Race-Based Medicine

A fascinating article on racism recently appeared in the news. It challenges our perceptions of our modern society and raises questions. The headline, "How race-based formulas are interfering with concussion lawsuits," was eye-catching. So much so that one might have suspected it of being "clickbait," except it was on a respected news site, the British Broadcasting Corporation (BBC). A handful of American news sources have also visited the subject, such as the NY Times, Reuters, and ABC News (though some of those are accessible only to subscribers).

The crux of the BBC article is that the NFL has been using "race-based formulas" in negotiating settlements in the long-running concussion litigation. To date, about "$856 million" has been paid "to compensate victims." The BBC reports, that these formulas "assume black players have lower cognitive function." The implication is that these formulas have resulted in lower, or no, payments to some players. In a word, when a decision is based upon race, it is racist. Merriam-Webster says racism is:

"a belief that race is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race."

The article explains that averages are used to establish standards, referred to as "race norming." The standard is used as a foundation, it seems, so that a particular player's present cognitive function test results are compared to some thusly determined "norm." The practice predates the concussion allegations and settlement. The BBC says that it was initially conceived "to forestall racial bias in aptitude tests." This is suggestive that it was conceived to discriminate, but designed for an effect different from what is being effected presently. 

The process was said to be used regarding applicants for federal jobs, and various aptitude scores "were adjusted to account for the test takers' race and ethnicity." Apparently, until "the Civil Rights Act of 1991," there were race-based assumptions made about cognitive function. The practice then was to use this process "as a means of counteracting racist practices," but that process or practice is not fully detailed in the article.

The BBC notes that the NFL is not alone or even first in the use of this "standard." It notes that this "standard has been used in a variety of medical applications." A neuropsychologist professor from California notes that race "is associated with all kinds of disadvantages," including access to education and healthcare. She defends consideration of race.

This professor defends "the practice of race norming" as "a band-aid solution that didn't come out of a desire to be racist." She contends, instead, that it is a process that makes broad assumptions based on race to "prevent clinicians from 'over-diagnosing and over-pathologizing cognitive impairment in black people.'" There is recognition by some, however, that the "use of race norms . . . perpetuates a false idea that there are genetic differences in intelligence that fall along race lines and that's simply not true." That clinician contends that "there are differences on average between blacks and whites." However, this is "because of differences in social experience," not because of genetics.

Reuters, however, quotes an NFL spokesperson concluding:

“Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists and that’s why these experts are working to solve this decades-old issue”

Thus, a more definite ("everyone") and absolute acknowledgment that "race-based norms" are inappropriate. 

The BBC explains that a neurologist conceived a "race-based adjustment" system for test scores, and they came to be repeatedly employed. The NFL has apparently used the system as part of its "basis of determining the size of payouts from the NFL's compensation scheme." Essentially, there is an assumption here that black player cognitive test scores must be "lower than white players" in order to qualify for payments in the settlement.

There are specific allegations noted. Some former players allege that they were denied compensation because of this racist tool. One lawsuit based on the allegations has been dismissed. The NFL "has defended itself by arguing the settlement scheme was developed" through collaboration with scientists and based upon "widely accepted and long-established cognitive tests and scoring methodologies." It seemingly protests the perception that the use of this standard is mandated or required of the clinicians who diagnose and assess these function issues.

The BBC reports that at least some "clinicians have disagreed" with the voluntary characterization of employing these standards. The conclusion seems to be that there are some involved who believe they are required to apply the racist standard in assessing function. As a result of their perceptions, the press coverage, or both, the NFL recently concluded to "halt the use of race norming." According to Reuters, this will impact prospective claims and result in "rescoring claims where they were applied."

Interestingly, as mentioned above, the process was abandoned in U.S. federal employment some thirty years ago (1991). Reuters quotes an NFL spokesperson stating the practice's "origins were to stop bias in testing, not perpetuate it." And, thirty years after the government elected to abandon this practice, perhaps the publicity here will mean an end to such practices altogether? That science and medicine ever accepted this premise is shocking; that it persists is only more so.  

As an alternative, some now advocate "more precise approaches that consider a person's lived experience." Thus, psychologists, neurologists, etc. would consider someone's historical access to medical care, educational opportunities, and perhaps general living environment in order to adjust what cognitive function might be expected from that person, seemingly regardless of race or national origin (or perhaps any potential immutable characteristic of a human being). The resulting expectation for that person could then be calculated or estimated, or conjectured. That result or prediction could then be compared to the present test result for that person in determining loss of cognitive function as a result of some injury or illness.

Herein is a fundamental challenge of the sciences. Science and medicine are complex. The law recognizes that in various forms, notably in the admission of expert testimony and opinions. Opinions from the learned are allowed by rules if they "will help the trier of fact (judge or jury) to understand the evidence or to determine a fact in issue." Federal Rule of Evidence 702. This is a recognition that those of us who are not scientists, engineers, or other scientific professionals may need help from their expertise. It is disturbing to learn that science has been complicit in racism and racial bias, and that the practice has been perpetuated recently. 

We are encouraged persistently to "follow the science." In Consensus in the Absence of Proof (January 2021), I note the challenges that we may face when many learned people agree on some question, that is reach consensus. The scientific method of hypothesis, testing, data, and reproducible results is worthy of our attention and consideration. But, consensus and agreement may not be. When that consensus is a "band aid" of systemic racism, it is not worthy of deference. 

Mediation Report 2021

Each year, the Florida Office of Judges of Compensation Claims publishes two required reports. Most in the community are familiar with the "annual report" that is required by section 440.45(4). That is a broad examination of the adjudication system, processes, and progress. The second report is narrowly focused, required by section 440.20(11)(a), specifically regarding the settlements entered in "any case in which the employer or carrier has filed a written notice of denial within 120 days after the employer receives notice of the injury." This explicit requirement has been supplemented for many years now with mediation statistics in the annual "Settlement Report and Mediation Statistics Report." The 2021 edition is due in September, but is already on the website.

The report demonstrates the successful perseverance of the OJCC mediators through the last year of SARS-CoV-2. It covers the time period July 1, 2020, through June 30, 2021. For much of that time, the OJCC mandated telephonic mediation in all instances. This was deference to the virus and the volume of requests for telephonic mediation that were arriving as allowed by Rule 60Q6.110. In order to simplify the process at the height of the pandemic, mandating the telephonic process relieved the state mediators of many requests.

The report documents that the 440.20(11)(a) settlements continue to be a very small population of the overall settlement volume. In 2021, there were only 54 of them, down from 70 the year before The volume has fluctuated over the years, but they have been consistently below 100 annually for thirteen years. Notably, however, though the volume decreased thus (-23%) in 2021, the aggregated dollar value increased by about $140,000 (+30%). One might validly be curious about that. The 70 instances in 2020 were settled for an average of $6,527.88 ($456,952/70). In 2021, the 54 were settled for an average of $11,040.02 ($596,161/54).

There was some speculation in the late days of 2020 (May or June) that such "denied" settlements might increase in the time of COVID-19. There was some suggestion that workers' compensation claims for SARS-CoV-2 infection might be denied in significant volumes and that some portion of those would then result in settlement under section 440.20(11)(a). The categories for such denials include: "causal connection lacking," "no accident occurred," "no injury occurred," "not timely reported," and "not in course and scope." Any of these might have been pled in response to an occupational disease claim. It remains possible that such a settlement might come in future years, but the data for 2021 does not support that this occurred in significant volumes.

The report documents that the volume of petitions fell in 2020, to just under 70,000 (-3.34%). That marks two consecutive years of petition volume decrease following notable growth in the years following the court decisions on attorney fees in 2016. In light of the persistent decrease in injury frequency, that is perhaps not surprising. However, various hurricane seasons and the pandemic are likely to have influenced those figures.

Despite the decreased petition volume, the mediations increased almost 7% to 19,442 in 2021. That followed a similar increase in 2020. More petitions have been mediated by Florida OJCC mediators in recent years. 2021 demonstrated the highest volume since 2009-10 (19,864). Despite some of the mediators resorting to telecommuting and the mandate for telephonic mediation that persisted through February 2021, the volume of mediations demonstrates the success of the Office.

The corresponding figures show that the volume of cases "reset to private" mediation decreased by over 1,000 in 2021. That figure was a ten-year low of 4,410.

