Workplace Road Safety

Thanksgiving week 2022 was one of difficult news stories. There were multiple reminders that the workplace is a dangerous place. We can focus our attention on making it safer through regulation, training, and attention, but there will always remain risks. That ultimatum of risk should not deter us from the remediation we strive to bring. That we cannot render the workplace immutably safe should not keep us from trying.

I spend much time on the interstate, but driving is not a significant component of my work. For many of us, travel time may be significant at times, but it pales in comparison to those whose profession is tied to transportation. Some estimate that a truck driver may log over 100,000 miles per year. Those folks know of the dangers of the highway. We are all benefitted from those whose occupations put them out there on the highway in an effort to keep the traffic moving and as safe as may be possible.

In Florida, we have large signs on the highways that remind us to "move over." The signs seem reasonably recent, but the law requiring us to move over, Section 316.126, was enacted twenty years ago. It is referred to as the "Move Over Act." And, in the course of my many miles, I have had to move over many times to accommodate some shoulder activity, whether police-related, tow-truck, fire, or ambulance. Emergencies come in all shapes and sizes.

According to ABC7, in Charlotte County, Florida, someone allegedly did not move over in Punta Gorda (south of Tampa) last week. A young deputy, who had been on the job for about a year and had recently celebrated his 23rd birthday was engaged in a traffic stop on Interstate 75. A Massachusetts driver that allegedly did not Move Over struck the deputy's vehicle, which then struck the deputy. End of watch occurred, despite the efforts of samaritans, first responders, and hospital staff. 

The Massachusetts driver appeared before a judge Thanksgiving morning and was denied bond, according to Fox4. It reports that the driver "has a history of DUI arrests," and only recently completed a period of probation that included not "drinking alcohol for 12 months." There is also an allegation that she was driving without a license. The regulation efforts apparently did not sufficiently deter the drinking or assure the moving over (or the having a valid license).  

It was the second alleged DUI case to catch my eye recently. The first was a bit earlier in November and a world away. The story from Warsaw, Indiana caught my eye when it made the national news feed in November. I spent many a blissful day in that relatively quiet little corner of corn and bean country back in the day. But the peace there was shattered when a tractor-trailer allegedly ran a traffic signal and collided with a school bus, according to the Times Union.

There were witnesses to that event, and allegations of erratic driving and speeding, up to 90 miles per hour on a U.S. highway (not an interstate). It is a road with which I am very familiar, and on which I spent many an hour in another life when truck driving was my occupation. The witnesses in that incident identified a problem about eighteen miles to the east and were concerned about the tractor-trailer. They followed it from Columbia City (a wide spot in the road, but "at one time the largest producer of blue jeans in the world."). 

The news does not report what efforts the witnesses may have made to contact authorities to address the tractor-trailer issue that night. They may have called authorities, but at 90 MPH, the truck was identified and followed for about 11 minutes before the bus collision. Though the collision there was horrible, there was no reported loss of life. However, 20 of the 26 bus passengers (reportedly) were injured, some significantly (Times Union). CBS News reported that 16 were injured, 2 critically. They were apparently a sports team and coaches traveling for a tournament. Thus, in the driver and the coaches we see the workplace element in this crash.

The two events remind us that the road is a dangerous place. A dangerous workplace for many who drive trucks, buses, police cars, and more. The Florida example reminds us that moving over is a critical need, which makes sense even without a law to mandate it. The Indiana example suggests to us that we might have a chance to save a life when we observe poor driving or behavior. You can dial *FHP on your cell phone to report suspected impaired driving. I did so once, years ago, and essentially the dispatcher asked me "what do you want us to do about it?" It was, let's say, not a confidence-inspiring interaction.

We cannot stop the drunks from getting in cars. Maybe, eventually, the government will succeed in requiring some form of interlock device in all vehicles to preclude impaired driving. See Safety is Coming (March 2022). But, if they implemented installation of them today, it will take years for those to permeate the fleet of American vehicles by attrition. We can, however, courteously move over when we see someone stopped (flashing lights or not). We can, however, call in the erratic drivers (whether the dispatcher is helpful or not). We can, however, be willing to respond to such events as samaritans (whether we are ultimately successful or not).

Florida is in the top three by population. It is not a surprise that Texas, California, and Florida lead the count for alcohol-related vehicle deaths. It is a concern for us all, but of particular concern in the workers' compensation community as so many of us require the highways and byways for our work. Transportation events remain a predominant portion of workplace fatalities. There is much to consider and significant danger to avoid.

It was Bound to Happen

We have been on the topic of professionalism for years. The challenges to the practice of law are real and troubling. See The New Professionalism (July 2013), Feigning Sleep (August 2016), Antipodal or Antithetical (July 2021), or The Pet Peeves of Judges (February 2021). The topic is not new. There are some who engage in the practice of law with less-than-stellar compliance with rules or professionalism.

When the pandemic struck in March 2020, the Florida OJCC shifted to mandatory telephonic mediation. The intent was simple - decrease the foot traffic in the various district offices, minimize the risk of infection to staff and visitors, and to facilitate the mediators. It worked incredibly well and the OJCC remained effective throughout the pandemic. To the benefit of so many, the practice of law persisted from home or other quarantine or recovery. 

The remote or virtual mandate did not apply to hearings. For the most part, Florida Judges wanted to continue to conduct hearings. It was our consistent goal to provide such opportunities to the public, to process paperwork, and to keep the workers' compensation community functioning. The videoconference process was old hat at that time, with the VTC system having persisted for 20 years. But, there was room for improvement, and the pandemic drove us to Internet-based platforms. We soon settled on Zoom, but left the final decision on live or virtual to each judge on a case-by-case basis. 

Since then, we have had periodic challenges with unprofessional attorneys on video. Some wore dress clothes for appearances on Zoom, but an occasional instance occurred when someone rose to retrieve something and revealed that below that suit coat were merely shorts and flip-flops (in one public meeting I attended, a Circuit Judge did similarly). We had many appear for hearings in casual clothes, eschewing the jacket and tie completely. We had inappropriately dressed individuals that walked through the background of Zoom proceedings. We preached professionalism at every chance, but there were challenges. See Hearings in the Age of Video (May 2020),

There has been much lamenting of the lack of decorum and professionalism by some attorneys. I have heard many judges across the country bemoan the behavior of lawyers and witnesses on video and in person. Much attention was directed at virtual, but the casualness problems and diminished professionalism largely predated the pandemic. The relief of the pandemic ending seems to have left some in a habit of casualness. Some hearing participants have appeared from bed, some ill-dressed or disheveled, some unprepared, and more. But now we hear about the unprofessional conduct of judges.

Certainly, unprofessional judges are not new to these pages. See Sign Language and Curiosities (July 2022), Another Judge Makes the News (May 2022), Public Confidence (July 2022), and Revisiting a Judicial Discipline (May 2022). What those all have in common is the involvement of an American Judge in poor behavior. It is seemingly not difficult to find poor judicial behavior despite our rigorous Code of Judicial Conduct. 

November 2022 brought news of an inappropriate judicial appearance in a Zoom proceeding. Thankfully, it was neither in Florida nor America. It was, however, somewhat sobering and disappointing. The Independent reports that a Columbian Judge has been suspended over a virtual hearing appearance. The judge is Hon. Vivian Polania, and she is said to have previously:

"repeatedly received warnings for posting pictures on her personal Instagram account in scantily clad outfits with clothing discount codes alongside them." 

