A New Beginning

Another WCI educational conference is in the can. Notably, 2022 was largely a return to the normalcy we all enjoyed before the Great Pandemic in 2020. The 2022 edition, however, brought both familiarity and change.

We have all heard the Opening Session speech about the four original organizers (claimant's attorneys Gerald Rosenthal and David Parish each had roles in addition to the remaining founders Steve Rissman and Jim McConnaughhay). We have heard about the original tri-fold curriculum program, the dearth of sponsors/exhibitors, and the aspirations to bring entertainers. Steve Rissman reminisced last week regarding how much he enjoyed The Four Tops in one of those early years. I have been to a few conferences, but I don't remember that one inparticular. 

Courtesy ClassicMotown.com, https://classic.motown.com/artist/the-four-tops/

For decades, this community has watched the duo of Jim McConnaughhay and Steve Rissman as they have developed and evolved a small state-centric gathering into the largest workers' compensation conference of its kind in the nation, perhaps the world. They have had some help, but they have been the heart and soul.

We have heard each year of the contemporary volume of programs, speakers, and perspectives. This annual reiteration portrays and illustrates a story of growth, success, and achievement. One might note with some pride that this conference consistently brings extensive diversity of thought to the fore each August. There is medicine, risk management, legal, claims handling, regulatory, and more. If you have a workers' compensation question and cannot find a specific subject-matter expert at this conference, I would find that surprising.

Steve Rissman noted in 2022 that there were well over 400 speakers in this year's program. He noted some highlights, but of course lacked the time to describe each program in detail. That would have required all day. It is fair to say, in summary, that there is a vast array of academic and interactive opportunities in this annual gathering. Those presenters are simultaneously on stage in a spectrum of individual programs throughout the massive World Center facility. It is best described as a smorgasbord. And, like any buffet, it can be overwhelming at first. I later heard one attendee note that "this is bigger than The Florida Bar meeting, and indeed it is. 

Jim McConnaughhay's speech in 2022 was somewhat different. He was not plowing entirely new ground with his announcement of the new WCI Executive Director, the announcement was initially publicized last spring. But, he was expounding and expanding. The audience was hearing of the plan for this conference to persist and excel in days, years, and decades to come. It was an exciting moment for the conference, and undoubtedly for these two long-term leaders and founders. There is a reasonably clear succession path, and a provision for the future.

Mr. Sabolic, the new Director, took the podium momentarily. He exuded enthusiasm and genuineness. He voiced his gratitude for an opportunity that is simply unparalleled in this community. From my interactions with him over the years, he is experienced, steeped, and ready. The founders could not have selected a better champion to continue this pursuit of knowledge and community. Mr. Sabolic will likely be an increasingly important part of the opening session in coming years. 

Andrew Sabolic is certainly different. Note that the four founders were all attorneys. Mr. Sabolic is not. Mr. McConnaughhay and Mr. Rissman (the remaining founders) hail from early in the Baby-boomer generation, and Mr. Sabolic is later, a Gen-X (whose generation is now the second largest segment of the American Workforce, per Pew). Notably, The founders hail from private practice experience, Mr. Sabolic has most recently been a state regulator for over 20 years and came from a semi-academic background in the actuarial world. In short, these three have similarities in their workers' compensation focus and participation, and yet marked variety in their backgrounds and perspectives. As Forbes notes, diversity is positive for organizations.

Without doubt, anyone who has even glimpsed behind the scenes at WCI knows full well that the planning and execution of this event is dependent upon the outstanding team at Resource Managers (RMI). As Mr. McConnaughhay noted in his opening, WCI has but one employee, Mr. Sabolic. It relies on RMI for logistics, deployment, and delivery. Year after year, Kathy Shelton, Cathy Bowman, Stephanie Dodson, and Shirley Kendall deliver on those points. They likewise bring varied experiences, skills, and techniques to the fore in this annual expose.

Mr. McConnaughhay is persistent in reminding us each year, however, that this whole conference really runs on volunteers. That is apparent from the planning, programming, recruitment of speakers, and deployment of curricula. It is also apparent in the preparation of materials, assembly of registrant bags, and distribution and dissemination of information. Not less so, it is obvious in the various philanthropic involvements woven throughout this gathering, a list that seems to expand each year. This is, after all, a community.

In a word, the 2022 WCI was different. We have seen the success and growth. We have heard the history referenced and reinforced. We have annual familiarity. But, 2022 brought us a glimpse of the future in the evolving team, growing leadership, and forward focus. We have not seen 2023, but we are assured that the vision for next year and beyond is in place. We move on from this exceptional opportunity with a confidence that these three (the founders and Mr. Sabolic) are poised to deliver yet again.

Why do we persistently gather? As I noted in a previous post "what you do in August" is go to WCI. That is a quote noted in Not the Same, But . . . (August 2020), during the Great Pandemic. It's what you do. But, it is more than a habit, it is a quest. This is where we develop and gain knowledge. This is where there is critical thinking, criticism, and challenge. Not every panelist will be agreeable or concurring, and some may bring downright contrary perspectives. Here, you will hear dissent, discussion, and ideas. This is where we hear from those who bring different thoughts, diverse thoughts, and broader perspectives to challenge us.

We must strive to remember that much has been tried in this community, and mistakes have likely been made. A speaker was too controversial, a topic or challenge did not actually live up to its predicted significance, a process or promise did not deliver as anticipated. As tomorrow unfolds before us, we can look to those past experiences for guidance and this community can continue grow. Through each such attempt and challenge, we will continue to grow.

I leave the 2022 conference encouraged. I am eager to see the impact of the evolving leadership as the WCI continues to develop and grow in its delivery of the educational, interactive, and professional opportunities that have been its hallmark. I am encouraged and hopeful for the future of this, the "Granddaddy of them all" (No offense intended to the Rose Bowl or those who present it).

See you next August!

The Deferential Diagnosis

I recently ran across a post on social media discussing the differential diagnosis. This is of course very familiar to those who work in the realm of injury, diagnosis, and remediation. The term is often talked about, and discussed. The Cleveland clinic explains:

“Since there are a lot of different conditions that often share similar symptoms, your provider will create a differential diagnosis, which is a list of possible conditions that could cause your symptoms.”

It then cautions that such statements are not effectively “the diagnosis," but potential explanations for whatever constellation of symptoms are presented. It is, in a nutshell, an early part of the process involved in finding a path toward recovery.

In the Case Book of Sherlock Holmes, Sir Arthur Conan Doyle’s protagonist proposes an intriguing path to the truth:

“When you have eliminated all which is impossible, then whatever remains, however improbable, must be the truth.”

This, it’s not too far distant from the paradigm of the differential diagnosis. Having identified the constellation of potential explanations for a symptom or series of symptoms and complaint(s), the scientist begins to illuminate the improbabilities, through testing and examination. The process is one of elimination.

It may be troubling to patients that one of those filters is often simply the passage of time. In other words, “let’s wait to see if this resolves.“ One step short of this is the old saw "take two aspirin and call me in the morning." Grammar How explains that this phrase is 

"an expression that refers to the idea that people call doctors for issues that they can just treat themselves." 

In other words, not every malady requires a physician, and we experience this periodically in our modern society. So, while not our favorite answer, a valid answer may well be "let's see if time helps," and if it does, that may eliminate some of that spectrum of possible diagnoses.

I was privileged to attend a medical lecture at the Worker’s Compensation Institute in August 2022. The physician, Dr. Chapa, explained the risks and challenges of a mistaken diagnosis. A constellation of symptoms may point to various potential diagnoses and treatment options. When we ignore that spectrum, and immediately focus upon one singular conclusion, the result may be treatment that will not address the symptoms, and in fact may cause other symptoms or complaints.

