this killer? Why is there no massive education and research focused on stopping it? Why do we not collectively focus on somehow saving these people? After flooding our conscious and communities with Narcan to treat overdoses, the deaths continue and are accelerating. Perhaps more attention and imagination are needed?

But, the worst news is that overdose has been exacerbated in the last year. One of the more dire consequences of our governments' COVID reactions appears to be the impact on our mental health and stability. StatNews reports that "drug deaths started spiking last spring." Some are attributing the increase to the pandemic. They note that it "has ushered in stress, isolation, and economic upheaval — all known triggers for addiction and relapse." There are, more simply stated, stressors that result from a pandemic.

And, perhaps more so, there are stressors that are created in response to a pandemic? The pandemic did not shut down a single economy in 2020. The shutdown was a government response to illness and the threat of infection. What if the scientists had not advised us against wearing masks last spring? See Anger and Acting Out. Might our outcome have been different without the massive work stoppage, economic impact, and sequela?

Lamentably, we will now study the impacts and results of those government efforts. Academics and researchers will spend coming years pouring over data and writing to describe the impacts that this virus has had on mental health, addiction, and some say violence, suicide, and more. Last spring, I read a piece that predicted there would be mental health impacts of this pandemic. Last spring, when many of us predicted a return to normal within months. Last spring, when our history and experience with the pandemic in America was very limited. Last spring some predicted a coming storm. 

Last Spring, I authored Stress in the Time of COVID (March 2020). I suggested that we remain vigilant, and offered some unscientific and untrained advice on dealing with stress. I suggested that there was a need for us to remain cognizant of the needs, emotions, and challenges of those around us. I have spent much of the last year striving to remind people that we have all faced challenges and have struggled. 

I was encouraged to that view, in part, by articles written by others. One, by Pew (no, not the RxProfessor, the other Pew) was an early predictor of potential challenges. On May 12, 2020, Christine Vestal wrote "Fear, Isolation, Depression: The Mental Health Fallout of a Worldwide Pandemic," and America had only entered what Chekhov might foretell as a coming long winter. She warned that there would be "emotional trauma." She warned it would be "long lasting." She noted that in May 2020 "more than 4 in 10 Americans say that stress related to the pandemic has had a negative impact on their mental health." That is 40% to you and me. That is like 131 million of us.  That was a year ago, light years ago. 

There has been a somewhat related discussion also of suicide. There were predictions during 2020 that the pandemic, stress, and challenges could lead to increased suicide rates. There were some reports of "spikes" in rates, and prognostication of pandemic implications. The Washington Post recently noted conclusions of increased suicide rates expressed by national leaders but says the current data does not necessarily support that American suicide increased last year.

The outcome of that discussion seems to be uncertain for now. The author suggests that after further study, with the passage of time and investment in research, some might eventually conclude that suicide attempts in 2020 were influenced by COVID-19 implications. It also notes overdose in a broader context than the deaths noted above. It reports an "almost doubling" of calls for help regarding overdose in 2020. It suggests that some of those, or some of the currently categorized "unintentional injuries" may end up categorized instead as suicide.

Note that. Hidden in that discussion of suicide, is an overdose fact worthy of reiteration and our careful attention: calls for help regarding overdose almost doubled in 2020. Drugs are a problem. As regards the surfing fad of the 1960s, the Beach Boys noted in "Surfin' Safari" (1962) "I tell you surfin's mighty wild, It's getting bigger every day." I would suggest that opioids, drug overdose and related societal challenges are likewise "getting bigger every day."

It is lamentable that so many faced overdose challenges last year, and that so many died. It is more lamentable that we now approach a million dead since the turn of the century and the trend shows no sign of relenting. Not to be a broken record, but I ask yet again, how many will be enough? I suggest, again, that the time has come for action and progress in our fight against drugs, overdose, and avoidable deaths.