The link to the Instagram account is included in the cited articles, but is not repeated here; I may not be able to define inappropriate judicial attire, but "I know it when I see it," paraphrasing Mr. Justice Potter Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964). When I read the post, I was somewhat on the judge's side of freedom of personal expression. What one wears during off time is arguably not a professionalism issue. However, having briefly visited the Instagram page, I am now squarely in the opposite camp and dismayed that such postings are not themselves grounds for discipline. The attire choices are not appropriate for a judge, and in fact not appropriate for Instagram. I am surprised that the platform allows them. 

While those postings could thus be troublesome under our Code from the standpoint of judicial demeanor, it is also potentially troublesome from the appearance of marketing or endorsing a product. Any appearance that a judge is endorsing or marketing some product has the potential for challenges. In America, there are certain constraints on personal expression that come with the "judge" title and responsibilities. The distinction with the Columbian system is not patent but is intriguing. 

The Independent notes that Judge Poliana defended her Instagram postings as "simply expressing herself as a 'braless and open-minded' person." The same "simply expressing" justification could likely be applied to a variety of speech in America that is simply not allowed by the Code. The New York Post labeled the photos as NSFW (Not Safe for Work) in its coverage. 

But, in June 2021, according to PrimalInformation, Judge Polania was conducting a "court hearing related to a car bombing," on a video platform. It is suggested that she was unaware that her camera was active at the time, until one of the participants alerted her. She was, allegedly, "smoking in her underwear during a Zoom hearing," and was in bed. Upon learning the camera was on, she reportedly turned it off. The half-minute clip became part of a judicial complaint, and will likely be a viral sensation at some point.

While the appearance was deemed problematic, the New York Post noted that some also perceived her as appearing to have "sleepy eyes.” There were allegations that she was "slurring her words." At a minimum, this might suggest a lack of preparedness or professionalism.  

Reportedly, "Colombia’s National Commission of Judicial Ethics" received a complaint from one of the attorneys involved in the hearings and investigated. According to PrimalInformation, the judge was "handed a three-month suspension," until February 2023, "because she did not respect the parties at the hearing and failed to comply with the judicial dress code." The demeanor was sanctionable. Should the attire of attorneys in workers' compensation proceedings here be less so?

Judge Polania responded to the "scandal" by "denying the allegations." She explained that she "had to lie down during the hearing because she suffered an anxiety attack and had low blood sugar." She complained of being overworked, suffering mental health issues, and being "bullied by her fellow judges . . . and threatened with disciplinary actions because of the way she dresses." In any instance, there is no justification for "bullying." However, there is likewise no justification for judicial behavior that brings disrespect for and disrepute to the bench or legal system(s). 

There are challenges enough in this practice of law. The professionalism debates will continue, and judges will be persistently drawn into various disputes, some even that may have gotten off the rails to some degree. As judges, there is a persistent and pernicious need for us to be above those frays. There is a demand for transparency, patience, dignity, and an appropriate demeanor, a persistently appropriate demeanor. We might debate how a judge appears outside the office, and there is room for that to some degree (that sleeveless Grateful Dead shirt and sandals might fly at the beach, but there are limits).  

As noted in Revisiting A Judicial Discipline (May 2022), the Florida Supreme Court has "reminded that a ‘judge is a judge 7 days a week, 24 hours a day.’” I am confident that the Justices would feel the same whether the complained-of conduct was in a "slurred speech" video hearing from bed, or on a social media account. While we might have an intriguing debate in a classroom or conference on that topic of personal expression and social media, I find myself doubtful that our court would fail to discipline a judge with a similar Instagram or other social media presence. The Columbian authorities certainly did not fail as regards the hearing from bed. Whether they will ever address the social media aspect of this judge is to be seen.  

Party like its 1499

It is Thanksgiving 2022. I sit this morning with anticipation of the usual, the coming gluttony and regret. All signs point to it being a good day. There is a great deal to be thankful for in 2022, for me. As usual, there is a great deal to regret and lament in general. The world is not what it might be, and it certainly is not what it once was. As they say, "for better or worse," it "is what it is."

I reasonably recently noted a milestone in A Decade (March 2022). For ten years, I have been pounding this keyboard and sharing thoughts, analyses, and perhaps some humor. Some think this blog is about movies, others about music lyrics, and a few erroneously (or naively) think it is about workers' compensation. In the end, I struggle a bit with what it is about. But, the next post in this blog will mark 1,500 expositions. I have had other outlets over the years. I have published dozens of articles in journals, magazines, and newsletters. I have even published on other blogs. But this post marks 1,500 on this blog soon. I am grateful for the opportunity to share in this manner, for so long.

The world is in quite a fix this Thanksgiving. Inflation is run amok. As hard as it is to believe, flooding a marketplace with money can be inflationary. Inflation happens when too much money chases too few goods/services (scarcity) and the result is increasing prices. With referendum increases in minimum wages, government checks, and more on the income side inflation was predictable. With the pandemic shutdowns that kept many essentially homebound for months, there was also savings and some of the inflation is likely from pent-up consumption in the aftermath. Regardless, the old turkey dinner this year was pricey, and the gas to get there was pricier still.

The largest European war since the War of Nations (WWII) has been underway since Russia invaded Ukraine last February. It has impacted people around the world. The United Nations believes that Mr. Putin's Folly has put some 345 million at risk of starvation. For context, that figure is greater than the entire population of the United States (remember those folks when you get your third helping of pie today). That is a lot of people. The Russian "liberators" have severely damaged the power infrastructure, and it will be a cold winter for many in Ukraine. The reactions to the invasion and boycott of Russian energy may make for some cold times elsewhere in Europe as well, according to Reuters.

Remember when COVID-19 ended? That was a relief. Well, "over" is a matter of perspective. I got over the pandemic more rapidly than most. But, it is noteworthy that, according to the fine folks at the University of Nebraska (yes, it is not just a football team, but you gotta love the Cornhuskers):

"There are currently more than 37,000 cases reported in the United States per day, with test positivity of 8.6%. When test positivity is above 5%, transmission is considered uncontrolled. There are more than 340 deaths per day, and hospitalizations have increased 8% over the last two weeks"

So, "over" is perhaps an overstatement. But, the lockdowns, lockins, mask mandates, and more are over.

For whatever reason, we have a problem right now with Respiratory Syncytial Virus (RSV), and the news refers to a "tripledemic." This references the implications of SARS-CoV-2 (COVID-19) and the Flu and RSV (the triple threat is filling hospitals). The implications are pretty clear as hospital wards fill up with patients seeking respiratory care. The great "lockdowns" and other responses may have led to greater RSV sensitivity or susceptibility. Or, the virus has become more prevalent. But, the scientists tell us that it is affecting a broader population this year than predicted (most cases in prior years were in children under 5).

Did I mention the cost of the Thanksgiving meal has increased? According to Fox25 in Orlando, the "Farm Bureau" has done some math regarding our big feed. It "estimates the cost of a ten-person Thanksgiving meal to be about 64 dollars in 2022." That is a significant increase (21%) from the "53 dollars in 2021." Inflation is not new this year, the Bureau says that last year's "53 dollars" was a significant increase (13%) from the "47 dollars in 2020." The turkey and accouterments just get higher and higher.

The good news (silver lining) is "cranberries are down 40 cents from this time in 2021." I can just see the press conference now: "you're a lying dog-face pony soldier" . . . "let them eat cranberries." I don't write for comedians, but that one is gold right there.