The most impressive statistics, however, are the outcomes. Despite a higher volume of mediations, the number of mediations resulting in settlement increased (+8.3%), as did "all issues resolved" (+19.5%), and "all issues resolved except fees" (+26.9%). Corresponding to these increases, fewer cases resulted in an "impasse" in 2021 (-2.5%). The only substantive outcome with a decrease was "some issues resolved" (-13.6%). As a result of both the increased volume of mediations and the decreased impasse, the overall percentage of impasse to mediations held was a ten-year low of 23.16%.

The most impressive statistics, however, regarded timeliness. The overall average of days from the petition to the first mediation was less than 100 days. The number of mediations (first) conducted within 130 days (section 440.25, Fla. Stat.) was 98.3%. And, 100% of OJCC mediators averaged less than 130 days in 2021, for the 13th straight year!

In all, the report documents successful and dedicated service to the Florida workers' compensation community. Despite the pandemic, weather, and other challenges, the OJCC mediators were effective and productive in 2021.

Inoculation Tribulation and Recrimination

Rock and roll gets stuck in my head. This morning I have an odd mixture of Whitney Houston and Sugar Ray playing. It is, at best, an eclectic broadcast. Whitney is belting out her 2002 "Ooh, how will I know? (Don't trust your feelings), How will I know?" And, Sugar Ray (2001) of course is asking "when it's over, Is it really over?" It takes a bit to come to ground, but the music leads me back to the great pandemic of 2020: "Is it really over?" and "how will I know?"

There are reports in the news of COVID hospitalizations. A recent roundtable discussion was reported in which the management of some hospitals characterized them as busy, but not "overwhelmed." There is mention of hospitals limiting visitations, contemplating delays in "elective procedures," and requiring staff vaccination. In all, about half of eligible Floridians are vaccinated (10.6 million; Florida population is about 22 million, but some of those are too young for the vaccination). For good or bad, the press is full of stories about COVID.

I heard an intriguing story recently regarding perceptions of the end of the pandemic. Picture two people standing in a public hall lamenting the great immensity through which they have recently traversed (having "walked through the valley of COVID"). They speak to each other happily, openly, commiserating their Great Pandemic perspicacity. Then, somehow, the vaccine is mentioned. One traveler admits to being unvaccinated, and the other's reaction is palpable, visual, even angry. The second backs away in surprise or revulsion, re-establishing the all-too-familiar social distancing.

Then the lecture begins (paraphrasing): "How can you not be?" "You are putting me at risk." "You could get me sick." "Are you one of 'those?'" The unvaccinated then asks, straightforwardly "if you are vaccinated, then are you not protected from me?" That is, the unvaccinated are posing a risk to themselves.

The news seems to bear that out. The recent roundtable discussion supported that "the vast majority of such (hospital) patients are unvaccinated." The vaccine, for many, remains a choice. That is changing, with mandates. There are government actions and private employer actions. But as the Business Report notes, employers may be reluctant to require vaccines due to the already pernicious labor shortages. Thus, the vaccine marches forward, but not all are willing to join the parade despite the benefits or (seemingly) increasing requirements.

That may be changing. One of the main objections voiced has been the lack of FDA approval. Sure, the FDA has acquiesced in the use of the vaccines, an "emergency approval," according to CNN. But, that changed recently to a full approval for one vaccine. Similar approvals are expected to follow for the other major vaccines. And the news reports some expectation that this may assuage the concerns of some of the approximately 30% of Americans that remain un-injected. A similar figure, 30% of the unvaccinated have said that "full approval" might be persuasive to them as regards the vaccine. 

A local news story included interviews related to vaccination. At least one said "I do actually feel a lot more comfortable in getting it." in response to the news of approval. This story cited a similar 31% that might be influenced by full approval from a June 2021 survey. As regards the volume of testing, one doctor noted "when you look worldwide, almost five billion doses have been distributed, so this is not new. This is not something that has not been untested." Think about that, perhaps the "emergency approval" has effectively led to the largest non "clinical" trial in human history. As McDonalds used to say "billions and billions served." That volume took decades with hamburgers, and less than 8 months for this miracle vaccine. 

Back to the two in a dialogue above, two critical facts: (1) That you have been vaccinated does not mean you are immune to SARS-CoV-2. You can catch it, though its likely the symptoms will be diminished. Yes, vaccination benefits you tremendously but you are not immune. (2) Regardless of vaccination, you can catch it from touching something, interacting with someone, passing too close to someone, and a variety of variables. The unvaccinated may be some threat to you, but so are a host of other circumstances. That the someone you pass on the street is vaccinated does not mean that person cannot pass it to you, see (1) above. This was recently discussed in Breakthrough, Vacillation, and Consensus (August 2021).

It may depend on what your definition of the word "is" is, or in this instance what the definition of "plan" is. But, there is great debate about the SARS-CoV-2 virus, and the Great Pandemic. There has been accusation, recrimination, and reverberation. Us pawns on the board have some valid questions for the various chess masters (scientists and experts) that have taken a hand in this game. It is in our nature to have questions; inquiring minds want to know.

Despite what is unknown, I have been an open fan and advocate of vaccination, see Vaccination Implications (February 2021); The Future's So Bright (February 2021). In the Future, I predicted the entire U.S. Population could be inoculated by October 11, 2021. But, the rate of inoculation has not kept pace. In my defense, the President likely has better access to data, and his predictions have not been met either. It would be fantastic for the country to all be vaccinated. But, that is a pipe dream. Even if it were mandated, there are those who would (even could) not comply.

It turns out, however, that some people simply do not want to be inoculated. Some of them are a bit difficult to take seriously. Remember when USA Today reported in June 2020 that a vaccine was "perhaps years away?" Talk about missing a prediction. That article also noted, "There’s concern that when there finally is one, not enough people will take it to protect the population as a whole." Well, less than six months after that article there "finally" was one, and about a year after that article 160 million Americans were inoculated. But, in fairness, there are a fair few who just do not want it.

There is news that supports the wearing of masks. WCNC Charlotte says that they protect both the wearer from others and prevent the wearer from spreading "droplets." Thus, wearing a mask may provide you more protection, and it may protect others from you. In light of all the vacillation on masks by various scientists over the last 18 months, it seems that this decision certainly remains one for each individual to make. Despite that, various governments seem intent on forcing the mask-wearing once again.

So, of the two in the conversation recounted above, is there a "right" and a "wrong?" Perhaps, or not. The person electing not to take it may present a risk to her/himself of disease and to others as a "spreader." However, as a vaccinated person, I have done what I can to protect myself. That does not mean I cannot catch the SARS-CoV-2 virus from an unvaccinated person. BUT, it also does not mean I cannot catch it from a vaccinated person. The vaccinated have the same ability to carry and thus spread the virus as the unvaccinated, according to the AP.

Thus, it seems most likely that those who decline the vaccine are threatening serious harm, increasing risk, mostly to themselves. If the vaccinated can indeed spread the virus, then our being vaccinated may not provide so much protection to others. Those who are eschewing the vaccine are taking their chances. Note that some studies conclude as many as 98% of those hospitalized for COVID-19 in 2021 are in this unvaccinated group. They are taking a risk, but it seems they are not putting the rest of us at significantly greater health risk. Thus, like the mask, it seems best that each person makes her/his own decision on vaccination.

To top off the discussion, there is now a prediction that the government will recommend that we get a vaccination "booster," perhaps as early as September. That inoculation protection may fade over time is not a new idea. We have heard that from the beginning. For my part, sign me up for the booster. I have enjoyed my return to "near normal" following my vaccination, and I will enjoy remaining active, engaged, and social. 

I am more comfortable in both work and leisure with the protection I think I gained with inoculation. My advice is to get the vaccine of your choosing and avoid the risk of serious illness, hospitalization, or worse. But, in our polarized world, I would recommend that berating people publicly for their choice is unlikely to persuade them to join the vaccine bandwagon. Let's let people make their choice unless some employment or government mandate occurs. Even then, let's be comfortable as a free society in saying they then remain free to change employment and otherwise follow their convictions. 

Fees on Costs

An interesting subject is adjudicated in Bustos v. Nissan Motor Corp., OJCC Case No. 20-021139IF.

