Classification and Controversy

An intriguing lawsuit filed in the great state of Washington reminds us of the 2023 implosion of a deep CV vehicle in the Atlantic. NBC News reports. A carbon fiber craft descended in June 2023 in hopes of reaching the wreck of the famed Titanic ocean liner. Communication with the vehicle was lost, and a frantic search ensued, but only debris and remains were recovered. There were various stories of the lost lives, the craft design, hubris, entitlement, etc. 

The present lawsuit alleges that a veteran Titanic diver was hired by the exploration company/tourist attraction to assist with navigation. He reportedly descended to the wreckage of the ship almost 30 times over his career. His expertise and experience can hardly be doubted. He was an able and experienced pioneer in a very dangerous enterprise. 

However, the news coverage raises an intriguing question that relevantly persistent in worker’s compensation. The fact of being “hired” by a person or entity to perform labor is not dispositive as regards the implications of worker’s compensation. This social safety net is about "employers" and "employees," not "hirers" and "hirees." 

I use the phrase "employer/employee" specifically. I cite the implications specifically. In that setting, there is a focus on the employer detriment of liability for worker’s compensation benefits, a corresponding gain for employees. Too often, there is disregard for the corresponding employer benefit of immunity from civil liability. Workers' compensation is a trade, a "this for that," a compendium of quid pro quo. That said, it is not an easily defined or quantified trade. The amount of benefits in any case may be "it depends." 

This immunity is illustrated in the present situation, as the estate of the expert diver seeks monetary damages based upon the negligence of the deep-sea vehicle, and the company that deployed it. They have filed a suit for civil damages. Negligence is a tort concept. It is founded on the allegation of responsibility through action or inaction. 

Would these individuals, designer and deployer, be protected from tort liability (immune) based on the employee/employer relationship? The question can be easily answered definitively, as above, with “it depends.” That is too often the answer, but it is often accurate. Across the country, there are dozens of definitions of "employee," and the specific state law must be analyzed and examined. 

Some of this comes down to the word “employee" itself. Whether a particular agreement for compensation in exchange for work was an “employee/employee” relationship in any case often comes down to this. Did the dive company "hire" this expert as an independent contractor or an employee? This is a difficult analysis for a variety of reasons.

First, there are at least 60 social safety net compensation programs in the United States. Each state has a worker’s compensation statute, and there are a variety of federal programs. Any of them might provide a specific designation or definition regarding who is or is not a “employee.” Thus, the analysis might be controlled by a particular state worker’s compensation law.

Complicating the situation, any particular workplace accident might find jurisdiction for any entitlement or dispute in a variety of states. I was somewhat surprised during a recent panel presentation when an expert was surprised that there is a "choice of forum" in workers' compensation. Of course, there is, and always has been. Smart lawyers strive to find the benefit package most beneficial to her/his client's best interests. Others, simply file claims in the state the lawyer works in, a default that is potentially self-serving and not necessarily the best choice. 

Different states may embrace jurisdiction over accidents that involve people who live in that state, people who were injured in that state, people who were injured while working for a company domiciled in that state, or people who were hired in an employment contract finalized in that state. Again, to be clear, “it depends." It depends on each state's law. Every case may be different and in any event the four states delineated above may be different. The different combinations are mind-boggling. There are literally thousands of potential combinations of these 60 jurisdictions. 

In order to make matters a bit more complex, it has also been noted that some states have variable and competing definitions of “employee” which can make a determination complex, even after the appropriate jurisdiction is determined. Thus, in selecting a state in which to file, a lawyer might be well advised to know what presumptions, burdens, and definitions she/he is undertaking by selecting a particular state. 

Additionally, it is therefore also possible that in a particular jurisdiction, someone may be an “employee“ for purposes of worker’s compensation, but an “independent contractor,” for purposes of unemployment, compensation, tax, withholding, and a variety of other business challenges

There is potential for confusion in the selection of words. That someone is “hired” is not in itself, necessarily controlling. There is the potential under various state laws for arguments of construction, semantics, and factual disputes. Many thirst for bright-line distinctions, and simple determinations. For better or worse, the world of workplace injuries can instead be a place of subtle distinctions and various shades of gray.