Such an error may instigate a journey down an inappropriate path which may result in dire consequences. This may be best illustrated by another of Holmes quotes in A Study in Scarlet (1887): 

“It is a capital mistake to theorize before you have all the evidence. It biases the judgment.” 

The evidence is the key. That a malady can cause a symptom is a start. From that premise comes the launching point for the investigation, the gathering of evidence, and the elimination of possibilities, and even some probabilities, leading to a conclusion (diagnosis) that is based upon the scientific evidence. Thus, the differential diagnosis makes sense as a logic path between what may be the issue to what is probably the issue.

Because there are multiple potential explanations or causation of any particular physical complaint or symptom, it is imperative that the medical professional correctly identify the truth, rather than a probability. As Donald A. Norman is quoted: “a brilliant solution to the wrong problem can be worse than no solution at all: solve the correct problem.” The drive to "a" solution before waiting for the evidence or the science may be the patient's demand that doctors "do something." We have all had symptoms we wanted to be rid of, fortunately for most they were not debilitating, but imagine your reaction if you were suffering such significant symptoms, discomfort, pain, etc.

Perhaps we all have a bit of Verunca Salt in us (Willy Wonka and the Chocolate Factory, Warner Brothers 1971). She instructed us about her demands with "I don't care how, I want it now." When we are unwell, we all want relief. And, in fairness, we likely all want it immediately. It occurred to me in the course of the deferential discussion above, that we might refer to a rush to diagnosis and treatment as the “deferential diagnosis“ rather than "differential." The Cambridge Dictionary defines “deferential“: “polite and showing respect.”

And that’s where I might lose the reader. Stick with me. There’s nothing wrong with a medical professional being deferential, in terms of this definition of respectfulness and politeness. However, that appropriate respect for the patient must be tempered with the scientific responsibility of the practitioner to find the cause of symptoms and to provide the remediation that will best ameliorate them.

In this regard, I divert momentarily from this definition of deference to its synonyms instead. These, listed by Merriam Webster, include:

"complaisance, servility, subservience, indulgence, capitulation, submission, and surrender"

In other words, it is possible that deference may surpass politeness and cordiality and proceed to poor decisions based on assumptions and the patient's desire that the doctor "do something," despite the lack of evidence to support that conclusion. One might do harm in the process. See Hippocrates, Harm, and Racism (May 2022). 

The Holmesian suggestion of eliminating improbabilities is suggestive and logical. The advice to hold off on conclusions until the facts are known is also important. The potential for doing harm (at worst) or doing no good as regards symptoms (at best) are risks. 

When the "something" that is undertaken has minimal or no risk of harm, that may be a more acceptable course. The success or failure of some medication or modality might help in the elimination of the possibilities. That is, the treatment itself may bring evidence that is helpful in the diagnostic process. However, the "something" might be more serious, such as surgical intervention with all of the attendant risks. Such serious intervention cannot be appropriately undertaken merely on the patient's whim or demand. 

Medicine owes it to the patient to be respectful of complaints and symptoms; to be “polite and show() respect.” But, additionally, to avoid the potential for further risk or damage through yielding to the inclination of some to treat first and ask questions later. There have been many examples in which a significant surgery has been completed without any alleviation of the symptoms that led to treatment. In those instances, the next step is often another surgery on different anatomy. 

The point is to address the differential process in a respectful and polite manner, but to carefully eliminate the possibilities as non-invasively as possible through care and testing. The decision for surgical intervention cannot appropriately be based upon the mere possibility or suspicion that symptoms might be relieved. 

Safety Complacency?

Pictures and a news story recently crossed my feed. ABC News reported multiple fatalities when two small planes somehow collided in rural California. I have spent a few hours in cockpits over the years, and have known a great many excellent pilots. My first thought reading the article was the tragedy the event represents for various families and friends connected to the victims. But, my thoughts soon turned to safety and complacency.

An investigation will ensue, that is normal in such instances. The National Transportation Safety Board (NTSB), FAA, and even local authorities will likely be involved. Aircraft collisions are rare, and so the cause will be sought with perhaps more energy than can be devoted to other mishaps, near misses, etc. Notably, the pictures with the story represent clear weather. Of course weather is transitory and there is the chance it played some role and then cleared before the pictures were taken. Arthur Conan Doyle's Sherlock Holmes is credited with cautioning that

“It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.”

That will be the investigators' role, identifying and documenting those facts. What is known so far is that the two planes were at an "uncontrolled field." This means that there was no tower controller providing radio instructions. One plane "was operating in the traffic pattern, and the other was coming in to land" when the two collided and crashed. They were markedly disparate aircraft.

One was a Cessna 152, a simple, light, and forgiving aircraft. It seats two, has a gross horsepower of 110, a maximum airspeed of 149 knots indicated, and a maximum altitude under 15,000 feet (according to AOPA). The other was a Cessna 340, a more complex plane. The 340 is a twin-engine, pressurized craft capable of altitudes far above the 152. It carries up to five passengers and cruises at 200 knots, with "a typical cruising altitude . . . around 18,000-21,000" feet (according to disciples of flight).

The reader may know already that "in the traffic pattern" can mean various locations around an airfield. Being "in the pattern" means flying around an airport's runway. That may be in preparation for a landing, or often it is just a good practice for future landings. The specifics of the pattern are usually defined for each field. Of course, when there is a control tower, you do as instructed. When there is not, you habitually fly a pattern like this and watch for other traffic. It is a landing ritual. The incident in this matter occurred, essentially, as one driver was circling the block as another driver was attempting to drive into an exit from the street/pattern. 

The Federal Aviation Authority (FAA) says that half of all airfield collisions occur on the final approach leg of the pattern (Final 34%; Short Final 16%). Another 34% occur on the runway itself. Therefore, collision in the rest of the pattern is reasonably rare. Collisions away from the airport is also very rare, only about 30 instances each year, according to the Air Force. But, the worst in history was far from the field, and was eventually blamed on the system, rather than those who controlled the planes.

In the broad perspective, however, Boeing reports that about 80% of aircraft losses are due to human error. It concedes that this includes all of the humans ("pilots, air traffic controllers, mechanics, etc."). That has changed dramatically over the last century. In the early days of aviation, the mechanical failure percentage was 80% and human error only 20%. Have humans become more fallible in the last 120 years? Have planes become safer? Have those two evolutions combined for this juxtaposition? In fairness, the NTSA says that an even higher percentage of auto accidents, 93%, include elements of human error. 

The particular air collision in the recent article occurred in the afternoon. As noted, there is no mention of weather challenges or of either pilot declaring an emergency of some kind. Most aircraft are equipped with at least rudimentary radios, and so anyone in an emergency is likely to notify those in the area. Of course, even radios could fail (pilots therefore often install multiple radios). Even with multiple radios, a systemic electrical failure might render all radios in a plane inoperable. Thus, there is little known for certain. But, something happened above this California field recently, and people died. 

Someone once coined the phrase

“Remember there are old pilots and there are bold pilots, but there are no old bold pilots."

The originator of that is not clear. I always thought it was Chuck Yeager, but it is likely that was merely the first time I heard or acknowledged it. The point is that aircraft operations can be dangerous. Those who wish to avoid tragedy or injury must practice extreme caution. There is little room for bold maneuvers, chance-taking, or additional risk. And, reflecting on that, it seems the same is true for much of our lives. When driving a car, walking on a roof, climbing a scaffold, etc. All around us, daily, people are in harm's way. They may be able to rely on technology (which might fail). They may in some instances have the luxury of some direction (like the tower controller or managers). But, in many instances, it will be just the worker and her or his own safety focus. 