To make matters worse, we see tragedy in a daily parade across our news feeds, social media, and the Internet generally. There was a shooting in Colorado, another in Virginia, a suicide in Texas, and four fatal stabbings in Idaho that seemingly have the police flummoxed. One might say we are in a real state of higgledy piggledy. Some might say we are up the old feces tributary without a manual propulsion tool, in the soup, in a hole, backs against the wall. In the end, it seems likely that there are some emotional and mental health issues in our society that are not being sufficiently addressed. And, as a result, a great many are suffering, hurt, and challenged this holiday season. Hopefully we will not forget them.

In the end, I'm gonna revel in today's opportunity to be thankful. I will strive today to eat my weight in pecan pie, stuffing, and green beans. I will be thankful for the opportunity of this blog to share my thoughts, for the many people that support me throughout each year, for the peace and prosperity that we have in this country, and the warmth and comfort we enjoy while other world citizens suffer, subsist, and even fail.

Recovery will come; from pandemic (or tripledemic if you insist), war, famine, and inflation it will come. There is much wrong with the world today, and much upon which we might work. But, there is a great bit more right in the world and our individual lives. I hope for you that you find a way this day to recognize that in your world. Find peace in that you are not freezing, subject to violence, or worse. And, enjoy the cranberries you pony soldier (whatever that is).

May your day be calm and peaceful. "May the road rise up to meet you." "May your blessings be many and your troubles be few."

Thanks for reading. Looking forward to the next 1,500.

Manspreading?

Recently, I wrote about the plans of the government to get into the topic of the size of seats on airplanes. See The FAA and Seats (August 2022). I was reminded of the topic when I recently took flight to the great state of Texas and got to live the dream of cattle roundup-style boarding, comedian wanna-be cabin attendants, and overflowing flight companions. This is not meant to suggest the flight was oversold, or that too many individuals boarded the plane. However, too much passenger did in fact strive to occupy some particular seats (the one next to mine was a prime example).

Some flights are clearly designed for thrift. There are no in-flight entertainment units mounted in the seatback. There is precious little padding in the seats themselves. And, there is a hint that someone cleaned the aircraft at some point, but not this century. There is a concerted effort for fuel efficiency, and thus thrift. Part of that is the configuration of the seats and the space between them. Comedian Jim Jeffries addresses his perceptions of "airplane etiquette" with aplomb. His language is a bit colorful (fair warning). But, essentially, he contends that the person in the middle seat is unequivocally entitled to two armrests.

I think of him often when I see an over six-foot, over 220+-pound gentleperson folded into that center seat. In some instances, that seat was chosen from a seating chart. On other, cattle roundup-style, airlines that seat was defaulted by an unfortunate late boarding opportunity (the ticket is a bargain, but any amenities cost extra, including boarding outside of the last 50 or so passengers). Why is that mountain squeezing into that center seat? That is an intriguing question. But, more intriguing (in the whole ox-goring perspective, not that I advocate or tolerate cruelty to oxen, but I digress) is why is that particular mountain overflowing the armrest into the seat for which I paid? I mean I'm friendly and all, but this is a bit intimate for strangers in any setting. 

And, at times, I think that I am alone in these perspectives. But yet . . . an article on Your Tango recently came across my newsfeed. It ignited another question about air travel that was new to me. Not above and beyond the whole armrest/seat debate, but decidedly below it. Having spent a few hours on aircraft over the years, I wonder if this new territory dispute is something new or merely new to me. This is the "manspreading debate." The headline "Photo Of Man Spreading His Legs" seemed to be clickbait, but the article is interesting.

This is a debate similar to the armrest discussion. It is, at its root, about territory and resources. We must remember that many wars have been fought over territory, and people's perceptions and jealousies surrounding it. In this particular instance, the plane passenger has his (since the good folks at Your Tango use the words "man" and "his," I presume they did their homework and confirmed for certain this individual's actual personhood and gender preferences, as well as appropriate pronoun assignment) legs spread to an extent that placed his knee in the space in front of his neighbor's seat.

I leave it to the reader to decide if this is "offsides," "encroachment" or "neutral zone." But those are merely labels. What it is, frankly, is astoundingly impolite and worse. There is only so much real estate on a plane, and whatever bargain (or premium) price you paid there should be some respect for that space you purchased (and that your neighbor likewise purchased - leased? But I digress again). Or, do we risk an accusation of geriaticism with a "hey, you kids get out of my ________(leg space, armrest, lap, etc.)?" Is it too much to ask strangers to keep their personhood to themselves in flight?

The Your Tango article describes how this "manspread" situation was publicized and discussed on a social media platform called Reddit. This included a volume of comments and reactions. Some were critical of the manspreader, and others were surprisingly sympathetic of the tall and uncomfortable. It is perhaps easier to sympathize with the mountain from afar, lamenting its stature and discomfiture. And, perhaps it is a little more difficult if in fact, you find yourself as the ox?

Is the great socialistic solution of use here: "From each according to his ability, to each according to his needs," Karl Marx, Critique of the Gotha Program, 1875? If you are too large for the accommodations you have procured, is it essentially someone else's problem that they must therefore be your ox? In our modern, feel-good, society should the person being imposed upon (gored) merely grin and bear it? Is having someone touch you (or worse) for a four-hour flight just a cost of living in the world of today? Or, is it more appropriate for those who need additional space to take more formal action in that direction? 

What are the rules of airplane etiquette? I would suggest comedian Jeffries misses the mark. Instead, I would propose:

• If you need two seats, purchase two seats.
• If you have the aisle seat, expect to get up for others 
• Keep your arms and legs to yourself (manspreading)
• Remember that cologne you love, others may not
• Remember that the cologne you love was never intended as a marinade. 
• Remain dressed (yes this includes shoes and socks)
• Pleasantries are nice, but no one wants to hear your life story
• Please and thank you are most appropriate when entering, exiting, reaching, and more. 

FAA regulations regarding the appropriate quantum of seat room or legroom may standardize airlines. Standardization may move the entire air-travel industry to greater congruity. But, regardless of the size or configuration selected, there will remain outliers (mountains striving to fit in seats). Perhaps those may be minimized or ameliorated, but there will be outliers. No matter how carefully or intelligently such standards are developed, some people will simply not fit or will choose not to (Manspread). 

As there are various discussion of federal standards in the world of workers' compensation, the issues with airline seats are of interest as an analogy. Similarly, some set of standards might bring uniformity and predictability to workers' compensation. But, there would remain outliers and exceptions. Will those outliers be a challenge for smaller and likely more nimble state systems or will they merely be outliers in a large federal bureaucracy? The likely answer is as obvious as it is inappropriate. You cannot legislate morality, and you cannot legislate couth. Ask Mr. Manspreader, and the poor ox that got gored. 

Intelligence?

I have been writing about artificial intelligence (AI) for several years. There is an amazing evolution happening around us in terms of what machines can do. Remember Chatbot Wins 160,000 Legal Cases (June 2016), or Artificial Intelligence in Our World (January 2017)? More recently, there was Artificial Intelligence Surveillance (August 2020). The fact is that robots are becoming a real part of our world, and artificial intelligence is part of that evolution, but part of a bigger shift in the way that computers operate and assist us.

In those efforts, perhaps there is benefit in a working definition. Britannica defines artificial intelligence broadly:

"the ability of a digital computer or computer-controlled robot to perform tasks commonly associated with intelligent beings."