The other reminder found in this news story is the lawsuit was filed 14 months after the event. In most state worker’s compensation systems and courts, there are statutes of limitations, which can limit rights to file claims or complaints after some period of time. These can be absolute or flexible. These too differ from state to state. There is no suggestion that such will play a role in this deep-sea explorer situation, but the potential for such preclusions comes to mind whenever there are months-long delays in filing, and whenever making a filing state selection. The potential of such laws should be remembered and respected. 

For many, these distinctions are never vetted. People are “hired,” perform their duties and tasks, and are appropriately compensated. The implications of "employee" or "contractor" are usually limited to instances of work injury, tax audit, or premium disputes. It is in the debates and discussions that details are often described and discerned. In this, employers and workers face a distinct choice. 

They may incur the upfront cost of a detailed, defined, written agreement with iron-clad definitions and intent. Or, they may enter into casual agreements that are more subject to retrospective interpretation and argument. Neither is the "right" answer in all instances.

In this, there is a classic dichotomy found in all contract law. It is important, because the upfront process provides greater assurance of fewer, if any, retrospective analyses and disputes. However, upfront is undoubtedly, more time-consuming, and expensive. 

As I tell my law students persistently, neither solution is “correct” per se. A 100-page, all-bases-covered, written contract is likely appropriate when spending hundreds of millions yuof dollars on some project. As useful as it is in that context, it is ludicrous as a tool and purchasing a one-dollar candy bar at the local grocery store. Both value exchanges are contracts, but in deciding which merits the investment, the parties are performing an assessment of risk and a benefit analysis.

It is no different in the world of hiring. A worker's status can easily be assumed or presumed by either the business or worker. And either side may be either right or wrong in those conclusions. 

Smoking Never Killed Anyone?

Time and again, people in my circle have assured me that dope is "harmless." I wish I had a nickel for every time someone told me that "pot never killed anyone." Past expositions on this include Smoking Linked to Chronic Pain (December 2014); New Testing for Marijuana (April 2016); Marijuana Statute in Florida (March 2019); Edible but Stomach Churning (October 2023); Edibles and Illness (November 2023); Harmless (January 2024); and Dope and Heart Disease (March 2024). 

In the end, I remain curious about the health impacts of weed. Nonetheless, I am unconvinced it is as harmless as so many argue it is. I am also continuously reminded of the battle cry that dope is "legal." more on that in a future post. 

NBC News recently reported on the results of a study published in the Journal of the American Medical Association (JAMA). The field of Otolaryngology concludes that "regular heavy marijuana use may increase a person’s risk of developing some head and neck cancers." But, you all said dope is harmless?

Whatever the causative factor, these scientists concluded that "heavy cannabis users were between 3.5 and 5 times more likely to develop head and neck cancers than those who didn’t use the drug regularly." That is potentially chilling. If you told me that paying in quarters would make me 5 times more likely to win the lottery, I would certainly buy all of my "retirement" tickets with quarters.

The conclusion is that there is a beginning of "a somewhat muddy body of evidence" to support that marijuana may impact health. Certainly, there are readers that paused here to face-palm. Others perhaps paused for a "wait . . . what?" Some will say "But they told us weed can't hurt you," while others will say "inhaling smoke seems like a bad idea no matter what is burning." In short, the debate will persevere.

The report turns to a discussion of why grass may be a contributing factor in some cancer diagnoses. Some argue that “The cannabinoids themselves could be carcinogenic." That is, that it matters "what" you smoke. Others are focused on the carcinogenic effect of "the smoke itself." That is, it only matters "that" you smoke. Cause and effect are foundations of scientific thought and method.

There is some intriguing background in the analysis. The team researched these potential implications using a database of over 4 million patients. Some were diagnosed with this, and others with that. Among those with a cancer diagnosis, their history was examined for drug use. This is a critical point because there was no science (positive drug test, measure of frequency or intensity of use). The evidence of drug use was "self-reported use of the drug." The patients said they did, and described how much/often.