I was recently asked during a panel presentation why workers' compensation frequency (the rate of injury occurring) has been so persistently decreasing for decades. The fact is that our national focus on workplace safety really only began in the Nixon Administration in 1972. Furthermore, our lives have become overladen with safety devices in recent decades. Remember that the automobile airbag was a novelty in 1972, driver's side only, and very expensive. Now there are models with ten or more airbags. We have witnessed much evolution in safety devices, automation, and more that helps to protect us from ourselves. And yet, people do still get hurt. 

Complacency. That is perhaps the real risk. It is a human condition, reaction, and risk. We make hundreds of automobile trips, production cycles, or aircraft landings, and we become comfortable. That the car has safety devices cannot relieve us of our caution and care. Too often, perhaps we become complacent. And, that is a risk that may have grave consequences. We may lose our sense or the surroundings, and fail to protect ourselves. We may likewise forget safety and fail to protect others. 

A British tourist was recently on a tour in Greece and also suffered an aircraft tragedy. He disembarked a helicopter charter as we have seen so many do in films. The rotors were still in motion, including the tail rotor. Some outlets reported that he turned back toward the craft to take a selfie. Others contend that this is "rubbish." And, perhaps we will never know why he returned toward the craft. What we know is that he contacted the spinning tail rotor well behind the passenger compartment. Those rotors are spinning fast (some say the blade tips spin at over six hundred feet per second). This tourist was struck in the head and killed. 

In both tragedies, we see the same potential for some failure of safety measures. Was there complacency on the part of those killed? Was there complacency on the part of those responsible for their safety (who allowed the charter helicopter passengers to disembark before all the rotors had wound down?). Who was keeping an eye out  for other traffic at the uncontrolled airfield in California? Complacency? Inattention? Time will tell as investigations proceed. 

Should the tour helicopter company have made the disembark less convenient by stopping the engine, and thus the rotation of the various blades, before opening the cabin door? Time would have been consumed that is avoided with the practice of boarding with the engine running. But is that time worth the risk of harm? Was the passenger instructed to stay away from the spinning rotors? Do we really need to be told? (In fairness, we seem to all need reminders about safety, that is why the car beeps at us until we buckle up).

In a broad context, we should be pleased that the workers' compensation community continues to focus on safety. The fact is that any workplace can present danger and each occupation can likely be made safer. Even if the only improvement we might make to an environment is our own awareness of safety. Awareness and reminder alone can make us all safer. We owe it to our coworkers, fellow passengers, and community. More so, we owe it to ourselves. These two recent air disasters remind us that amateurs and professionals can make mistakes, that momentary inattention can be disastrous, and that complacency may be our worst enemy.

What's Hot in Workers' Comp 2022?

The world of workers' compensation is geographic and diverse. There is no workers' compensation "system," but at least 60 systems across the country. Each state has one (50), then there is the federal system, the Federal Employers Liability Act (FELA) that largely covers railroad employees, the District of Columbia, the U.S. Virgin Islands, Guam, Puerto Rico, American Samoa, the Northern Marianna Islands, the Jones Act, and the Longshore and Harbor Workers' Act all come to mind. Thus, there is a breadth of perspective on work-related accident and injury.

There are details and curiosities about each of these. Some are managed by a director, other by a board or commission (a critic or two complains that some seem not to be managed at all). And, the variety in management structure alone is noteworthy and interesting. These systems are blessed with an amazing array of leaders. Each year a variety of leaders from these systems gathers for a roundtable discussion that is produced by the Southern Association of Workers' Compensation Administrators. That congregation discusses the hot topics of workers' compensation before an audience at the WCI Workers' Compensation Educational Conference.

In 2022, the sense seems to suggest that what concerns workers' compensation systems has little to do with the employees and employers for whom these systems were intended and designed. That they are the mission is there, recognized, but the real concerns that resonated from the agency leaderships could have instead been voiced by the CEOs of virtually every business in the world of the post COVID Panic. They are, in that respect, somewhat predictable and to some perhaps mundane.

Chair Scott Beck of South Carolina moderated this year on August 22, 2022. He started with a trip around the table (it was, after all, a "round table"), and asked what keeps system leadership "up at night." I largely passed at my turn, and instead listened to the assemblage. They expressed issues regarding personnel management, getting agency workers back in the office, training new employees, retaining and compensating valued agency staff in the face of bureaucratic constraints, attracting new employees, telecommuting, and the coming Great Retirement that is expected based upon the perception that agency workforces are largely long-term and senior Mature.

There was some mention of the specifics of workers' compensation. Some noted the potential for a virtual employee suffering a work accident at home. That drew some discussion of how states would determine compensability of such events. There were suggestions that ranged from a broad imputation of compensability through an analysis such as is used for travelling employees. There was discussion of the same challenges that are faced by employers and employees in an on-site workplace, such as personal comfort breaks, going and coming, and more. Surprisingly, no one noted that work is work, wherever it occurs, and "arising out of" and "course and scope of" have both worked swimmingly for decades. I struggle with why the "where" makes this more challenging. Sure, there is perhaps some increase in the potential for unwitnessed workplace injury, but lots of premises injuries are likewise unwitnessed. The distinctions may be deeper than I give it credit, but alternatively it is perhaps shallower than others perceive. 

There was some mention of this COVID (SARS-CoV-2), infection, and the questions of work-relatedness. This was not the urgent "what if" conversation of years past (it seems sometimes that the Great Panic has been going on a long time, but it has not yet been three years). Largely, it seems, COVID-19 claims have been processed as all others were before or since. A few leapt to presumptions, assumptions, and reactions, but for the most part jurisdictions treated this malady as they had others. Claims were filed, some were paid, some were denied, some were litigated, some were appealed, and in large part the pandemic was simply not the systemic threat many of us feared. 

There were some roundtable expressions of concern for the public in the course of proceedings. Some are focused upon how and when workers' compensation proceedings are secured and violence threats avoided. Some of these were general, some instead seemingly focused on "when live proceedings resume." There is some perception of generalized and growing fears of workplace violence. Though this concern is largely for public safety, it can likewise easily be seen as implicating the safety of the agency leaders, adjudicators, and staff. It is an external issue mixed with a somewhat employment issue, that is part of a larger public safety issue intertwined in a tangle of societal perceptions and beliefs. In a word, it is complex.

And, in the end, it was such employment issues, internal issues, that dominated the 2022 Roundtable conversation. This included perceptions that remote work is the only path forward for state agencies. There were also those who conclude that remote work is not even an option. And, predictably in any such two-pole or "bookend" management challenge, there were instances and examples expressed that fell between these two extremes. I admit it was astounding to hear talk of agencies that simply shut down during the Panic; it was equally alien to hear of those that sent all workers remote, for months or years. 

As an aside, I am so proud of the outstanding public servants in the Florida OJCC. While other systems lament that they ceased hearings for weeks, months, etc. we never did. When they describe their creativity in adapting to electronic filing, I celebrate that we did not need to (we transitioned long ago). As they describe their ingenuity at adopting and adapting to video proceedings, I remember how we similarly adapted in 2003. In short, our long-view and leveraging of technology at the dawn of the new millennium prepared us, facilitated us, and empowered us. The Great Pandemic was different at the Florida OJCC. Our staff never left, though a handful telecommuted briefly. Our offices never closed, though we shuttered a couple for a day of cleaning periodically. We persevered, and hearing the Roundtable discussion only makes me prouder of our team, their dedication, their perseverance, and their loyalty.  

There was Roundtable discussion about how hiring managers might enhance recruiting hiring efforts if they brag about accolades from third parties. That state covets awards and plaques, issues press releases, and strives to have employees spread the word about their workplace (which in that state is almost exclusively the employee's home). Other states voiced suggestions for returning the remote employee back to the office. Some said the employee might be lured with special events and camaraderie days, socials, and more. The lure of a consistent paycheck, benefits, and stability is apparently insufficient in some quarters, and only one expressed the seemingly simple way to get workers back in the office - tell them to report to work. 