The injured worker filed a verified petition for attorney's fees. This was related to a petition for benefits filed in September 2020 seeking a medical benefit, a small medical mileage reimbursement, "and reimbursement of costs in the amount of $6.90 for certified mail of the petition for benefits." There have been various Florida appellate decisions in recent years regarding the entitlement to reimbursement of litigation costs. One might want to read Coto v. Univision/Sentry Cas. Co., 281 So. 3d 551 (Fla. 1st DCA 2019), reh'g denied (Oct. 28, 2019), and Frederick v. Monroe Cty. Sch. Bd., 99 So. 3d 983, 984 (Fla. 1st DCA 2012).

In Bustos, the employer carrier "confirmed compensability of the case, agreed to authorize the follow-up appointment . . ., timely paid the mileage reimbursement and agreed to reimburse the $6.90 in costs." The petition issues were thus purportedly concluded without resort to significant litigation. The judge noted, "however, the E/C did not actually pay the $6.90 in costs until November 16, 2020, more than 30 days after the petition for benefits."

The claimant sought the award of an attorney's fee based upon "the E/C's failure to make payment of the agreed upon costs within 30 days of the petition for benefits." Entitlement to such fees was disputed. Arguments against the fee included alleged procedural impediments to the cost reimbursement including the carrier not having Claimant's counsel's "tax ID number," that there was no "cost reimbursement form . . . submitted or approved by the JCC," and that there was no proof Claimant was "the prevailing party." 

The trial judge noted that the employer/carrier "did not pay the $6.90 in costs within 30 days of the petition." Though it claimed that this was caused by the absence of a tax ID number, "the E/C did not request Claimant's counsel's tax ID number within 30 days of the petition." The judge rejected the argument that a "reimbursement data sheet" or judicial approval was necessary because eventually the "E/C paid the $6.90 in costs without requiring" that form or approval. 

The judge analyzed the appropriate method for calculating a reasonable attorney fee payable by the employer/carrier. This included consideration of the claimed "time expended" and the Claimant's attestation that a reasonable hourly rate would be $350.00. The judge described a process of identifying the time specifically related to the $6.90 claim for costs and excluded the time "unrelated to the issue." 

Ultimately, the judge concluded that the Claimant's counsel "devoted 7.3 hours towards the prosecution of the costs reimbursement claim and 1.0 additional hour for attendance at this hearing." Thus, 8.3 hours were invested in the obtention of $6.90. Notably, however, "the majority of the hours expended were in relation to the prosecution of the attorney's fees and not the $6.90 cost reimbursement claim." The judge concluded that "$300.00 per hour is a reasonable hourly rate," and awarded "$2,490.00 in attorney's fees." for obtaining the $6.90 reimbursement. 

This illustrates a reminder that litigation costs are mandatory in Florida workers' compensation. A review of the appellate cases cited above may be of assistance in this regard. It also reminds that time spent proving fee entitlement can be included in the time for which an employer/carrier fee is due. Notably, in this instance, "the majority" of the $2,490.00 was related to that proving of fee entitlement. The order illustrates an intriguing aspect of Florida workers' compensation. 

Live In Orlando - 2021!

If you haven't heard, WCI is live again this year in Orlando. Chances of cancellation <0%; chances of a "pivot" or switch to "virtual," <0%. Chances of rain on the charity golf tournament, <0%. Chances I will see you there? Pretty good actually. 

From the Dark Ages (1970s) comes a reminiscence of Chevy Chase glibly smirking into the camera -"Live from New York, it's Saturday Night!" And, in a parallel construction, I image the slightly different  "Live in Orlando, its WCI 2021." Yes, the WCI leadership told us in 2020 that the nations' biggest workers' compensation conference would be postponed to 2021; and here we are. Michael Jackson, many years ago (1970) crooned "I'll reach out my hand to you, I'll have faith in all you do, Just call my name and I'll be there." That pretty much nails it for me: "I'll be there."

Why? Well, it is what we have been doing every year for as long as I've been in the workers' compensation community. My first WCI was 1992 (I think). It was at the Peabody in Orlando then, and you could not get a room there to save your life. I stayed several hotels down the road, in the moldiest building I ever recall walking into. The Monday entertainment was always in the breezeway, and the crowds were sometimes a bit wild. There was a party atmosphere to much of the event back then. Perhaps those days look better in retrospect?

Why? Well, it has evolved into the broadest selection of educational topics anywhere in workers' compensation. There is no program that even approaches the depth and breadth of these topics. There is medicine, law, safety, and more. The variety of subject-matter experts on this program is nothing short of astounding. What is somewhat surprising is that each year brings innovative speakers and imaginative topics. If you are looking for the premier speakers on workers' compensation topics, the WCI is where you want to be.

Susan Orlean is credited with saying "I'm happy to be reminded that an ordinary day full of nothing but nothingness can make you feel like you've won the lottery." That resonates for two reasons. 

First, I have no idea what it would feel like to win the lottery. Or as Mercy Me crooned "I can only imagine" (1999). What are the odds of winning the lottery? One in 13,983,816. So, that might mean that 1.5 people in the 21.48 million Floridians. Or, for each of us, that means we only have to play 14 million times and we are bound to win (the actuaries will say I'm wrong here). So, sometime in the next 269,000 years I am bound to win if I play consistently. The numbers folks would be quick to remind that my chances of actually winning are as good with the first ticket as with the last, which is also true. But, I digress.

Second, the Orlean quote is a reminder that there is a value in what we have become used to; a day without forms to complete; a day without phone calls to return. Perhaps a day that contributes to our knowledge base, reaffirms connections to our community, and allows us to interact with each other in a casual and relaxed setting? It is not "nothingness," but it is a familiarity and community that likewise makes "you feel like you've won the lottery." I'm committed; I'll be home (be)for(e) Christmas this December, will you?

Back in the day, we would receive a catalog in the mail. The pre-Internet age had kids thumbing through hundreds of colorful pages of retail offerings in the days leading to Christmas. I was reminded of that as I scrolled the dozens of pages of programs slated for WCI this December, striving to pick the alternatives that would occupy my hours. It is a smorgasbord of amazing diversity and variety. Bottom line, if you cannot find topics in this catalog, I am astounded. Speaking of diversity, there is a specific program on this topic also.

I sat in a board meeting in early August 2021. The College of Workers' Compensation Lawyers (CWCL) is planning its annual induction dinner at the WCI this December. Various board members had already lamented how hard the isolation of COVID has been. Several expressed positive feelings about getting back together in person. One, however, cautioned (essentially) "Well, I just hope the WCI goes." I felt like telling them that the odds of the WCI going virtual in 2021 were longer than that one in fourteen million of the lottery, but I'm not the WCI. 

Days later, I had the chance to speak with Jim McConnaughhay, the General Chair of the WCI. I asked the innocuous question "Is there any chance of going remote." His response embodied the commitment that is WCI. He explained first that there is value in a handshake, a greeting, and a presence. He waxed a bit nostalgic about our need to gather and be a community. "No," he assured me, the WCI is going to be live in December 2021. And, he has a lot of evidence on his side (I weigh evidence for a living). I'm still not the WCI, but I think this assurance is from the source. He says we will be live, and therefore: the chance of "virtual" is <0%.

Mr. McConnaughhay noted that the Marriott World Center (venue) is sold out again for WCI2021 (and was weeks ago). That is persuasive. The conference registrations are already over 1,500 of our fellow community members. That is persuasive. The "overflow" hotels are also doing as well with registrations, one of them has likewise sold out the reserved room block. The exhibitors are signing up; there will be pens, post-its, (likely) hand sanitizer, and more in ample supply. The community is exhibiting both commitment and excitement. In other words, to be clear, the WCI will be live in December 2021.

Another bit of evidence of which I reminded him is the annual charity golf tournament each year at WCI. This year, the tournament is being produced by and for Kids' Chance of Florida. I have been on many conference calls, and I am amazed that half of the player slots have been sold already. The Kids' Chance is fortunate to have people like Ken Eichler, Kimberly Helwig, Stacy Hosman, Jim McConnaughhay, Bill Rogner, Linda Vendette, and Bob Wilson working on a project like this. Conventional wisdom is that most golfers commit to such tournaments in the 30 days immediately prior. This tournament is almost four months away, and the player spots are going fast. People are planning to be in Orlando in December.  