A friend in the IT business periodically jokes that "artificial intelligence" may also be associated with tasks usually performed by humans. That is a backhanded insult that the vast majority never catch. They seem to assume it is an extension of the definition, and miss that this punch line is essentially that humans are not necessarily "intelligent beings." And, perhaps in missing the joke we demonstrate that?

AI has been in the news in recent months because it is increasingly involved in efforts to protect us from online content that is deemed hurtful, hateful, or worse. There is a great deal on the Internet that Al Gore never dreamed of when he invented it (sorry Al, everyone knows you didn't invent it, and perhaps you never thought you did, but it is a funny punchline). For the sake of argument, things can be funny without being true. I know, I read it on the Internet. But, I digress.

Artificial intelligence programs are purportedly our friends. According to AIMagazine, social media platforms use:

"AI to fight against hate speeches and cyberbullying. It uses Deep Text to identify these messages and posts and remove them from the platform."

The AI "learns" as it goes, just the way we did as children. There is subtlety in context perhaps. That challenged us in our youth (for some, the challenge remains). Context and word use challenges AI, which makes assumptions and interprets relationships in an effort to define and categorize. A key target is hate speech. But, there is much anger and meanness on social media that is not blatantly hateful, but nonetheless hurtful. I have seen many a poor wildebeest calmly meandering the virtual Serengeti of social media only to be beset by pouncers and predators - many attacking out of pure, unadulterated ignorance or stupidity. It's enough to make one quit a platform and make a real friend somewhere instead (well almost).

Defining hate may be every bit as difficult as defining pornography, which has been a trope since Mr. Justice Potter Stewart infamously failed in 1964 with: "I know it when I see it," Jacobellis v. Ohio, 378 U.S. 184 (1964). His dereliction there is the textbook failure of an appellate court. Courts should bring predictability and definition. A court that cannot define, and must persistently "see" each example to decide is not an appellate court, but a failure. That is harsh, and I get that. But, it is nonetheless true. And, that is part of the challenge with hate, not only must it be defined, but the bots that patrol the expanse of social media must be able to know it when they see it. 

AI must decide. It has to have parameters, definitions, and structure. It has to know what it is looking for, and could easily be programmed to look for words, or even characters. But, context matters. Just because someone says "I hate Brussels sprouts," does not mean that "hate" is truly involved. And, just because one avoids the word "hate" does not mean loathing it is not involved (or at least implicated). One can easily be hateful without mentioning particular characters, words, or phrases. Some might see my derision of Mr. Justice Stewart as critical or even abhorrence. But, alas, I hold no animosity for the man; I don't value his conclusion and find fault. But hate?

The size or volume of the challenge faced by AI is vexing in itself. Twitter has "a quarter of a billion users." And it is but one of many platforms. It and other social media "has become a kind of aggregator of information,” According to MIT Technology Review. Those Twitter users are generating thousands, sometimes tens of thousands, of tweets per second. Facebook, Instagram, and more are receiving and publishing content from users similarly. And, either someone has to review it all before it is public ("when I see it"), or much will become public that is untrue, inappropriate, hateful, or worse. In steps AI as savior and solution. Or, as scapegoat?

There are a variety of challenges in our languages. There are words with various meanings, there is context, and there is slang. These kids today. I remember when "good" was good before "bad" became better. That link is to Michael Jackson singing "bad." I remember when he was good, singing Bad, well, before he was bad. Context can be critical. 

I recently ran into a fellow "older" citizen who had utterly avoided a fast food phenomenon because of a social media post that suggested it was "the sh&%." You see when we older folks were kids that word (a short reference to feces) was not a description of something desirable, but to be avoided. The Urban Dictionary says that "sh&%" remains bad, and the modifier "the" makes all the difference in whether it is good ("the sh$&") or bad (just "sh%&"). Context is critical. Beyond that, some of us are persistently confused by the latest slang. We cannot keep up. But somehow AI is supposed to?

And, to make it worse, our use of language is constantly changing. What is the latest slang? That is up to the young and the "hip" (an articulating joint, a part of a roof, or "very fashionable," you decide). Once those young folks know that the rest of us are on to them, long before Funk and Wagnalls provides a definition for us geriatrics, the youth moves on with some new vernacular. They literally intend for us old folks not to understand what they are saying, or seemingly so. But somehow AI is supposed to?

With all of our challenges with language and context, thank goodness for AI. Oh, I forgot to mention that the real purpose of developing AI has nothing to do with protecting us from speech that offends, misleads, or disturbs us. AI decides what we see on the Internet and social media. AIMagazine notes:

"AI enables social media marketers to get closer to their audience and understand their preferences. This helps them target their ads in a better way as well as create content in a better way."

AI is tracking us, watching us, and plotting against us. Those Snickers adds in my browsing experience proves it. 

There is danger in "groupthink" as I discussed in Consensus in the Absence of Proof (January 2021) and Hippocrates, Harm, and Racism (May 2022). To provide the content that it thinks we want, AI examines us, monitors us, and feeds us the pablum it believes we individually desire (or need, remember Jagger "you can't always get what you want," Rolling Stones 1969 - the "B-side" of Honky Tonk Woman, if you remember "B-sides," you are my generation or worse). AI not only covets groupthink, it drives groupthink by exposing you primarily to what it thinks you want. AI intentionally makes social media and the Internet perform as an echo chamber. And, that likely drives (mis)perceptions and beliefs untowardly. 

But, as useful as our overlords believe AI is in pushing us content and advertising, it is as fallible as the humans that wrote it. Much of what you can or cannot get away with posting on the Internet may come down to these AI programs and their shortcomings, decisions, and persistence.

In November 2022, the British Broadcasting Corporation (BBC) published Astronomer in Twitter limbo over 'intimate' meteor. The story recounts how a professional posted a picture of a shooting star (which is quite beautiful). The AI at Twitter interpreted it as "intimate content," that was "shared without the consent of the participant." That, in itself, sounds a bit salacious.

She was blocked from making further posts and told to "delete the tweet." Only upon satisfying the demands of the AI ("delete") would she regain the ability to make further posts. The "12-hour ban" that was imposed then drug on for three months. She engaged in, and was frustrated by, an "online appeals process," and steadfastly refused to take the easy way out (delete the video of the meteor). She said that to do so, "she would have had to agree that she had broken the rules." She complained that in this process she could never find anyone at the social media company to speak with about the issue. She was stuck in the realm of sending messages (a bain of modern interaction). 

Now, there is right and there is right. We call such engagements "A pyrrhic victory," which Websters defines as "a victory that comes at a great cost, perhaps making the ordeal to win not worth it." In the practice of law, we see a great deal of principal, until the bill comes due. Some clients are adamant about fighting every little thing until they see the cost, and then they become less pyrrhic and hopefully more rational. But, I digress again (this blog is about the law after all).

After the astronomer was fortunate to catch the attention of an international news organization (BBC), it is not surprising that someone at Twitter fixed the issue. She was reinstated without deleting her meteor video, and as they say, life goes on. But there are other examples cited of such errors. There are examples of people electing the easy out of "delete and admit." It is simply easier to go along with AI in order to get along. And, there is broad frustration with AI and its limits and challenges. 