Some discussed the challenges presented by arcane staffing regulations that may impact recruiting and retention of state workers. Others lamented a recent history of insufficient frequency and extent of legislated pay raises, cost of living adjustments, and benefit expansion in state government. There was mention of public perceptions of "lazy" state workers, and the necessity of countervailing those perceptions and feelings. The fact is, between just you and I, there are lazy state workers (you can say you heard it here first). And there are likewise lazy workers in every industry, company, and setting. Too often, however, we paint with a broad brush based on one admittedly poor example. The fact is that every company, industry, and state agency also has superstars, exemplars, and leaders. Too often, we perhaps forget to highlight these fantastic and outstanding people, celebrate these exemplars, and simply thank these coworkers?

Finally, someone mentioned that they perceive their agency workforce as aging, nearing retirement, and they fear that there will be a "brain drain" as those employees transition to retirement. In short, the management of state agencies seems as confounded by the end of the Great Panic as employers generally.

In years past, the roundtable has focused upon questions of delivering due process to those who are engaged in benefit disputes. There have been academic discussions about how particular statutes work, the sufficiency of benefits, and compensability of claims. The focus has often times turned to the diversity and distinctions that having so many (60 or more) systems brings to the nation, the "industry," or the community. In 2022, it was, admittedly, a discussion of more mundane managerial challenges. One attendee afterward lamented to me their perception that what keeps the state's leadership awake at night is "no different" than what concerns all other employment managers. The adjective the attendee expressed for these topics, and the Monday discussion generally, might be seen by some as unkind or worse and thus I omit its mention. Suffice it to say that attendee longed for a more substantive and focused workers' compensation discussion. 

There may be merit in the criticism. I appreciate more acutely than many there are challenges ahead for workers' compensation. The "the woods are lovely, dark and deep, but I have promises to keep, and miles to go before I sleep," Stopping by Woods, Robert Frost, 1923. I would like nothing better than to stand here in the dark and observe the workers' compensation systems, their complexity, intricacy, and frankly poetry. They are indeed lovely, intriguing, and challenging. But, we dare not tarry here. 

I perceive many challenges to workers' compensation on a fundamental level. I see the potential that the very fabric of America is changing. There is generational change, population change, economic change, inflationary change (medical inflation historically grows faster than the consumer Price Index, and so medical consumes a bit larger percentage of the workers' compensation spend with each passing every year), and more. My dear company, we perhaps shelter for the moment in "a large dry cave," but what lurks beyond the shadows? At what point will the crack appear, the goblins issue, and our slumber be interrupted? The Hobbit, J.R.R. Tolkien, Chapters 4-7, "Goblins and Wolves" (1937).

This world of workers' compensation is important and relevant in the twenty-first century. State agencies are challenged by staff recruiting and retention? So is the rest of the working world. Common assumptions and beliefs about the nature of work is challenging managers? Old news. The new and next generation(s) think differently than us antique mature managers? No surprise. The world is evolving, artificial intelligence is growing, robots are taking over what used to be jobs. Metrics are king, accountants are in charge, and everyone wants to see evidence, science, proof. Sentiments, perceptions, beliefs and motivations are dividing us. The world is challenging us. 

The old mature crowd in which I find myself is struggling with change and lamenting our simple past. Do we really imagine that we are that different than previous mature populations that had to contend with the advent of the steam engine, the industrial revolution, the urban sprawl and suburbia facilitated by automobile ownership, the telegraph, telephone, facsimile machine, computer, personal computer, forty hour work week, labor laws, the birth of the Internet, email, text messaging, smart phones, and more? Progress is not new. Much of what is mentioned above occurred in the last 50 years. Change is not new. We have all lived it, faced, it, and grown. But, in our present maturity we are perhaps less resilient to it, accepting of it, patient with it? 

Is it possible that the next generation is not nearly as concerned about the changes as we are? 

I am nonetheless drawn to the simplicity. If we could only go back to the way things were (pre-Panic, pre market-crash, pre-housing bubble, pre, pre, pre). But, even if we could, what would Alice say? She would remind that "It's no use going back to yesterday, because I was a different person then." (Alice in Wonderland, Lewis Carroll, 1865). The experience changed Alice. And, the world is changing us just at it itself changes. We could now easily face the challenges of yesterday, but only because of the way we grew because of them. We must remember that we, and the next generation, will likely therefore similarly meet the demands and challenges of tomorrow. 

I recently penned a piece about some young people. I see the forty-somethings in the insurance industry, the next leaders. Some of them quite impress me. I would like to see more thirty-somethings looking further to the horizon and envisioning their place at the helm. I would like to see more twenty-somethings thinking that this little corner of the world, workers' compensation, carries a great and noble burden of "restoring shattered lives." (Robert Wilson, 2022). I would like to think that all of our worry about tomorrow will change something. If we focus on finding, nurturing, and promoting those "somethings" then us old antique mature folks might rest easy (easier?).

But, worry is seldom productive. Our reactions to it may be, but the worry itself perhaps not so much. We stand (us Mature Americans) on a precipice of our own perceptions, and certainly our own making. We could blame the last generation for the world in which we labor, and perhaps some such share is theirs. But, in the end the tomorrow of workers' compensation is up to today's grey heads. It is unlikely that we will solve all the challenges, or perhaps even any of them. But, what if we just focused on recruiting the next generation(s), motivating them, inspiring them, and empowering them, so that they have a shot at solving the challenges? Solving those challenges whether us seasoned citizens perceive them today or not.

We have done a miserable job of identifying, recruiting, and mentoring the next leaders. Sure, there are exceptions, inspirations, and exemplars out there, but I say we need more. We all have to recruit, develop, nurture, and mentor more. More readily, more steadily, more cheerfully, and more consistently.

Environmental Safety

Is heat (atmospheric) a health risk? The answer to this is almost certainly yes, but there are some important risk enhancement considerations to keep in mind including gender, ethnicity, and seniority. In these "dog days of summer," anyone who works outside will have to be conscious of the challenges of heat. For those unfamiliar, the "dog days" are the hottest of the summer season.

According to the CDC, more men suffer heat-related death than women, and those over 35 years old have a greater prevalence of heat-related death. The graph in the CDC report suggests the vastly greater death risk is for males over 45. The highest percentage of persons requiring hospital care for heat are 85 or older, and combined with those who are 65-84, the senior generation consistently comprises the vast majority of those seeking care. There are apparent racial disparities in the reported data. Whites suffer the lowest probable risk of heat death, while "other" males are at the highest risk.

The Center for Disease Control backs up that heat can be a health risk. Heat exhaustion can result in a number of symptoms that are worthy of surveillance and attention ("muscle cramping, fatigue, headache, nausea or vomiting, dizziness or fainting"). These are warnings. Unfortunately, some of them can as easily signal other maladies, and we might find ourselves failing to initially suspect heat. It is important to heed the warnings, as heat exhaustion symptoms can be a precursor to the more serious heat stroke. This means when the above symptoms appear, it is time to take remedial measures before things progress.

The heat stroke that can result is characterized by symptoms that may be similar (dizziness and nausea are listed by the CDC), but also some more significant such as "body temperature greater than 103°F (39.4°C); red, hot, and dry skin (no sweating); rapid, strong pulse; throbbing headache; confusion; unconsciousness. Thus, there are some we might look out for in ourselves ("do I have a headache" or "am I sweating") and some we might also be able to help co-workers look out for ("you seem confused,") or we might see someone lose consciousness.

How serious is heat?