Is it possible that some patients underreported their use? Might some patients have falsely denied blowing dope? The causation analysis might be impacted by such obfuscation. The described cohort study compared the cancer diagnosis rate between those who admitted dope use and those who denied it. It is dependent on the reporting. There is always room for caution when foundational facts are dependent alone on self-reporting.

So, if half of those folks who said they smoked dope were lying, then the results may be skewed. And if half of the folks who said they did not use dope were lying, the result is as likely skewed. The only distinction is in which direction the data would be misleading. Is it more likely a dope smoker would deny being an addict or that non-use would falsely state they are an addict? This is an important point to ponder. Maybe some falsely claim addiction to be part of the "cool crowd? Well, in fairness, some did in high school. 

Let's pause here for a moment of pure conjecture regarding dope. As a controlled substance, utterly and completely illegal, perhaps some was grown in less than ideal conditions? Is it possible that chemicals were used for fertilizer, insecticide, or otherwise? What was the origin, history, and provenance of that "dime bag" or "loose joint" that the patient consumed? It is perhaps possible that something in the process, beyond the weed itself, might play a role. In the "self-reported" paradigm that will be impractical to determine at best.

Nonetheless, the "people with cannabis use disorder" were all free of any "history of head and neck cancer before the study began." The link between the dope and the cancer is based on the conclusion that "The cannabis users in the study were more likely to develop all types of head and neck cancer except hypopharyngeal cancer." Thus, in a spectrum of disease and diagnosis, a commonality was "use disorder" or "addiction" if you prefer.

What is "use disorder?" Why is this study focused on "disorder" rather than "use?" Yale Medicine defines "use disorder" as an addiction. This is therefore seemingly a distinction as regards frequency and intensity of use. Mary Margret is unlikely to have an enhanced risk of these cancers because she took a single toke behind the gym while the coach was distracted. Nonetheless, I saw her do so.

The "disorder" modifier is signaling that these marijuana smokers were regular or persistent users of the so-called "harmless" weed. One potential flaw in the conclusions is that the team found it difficult to quantify the frequency and intensity of use. There are inherent limitations to self-reporting. The benchmark they settled on is self-reporting of at least "one joint per day." For the sake of the "straights" in the crowd, "joint" is not a universal term of measure. Joints come in all sizes. Joint is not a measure of volume.

                     Courtesy Deviant Art, https://www.deviantart.com/jezus666/art/Huge-Joint-161982814

The good folks at Yale seem to hold contrary opinions to the "harmless" crowd. That website suggests that dope smoking may "increase the risk for schizophrenia," "harm the lungs," and may be "associated with deficits such as memory and attention problems." Either some folks have a different definition of "harmless" or these medical experts disagree with that label. I am neither a doctor nor a weed user, so I defer to the two opposing camps to sort this out.

The impact of this study will not be an immediate U-turn on the "let's all smoke more harmless dope" train. As a colleague once assured me "The pot Jeannie is out of the bottle." I have never doubted it. People are drawn to a variety of "mother's little helper(s)," (Rolling Stones, RCA 1965). Whether it is a "little yellow pill," or a nice California Sensimilla, there are people who seek an outlet, an escape, a release. They are willing to assume any risk to tomorrow for a little relief from today. And, too often, they find addiction, illness, and even death.

This has been true with a variety of substances and behaviors over the course of human history. That will not change. Nonetheless, there is a habitual cost/benefit analysis that may be worthy of attention. Before consuming a product, there is a benefit in knowing what the potential risks are. In the world of weed, it seems immediately clear that it is not "harmless," and never was. Saying that marijuana never killed anyone is perhaps as accurate as saying that smoking never killed anyone. 

Maybe there is room for investigation and contemplation? Or maybe the solution is to rip off the bandaid and see what happens? Honestly, how bad could it possibly be? 