In Transformers (2007), the protagonists (Sam and Mikaela) are surprised to find Sam's car is not only a robot but an alien. The vehicle transforms back into Bumblebee the Camaro before their eyes, ending with the passenger door open. Sam turns to a reluctant Mikaela and asks "50 years from now, when you look back at your life, don't you want to say you had the guts to get in the car?" This whole discussion of our triumphant return to the community in 2021 reminded me of that quote. 

In 50 years, will any of us still be around? Unlikely for us codgers, but perhaps some of you will be. For all of us, however, we will remember the challenges of 2020-21 and the "great pandemic" for the rest of our lives. We will recount stories of shortages, lockdowns, isolations, quarantines, tests, treatments, and yes the vaccinations. We will remember those who were ill, and tragically we may each remember some who passed. But, science has brought us a vaccine and largely rejuvenated our confidence and participation. We will have stories to tell and memories to relive of the challenges, the losses, and yet also our survival. I hope to hear some in Orlando in a few months. 

When you look back on 2021, "don't you want to say" you made the trip? I am looking forward to it more than I can say. I have been very enthused by our return to in-person, We're Really Back (April 2021). I really enjoy seeing you, conversing, catching up. I appreciate your feedback about this system, our operations, and our personnel more than you know. The education, the community, and the feedback are all invaluable. I am planning my September vaccine booster, and I hope you are likewise minding the vaccine recommendations. Wear a mask if you wish. Socially distance if you wish. Vaccinated, masked, distanced, or not, I look forward to seeing you in Orlando in December. 

Violence, Arising, and Course

Much has been written lately regarding a legal foundation in workers' compensation, the compensability test of “arising out of.“ While the recent state of litigation is largely tied to the reasonably recent appellate decision in Valcourt-Williams v. Sedgwick, the “arising out of“ concept has deep historical routes. This is discussed in depth in It's Not that the Wind is Blowin (June 2021).

Our Florida Worker’s Compensation law has long regarded to necessary connections to employment in order that an injury is compensable. The first has been seemingly more complicated, that the injury arises out of the employment. The second is a separate test regarding whether the employee was, at the time of injury, in the "course and scope” of employment. These requirements were included in chapter 440 largely as a matter of artifact. The vast majority of state Worker’s Compensation laws were copied from one state to the next beginning with the origins of Worker’s Compensation in the early 1900s. Thus, these two phrases are common in various statutes across the country.

Without definition or delineation, the interpretation of these two phrases was left largely to the court in the early days of Florida workers' compensation. Based upon various sentiments of social justice, interpretations were largely skewed in the benefit of injured workers. Florida in 1993 responded legislatively with a definition of "arising out of." There has been some intermingling before and since with the "course and scope" and the "arising out of" tests. Their interrelationship is perhaps among the most confounding in workers' compensation.

Pertinent to today’s discussion, section 440.09(3) specifically precludes Worker’s Compensation benefits when the injury results from the intent to injure another, often referred to as the “aggressor rule.“ When one becomes an aggressor, she/he may deviate from the "course and scope" and thus not be entitled to workers' compensation benefits. This may depend upon things like what the dispute regarded, a work or personal issues. In that context, the analysis might evolve from one of "course and scope" into one of "arising out of." If a personal grievance is brought to the workplace, some jurisdictions have concluded that dispute and resulting injury are not sufficiently connected to work to render injuries compensable. 

It may depend upon company policies regarding how violence or altercation is addressed. It may depend upon testimony about who was the aggressor in a factual situation that was viewed from different perspectives. In this respect, perhaps more of a course and scope" analysis. The statute provides:

"Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician; or by the willful intention of the employee to injure or kill himself, herself, or another."

Having focused recently on workplace violence, specifically as regards mask requirements and psychology, news stories regarding violence have become more noticeable. See Harassment and the Labor Shortage (August 2021) and Violence in the Workplace a Hot Seat Topic (August 2021). On Thursday, August 19, 2021 the Worker’s Compensation Hot Seat addresses this topic of workplace violence and it’s broadest senses.

But this new week brought news of a different perspective. There has been ample reporting on customer violence and the impact that has on workers and employers. But this week there is news that may illuminate a different question or questions. What of the potential that an employee engages in violence? At the outset, it is suggested that such instances will likely involve a fair number of factual issues for resolution. It is very rare that there is a fight or altercation and all of the eyewitnesses provide unanimous conclusions regarding the who, how, and why.

In "Employees Fight Back," WorkersCompensation.com reports on two instances of workplace violence. In one a retail clerk is accused or lashing out at a customer. The story suggests that the two had words, that a situation escalated, and that the clerk assaulted the customer. In another instance, in a food establishment, disagreement over the product and service escalated to confrontation. In each, there are differing views of, essentially, who started it. In each, there is a suggestion that management may have not become aware of the particular escalation in time to intervene. 

In a story earlier in the week, a parent is said to have been speaking with/at a school principal regarding masks. The situation was perceived as troublesome, or worse, by a teacher who then intervened. That led to a physical altercation and ultimately to "lacerations to his face, some bruising and a “pretty good knot on the back of his head.”

Wrapped in this analysis, at least tangentially in Florida, is possibly the "stand your ground law." Section 776.012, Fla. Stat. Under this, a threatened person in Florida has no duty to retreat when threatened with "great bodily harm to himself or herself or another." That is not a workers' compensation law, but it might make for interesting legal arguments. When confronted by a threat of violence from a customer, what is a worker to do? If a worker engages in violence and is injured in the process what are the implications for customer and worker?

It seems probable that the workplace is a stressful place in the time of COVID-19. There is the potential that tempers could flare. The news reports seem to support that violence is occurring, and we are left to wonder how common this is. The discussion on the Hot Seat will include employer and employee perspectives as well as psychological insight into the current workplace, de-escalation, warning signs, and more. These recent news stories that suggest the potential for the workers to be instigators or aggressors add a wrinkle or perspective to the curiosity.

In terms of the so-called "aggressor rule" in Section 440.09(3) would the California teacher who interceded in the situation between parent and principal be an "aggressor?" Or, would protection come from a statute like Florida's allowing one not to retreat when self or another are threatened? Will the issue of "how threatened" the principal was be relevant in factually determining the reasonableness of the intervening teacher's response? 

Would the employees in the retail and service story cited above be involved in the same analysis of reasonableness? In the event of injury in these altercations, might these questions come down to the factual testimony of those were were involved and/or those who happened to observe? There is, as mentioned, a challenge perceived with eyewitness testimony. 

The life and workplace stress seems to be a given. We seem to be experiencing ongoing pressure and challenges throughout this experience. I recently spoke with someone who lamented how stressful a formerly enjoyable task, shopping, has become. Not only is there stress in our world, but the very things we perhaps found as solace are not only removed from life's positive column but are now in the negative?

Join us today for the Hot Seat. If you missed it, they are all on the WorkersCompensation.com site for your viewing pleasure.

Tootsie Pops Make you Think

Science is persistently in the news. We are, the pundits command, to "follow the science." We too often, however, find ourselves in the midst of conjecture and opinion. What the pundits too often mean is that we should follow the scientists and accede to their opinions and conclusions. Not because they necessarily have science behind them, but because they are really smart, and they are scientists.

We have heard "follow the science" in a variety of settings. We heard it often in the COVID era. We heard it as to masks, amusingly both in favor of masks and against them. We have heard it with global cooling in the 1970s, global warming in the 1990s and more recently with simply "climate change." The scientists and the pundits strive to distinguish their respective conclusions and denigrate the conclusions of those with whom they disagree. There is a propensity to label various arguments or conclusions as "myth" or worse. The New Scientist led with a (seemingly disparaging) "myth" headline regarding global cooling; then the first words of the article concede the scientist's cooling consensus: "Indeed they did." Curious.

Science is not consensus. Years ago, a company ran an advertisement that read "When forty million people believe in a dumb idea, it’s still a dumb idea." This reminds us of the fallacy of consensus. We must never forget that Copernicus formulated a model that put the sun at the center of our solar system. Consensus labeled him a heretic. Gallileo, Pasture, the Wright Brothers, and more were rejected or worse by consensus. Popular writer Michael Crichton (Andromeda Strain (1965), Jurassic Park (1990), etc.) has been hard on the consensus crowd: "The work of science has nothing whatever to do with consensus. Consensus is the business of politics." See, Consensus in the Absence of Proof (January 2021). 