Time contends that 20,000 deaths per year in North America are heat-related. The Time author suggests that heat is implicated in the greatest volume of "weather-related" deaths, citing data from the CDC. The article also concedes that many such "related" deaths also implicate some additional, or even primary, causation. It notes that half of heat-related deaths are "due to heart disease." Thus, heat plays a role in aggravating some underlying health challenge.

Time cites the Lancet for this contention. The Lancet research supports that many die of "non-optimal temperatures," about 9.43% of global deaths. The "non-optimal" refers to both cold and heat. The suggestion of the Time article is that heat is critical. However, the Lancet explains that "8.52% of all deaths were cold-related and 0.91% were heat-related." From these numbers, one might conclude that the "too cold" is the more pervasive challenge. The Lancet does note that cold-related death is trending toward decrease while heat-related are increasing over recent years.

The British Broadcasting Corporation (BBC) reported recently on a proposal to raise public awareness of the risks of heat. Climate change: Will naming heatwaves save lives? It notes that about 600 people die from heat-related illness each year in the US." Of the 3,383,729 total deaths reported by the CDC, this is a very small cohort (.0177%). Note the distinction (apparently) between Time's 20,000 "heat related" (.591%) and the BBC's "heat related illness." The distinction seems to cry out for more explanation or better definition.

The BBC article relates the circumstances of one such death that involved a driver in Los Angeles who either "collapsed" or "passed out" in a truck. Unfortunately, no coworker or passerby noticed his condition for over twenty minutes, and he died. In light of the heat challenges, "Los Angeles is among the cities that is considering naming heatwaves." The theory is that by naming them, "like storms," government will "raise public awareness of the dangers and help local officials roll out measures to mitigate the impact." Suggestions include "welfare checks" and opening of municipal pools. Cities in Spain have already instigated such efforts.

Mitigation might include provision of public facilities that are air-conditioned, swimming pools, etc. The article generally references alternative reactions, but provides no detail beyond a city having a "heat action plan." It notes that in a more general sense cities like Miami, Florida have designated a "heat season" to raise awareness and is also said to be contemplating naming heatwaves in the manner in which hurricanes are identified.

The awareness of the public may be only part of the civic reaction. The authors note that services, including hospital emergency rooms, may experience greater needs during warmer temperatures. The article cites "that emergency room visits rose tenfold during a heatwave that saw temperatures spike to highs of 49C (121F)." Death Valley recently exceeded 120 degrees, and it was newsworthy. Before too much stock is placed in the "tenfold" threat to emergency rooms, perhaps some explanation is in order as to how likely such temperatures over 120 degrees actually are?

A professor at the University of Washington is quoted. The conclusion is that the naming of heatwaves is a beginning. However, rating the intensity, again similar to the hurricane warning process, would also have merit. The proposal is to "categori(ze) on a scale of one to three." This would involve multiple factors that include the last 30 days of temperatures. And, such scales would be "tailored" for particular cities because people's preparedness would be expected to be less in cities in which heatwave occurrences are less frequent.

There are also critics of the idea. One is cited noting that "there's a lack of evidence that naming inclement weather events - even hurricanes - changes people's perception." Furthermore, these weather events are not linear like hurricanes (that follow a path), and therefore are more complex. Under the various discussions, there might be simultaneous heatwaves in various municipalities, yet each might have its own name. The critics note that a "heatwave() (may) cover multiple locations, with multiple thresholds, and start on different days."

At least one critic, Bruce Schenier, has published regarding the "color-coded alert system" that America adopted for terrorism risks after September 11th. He might be said to be a critic of that system. He notes

"The problem is that the warnings don’t do any of this. Because they are so vague and so frequent, and because they don’t recommend any useful actions that people can take, terror threat warnings don’t prevent terrorist attacks."

Ron White, a comedian, also took some issue with the terror alert system. In the early years after the system was put in place, he criticized it essentially on the basis that "no one knows what to do different when the color changes." He made fodder of his proposal, according to Texas Monthly, for a simpler system:

“If I were running Homeland Security, I would propose two states of heightened awareness: Go find a helmet. And put on the . . . helmet.”

The complex color system was scrapped in 2011. According to CNN, "In its place, DHS will move to a system that focuses on specific threats in geographical areas."

So, there are examples of warning systems working, in the hurricane example the path and severity are stated based on published NHC criteria. Local officials are vocal about interpreting the hurricane warning, advising "shelter" or "leave." 

And, there are some examples of complex systems that were less effective, comedian fodder, and were scrapped. Time will tell if the naming of heat waves or hot days is successful in diminishing the demands on the medical facilities or decreasing heat-related deaths.

The complexities suggested in the BBC article are interesting for consideration. And in the end, how much will these efforts at warning programs cost? If launched in an absence of science to support their efficacy, will their existence scientifically substantiate their effectiveness at encouraging care and diminishing impacts/ill effects? Will it turn out this naming process is cost-effective, or will communities conclude they might have better invested in programs and facilities to provide actual local heat relief (air-conditioned shelters, pools, etc.)

The entire subject is, frankly, fascinating. Here's hoping the first heat wave is named for someone deserving, how about "heat wave Dave?" You have to admit, it has a nice ring to it. Maybe there will be T-shirts?

Our Hope for Tomorrow

People in this industry are incredible. I have periodically striven to remind them of that, and stressed that beyond an industry workers' compensation is a community. Notably, however, a community by accident. How many people do you know that planned this community as a career path? The vast majority will tell you they happened upon it, fell into it, happenstance, accident, coincidence. 

That community appeared in Orlando yet again this August for the "granddaddy of them all," (no, not the Rose Bowl), the WCI Educational Conference. I make an annual pilgrimage here. See An Amazing Monday at WCI (August 2016), Give Kids the Word - Our Community (August 2018), and Live in Orlando (December 2021).

Once, we even Zoomed in when the Great Panic made things impractical, see WCI 2020 - The Virtual Edition (July 2020). Lamenting those impacts, I penned Not the Same and Yet (August 2020). There I recounted running into a retired attorney at the WCI several years ago. I was surprised and questioned "why are you here?" The reply: "it's August, this is where you come in August." Too true, it is hard to picture an August without our trip to this community gathering.

These pages have featured some of the community that draws us. The joy of spending a morning working on the Give Kids the World Village is mentioned in the August 2018 post above. But in December 2021, the WCI leadership allowed Kids' Chance to host a golf tournament at the WCI, and it was a community-building event. See What is Different (December 2021).

On August 21, 2022, I witnessed the second annual event. I focus this morning on two fundamental points here. First, such events are a reinforcement of our community. People gather here. There is fist-bumping, handshaking, conversating, gesticulating, and engagement. It illustrates the workers' compensation community in its diversity and participation. I was fortunate to reconnect with many that I had not seen in months.

The luncheon that follows is what gets to me though. Kids' Chance brought a scholarship participant last December. She explained to the assemblage that Kids' Chance had helped her to attend college where she had majored in ichthyology. She was engaging and enthusiastic. She was a part of our community through personal familial tragedy and loss. Her family was profoundly impacted by a workplace injury. And yet here she was, a successful, articulate, and focused young person taking on the world.

In 2022, They brought two students to the WCI who spoke at the luncheon. One I had met years ago when she began her college journey. To me, she had seemed shy and reserved then. In 2022, she was more outspoken, open, and engaged. She had, over three years of college, grown and matured. She related her personal story of loss from a workplace injury, and the impact on her family. She described the efforts of her surviving parent to overcome that loss and focus her on education and success. She was powerful and inspiring, in a way I cannot imagine I could have ever been at her age. 

The second student I met for the first time Sunday. She described to the audience how workers' compensation, a work injury, had affected her. She drew the audience into the immediacy of injury, the impact on family finances, and the emotional impact. She painted a picture of the human element of workers' compensation that is too often overlooked in our community. She was, in a word, compelling. 