The astronomer's perceptions in another regard were also troubling. Despite the fact that we all have many potential outlets for involvement, this astronomer felt "a bit cut off from the astronomy world" during the ban. That is likely generational. In the old days, we used to visit people (this involved travel and interaction), we used an ancient device called a "telephone" to converse with people, often over great distance. In a pinch, we would write words on some flattened pulp and actually pay someone an astronomical sum of $.10 (yes, I am that old) to deliver that "paper" "letter" to someone across the country. If being away from social media affects you profoundly, you should get outside more (just saying, but "stay off of my lawn"). 

The import of AI worries me. The artificial is scary because we (lay people) don't understand it. The intelligence is scary because it may be either way too intelligent (think Sheldon Cooper, The Big Bang Theory, Warner Brothers 2017-2019) or way too dumb (Meteor is intimate). Despite its strengths, and probable flaws, it is here and steering us with its analysis of what we like or do not (or perhaps should). It is not bringing us different and challenging or making us think. It is shielding us from differences and distinctions and denies us the chance to consider perspectives. I for one would love more meteor images in my feed, and could really care less how the meteor may feel about it. 

As the world continues to evolve, as we deal with the challenges of defining what is right, wrong, or even offensive (perhaps it is in the eye of the beholder), AI will drive our content and thus our perceptions. It will drive, for better or worse, our world. Do you trust it? Do you "hate" Brussels sprouts? 

Evolution and DNA

Evolutionary change is in the news. It caused me to do some reading, in which I learned some interesting points from a professor at WTAMU: "there is no 'should' in evolution. Evolution is not goal-oriented; it has no end purpose." Instead, "Evolution is just the observation that creatures change over time," and humans have the capacity to change. Evolution takes at least hundreds of years, and "Accurate scientific predictions about the evolution of humans are nearly impossible."

Some experts conclude that the likely human evolution will depend upon the occurrence of events or circumstances that impact the young. This, they contend, will cause death among youth, and perhaps begin to impact the frequency or repetitiveness of traits that are passed on through reproduction by survivors. Therefore, threats to the young are critical. Thus, "Whatever biological traits enable a person in the US to avoid fatal injuries, suicide, homicide, and cancer" will "likely be traits that are passed on."

We have just lived through an intriguing viral pandemic. I have noted repeatedly that the SARS-CoV-2 pandemic seemed to be avoidable by some among us. I know several people who did little to nothing to protect themselves and yet were never infected. As our post-pandemic progresses, research continues into various aspects of COVID-19 and how we survived it (at least thus far). A recent paper suggests that human evolution and the Black Death may have played a role.

In Evolution of immune genes is associated with the Black Death, 32 authors publish findings of their research. They conclude "Infectious diseases are among the strongest selective pressures driving human evolution." Their study is focused on "the Plague of Justinian in AD 541" and "the Black Death (1346–1350)." Note that the latter was about 700 years ago. These scientists conclude that "the high mortality rate suggests" people at that time lacked "protection against Y. pestis infection." Thereafter, various similar pandemic outbreaks were "often . . . associated with reduced mortality rates." The suggestion is that those who survived the Death pass on traits to offspring that enhance their chance of survival in later viral onslaughts. 

The scientists concede that the sample size in their study was small. But, they extracted DNA from bodies both pre- and post-Black Death. From their research, they believe they have located specific genetic changes that impact our immune system and ability to fight infection. There is not, as yet, similar data regarding the genetic ability regarding outright resistance to infection. However, there is the suggestion that our evolution includes the reaction to environmental irritants and insults.

In the midst of reading and of pondering those changes, a page called tollfreeforwarding.com published an article that made my news feed, and that may be of interest (or it may be a marketing ploy for its "virtual phone number" business). This article is a somewhat scary exposition that leads with technology creating negative impacts "on our bodies." That company commissioned the construction of "Mindy," a representation of changes that might occur in humans as a reaction to the impacts of technology. Mindy is a 3D representation (technology purportedly foretelling the impact of technology).

The piece warns us that our love affair with technology may lead to intriguing changes in "3000 and beyond." Note that is about 1,000 years which is not so distinct from the 700 years mentioned above. We are warned here of our posture and monitor use resulting in arching of our neck and back. There is also a prediction that "consistently gripping your smartphone" may result in a hand deformity, or adaptation, that is referred to as "Text claw." The positioning of the arm to use such a device, they warn may lead to "90-degree elbow, . . . . Also known as “smartphone elbow.”

But, that is only the beginning. The authors contend that we may suffer impacts on our brains from technology. There could be impacts to our memory and cognition. The potential is expressed for children to experience more impact because their "lesser developed skulls are thinner." Thus, they hypothesize we might all evolve to thicker skulls and smaller brains. In keeping with the lead of this post, that would seem to depend upon those with existing thicker skulls being the survivors and procreators? Notably, the authors mention smaller brains, attributable to the simplification of our lives brought by technology, the so-called "idiocracy theory.”

I have mentioned that in the past. See Are you Inumerate (July 2018) and My Brain is Shrinking (July 2022). Essentially, this is a hypothesis that our brains may atrophy through decreased use. The tollfreeforwarding.com article seems instead focused on thicker skulls leaving less room for grey matter. While we might blame a lot of sources for shrinking grey matter, such as the Internet, social media, and smartphones, we have been warned for decades about the "idiot box." In fact, in 2021, scientists demonstrated that television does in fact decrease your grey matter. If television can make us less functional, can one argue about Facebook?

In addition to the hunched back, "Text claw," thickened skull, “smartphone elbow,” and diminished capacity, the good folks at tollfreeforwarding predict that we will develop a second eyelid to "limit the amount of harmful light our eyes are exposed to" from these various devices. And, all of these physical implications ignore the potential for impact on our mental health. The article cites "quickly mounting" evidence of challenges to our mental health. It contends research has shown "a link between Facebook use and a decline in your long-term well-being." That one, perhaps, required minimal research. 

Are we evolving? Has it benefitted us on our path through the pandemic? Future research will illuminate that further. Will we become "Mindy" through our persistent use of technology? Or, will the fad of Facebook become tomorrow's MySpace? The tech giant is already fading some; where will that end? Will the stand-up desk, dictation software, and as-yet unimagined technology of tomorrow eliminate these threats before our DNA can react? Might the metaverse, headsets, and digital assistants render their predictions moot? Might the new tools simply suggest different challenges to our DNA? 

It is a fascinating topic for consideration. In the end, from the standpoint of Daubert and science (See Daubert Better Explained, May 2016), I think I am willing to wait until someone other than a phone forwarding company performs some research. I am doubtful of Mindy, and for some reason Billy Joel's lyrics just keep running through my head as I think of her:

"It's just a fantasy, it's not the real thing" (Sometimes a Fantasy, A&R, 1980).

Can I Buy you a Drink?

This site has had a great many posts regarding the rate of overdose death in America. That interest is spurred, in part, from the allegations that many illicit drug users may get their introduction to troublesome habits and substances in the course of treatment for medical conditions, accidents, and illness. That is inextricably intertwined with the world of workers' compensation. Over the years, I have heard various stories and anecdotes of individuals "self-medicating" with alcohol as well. 

Some samples from the past:

• What Worthwhile can you do in 11.2 Seconds? (December 2015)
• Does Farr's Law Bring us Good News (July 2017)
• The Time has Come, the Time is Now (April 2021)

There has been significant coverage of the Opioid epidemic in America, and the havoc wreaked by a massive production and marketing conspiracy over decades. The news has been replete with coverage of the invasion of Fentanyl and its threats and impacts. There is a serious impact from all of these chemicals, and the situation seems to continually deteriorate. Each day there is another news story of a young life destroyed by drugs.