Science is not consensus. Science is about proof. The proof occurs through:

"a method of procedure that has characterized natural science since the 17th century, consisting in systematic observation, measurement, and experiment, and the formulation, testing, and modification of hypotheses." (Oxford Languages Dictionary).

Thus, there is a hypothesis, a guess, or a conjecture about something. This may or may not be educated. Then there is the testing of the hypothesis, which results in data. Data. Results. Science. W. Edwards Deming is credited with ”In God we trust. All others must bring data.” That is not "in scientists we trust," no disrespect for scientists. However, opinion is opinion (I think the Jaguars will win the Super Bowl in 2022, but I have as yet no empirical data). If forty million of us believe in the Jaguars, that will still not be science.

I was reminded of this all recently when I wrote Preservation and Interpretation (July 2021). That post led me back to the Tootsie Roll Pop, and the great mystery of "how many licks." The boomers will remember the Owl's answer - "three." I vividly remember the Tootsie Pop. For some reason, today they just don't live up to my memories. We spent many Saturdays at the movies and consumed unimaginable quantities of Tootsie Pops, Charms, Red Vines, Sweet Tarts, and worse. The Charms was large enough back then to last through to the credits. Those, as Grandpa used to say, were the days.

But, the folks at Tootsie have reported on various attempts to crack the age-old question of "how many licks." Science, through experimentation, says that the answer is 364 licks (Purdue University with a "licking machine"), or perhaps it is 411 (Michigan University with a "customized licking machine"). On that point, I have to ask if there is any kind of Tootsie pop-licking machine that is not customized? I digress. A school in Kentucky took a different tack and had 130 people lick their way to the center. They then assimilated the data. Their answer? Well, "it depends." It depends on the gender of the licker, the flavor of the pop, and even the time of day. Science has gone after this nagging question, but without reaching a solid consensus. 

Not to be outdone, a group of middle school students ran a study and came up with 144. So, science has spoken. The answer is 104, 134, 144, 167, 213, 364, or 411. One might conclude that the more customized your tools, the more licks are required. These are examples, there are many more discreet outcomes documented. The publication illustrates that variables may be important. Variables in the test subject, the material tested, and even the time. Interestingly, none of the empirical data supports the conclusion of wise old Mr. Owl (three licks).

Science struggles to give a definitive answer to this age-old question, with its minimal variables. Minimal compared to something as complex as SARS-CoV-2 transmission, inoculation, being a "carrier," achieving antibodies, masks, and more. For example transmission within 6 feet of someone (a social distancing paradigm) or 3 feet (another distancing paradigm). Oxford Academic recently concluded that 3 feet is effective after we lived 6 feet for months. For instance, is paper better than cloth, cotton better than polyester, two masks better than one, three masks better than two, tight fitting better than loose, multi-layered better than single, new better than old? 

Even the CDC notes that face shields are not recommended, and neither are masks with "exhalation valves." Those valves let the virus out (but if you are intending to protect yourself with a mask, this seems potentially irrelevant?) Some have been particularly critical of face shields: "Face Shields Called Flawed Protection." The Transportation Security Administration (TSA) does not accept the shield as a substitute. Despite this consensus, on a recent trip I ran into multiple people traversing the various airport concourses clad in only shields instead of the supposedly mandatory masks. I saw none confronted or even questioned. 

Should we distance 3, 6, or 9? Should we mask, when, with what?

In Florida, we have not had mask mandates, shutdowns, and economic ruin. We are, by any economic account, blessed in the Sunshine State. The Florida OJCC has remained open and operational throughout. I recently learned of a state that has reopened its adjudication process in July (judges coming to the office a few days a week). Another just now returning to some function in August. I struggle to comprehend these. The experience here has just been so different. Despite this, I did recently learn that some of our offices were taking visitor temperatures (an irrelevant and non-descript finding - you can have the virus and transmit it without having a fever; you can have a fever for reasons other than the virus). 

On the street, I have seen families walking about in masks, even recently. Even the CDC does not recommend outdoor mask use. I have seen people driving alone in their personal vehicle while wearing a mask (not sure who they are protecting or being protected from). In the grocery store in July, I encountered a family of tourists (their state is omitted purposefully, bless their hearts) wearing masks. Five people, five masks, and ten utterly and completely exposed nostrils. Not one mask was covering a nose. According to some, "this can defeat a key purpose of wearing a mask." Do we really need science to tell us that covering one entrance to our lungs is ineffective if we do not cover the other entrances? Some in the article cited above contend that "the nose is a main pathway for the virus."

What is the motivation of these folks? If the nose is not covered, is there any point in a face mask? Where is, as I began today, the science? What we have is at best consensus, but more likely merely confusion. Many smart people believe that mask-wearing is good. They equivocate, a bit, in saying that the efficacy is enhanced by social distancing (but three feet? or six feet?). Would the distancing alone be as effective? Where is, sorry to be redundant, the science? There is a group of middle schoolers somewhere that we could perhaps task with conducting an experiment or two. Maybe the results would be as diverse as the Tootsie Pop. But, they would nonetheless be results and data.

I think that people may benefit from wearing masks and social distancing and vaccination. Each has the potential for protection from the virus. At this point in time, however, the scientists are still working on fully understanding this virus, and how it mutates, propagates, and evolves. We are 18 months into the American cases, perhaps two years into the first cases, and still, there is no answer as to where this came from. In 2020 there was ridicule for anyone who suggested an origin connection to a laboratory, and yet more recently that suggestion has been met with less contempt. It is a struggle to keep up with all the virus news we see on COVID. Maybe there is a benefit in taking precautions just in case they might help? 

The vaccine is being deployed in epic quantities. Bloomberg reports almost 5 billion shots administered. There are about 37 million doses dispensed daily across the globe, with less than a million of those in the US. We have not kept pace. The New York Times reports that 168.7 million in the US are "fully vaccinated." The population is 331 million according to Worldometers, so just over 50%.

Despite all of the debate, consensus, doubt, and angst, the hard facts are difficult to ignore. Nearly all COVID Deaths in US are Now Among Unvaccinated. Multiple headlines similarly note statistics such as "98% of Ohio's COVID-19 Hospitalizations in 2021 have been unvaccinated." Half or our population is nearly all of hospitalization and death. That does not mean the vaccinated are invincible. It does not mean that future vaccination will not be recommended or necessary. It means that the vaccination is working, and it enhances your chance of avoiding COVID-19 or at least avoiding the worst of it. 

None of this means that masks are useless or ideal. It does not mean that distancing is effective or not. I suspect (I am not a scientist) that there will be years of study in our future, and that there remains much to learn about SARS-CoV-2 and COVID. But, those that are distancing, masking, and being careful are likely protecting themselves. Immunizing? No, protecting. 

At the end of this all, despite any doubts one may have as to how many licks it takes, the vaccine is proven effective in preventing hospitalization and death. That is not laboratory proof or science. That is the real-world experience gleaned from hundreds of millions of injections. "The proof of the pudding is in the eating." Accepting that science may not have this virus fully understood, that science is imperfect, note that it has brought us multiple vaccines and the proof of their efficacy is in the simple fact that inoculated people are avoiding hospitalization and death. 

If you have not gotten "the jab," I encourage you to consider it. In the end, we must each protect ourselves, our families, and our coworkers. Beyond vaccination, if a mask makes you comfortable - wear it. If staying 12 feet from others makes you comfortable - do it. Make good decisions for you. 

Harassments and the Labor Shortage

I was recently penning a post on the recurrent violence over face masks in our polarized America, Violence in the Workplace (August 2021). The nation seems in many ways to persist in drifting apart. There are many who express grievance in various forms. Our present seems attuned to the struggles of some, with voices being heard. Progress is perceived on some fronts with the conviction of some predator and a fall from grace or the exposure of some celebrity whose behavior affronted, and was allegedly despicable.