I was proud of these two. I found myself both pleased to meet them, and yet deeply remorseful that our paths coincided only because each had suffered a profound impact from a work injury. The Golf Tournament guru, Kids' Chance Board Member Basilios Manousogiannakis took the stage immediately after to thank these two incredible young people. Quoting Starsky and Hutch (Warner Brothers, 2004), he insisted "I'm not crying, you're crying." In all honesty, there were probably some dry eyes in the room. In fairness, there were not many. These young people were compelling.

And, they were not alone. I met a young lady wearing a Kids' Chance volunteer shirt. She was introduced to me as "our newest Ambassador." Kids' Chance has community members, ambassadors, that work on its behalf raising awareness and connecting with the workers' compensation community. I had an engaging conversation with her about social media and how organizations like this strive for community connection. She was outspoken, conversational, and interested in the success of Kids' Chance, and the community.

She is so important, critical, and welcome. She related that she just graduated from college. She has begun work and was offered a chance by her employer to engage in the community through some volunteer path. As Rick might say "Of all the (organizations) in all the towns in all the world, she walks into (Kids' Chance).” This is fortuitous for the group. She is what every employer in this community is seeking, the next generation. Another conversation Sunday included the reminder that the workers' compensation community is aging, failing to attract and retain young talent, and yet here was this shining example of our potential.

In a nutshell, this post is about Kids' Chance students. I am immensely proud of these young people that are overcoming diversity and building a future. They are strong, engaging, and focused. In addition, this is about our future, and the promise that is offered with the potential for new, fresh faces. We have to bring the young into this fold. We are, I hate to say it, a community that is threatened. Many of our best and brightest have seen too many harvests, and they long to pass the torch to a new generation. It is sobering to find myself at the end of a career arc and to be lamenting the infrequency of new faces.

But, with the opportunity to meet these youth, I am inspired, enthused, and rejuvenated. I am grateful to the community members who participate in activities that draw professionals together in productive and engaging ways. I am even more appreciative that employers are drawing in young people and facilitating their participation in our community. We need the next generation, their enthusiasm, ideas, and engagement. I am grateful to WCI for its support of students over the decades, but even more so for its support of this community generally.

I am proud to be in this number, this community. I am not yet at the end of my road, but I can see it from here. I appreciate the many I will see here over the next few days, and the opportunity to reconnect and catch up. I hope to meet more young and thoughtful members joining our workers' compensation effort. I find our community empowering and rejuvenating. I hope that us old travelers can somehow find a way to pass this community on to a next, new, and vigorous generation for tomorrow. And, I hope every reader will strive in that direction as well. 

 

Humor and Failure

I was recently back in training mode as the Florida OJCC onboarded three new judges. The latest appointments are important to our vision and strength. First, they bring us somewhat back from a difficult 2022 (our 2023 began July 1, 2022). Over the last year, we saw the passing of Judge Dietz in January. That was a bizarre telephone call to receive one Saturday morning. We also saw the Governor make seventeen judicial reappointments in March. But, that left us with five vacancies around the state, and one impending retirement.

Thus, the three new appointments brought me reminiscence of Judge Dietz. In April this year, the Workers' Compensation Section of The Florida Bar presented his wife and children with a posthumous Frierson-Colling Professionalism Award. That was fitting. One cannot think of Judge Dietz without reflecting on professionalism. One of Robert's favorite quips to new judges was that his jokes became 63.2% funnier the day he became a judge. The absurdity of the specific percentage was part of the gag, as was the underlying truth that parties and attorneys may feel pressured to laugh at the judge's jokes.

These thoughts came together for me in Orlando at our new judge orientation. Reminded of the humor, I was drawn back to news coverage of judicial humor in late 2021 during a widely publicized trial regarding a shooting. USA Today covered the instance and led with the headline "How not to be a good judge." Those kinds of banners attract my attention.

The story noted that Wisconsin Judge Schroeder was no stranger to headlines, having just previously been in the news for an angry outburst in the same trial. But, this particular attempt at humor had led some to focus "criticism and accusations of bias." In fairness, the conducting of a trial is not easy. Further, the attention of the press upon every word has to be somewhat distracting. It is likely fair to say that the judge had both critics and admirers, and was in a stressful environment for an extended period.

This quip apparently occurred when there was some inquiry or discussion regarding the trial breaking for lunch. In my trial experience, the coordination of witnesses and arguments to accommodate for a reasonably timely lunch break can be challenging. There is much to accomplish in trial and even the best made plans of lawyers regarding timing are frustrated. In this instance, the judge apparently had our nations supply chain on his mind. Recall that a big news story in the fall of 2021 involved the challenges with processing goods through our nation's ports, including Long Beach California.

The Judge incorporated that logistical challenge with a remark regarding "Asian food" anticipated for lunch. Essentially he expressed that he "hope(d) the Asian food isn’t coming . . . isn’t on one of those boats along Long Beach Harbor." USA Today reported that there were those who "found the joke offensive." It was referred to as a "thinly veiled anti-Asian comment." The judge was accused of being "a bigot."

This led critics to look beyond Judge Schroeder and criticize the Wisconsin judiciary, its "selection system" (judges are apparently appointed and then stand periodically for retention or reelection), and the absence of a mandatory retirement age. The critic quoted regarding retirement age was not criticized by USA Today for this seemingly broad indictment of mature persons. The comment's implication was seemingly that someone's age alone implicates or suggests her/him being "intemperate and unfit." That stereotyping by a former United States Governor was quoted by the reporter, but in no way challenged or disavowed.

To some, that may seem incongruent. But, in fairness it is the role of the judge to be unbiased. Perhaps impertinence and hyperbole is to be generally expected (accepted?) in society, such that it is no longer noticed or corrected? Perhaps it is only in our judiciary that we anticipate or expect avoidance of intemperate language?

That does not mean judges do not deserve special scrutiny, they do. Judges are specifically obligated to "Uphold the Integrity and Independence of the Judiciary," Canon 1, Florida Code of Judicial Conduct (FCJC). Judges shall "avoid Impropriety and the Appearance of Impropriety, Canon 2, FCJC. They will "perform the Duties of Judicial Office Impartially and Diligently," Canon 3, FCJC. 

These are obligations we assume in this job, and part of that is avoidance of puffery, audaciousness, and even humor. In the end, we must be more careful because the Code guides us there. Such constraints apply to judges, and we are obligated to some extent to "require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control." Canon 3, FCJC. Thus, it is the Code that guides judges, and that guide does not apply in the general population or society. 

There have been criticisms of judicial humor in the past, some even scholarly, like Judicial Humor: A Laughing Matter? (A law journal article). This concedes that "this quality (humor) would be found in many judges," but the tenor of the article is nonetheless critical. Some have suggested that there is simply no room for humor in legal proceedings. 

This public ire about humor is not directed at judges alone. Salon cites multiple instances in which attorney humor in legal proceedings was seen as untoward or worse. There is a general sense conveyed that trial proceedings are simply no place for humor. And, yet, we all perhaps crave some mood lightening from time to time. The issues with which trials are concerned are often serious, emotional, and difficult. They may result in angst, stress, and worse. Perhaps, some contend, "humor in different forms increases well-being and decreases anxiety on a short-term basis." It is a catharsis of sorts, maybe even on an unconscious level. Perhaps we turn to it innately when the stress reaches some personally intolerable level?

The Salon article is critical of judicial humor and attorney humor. It also directs attention at the challenges a judge may face in dealing with that attorney humor. The suggestion may also be that the judge could likewise struggle with humor attempts from witnesses as well. I have periodically heard lawyers argue that some witnesses' attempts at humor might be perceived as diminishing their credibility generally (believability), or even impacting perceptions of their candor. Those who take a judicial proceeding seriously may be viewed by others as more believable. 