Shifting Virtual

Remote work is back in the news. This time it is half a world away, in Australia. Nevertheless, the debate is interesting and perhaps indicative of where future discussions will recur. 

This blog has focused periodically on the perspectives regarding remote work. See Remediating (February 2022); Productivity is Down (December 2022) Presumptively (August 2023); Virtual Productivity (August 2023). Companies of many descriptions have struggled with the dichotomy of work. There are those who believe virtual work is "the" answer and a counter group that has the opposite view. This was not created by the Great Panic of 2020, but COVID-19 and various government (over)reactions brought the debate to the fore.

Since the Pandemic ended, there has been persistent discussion of the benefits and drawbacks of both virtual work and the traditional office paradigm. There are adamant fans on both sides, valid arguments, and emotion plays a role at times. There are some who prefer one path or the other mainly on the basis of what they are accustomed to. I have noted repeatedly that familiarity is comfortable and no one really loves change. See Departures and Progress (December 2023) and the posts cited there.

What I have gleaned from all this debate is fairly ambivalent. It appears to me that each paradigm has benefits and burdens. The "right" answer is likely elusive because people are not fungible, whether they are supervisors, workers, or both. By the same token, jobs are no more interchangeable or even similar. A virtual lawyer is a lot different than a virtual firefighter. That is not to say that some firefighter tasks might not fit the paradigm, but some might really need to go where the fire is.

The news recently focused on a one-size-fits-all solution for government workers in New South Wales Australia. This is the most populous state down under. Its Premier (similar to a U.S. Governor) has removed all doubt. He has ordered state employees to return to the office forthwith. That is not to say there will be "no" virtual, but the expectation will be "in office" work as a presumption or default.

There is some measure of effective management in this tack. Advocates stress the opportunities for mentorship in the office. Over the last few years, more than one manager has told me that remote employees are often reluctant to call or email four guidance due to some trepidation of "interrupting" or "disturbing." One told me that the best mentoring he does is around the communal coffee pot. 

He describes a feeling there of casual, quiet, and non-intrusive availability that his employees use. He says he is "often" followed there for quick and impromptu advice and guidance. For this reason, he goes often and never pours a full cup. Sneaky? Perhaps. 

There is also some measure of the office advocates that point to productivity. It is amazing that perspectives can be so different. Nonetheless, many workers find the home environment incredibly more productive. Conversely, many supervisors decry the productivity of remote workers. Can they both be right? Of course,  because people are unique, supervisors and workers.

But, there is also another communal rationale expressed that seems more directed at ancillary interests. Some of the biggest fans of the "return to the office" movement are those who offer services (coffee, restaurant, etc.) and real estate services in the office communities. Those businesses thrive on the supply of customers in a particular location, and work brings the people there. The draw in some instances is specifically the office. Being "in town" or "downtown" for work already, the chances increase of someone purchasing a latte, sandwich, or watch.

That last one is likely a shortfall of the virtual world that is being aggravated by more than the remote work. I know people who claim they "never" enter retail stores anymore. They have gone full "virtual" in their shopping habits. Whether those workers return to the office or not, it is likely their retail habits may not change.

The other side of that coin is the labor movement. Unions have been less than supportive of the "back to the office" initiative. They have expressed doubts as to the need for such a mass return. As yet, the news is not reporting any union opposition per se in Australia, but that unions are unconvinced of the business case for the mass return. In the end, differing perspectives might matter in a macro sense (expressed by a collective) or a micro sense (any employee might enforce a preference). 

The story also raises the specter of competition and mobility. Some complain that there are insufficient workers now and that the return to office order will exacerbate that. I have spoken to various employers in recent years who tell me that the first question they get from job candidates is whether the job is virtual. Thus, there is some evidence that virtual options are important to workers. The availability of virtual options may thus influence the competition for workers between jobs or professions.

Similarly, a neighboring Australian state is starting to promote the affinity its government has for virtual work. the "Premier of neighboring Victoria" has suggested that "disgruntled New South Wales public servants should consider moving there." That begs the question of "why?" 