There are a great many causes for the great polarization of our society. Not the least of which is the ability for the low and slow to slink about in the shadows of social media pouncing upon the innocent. I watched so many instances of cyber-bullying and ad hominem attacks that I eventually left most social media platforms. It has become impractical to have a conversation in that setting of hypocrisy and sniping, among the many trolls who hide behind their keyboards and relative anonymity spewing venom. Too many elect to call names, label, categorize, and insult rather than engage ideas. Perhaps that is true beyond social media.

In the midst of drafting that missive, and researching various recent instances of workplace violence related to masks, I discovered a different thread of mental health concern that is worthy of mention. First, however, I note that small businesses are struggling to find workers in the post-pandemic world. Reports on this come from CNBC ("Small Businesses Struggle to Find Workers as Pandemic Eases," May 6, 2021), the Wall Street Journal ("Millions are Unemployed, Why Can't Companies Find Workers?" May 6, 2021), and Grubstreet ("Restaurants Are Struggling to Find Workers, Here's Why," June 16, 2021).

If you have been isolating or quarantining, you may not have noticed. However, there is a labor shortage in America. I noted some of this in Work Hours are Deadly? (June 2021). I recounted difficulty obtaining a particular pizza, which for me has become an increasingly difficult find in this world. That particular restaurant had taken to closing certain days due to short staff. A carry-out restaurant in my neighborhood for a while had a sign posted that said "Be nice to our employee," and it was not a typo; one, singular, "employee." The evidence supports that staffing shortages are real and troublesome.

The Grubstreet article is written by a waiter with 14 year's experience. I waited tables a few times, never as a primary job. It is a tough job in a stressful environment. The customer blames the waiter when the kitchen is slow, the manager has under-scheduled, the supplier has not made a delivery, and for everything else in the dining experience. This is not an intentional displacement of blame but merely results from the wait staff being the one we customers meet and interact with. When the customer is disappointed that there are no chicken wings (national crisis, not the wait staff's fault), the tip is likely to suffer.

The Grubstreet author says that waitstaff are remaining away because "the industry never treated them with respect." Well, never is a long time. I know in my days as a line cook I worked in some places that showed a great deal of respect for wait staff and others. But, I am getting long in the tooth and my experience was longer ago than this particular waiter's 14-year perspective. I trust he knows more of today's environment than I could. This author alleges that there is intentional mistreatment, and that "racism and sexism, both from guests to staff and among employees, are rampant." That is not new. In my days of restaurant management, I worked on such perceptions and complaints among the staff.

In the research on masks, I was surprised to find stories of sexual harassment in the pandemic era. I have not witnessed such instances in person so find the volume of related instances both informative and surprising. But, just because you are not a perpetrator, and have not witnessed it first-hand does not mean it is not out there. One instance that has received significant news coverage was a wait staff with about 10 years of experience being asked by a customer to "pull down her face mask so he could base his tip on the attractiveness of her smile." The wait staff declined and the customer's behavior deteriorated further. This is recounted in a CBS News story from March 2021. It is not clear whether management was apprised of this, or should have been aware of it.

The CBS article notes that harassment claims are more common in the restaurant business, roughly double "the rate of the general workforce." An eye-opening "three-quarters of tipped workers who receive subminimum wages said they had been sexually harassed." For clarity, some states allow "subminimum," a lower mandatory wage, for employees who are in tip-earning roles. I have wondered in recent years if that is being relied upon in each business that has the ubiquitous "tip jar" at the checkout. Those seem to have proliferated and we are asked to tip individuals in broader categories today than I recall in the past. Is this a benefit for their hard work, or a methodology for a business to pay a lower wage? Is the tipping-asking increasing in our world or am I just noticing it more?

Before we get too deep into that disturbing "three-quarters" statistic, it turns out that fully 50% "of nontipped workers" have been harassed, "according to One Fair Wages report" noted in the article. One might find either of these two disturbing and might struggle with how we should address such a preponderant challenge. These are disturbing volumes. Notably, any volume of harassment is inappropriate, but these numbers suggest a serious and systemic problem. If half of all workers in an occupation were suffering some physical work injury, it would certainly drive some manner of safety reform; consider the innovations of equipment, training, and practice that you have seen in recent years to reduce the volume and severity of lifting accidents for example. 

Is management engaged in trying to observe/prevent such harassment? Are conversations being had when this occurs, or are staff under the impression they must suffer in silence? Can, or will, management be proactive in addressing this customer behavior?

So, things are threatening in the restaurant business. It is perhaps fair to say that the description, "restaurant," is being used for a broader category that includes bars, nightclubs, and other gathering spots, though that is not specified in these articles. It appears that, during the pandemic, wages dropped in such venues due to constraints on restaurant customer volume. The decrease in income made workers feel less stable. One person highlighted in the CBS News report "felt disposable before the pandemic, and extremely disposable after." She has moved on to filmmaking as a new career and is not likely to return to waiting tables. How many others changed their path similarly?

NPR noted similar conclusions regarding harassment in a July 22, 2021 piece: "Tips And 'Service With A Smile' Rules Fuel Sex Harassment In Restaurants, Study Says." It stresses that the dependence upon tips is part of the challenge. However, it says that there are many "job requirements to appear friendly and pleasant." A study concluded that "dependency on tips and a requirement to appear emotionally pleasant on the job work together to increase an employee's risk of being sexually harassed." Might the same be true for commission sales? Are these risks limited to non-salaried roles? Doubtful. There is, therefore, an apparent impact on the service industry from the pandemic, economic structure (wage/tip), and management awareness/willingness regarding the issues. To be fair, any employer should be discussing with staff whether, when, and how such perceptions of harassment are occurring. Those discussions may be critical to recruitment and retention alike.

To put a broader perspective on the pandemic effect, The Lily reports that harassment in general "actually got worse during the pandemic, according to some." This article recounts examples of people battered, "groped" in the streets, followed by persons in vehicles, and being yelled at (cat-calling and worse). This article is broad but does not exclude the workplace, with one interviewee stressing the occurrences at work. However, the problem is far broader than the workplace. Another individual interviewed recounted multiple instances of harassment and her conclusion that "safety is an illusion." This is seemingly specific to the prediction of some that masks would somehow make women safer; an official of a nonprofit that studies harassment noted that a mask ultimately has not been demonstrated to make a difference in preventing harassment.

There is, therefore, much threat and danger in the world. There will be work upon that in our current age, but will it be enough? Will harassment end? In the wide spectrum of our world, there seems much in need of attention and consideration. 

In the business context (this blog is about workers' compensation), however, this seems part and parcel of the idea of a safe workplace. Employers have an obligation to create and maintain a safe workplace whether the threats are internal (coworkers) or external (customers), verbal or physical, patent or subversive. That the workplace threat is a substrate of a broader social, economic, and societal issue is troubling. In both circumstances, there is likely much more that all of us can do to recognize and oppose such treatment. But, in the workplace perhaps there is the immediate chance of significant and immediate progress.

In the category of work, we see an employee shortage. This may be from fear of COVID in a highly interactive setting, perceptions of disposability, angst from harassment, fear of harassment, the inappropriateness of co-worker behavior, the callousness of clientele, and a raft of other potentials. Workplace managers will undoubtedly strive to attract and retain staff. In that process, there may be a focus on pay scale, benefits, work hours, and more. But, will there be a focus on the underlying challenges of harassment? Will there be a consideration in the analysis of pay scale regarding whether subminimum wages might be fueling a safety concern? Will employers make the mental well-being of workers as important as they have striven to make physical safety?

In the (perhaps only somewhat) enlightened age in which we are emerging from COVID constraints, will there be a focus on the emotional toll of harassment in the workplace and methodologies to mitigate those impacts? May an employee asked to lower a mask count on management to be 100% supportive? May an employee anticipate her/his employer will enforce a zero-tolerance environment of customer and coworker hostility, insult, or injury? May an employer rationally expect employees to return and remain for anything less?

Join us Thursday for the Hot Seat: Beating Workplace Violence in the Era of COVID. Let's talk about what workers are facing and the implications for workers' compensation.

 

Ford v. Boynton - Reheard and Revised

The Fourth District Court of Appeal rendered a recent opinion on rehearing that is intriguing and worthy of consideration. Some contend that a court reaching a new conclusion on rehearing is rare. The initial decision was discussed at length in Surveillance, Conflicting Rights, and Balance (May 2021). There, the court considered a civil appeal, stemming from a criminal accusation. A teen was accused of sneaking into a movie theater, and a parent was called. The police were apparently avoiding arresting the youth. When the parent appeared on the scene, she was recording video on a cell phone. She was asked to stop, told to stop, and yet continued to record both police and others at the scene. When asked if she was recording, she lied to the police at one point. 