Does a witness enhance her/his believability by being human and genuine? If the person is naturally jovial and comical, might her/his struggle to contain that personality be noticed by a finder of fact (judge or jury) and the strain or stress of suppression misconstrued or misinterpreted? In reality, the containment of humor may pose challenges for witnesses that are similar to those posed by the humor itself. In that vein, might a lawyer or judge find her/himself similarly choosing between authenticity and the risks of humor?

In 2019, the American Bar Association (a voluntary group to which some lawyers belong) published an opinion piece titled Humor in the courtroom: No laughing matter. It quotes a conclusion of the Utah Supreme Court that perhaps sums up the challenge of judicial humor:

“It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.”

Is that conclusion any different in the panoply of disparate power dynamics in which we all live? Could we not say the same thing about laughing at the boss' joke, the "cool kid's" joke, or a variety of other relationships we have experienced. Perhaps there are various similar incommensurate relationships that pose similar challenges? 

But, it is in the hearing or courtroom that serious and life-changing decisions are made daily (though the boss making promotion decisions is perhaps equally life-changing in some instances). Hearings are arguably different. Judges are different, because of the Code. And, in that vein, the Judge is also specifically responsible for making sure lawyers and others in the litigation and judicial process likewise remain respectful and appropriate (Canon 3B. 5. and 6. FCJC.). Thus, additional pressure and responsibility on the judge.  

I have stressed time and again that it is easy to determine which is the most important case in the world. Some struggle with that, in a desire or compulsion to engage in a differential comparison of the relative importance of issues, people, groups, and more. But the truth in tis regard is so easy to find.

The most important trial in the world is the one that these people are sitting in right now, today. The most important deposition? This one. The most important independent medical examination? This one. The most important re-employment job interview? You guessed it, and I am being redundant on purpose. Every case, deposition, examination, interview, etc. is the most important to someone. Lawyers get accustomed to litigation, as I suspect doctors get used to treatment, surgery, and more. We become familiar, but cannot become complacent from that familiarity. This piece (hearing, deposition, trial) of a case today is critical to someone. They deserve to have our full attention and our respect. They deserve the dignity of the "most important case in the world," theirs. 

As we proceed through this calling, working through that workplace injury and recovery, it behooves us all to remember that each instance has the potential to be life-changing, significant, and even severe. Each employee and employer deserves our attention to the seriousness with respect, dignity, and patience. Our basic human frailty may make us uncomfortable. We may innately turn to humor as balm for ourselves or perhaps intended to soothe or calm those around us. Being aware of, conscious of, that tendency and the potential for its misperception are key. 

Perhaps we can accomplish some good with a quip or an aside? Perhaps we can ease the nerves, provide a respite, and ease the collective journey. Or, perhaps we will misfire in our attempt and somehow belittle, disturb, or upset someone who finds her/himself in a strange alien world of litigation and dispute. We may, in our best-intentioned effort to ease and comfort, do more harm than good. The Salon article above notes examples of that for lawyers. The ABA article and USA Today provide caution for consideration of Judges. 

And, we might add that when a litigant perceives the judge over the line, she/he/it might well seek a different judge. Beyond the Code cited herein, there is the chance a litigant might perceive bias from that humor. If so, and "the party fears that he or she will not receive a fair trial or hearing" therefore, and a motion for disqualification may be the next logical step. Florida Rules of General Practice and Judicial Administration, Rule 2.330. A proceeding could be delayed, resources wasted, and a new judge assigned because of a judge's humor or tolerance for the humor attempts of counsel or others. 

All that said, the jokes will continue. Our human nature will draw us to quip in times of stress. Perhaps though, we might strive to remain conscious of the potential for detriment and damage, the potential for disqualification and delay. Perhaps we can all strive to keep the lightheartedness of human nature in its lane, occasional, and at all costs not insulting? It is worthy of our consideration. 

Workplace Gun Safety

The producer of a Hollywood movie, Alec Baldwin, made the news late in 2021 when a loaded pistol made its way onto a set in New Mexico. According to some sources, the Producer of a show or movie has extensive control of the project: "overseeing all elements of pre-production, production and post-production." The producers of this movie deny responsibility for the on-scene shooting, according to Deadline. The New Mexico Occupational Safety and Health Bureau (OSHB) preliminary report concluded Mr. Baldwin both "handled the revolver and fired the round." Despite that and being listed as a producer of the movie, Mr. Baldwin denies responsibility for the death that occurred on October 21, 2021 (sounds perhaps a bit like "I'm a owner of the factory, but not the owner responsible for the death there").

The October 21, 2021 shooting was covered extensively in the national news. There was significant discussion of gun safety and precautions with guns. This blog addressed the topic from the aspect of workplace safety generally and gun safety specifically. Safety First (November 2021). I noted then the primary rule for gun safety, treat every gun as if it is loaded and can kill. Time and again, unfortunately, there are accidental discharges that result in serious injury and death. Any gun should be presumed loaded and treated accordingly.

The New Mexico OSHB issued a fine against the production in April 2022, $136,793, according to National Public Radio. This was said to be the "maximum fine" possible in this setting. Forbes reports that Mr. Baldwin feels he is due an apology over being accused of responsibility for the shot and the resulting death and injury. The lawsuit against another producer has been dismissed in June 2022, and the actor's wife has publicly accused his "enemies" of "dehumanizing" and "actively seeking to 'destroy' the actor's reputation" over the shooting, It is interesting to see the shooter portrayed as victim, accidental or otherwise.

July 2022 brought another story that reminded of the New Mexico shooting involving Mr. Baldwin. WCSC reported that a gun store in South Carolina has been fined by the federal Occupational Safety and Health Administration (OSHA) "$3,000 for two violations after the deadly Nov. 2 incident." An earlier story on that outlet last November described how a gun store owner "accidentally shot the victim after mistaking his personal weapon for a BB gun."

Another news outlet reported that the owner of the store "brought his replica Glock BB gun into the shop and placed it among real firearms as part of a prank." Hint, "prank" and "gun" perhaps go together in no appropriate sentences the word "never" is also in the sentence. The owner then "mistakenly picked up a real firearm instead of the replica and pointed it at the victim," resulting in his death. The store owner "is facing an involuntary manslaughter charge" in the death. The whole scenario is perhaps strikingly similar to Mr. Baldwin's I did not know the gun was loaded and the movie set is not my responsibility arguments.

It is difficult to comprehend someone thinking a handgun prank was a good idea any time. Guns are dangerous and should be treated with respect. But, it is particularly difficult to comprehend anyone not being focused upon gun safety following the cascade of national press following Mr. Baldwin's shooting on October 21, 2021. Two weeks after Mr. Baldwin's gun mysteriously "went off" in New Mexico, allegedly without his pulling the trigger (CNN), a gun store owner concluded that a prank with a BB gun was a good idea. Was such a prank ever a good idea? Are pranks consistent with workplace safety?

And, what of the fact that the gun he mistakenly picked up just happened to be loaded? Is that a habit in some regions, that gun shops keep loaded weapons on display? I have often viewed and handled guns in stores. Each time one was handed to me, it was checked by store staff and confirmed empty. Not once has such staff needed to remove a single round from a gun before handing it to me. Guns in stores are unloaded, seemingly as a general rule. Is a loaded Glock and a BB gun replica of similar weight such that an experienced vendor would not note a distinction? The incident is intriguing. 

WCSC reports that OSHA concluded the gun store owner

"should have known that by pointing a firearm in the direction of employees would expose them to be struck by a hazard and can be remedied with training and enforcement of basic firearm safety."