If Victoria is willing to allow its state employees to work from home, why not be a Victoria state employee working from home in New South Wales? Maybe "remote" in the sense of not being present to consume goods and services is not what they had in mind? Regardless, the fact illustrated is that different employers may embrace virtual as a competitive tool.

Are businesses any less vulnerable to similar forces? If company A offers no virtual options, will qualified candidates flock to A's competitors? Worse perhaps than candidate flight, will existing A employees migrate to competitors? In the process, will A face issues with ongoing expense and time associated with recruiting, training, and mentoring, which are often critical to employee efficacy?

In fairness, the New South Wales mandate is not an absolute. There is an expression of some flexibility, and allowing remote work in some contexts. There is also mention of allowing broader application of the paradigm in specific instances in which justification is demonstrated and compelling. 

Nonetheless, the era of remote work in one state government is broadly ending and how that plays out in the competitive environment of recruiting and retention will be interesting to watch.

Cyberbullying Reminder

Bullying has been a real concern in various vocations and locations. See Workplace Bullying (February 2020). Suing Social Media (January 2023); AI and the Singer (January 2024); and Deepfakes in Florida (March 2024). This occurs in the workplace and impacts efficacy and efficiency. As a foundational element of work, it can also play a role in injury, recovery, and return to work. 

Recent news of social media exchanges brought these thoughts back to me. Certainly, the latest examples focus on the interactions of Olympians, but the context for any workplace or employee remains similar.

At the outset, let's remember that there is ample room in the social media space for both the reward of oxytocin and dopamine doses as you revel in the approval and adulation of "friends." Of course, the opposite impact is bad feelings or worse that come from public criticism or ridicule. See Why young brains are especially vulnerable to social media, from the American Psychological Association. Some of the drive to use social media is the chemical reward it can generate. That is, we may think that we like social media when what we really like is far more base.

ABC News reports that two gymnasts have had a tete-a-tete on social media. It apparently began when one Ms. Skinner was not chosen for the 2024 Olympic team, and publicly expressed some disappointment in the appointed team:

“I feel like the talent and the depth just isn’t what it used to be ... obviously, a lot of the girls don’t work as hard.”

Possibly, someone selected for the team might take that as an indictment of either talent or work ethic. In any event, social media allows you to get whatever vexes you off your chest at any time from any place (well if there is internet there). It has become a ubiquitous method of social interaction for many. With any post, video, or interaction, there is the chance for applause, "likes," or other approval. And, with approval comes oxytocin and dopamine.

Make no mistake, claim no high ground, everyone enjoys a shot of these chemicals. There are no abstainers. Some of us may produce more than others. Some may be more attuned to them than others. Nonetheless, everyone experiences these "feel good" chemicals released from the hypothalamus, and we are likely to seek to trigger their release. People like to feel good. This is part of the social media draw, and too often addiction.

What Ms. Skinner learned the hard way is that when you call someone a name, insult them, or deride them, there is a chance they may respond in a less-than-positive manner. It is possible that those you are mean to may respond instead of turning the other cheek. Go figure. As a side note, this is a good reason to think before you speak, or so said my third-grade teacher.

Weeks passed, and the athletes gathered in Paris for the quadrennial financial debacle that the modern Olympics have become. They slept on cardboard beds, complained about the food, and lamented that their hosts eschewed modern comforts like air conditioning and unsanitary competition conditions. The stories flew of their success, failure, and gender. And, if you paid attention to social media, many an observer noted her/his/its perspective(s), reaction(s), and thought(s). Even attendees found things about which to complain. In the end, I cannot express how pleased I am to miss such crowds and congestion; certainly a grand event, but not my thing. 

Well, the team Ms. Skinner was not a part of and did not travel with to Paris was ultimately successful. Through whatever course, they prevailed with a "team gold medal." I will be the first to label the main forces in such an achievement as skill, perseverance, strength, and character. But, to be fair, every such success has an element of luck. We so often see a missed handle, a slip, or other inadvertence that interferes with some or all of the main forces and disappointment may ensue despite the greatest skill.