To make matters worse, the news feed recently featured a piece by U.S. News (Alcohol Death Toll is Rising, November 2022). The rate of death from alcohol is growing, and significantly. It reports that "The rate of deaths that can be directly attributed to alcohol rose nearly 30% in the U.S. during the first year of the COVID-19 pandemic." Thirty percent. That is not an across-the-board figure, there are communities that are seeing more or less. Averages can be confounding.

The "directly attributable" includes various diseases like "alcohol-caused liver or pancreas failure, alcohol poisoning, withdrawal and certain other diseases." The impacts are much more likely to affect men (2.5 times more) than women. The most predominant age group is 55-64, and yet there were increased impacts noted in other age groups. There is no "safe harbor."

The article notes the frustration of public health officials, who believe amid the myriad of other challenges, “Alcohol is often overlooked.” And, the scope of challenges extends beyond the "directly" category, according to a JAMA Network Open report mentioned in the article. This broader approach considers also the "linked to drinking" deaths from causes "such as motor vehicle accidents, suicides, falls and cancers."

The overall impact is said to be "more than 140,0000 . . . annually." That is a significant population. OF that, the Center for Disease Control says that 82,000 (59%) "are from drinking too much over a long period of time." The remaining 58,000 are "from causes tied to acute intoxication. The statistics are, frankly, sobering.

Different people view the allure differently. I strive to never drink and drive, but I persistently drive after appearances and events. Thus, I am known to not drink at conferences, dinners, etc. At one such recent event, a lawyer confided "I know you don't drink, but I cannot understand why." After a brief pause, the other shoe was "what's the point of living if you're not enjoying it?" The implication was essentially that alcohol is a prerequisite, a base necessity, something that cannot be absent from a "real" life. I was taken aback, but have striven to understand the perspective. And, I do drink periodically when there is no necessity of a motor vehicle involved. 

The US News article alleges that the situation of social consumption is perhaps of less concern to the researchers. However, they allege "that more than half the alcohol sold in the U.S. is consumed during binge drinking episodes." That is not an indication of "binge" purchasing, though that is perhaps an issue. I buy ice cream only in my weakest moments. If it is not in the house, I am often (OK, sometimes) too lazy to drive a mile to get some. My ice cream habit is clearly one of "binge" purchasing.

But, the allegation here is different, and suggests the alcohol is on hand and is consumed in a "binge." Imagine, someone has a drink and then wants another. It is possible, perhaps, that one might even lose inhibitions and judgment with each such drink and thus be less reluctant to have that next one? But, the experts suggest that the path to moderating all this death and destruction is the tax man. Having failed in a Quixotic prohibition a century ago (18th Amend. U.S. Const., 1920), the thought is to instead economically discourage consumption through taxation. 

I think back on the unintended consequences of prohibition, the bootlegging, the violence, and the resistance. I reflect on the states rushing to decriminalizing pot in recent years and of those urging Congress to instead actually legalize it. I think of the unintended consequences of the millions of Opioid doses prescribed by both the most well-intentioned and the worst. There were taxes collected on the scripts, but not on the street drugs that followed. 

I think of the legion of lives destroyed by crystal meth, prescription drugs, and fentanyl. And, in the end, I sit and wonder if safety and self-preservation can be legislated. Can people be saved from themselves? Can you save people who do not want your help? If it becomes too expensive to sip gin, will people make gin? If gin becomes too difficult or expensive, might one just turn to tax-free dope? If the dope is too . . . Well, who knows where this might lead.

Some suggest that there is a need for greater public access to mental health services. Many employers find themselves driven into providing mental health care for their workforce. And, there are those who identify significant coincident between mental health challenges and substance abuse. See AddictionCenter.com. Being a non-expert in both mental health (watch the wisecracks here) and substance abuse, I lack context for any educated answer. But, it is high time we raise the questions. People are dying. Is taxation the answer or merely a diversion? If there is an answer, where does it lie?

What about Tomorrow?

The news feed recently brought an interesting read titled 7 Questions for CPCU Society President-Elect Brett Clausen. The pertinent focus of the piece is on the focus of a professional organization. Intriguingly, the article makes no mention of what CPCU is. Many likely recognize the designation from repetition and exposure, but it is worth noting this is Chartered Property Casualty Underwriter, and is a notable achievement and honor in the field of risk management and insurance.

The goals expressed in this article are worthy of note. First, the CPCU Society is striving for international exposure and membership. This is a recognition of the increasingly interdependent nature of our global economies and the fundamentals of risk that are faced in any jurisdiction. Certainly, there are distinctions and idiosyncrasies, but risk and management are certainties everywhere. To address their desire for international exposure and membership, the vehicle is a "virtual chapter." This is likely to afford opportunities for collegiality and conversation across great distances and will bring diverse perspectives together. It is an admirable goal.

But, more important is the imperative of workers' compensation's greatest Achilles heal. The simple fact of the matter is that this community ("industry" if we must) is aging rapidly. The Bureau of Labor Statistics predicts that "over the next 15 years, 50% of the current insurance workforce will retire." Granted, there are some young, fresh faces in this space, but it is not what it once was in that regard. Workers' compensation was once a place where people gleaned experience and built foundations. A great many professionals have built careers in workers' compensation, and a great many more started here.

A million years ago (or so it seems), an eccentric candidate for U.S. President, H. Ross Perot, was striving to make us all understand the threats of government debt. The debt back then was a paltry $4 trillion. Chicken feed compared to where we are today. We have since had Presidents who presided over debt increases of more than that $4 trillion (George W. Bush $5.8 trillion, Barack Obama $8.6 trillion). But, I digress. In a television appearance, Mr. Perot noted of the debt:

“The debt is like a crazy aunt we keep down in the basement. All the neighbors know she’s there, but nobody wants to talk about her.”

If that was intended to resonate with us, perhaps it missed the mark. Colloquialisms are usually to bring commonality to an experience and to draw the listener/reader into a feeling of unity or at least community. Most (perhaps even all) of us simply do not have "a crazy aunt," and we are not keeping anyone in our basement? Be that as it may, the quote has had amazing staying power. Perhaps its absurdity makes it that memorable?

Well, today, the grey wave is a reality in workers' compensation, risk management, and the practice of workers' compensation law. There are a great many with whom I speak that talk of such concepts as retirement, grandkids, and travel. There is increasingly discussion of "the next generation," and the challenges of engaging the young to both enter and build in the workers' compensation community. Like that "crazy aunt," we all know the specter of a greying workforce is real in this community, and a (too) few are starting to talk about it. Those who are talking are mostly hand-wringing. Some are finding ways to weave it into their self-interested and preexisting narratives. But, why aren't we doing more about it?

The CPCU article is critical in that regard. First, the interview is highlighting the issue of building a bridge to the future. We should all be talking about that more. But, the Society has identified concrete plans to both engage and involve the "NextGen." No, it is not rolling out awards or recognitions (a tack that a few others have tried to bolster egos and motivate those young folks already in this space to stay). Instead, the CPCU is actually striving to attract more young folks to this community and industry.

As many have said, "its so crazy, it just might work."

What if we could educate young people about the importance of workers' compensation? What if we could show them a community in which they could contribute to a noble purpose? As one industry icon keeps saying, this is not about risk management, compensation, or medicine, "it is about restoring a human life." If that does not make us refocus, perhaps nothing will. This space is critical and demanding. But, it is also immensely rewarding and critically important.