The parent was arrested for "intercepting oral communications and obstruction without violence," but was not prosecuted. She then filed a civil claim "against the City and the officers for false arrest, declaratory relief, and for violating her civil rights." A federal judge dismissed the civil rights claims, and the case proceeded in state court thereafter. The Florida trial court dismissed the lawsuit, concluding that "the recorded parties had a subjective and reasonable expectation of privacy in their communications." Thus, the arrest pursuant to the "wiretapping statute" was appropriate. That she lied about not recording was also mentioned.

In May, the Fourth District Court of Appeals affirmed the dismissal, but not unanimously (Judges May and Artau were the majority and Judge Warner Dissented). The Court explained that "obstruction" does not require physical interaction. If a police officer is in the "lawful execution of a legal duty" and someone does something that "constituted obstruction or resistance of that legal duty" then the charge may lie. The mother's protestations that she could not be charged because her actions in "no way physically obstructed or impeded" the officer(s) were not persuasive with the court.

The parent sought rehearing, and various groups asked permission to participate in the proceedings as "friends of the court," or amicus curiae. This included The American Civil Liberties Union Foundation of Florida, Inc., The Florida Justice Institute, The Radio Television Digital News Association, The National Press Photographers Association, The South Florida Chapter of the National Lawyers Guild, the Center for Freedom of Information, Society of Environmental Journalists, First Look Media Works, Inc., American Society of Media Photographers, and The Society of Professional Journalists. The decision rendered in May was withdrawn and a new opinion substituted instead. This decision has been labeled as "unanimous," and there is unanimity in the holding. However, each judge "specially concurred" with a written opinion. Each is interesting.

The court explained in its holding that "as a matter of law the officers could not have had a reasonable 'expectation that such communication is not subject to interception under circumstances justifying such expectation' as required by the wiretap statute." Therefore, "there was no probable cause to arrest appellant for violation of the wiretap statute." The court also concluded that the parent's "words and actions did not constitute obstruction of the officers in the performance of their duties," within the context and process presented in this case. It, therefore, reversed the trial court's "summary judgment and remand for further proceedings."

Beyond the court opinion, there are three concurring opinions (one of which also dissents in part); "concurring opinions are not considered precedent." Dunn v. State, 454 So. 2d 641, 642 (Fla. 5th DCA 1984). Thus, while each is instructive and interesting, none is necessarily the law.

One concurrence was authored by the judge that dissented in the May 2021 decision of the court (Warner). This stresses that any "expectation of privacy" by the police officers "could not have (been) a reasonable subjective expectation." In the absence of such an expectation, this concurrence explains, "there was no probable cause to arrest appellant for violation of the wiretap statute." The concurrence explained that the parent's "conduct was verbal and not physical, and her lie about recording did not interfere with the performance of a legal duty," and therefore her conduct was not "obstruction."

The Warner concurrence explains the expectation of privacy. To preserve it, to "exhibit() a subjective expectation of privacy," "the individual (must) shown that 'he seeks to preserve [something] as private.'" Thus, any conclusion of a privacy expectation "can be rejected when there is no evidence the party 'made any effort or otherwise took precautions to keep the conversation private.'" Instructing someone not to record you, as the police and others did in this instance is not sufficient.

It is possible that it is not sufficient specifically for a public official such as a police officer. The concurrence explains that "a law enforcement officer has no reasonable subjective expectation of privacy in conversations he or she has with the public or the arrestee in the performance of the officer's duties in public places." An arrest is a public duty, and "the public has a right to hear the officer's words." This concurrence stressed that to "rule otherwise" would criminalize anyone recording "an interaction with police, whether as a bystander, a witness, or a suspect." The judge explains that society is not "ready to recognize that the recording of those interactions, which include audio recordings, are somehow subject to the officer's right of privacy."

The Warner concurrence relies upon a decision of the First District Court, Department of Agriculture &Consumer Services v. Edwards, 654 So.2d 628 (Fla. 1st DCA 1995), which involved an employee/officer who "secretly recorded a meeting between himself and several other officers." He was "arrested for violation of the wiretap statute" and terminated. The District Court there concluded that none of the officers in that meeting had "a reasonable expectation of privacy which society would recognize."

The Warner concurrence suggests that a different standard might be applied in situations that involve instead "non-public officials." In that instance, the law "compels a finding that there was no reasonable subjective expectation of privacy to the conversations recorded during this incident." This is founded largely upon the reasonableness of any expectation, influenced by the location (on a sidewalk compared to perhaps inside of one's car or home), "physical proximity and accessibility of the premises to bystanders," and even the awareness of a recording device or it being visible. Furthermore, the presence of others who might essentially overhear may be persuasive on the issue of reasonable expectation.

Some may perceive this opinion as more explanatory or descriptive of the potential parameters of the rights of both the recorder and the recorded. However, it is perhaps definitive more in the specific context of recording public officials in what the U.S. Supreme Court has come to call the Public Forum Doctrine, see Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939),("Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”).

I suggested in May that the court's decision might have broader implications as regards the gathering of surveillance video. And, it remains possible that a privacy right might nonetheless be violated even in a public forum if it is the privacy of "non-public officials," and if one's expectation is "reasonable. However, absent individuals in public locations taking "precautions to keep the conversation private," it appears likely that there is no privacy preclusion to recording people as they go about their day. Specifically, this is suggested by the concurrence's discussion of the expectations of a bystander who "approached an officer in the midst of an arrest or detention to engage in conversation." The opinion explains that those who put themselves "within earshot of police officers" are making a choice. Further, those who "choose to speak" are likewise making a choice. Might it be that one that goes outdoors in the age of cellphone cameras likewise makes a choice?

The second special concurrence (Artau) provides an excellent overview of resisting arrest, including an informative discussion of the distinctions between a suspect/detainee and "a mere bystander" to the detention of another. In this instance, the parent was "not the subject of a pending investigation. She was not the detained suspect." This second concurrence cites a reasonably recent Florida Supreme Court decision regarding consent to recording, McDade v. State, 154 So.3d 292 (Fla. 2014).

This provides insight into the "reasonable" expectation discussed by the court. There is an explanation of "visible microphones that captured communications" being contrary to expectations of privacy. The decision also discussed "the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations." There are therefore factual considerations that could make the outcome different in various instances. 

The third concurrence (May) noted that there was an argument on rehearing regarding the First Amendment (note the press-related amicus above). The judge noted that those arguments were "not raised in trial court," or even in the appeal, but were "raised for the first time in the . . . motions for rehearing." This is a critical reminder of the necessity to preserve error. Arguments raised by parties for the first time on appeal are rarely considered by a court. Those raised for the first time on a rehearing motion are even less likely to be considered.

This third concurrence also includes a dissent in part. The third judge disagreed with the court's conclusion that there was insufficient probable cause on the resisting arrest charge. The judge strives to distinguish the lower standard of probable cause from the conviction standard ("proof beyond a reasonable doubt") that would be required at trial. This judge relies in large part on the video evidence created by the parent's own efforts. This is thus a reminder of the power of video, and the note in Surveillance, Conflicting Rights, and Balance regarding the potential for appellate review to become more focused upon their own perceptions of evidence or credibility and less upon the deference therein to trial judges.

The third judge reminds that physical obstruction is not required for resisting arrest. A distinction worthy of note, but not dispositive perhaps. The third concurrence (dissent in part) characterizes the parent's "intent" in this instance perhaps intended to "create yet another YouTube video and controversy." The intent, perhaps, is to disrupt and distract.

All three opinions are interesting and each is enlightening in its own method. There is agreement in the outcome and yet one might argue no "unanimity." It is seemingly clear that in the end there is no prohibition on recording police in their performance of duty in the public eye, though the who, when, and how might limit such rights. Likewise, it seems likely that recording of those who interact with police in that setting is likewise not protected in terms of their privacy. It remains less clear how that might implicate the recording of a passerby during such a recording.