Firearm safety is not rocket surgery (sic). Every gun is dangerous, capable of great harm, and must be treated with respect. Mom always told us kids that even the BB gun was dangerous. A variety of tools and instrumentalities in many workplaces are similarly dangerous. The employer's focus has to be on safety in the workplace, and each should persistently seek to prevent pranks in the any workplace; horseplay and pranks can lead to tragedy with so many tools, machines, and dangers. This is no less predictable with guns. Loaded guns on can lead to tragedy, in a display case or on a movie set. 

In the end, there are two deaths in these stories. They each provide some facts and circumstances that are difficult and perhaps confusing. What is undeniable is that both events were tragic, and each could have been prevented with some "training and enforcement of basic firearm safety," or even some rudimentary care and caution. Either gun could have been checked for ammunition. Either holder (since one claims he did not "shoot" the gun I decline for now to use "shooter"), could have elected not to point the weapon at someone. Either could thus have prevented a tragedy. 

How many times each day do similarly preventable events, actions, or inactions result in work accident or fatality? The employer's focus has to be persistently on safety in the workplace. Whether one is the producer of a movie or the owner of a store or factory, the focus must remain foremost. When there are dangerous instrumentalities present, the focus on safety needs to be that much more acute and tenacious.  

The BMI Conundrum

Years ago, as a young lawyer working in a narrow corner of Florida workers' compensation, I helped employers recover money from the Florida Special Disability Trust Fund. Section 440.49, Fla. Stat. This was a pre-Americans with Disabilities Act (ADA) effort to encourage hiring, retention, and accommodation of those with medical conditions. The statute included a list of "preexisting permanent physical impairments," which might form the foundation for recovery. See I am what I am (July 2013). What I was when I penned that was (still) obese.

I was troubled, in that regard, when I discovered that one of the qualifying foundations was obesity:

"Obesity if the employee is 30 percent or more over the average weight designated for her or his height and age in the Table of Average Weight of Americans by Height and Age prepared by the Society of Actuaries using data from the 1979 Build and Blood Pressure Study."

There was a chart in the back of the FWCI Reference Manual (the Workers' Compensation Institute used to be the Florida Workers' Compensation Institute). The first time I used the chart for a case, I surreptitiously checked my own weight against the chart. I was deeply troubled to find I was obese. When I complained about that, a friend assured me "you are just big-boned." That did not really make me feel better. Yes, back then I had feelings and that hurt them.

I noticed then that the listings were divided with different values for men and women and at different ages ("in indoor clothing," whatever that meant). For example, someone five foot eight inches tall would have an "average weight" of 138 pounds (female, age 15-16) to 168 pounds (male, age 50-59). I was six feet tall, and my body weight was none of your business. But, notice here that obesity is conditional on age. 

I was reminded of this when a story crossed my news feed in June regarding Queen Latifah and the "stigma around obesity." She described how she responded when told her body mass index (BMI) equated with obesity; she told the trainer "I'm just thick." This alerted me to the conversation about BMI and its origins, efficacy, and flaws. It got me thinking about airplane seats also, see The FAA and Seats (August 2022). The Buzzfeed article regarding Ms. Latifah led me to do some research. 

The Washington Post concluded in 2021 that "BMI is Flawed," and that there is a disparate impact on "people of color." I have written about racist medicine in the past. See Race-Based Medicine (August 2021); Hippocrates, Harm, Racism (May 2022). The Hippocrates article provides some insight into the manner in which racism has influenced medical care criteria and decisions. Various professional groups are "reexamining" guidelines and advice with an eye toward the potential or probability of bias and untoward outcomes.

The Post describes instances in which people have been denied medical care because their weight is a contraindication or discouraging factor. In some instances, care is allegedly denied to those with a BMI exceeding some threshold. BMI can also be a benefit. In some instances, the high BMI might encourage care. For example, in the recent Great Panic of COVID-19:

"certain jurisdictions prioritized people with higher BMIs in vaccine distribution plans because some research suggests that obesity can be a risk factor for more severe covid-19 outcomes"

The Post says that the BMI has "long been controversial." There are critics who say it is "overinterpreted as a catchall for body fat, nutritional status, and health risk." Others are more critical still, noting its "origin is racially problematic." The BMI idea was invented by a mathematician, not a doctor(s). It is based upon averages from studies the mathematician considered, and was based upon "a sample of White, European men," that the mathematician saw as "ideal." The mathematician's idea was labeled as the "BMI" by a physiologist in 1972.

Over the last 200 years, the measure has been used in insurance underwriting, in actuarial tables, and in making medical analyses and decisions. The Post suggests there may be evidence to support that different "metrics" might be aptly applied instead as regards different ethnicities, including "people of color" and those of Asian descent. The article describes how BMI plays a role in reaching a diagnosis and how the application of the "white European men" standard may lead to underdiagnosis or overdiagnosis depending on how it is engaged or perceived.

Despite that, weight is an important metric and can impact physical well-being, and beyond. 

I was contemplating these various articles, and reminiscing on my "big-boned" past when Yahoo published a story about a dancer named Cheryl Burke and her "body dysmorphia." She frankly lamented her frustration that "the nation decided to call me fat." This story is not about BMI per say, but is about perceptions of weight. She described how she denies others' perceptions that she "look(s) amazing" and instead perceives herself in the mirror as "someone who is overweight."

Ms. Burke describes how she is "doing the work" to find a "better place in her relationship with her body." She describes a family environment history of a persistently dieting mother and the self-image she has as a dancer. She notes that in this regard, she has "been judged my whole life." Is it possible that in the same way she looks in a mirror and sees a "fat" person that some of the rest of us look in the mirror and see someone that is not? 

This all implicates the ongoing discussion of obesity in this country generally. In How Can They Both Increase (February 2019), I noted the dramatic increase in obesity in America. Both exercise efforts and obesity were reportedly increasing, albeit perhaps in different subsets of American society. But, be that as it may, obesity is increasing, and there are arguments that we are measuring that based upon some 200-year-old mathematician data about European males. Despite the potential for flaws in that metric, the rates are nonetheless increasing despite the metric remaining static. 

Since there are charts specific to women, and since the BMI calculators differentiate on gender, there have likely been further efforts in the last 200 years, beyond that original "European Males" sample. The fact that has occurred suggests that further study and adjustment is both possible and practical. Is there a reason for differences based on genetic heredity that is similarly justified to the gender distinctions already recognized? 

Accepting that BMI may be a flawed standard, or even that it is a racist standard as some argue, the fact remains that many believe obesity is a significant health concern. Harvard contends that "Excess weight, especially obesity, diminishes almost every aspect of health." Seeming to support the example of Ms. Burke, this may include mood. The causes include direct stress on our structure (skeletal, nervous, etc.) as well as "complex changes in hormones and metabolism." The Centers for Disease Control (CDC) lists many health challenges that pose "increased risk" for those with "overweight or obesity."

Thus, it seems that we have some valid concerns with the increasing rate of obesity and the health challenges that it may cause or to which it may contribute. But, we have concerns about the standard or definition that is being applied, BMI, and whether it is appropriate, predictive, and unbiased. In the mix, we have medical decisions being made or influenced based upon the BMI standard. Injured workers may be receiving care they do not want/need (over-diagnosis) or being denied care they want/need (under-diagnosis).

As with the other reconsiderations of standards discussed in Race-Based Medicine (August 2021) and Hippocrates, Harm, Racism (May 2022), there should perhaps be some urgency to the consideration of whether the BMI is the best that science can do in establishing definition and standard. In the meantime, it is likely that avoidable harm is being done, whether physical, emotional, or both. And, there are costs associated with both under and over-care. See Someone has to Pay (May 2016).