The CPCU Society is taking specific and targeted steps. First is a "student member" category. I am sure that when we all went to college, "back in the day," we all dreamed of a career in risk management and workers' compensation. Right? Is anyone out there willing to admit they never heard of workers' compensation in college? Most of us ended up here by accident. Student membership is a way to engage and involve that "next generation" in an understanding of what a career here might mean. Are our various organizations focusing in any way on students? Do we invite students to events? Do we stage events for students? Do we promote student membership?

The second step the Society is pushing is affording those student members with unlimited access to webinars, industry journals, and other courses. This is critical. For someone to want to enter this community, they have to have the opportunity to understand who we are, and what we strive to do. This introduction seems to be designed for depth and breadth, and that will build understanding and more. With a space full of webinars and technology, who is offering that exposure to college students free of charge? But, as importantly, who is offering them a chance to shake hands, contribute, and grow?

The Society is involving those student members with more than virtual exposure, offering also access to "local chapter benefits," "special interest groups," a "career center," a "MentorMatch," and discounted access to industry events. Who among us is encouraging members to bring a college student to an event? Who is contacting the local business college about attending career events or speaking to classes there? Who has contacted a college dean to offer service as a mentor?

The Society plan is a buffet of opportunities that any business college student would do well to consider. Perhaps the risk management niche has not occurred to some. Perhaps the tasks and challenges of the occupations and professions are not known by students. Perhaps exposure and interaction can build interest, educate, and even inspire? The great leaders of tomorrow are out there, but somehow we are not connecting with them, inculcating them, or valuing them.

I recently wrote regarding professionalism. See What Have You Done Lately? (November 2022). Other than lament "these kids today" and fret over the grey wave, what have you done lately to find a chance to communicate with students? How can you engage in efforts like the Society's? What lessons could the workers' compensation world take from the actions and efforts of the CPCU Society to find, encourage, and embrace tomorrow's professionals? Or shall we just give someone else a plaque for their closet and hope for the best? No, we are better than that. 

Do something today, make a plan for tomorrow, and communicate with others to build consensus for progress. Make concrete plans. Be bold. Be persistent. We need you. 

Comp from the Supreme Court

The 2021 Term of the United States Supreme Court concluded with high publicity and fanfare. The Court concluded that a long-held right was not in fact protected by the United States Constitution, and there was angst, anger, excitement, celebration, and a raft of reactions, emotions, and commentary throughout various communities. This was not the first time the Court has changed precedence. See Child Factory Labor? (July 2022). It is unlikely to be the last. 

In the hubbub last spring of the initial leaking of the opinion and its ultimate publication, there was little oxygen left in the room for other decisions of the Court. And that is of interest because the Court issued a workers' compensation decision in the 2021 term that is worthy of consideration and study. There are relatively few U.S. Supreme Court decisions each term, and workers' compensation taking the fore is even more uncommon.

In United States v. Washington, No. 21-404 (June 21, 2022) questions regarding the scope and intent of state workers' compensation laws came to the fore. Washington State had adopted a workers' compensation provision focused upon those who work at a "decommissioned federal nuclear production site," called Hanford. The law was a presumption, that "makes it easier for federal contract workers" to prove "entitlement to workers’ compensation" benefits under state law. This is a disparate treatment of workers, and the result was alleged to be "increasing workers’ compensation costs for the Federal Government."

The Court noted that the current Hanford efforts are directed at a "cleanup process" on the site. The workers there "are federal contract workers—people employed by private companies under contract with the Federal Government." Interestingly, after the United States filed suit against Washington, the Legislature there again amended the workers' compensation law. It did so specifically stating that its most recently enacted law would apply retroactively and thus would essentially supersede the previously enacted presumption that was being challenged. The state thereby essentially argued that the federal government's lawsuit was moot. However, it was unsuccessful in urging the Supreme Court to dismiss the challenge. 

The Supreme Court instead concluded that despite Washington's protestations of mootness, the Court could not "know how Washington’s state courts will interpret the new law" (the revisions, and therefore whether there is or is not import to the presumption law that started the controversy and led to the appeal). Therefore, that new law did not invariably alleviate the impact of the presumption law. The Court noted that "It is thus not impossible for the United States to recover money if the Court rules in its favor, and the case is not moot."

The Court cited a very old precedent, McCulloch v. Maryland, 4 Wheat. 316 (1819), for the proposition that "the Supremacy Clause (prohibits) States from interfering with or controlling the operations of the Federal Government." This is an "intergovernmental immunity doctrine," and does not allow the states to "discriminate against the Federal Government or its contractors." Therefore, any "state law discriminates against the Federal Government or its contractors if it 'single[s them] out' for less favorable 'treatment.'” By creating a law that provided presumptive or deferential treatment to those working on the Hanford site, Washington discriminated against the federal government. 

The Court concluded that "Washington’s law violates these principles by singling out the Federal Government for unfavorable treatment." The impact was not inferential or incidental. The law "explicitly treated federal workers differently than state or private workers, and imposed costs upon the Federal Government that state and private entities do not bear." Though Washington argued that Congress had waived "the Federal Government’s immunity," the Court concluded that Congress would only be viewed as doing so “when and to the extent there is a clear congressional mandate.” 

There is thus a difficulty with this type of presumption law as a direct corollary to the Supremacy Clause and exercise of federal authority. While that authority is exercised somewhat through discretionary means, through the "necessary and proper clause," it is nonetheless federal exertion of authority. As such, it is subject to the Supremacy Clause. 

A great many people, in the discussion of this case prior to the Court's decision, saw equal protection as the issue. And, perhaps such an argument might be made about presumptions. However, as yet, the various other presumptions set forth in workers' compensation statutes have withstood the perceptions of equal protection. Essentially, there is precedent concluding they are constitutional. One may ask whether there is righteousness or fairness in the singling out of a profession(s) for special care or treatment. However, those broad questions have not equated to the analysis of whether such is legal. At least as of yet, the legality of presumptions generally appears clear despite this intriguing case. 

Moments that Matter

I recently ran across a fantastic retrospective published in 2018 by Time, "The 25 Moments From American History That Matter Right Now." It is a compilation of the thoughts of "25 acclaimed experts in U.S. history" and their thoughts on what has occurred that remains pertinent or important.

The list is obviously both expansive in scope (centuries of U.S. History are addressed), and constricted (only 25 events). And examples include the "first successful voyage across the Pacific Ocean" (1564); The Gettysburg Address (1863); The suffragist movement (specifically Ida Wells Barnett, 1862 - 1931); Downes v. Bidwell (1901 - governance of territories); World War I (1918); The Scopes Trial (1925); racial equality in the military (1948); Nixon Meets Mao (1972); Genetically Modified Organisms (1980); Anita Hill speaks up (1991). The complete list is worthy of a careful analysis.

The context is compelling, and each of the listed items is of marked importance. Despite that, a fair few notable events were left off the list. I might suggest Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the Apollo landing (1969), the Berlin Wall Speech (1982), Thurgood Marshall's defense of the Groveland Four (1949) and so much more. Anyone who would strive to understand the American Civil Rights era should read about the Groveland Four, an integral piece of Florida history. Gilbert King's The Devil in the Grove is an excellent starting point. Yet, I digress. 