Of particular interest is the discussion of the obvious recording, and our essential waiver of privacy when we know of such devices and yet proceed anyway. This underlies various discussions in the opinion. Thus, street corner cameras, store surveillance, and similar are likely to be seen as acceptable to those of us who fail to alter our behavior to avoid them. Our choice is to avoid those patent recording devices in the protection of our own privacy.

Violence in the Workplace - A Hot Seat Topic

We gather again soon for another edition of the Workers' Compensation Hot Seat. These are unscripted interactions regarding issues that impact the workers' compensation community. It is difficult to believe, but August 2021 will be our 18th outing; topics have included vaccination liabilities, cybersecurity threats, vocational recovery, opioids and pot, sexual harassment, and more. All of the recordings are available on Workerscompensation.com.

In Episode 18, we will strive to tackle the threat of workplace violence. That is a very broad topic, and unfortunately, it is in no way novel. There has been a long history of workplace violence intertwined with such workers' compensation issues as compensability, the "aggressor rule," and more. Despite not being new, there are those who perceive workplace violence to be on the upswing in America. That may or may not be related to our current national health concerns, our seemingly increasing polarization, and intertwined doubts and concerns about what tomorrow will bring.

We find ourselves still in the midst of the SARS-CoV-2 virus and resulting Covid-19. Certainly, there has been ample progress, and our situation has improved vastly. However, we continue to see the impact and effects of this virus. As the vaccines took the fore in the spring, we had great news regarding masks: if fully vaccinated, no need to wear them (reported by N.Y. Times, 06.30.21). What a month that was before the CDC "revised" its mask guidance in late July (NPR, 07.27.21). And, retailers have begun to tighten rules and recommendations at their properties. Just this week, I found a major retailer with access restricted to one door again, mask recommendation signs posted again, and an employee pushing precautions (wipes, sanitizer, and masks) at the entrance.

SARS-CoV-2 has taught a great many things. First, it has shown us how resilient and perseverant we can be. The many successes and improvisations in our responses are nothing short of inspiring. There is no doubt in my mind that we are winning the battle against COVID, though the costs have been extraordinarily high (over 4 million dead worldwide according to Worldometers.com). There have been innumerable hospitalizations, quarantines, missed work, and more. My old friend Horace Middlemier recently noted "you show me someone utterly unaffected by COVID and I will show you a hermit."

In a broad sense, it is impractical for us to understand what others are going through. I noted this in April 2020 in We Will Get Through This; that post references an old post Can We Help Each Other (January 2014). We may strive diligently to both comprehend and commiserate, but success may be elusive. It is difficult to know what challenges your fellow travelers face.

In part, this is exacerbated by natural human tendencies regarding frank and thorough expression of feelings. Yes, we all internalize feelings, fears, and perceptions. There is a tendency to believe that having these will make us weak. Rather than admit to them, we all have some tendency to deny them and to "soldier on." The result may be that many who surround us do not see the challenges that we face or the uncertainties upon which we fixate. As a corollary, we are each encouraged by the stiff upper lips around us to perhaps believe we are alone in the uncertainties and challenges. Thus, the internalizations around us may further encourage our own. Denial perhaps becomes a societal attribute as well as personal?

Work has always produced stress. This is true for all of us, the family farmer, the industrialist, the hourly employee, and more. There is no question that the pandemic has brought additional stress upon our lives. I cannot imagine the daily challenge of transitioning children to remote learning. Similarly, I’m at a loss to understand the fortitude of those who shifted to a "work-at-home" paradigm of telecommuting in 2020 with such apparent ease and aplomb. Throughout this pandemic, people have faced the threats or realities of disappearing jobs, uncertainty of income, fluctuation in business revenue, loss of employees, and more. Work has been disrupted, and a variety of financial challenges have ensued. This has undermined our foundations and likely our confidence.

Coincident with this uncertain environment, we have seen polarization in this world over the last fifteen years. We have graduated in many respects from disagreement to almost warring factions in some settings. There is anger, disenchantment, disappointment, and indignation. In the midst of that, we have injected a pandemic of epic proportions with its impacts and stresses. And yet, some are surprised by the parade of news stories regarding the exhibition of that stress and anger:

"Utah Retail Clerk Shares Horror Stories About Enforcing Mask Policy," (Deseret News, July 2020).

Masks - "One Former Employee Says Enforcement is Impossible (Vox.com, August 2020).

"Man Refuses to wear mask, shoots store workers" (hcamag.com, July 2020)

"CDC Issues Warning to Retail Workers: Don't Argue with Ani-Mask Shoppers Amid Pandemic," (Footwearnews.com, August 2020).

"'Incomprehensible': Confrontations over Masks Erupt amid COVID-19 Crisis," (ABC News, May 2020).

"Server takes Glass to the Face after Edmonton Pub Customer Reminded of Mask Bylaw," (Edmonton News, December 2020).

"Retail Workers are Being Pulled into the Latest Culture War: Getting Customers to Wear Masks, (Washington Post, July 2020)."

It has continued to have repercussions into 2021. In June a cashier was shot and killed in a mask dispute. A fast food worker was strangled following a mask dispute. Forbes reported in June 2021 on a "string of fatal shootings over mask-wearing." It has simply become commonplace to see headlines about workplace violence. There have been examples of coworkers having confrontations, but the majority of those in the news involves a customer.

The news today reflects this in two articles: Homicides and Other Workplace Assault, and Workers Strike as Attacks Against Employees Continue. These are each on WorkersCompensation.com today. The Homicides article is built upon a study of workplace incidents in 2019, so there is a demonstration of incidence before COVID came to call. Thus, workplace violence is not novel, it is not unprecedented. We will wait about two years before the data on such assaults becomes clear for 2020, then 2021. The real study of comparison can then begin. 

However, in the Workers Strike, we have reasonably good data for today. It is a partial view, a sample, but it is instructive. That article details six workers at a fast food store striking because they say the store has to call "911 on average once every four days." The story seems to corroborate the frequency of attacks with a survey statistic that almost half of those sampled in the summer of 2020 "said they had been verbally or physically assaulted." The predominant precipitating act was asking customers to wear masks.  

With no way of knowing what stressors are pertinent in someone's present life, there is no telling what may be sufficient to generate discomfort, distress, and even anger or violence. It is possible our news reflects either that frequency of patron violence is increasing, or the news media's interest in it is growing. In support of an uptick in actual violence, CNBC reports that mask disputes are 75% of the FAA Unruly Passenger Complaints on Planes (July 2021). I have been on more flights in the last 18 months than many and I have yet to witness a single complaint, question, altercation, or disturbance over masks. Lost luggage, yes; delayed flights, yes; but not masks. 

Worker’s Compensation is focused upon payment for injury and lost work. However, since it’s inception, it has also been seen as a transfer of cost from society to industry. It has been hopefully expressed that industry financial exposure will encourage necessary efforts at workplace safety, and injury prevention overall. Thus, in the arena of emotional distress, employers are faced with two important concerns during the pandemic. That is the overall mental well being of the staff and personnel, without whom the business cannot thrive. The second is the mental well-being of the customers, and prevention of physical injury to those critical employees.

Certainly, one could easily argue that these concerns persist perennially, and that is valid. Concern for the well-being of team members is not new in COVID. However, the pandemic accentuates or illustrates these concerns as the intensity of personal pressures escalates and the potential for eruptions apparently follows suit in the charged (overcharged?) environment in which we live.

How can employees be protected from the first category of challenges? Can mental health be fostered in the work environment, be it an office, telecommuting, or other? Can businesses do more to prepare their premises and personnel for the potential of an abusive or violent customer? In times of significant stress, what can employees do to better prepare themselves for both cause and effect? Are there effective strategies for the "de-escalation" of such interactions? Some are suggested here by Today.com. The issue is of such magnitude, that the Centers for Disease Control has even provided guidance on limiting violence in the workplace. It is focused on retail and service businesses, but there are valid points there any business might find informative. 

Join us on August 19, 2021, for the Hot Seat. With representation from the employer's perspective and a mental health professional, we will have a great conversation about the challenges presented by this pandemic, the exacerbations of nerves and stressors, and how we might all travel through this path more viably together. Register now. If you are reading this after August 19, 2021, the recording is on the Hot Seat portion of the workerscompensation.com site.