In fairness, we are living history every day. It is all around us, in events both big and small. We are perhaps too caught up in the day-to-day to notice many of the events that shape us, particularly those that are today's acorns and which few have prescience to note as probable oaks of tomorrow.

The Time article is a fine piece from the perspective it brings. It is a conversation starter, an illustration of views and ideas. The viewpoints of those invited to contribute illustrate a vast array of both events and chronology. And, in the process, perhaps I am not the only one to be drawn to thoughts therefore about the events and items not on the list. I am certain that my humble suggestions regarding omissions are less than exhaustive. Everyone that reads the piece would likely note their own glaring deficiencies. History, perhaps, is subject to our personal views, predispositions, and recollections?

What of the perspectives on a smaller world? In this little corner of the world that is workers' compensation, are there events that merit retention and attention as those that "matter right now?" I would suggest there are several. Some are obvious. There would be perhaps unanimous agreement as to a few:

Wisconsin's passage of the first successful workers' compensation law (1911).

New York Central R. Co. v. White, 243 U.S. 188 (1917).

The first artificial joint replacement surgery (1938).

The 1948 adoption of the Mississippi Workers' Compensation Law (marking the unanimity of this concept in the nation).

The implementation of Social Security Disability Insurance (1956).

The 1958 publication of an American Medical Association (AMA) article: "A Guide to the Evaluation of Permanent Impairment of the Extremities and Back."

The passage of the Job Safety Law of 1970 (OSHA).

1980 passage of the Medicare Secondary Payer Act.

The Opioid epidemic, addiction, overdose, and death (1990s).

1992 implementation of Medicare fee for service schedule.

I find these ten notable and foundational to workers' compensation in the 21st century. Undoubtedly there are many more. Much has changed in the last 100 years. The injured worker and employer alike have benefitted from workers' compensation, and yet also been burdened. There are perceptions voiced by each as to the challenges and perceptions of these systems. The criticisms about fairness and equity are frequent and periodically boisterous. And yet, these state systems have been largely successful in socializing the risk and cost of production and service in the incredibly complex and significant American economy.

What mileposts have I missed? What "moments matter" right now in the American workers' compensation systems? How might the answers to that question change in another 100 years, or stated more simply what are we doing now (acorn) that will one day be of such import (Oak)? In the day-to-day, it is too easy to accept that "it is what it is." But, the overarching goal of workers' compensation is aptly captured in section 440.015, Fla. Stat.

"to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer."

How are we pursuing that ideal? What are we contributing to the history, evolution, and improvement of these many systems? What are we planting that may go to the next generation as fruit? Introspective? Yes. But, there must be more to our contribution than stewardship of the past. How will tomorrow fare as a result of our effort(s)? Let me hear from you. Suggestions of omission will perhaps feature in a follow-up post. 

 

 

Quiet Firing?

There is an evolving nature of the employment relationship. I have written about “quiet quitting“ (September 2022). This essentially equates to the employee doing only what is required and lacking any ambition or even tolerance for additional assignments or workload. That concept has been framed in the press as a generational construct, largely deriding the young. However, I have witnessed it throughout a long and varied course of occupations. The remarkable "new" aspect of the perspective is its labeling. 

I was surprised to run across a piece in my news feed from the British Broadcasting Corporation (BBC) which discusses the potentiality for the opposite or inverse by management. This is being labeled “quiet firing.“ It is essentially the divesting of function and responsibility, in a manner intended to remove or minimize any sense of contribution or productivity for an employee. The end result is a quiet resignation born of frustration or hurt. From the employer's standpoint, it is perceived as less litigation–probable. The BBC article offers specific examples: "Eliza had effectively been frozen out by her employer."

That the BBC authors see a relationship between these two concepts is frustrating and somewhat confusing. Those who are “quiet quitters“ are not seeking to sever a relationship. They are not inviting untoward action by another, as in they are not seeking to be fired. They are merely limiting the scope and extent of their contribution to that which they have been hired to perform. It demonstrates a lack of motivation perhaps, a lack of ambition perhaps, but it is not intended as a relationship terminator. The "quiet firing," on the contrary seems specifically so. 

The “quiet firing“ is described as a process in which frustration of the employee is at least anticipated, if not intended. By altering the social construct of the working environment, by eliminating any emotional reward from productivity or activity, the choir at firing might easily be interpreted as an intentional and animosity alternative. CNBC recently claimed that "83% of workers have seen or experienced quiet firing." It describes the practice bluntly: a “passive-aggressive approach to performance management,” and claims it may be delivered "both deliberately and inadvertently."

I have been privileged to work with a great many excellent managers, supervisors, and leaders. I have unfortunately been cursed to have experienced a handful who lack any empathy, tact, discretion, or skill. One that I remember with great affection, was once aptly described. Having sat through a largely pointless meeting, this manager had departed when another attendee voiced an observation regarding that manager's somewhat tone-deaf and clueless perspective. Another coworker looking around the room encapsulated it with: “he is without a doubt a blunt object.“ That resonated with me. That manager was in fact a hammer, persistently in search of a nail. 

CNBC offers seven warning signs that might make you think twice about your position. The absence of salary increases, managerial feedback, lack of engagement, being singled out in meetings, having ideas disregarded, the absence of challenges or opportunities, and being "left out of meetings." Perhaps everyone has experienced one or more of these. I have personally experienced each of them at various times, but when you have been around as long as I have, there is a certain inevitability of experiences. It is likely possible that any of them might occur innocuously or innocently. Some constellation or pattern might be a cause for real concern. 

The authors also suggest methodologies for documenting your perceptions, and reassure that such treatment is "a management issue, not yours." There is specific focus on the special focus management must deliver in order to retain Millenial and Gen Z employees. But, is there really a generational difference in the basics of mutual respect, engagement, leadership, and productivity? Are the generational references merely excuses or distractions? Do managers or employees hold prejudice or bias that might be ameliorated through communication and experience? Is it worth a try?

A Public Broadcasting System (PBS) article acknowledges that the impact of such management techniques “can take a huge toll on someone’s mental well-being." It stresses that the aggressions may be very subtle and one might react by questioning oneself. It suggests that there might be various "micro-exclusionary behaviors." It echos some of the CNBC suggestions for employees, but concludes an employee may face two choices:

• "change your mindset around what you’re experiencing and try to make your job something you can tolerate." 
• "simply leave and join the job-switchers who are making those higher wages."

The implication is clear if indeed it is an implication. There are employees that are not thriving, or who are at least not evidencing ambition or enthusiasm. They are labeled "quiet quitters," and are criticized. There are employers that are not straightforward for whatever reason and elect to push employees toward resignation through immature, passive/aggressive gamesmanship in the workplace. There are, I have known some.

The fact is, however, that neither of these is new. At least to some degree, they are not two sides to the same coin. One is a lack of ambition or motivation and thereby delivery of just what is asked for, nothing more. The other is a planned and implemented displacement or discomfort designed to force someone into a departure. They are not the same, and the similar labeling is misleading. 

The world of work is challenging and can lean inexorably to grey hair, frustration, and exhaustion. In the broadest sense, neither "quiet quitting" or "quiet firing" is the ideal that is expected or sought. But, in the end, it happens. In the best of times, it happens. But what of the worst of times? Does either paradigm increase in the wake of a workplace injury, some period of absence, and a return-to-work attempt? Are employees in that posture ambitious and eager? Are managers engaging and welcoming? Are the two malicious maladies worthy of thought and consideration in our workers' compensation community?