After the award of the "team gold medal," one of the successful gymnasts, Ms. Biles, posted on social media in a manner that seemed to be about Ms. Skinner's criticism and characterizations. The result was apparently that this response and "clap back" stimulated feelings and emotions in those who follow and adulate Ms. Biles. They began to post comments, responses, and more about and to Ms. Skinner.

The news reported that after enduring the cyberbullying from Ms. Biles' fans and followers, Ms. Skinner returned to social media and implored Ms. Biles to ask her millions of "followers" to "stop..cyberbullying her." Such has happened in other instances. She described attacks, death threats, and challenges to mental health, and asked for help. Is it surprising that people can be abusive on the internet? See Anonymity and Social Intelligence (July 2022). The answer is "no." It is lamentable, but it is not surprising.

Some may see justification or excuse. I was immediately reminded of my third-grade teacher's other great lesson and admonition when people complained about the actions of others. There was never much appreciation for the defense of "but she started it." Nonetheless that defense was pled often and strenuously in the third grade. Didn't work so well then, should it now?

That American gymnastics situation is significantly different, perhaps, from the vitriol being directed at an Australian Olympian. She is a seemingly good-natured entrant in a debut 2024 Olympic break-dancing event that has been labeled simply "breaking." According to the British Broadcasting Corporation (BBC), she has been subjected to criticism for her art, her moves, her wardrobe, and more. The Internet critics have less than generous. The leader of the Australian delegation has noted her bravery and enthusiasm for the new sport and for her participation. He noted

"I think that what has occurred on social media with trolls and keyboard warriors, and taking those comments and giving them air time, has been really disappointing."

See, the "she started it" won't work here. This Olympian merely showed up. She was different. She was not successful. Reportedly, she did not win a single round, and did not attract even a single vote. But, she participated, proudly. She was derided, degraded, and mobbed by a cascade of criticisms. 

Why do the keyboard cowfolks (a non-gender-specific reference to a rodeo with no intention of belittling or maligning those who participate in such) find joy in deriding or degrading their fellow internet denizens? We can be just as stimulated by our decision to take up for someone or to defend someone. Our chivalry and enthusiasm may themselves provide us with feelings of self-worth, altruism, championing, and pride. That may drive us to defend someone on the playground of yesterday or the social media wasteland of today.

That said, you could always defend that kid on the playground without threatening the offender's family, well-being, or life. The defense of someone need not take the tack of threatening the offender. Violence is rarely the answer (but see self-defense) and as rarely threats of violence. Can one simply "clap back" at someone's comments and thoughts without descending into the darkness of personal degradation, threats, and bullying? Of course. Tell someone you disagree, support and elevate some competitor or rival. But there is no need to degrade, attack, or threaten.

In the end, there is room to learn from this example. First, don't clap if you can't take the clap back. Do not start the argument and then express surprise that it proceeds in an unintended direction. Ms. Skinner clapped in public, and despite apologizing thereafter in "personal text messages," her public comments had taken root. In this age, what goes on the internet stays on the internet. Second, the world of social media is rife with opportunities for half-truths, communication errors, and misperceptions. It is an inherent risk with all of the platforms.

In the end, these interchanges illustrate how comments and responses can escalate. It is a fundamental risk of the social interaction that modern platforms facilitate. Social media allows the transmission of thoughts far, wide, and easily. However, that facilitation applies equally to the intended message and any unintended consequences or implications. These can and will interfere with relationships, interactions, and workplaces.

Management's challenge is not different in the social media context than in the in-person workplace bullying. Location changes, perhaps intensity changes (I only have two friends on Facebook also, thanks Mom), and perhaps speed changes. So social media may be the easier bullying. However, there is a real probability that bullying exists in any workplace, and the tools of social media may well exacerbate and aggravate that in various ways. 

As the safety culture so often reminds us, "an ounce of prevention is worth a pound of cure" (Ben Franklin, 1735). Awareness of this potential and its impact on workplace health and safety is critical. 

  

Judge Jails Teen

Judges are supposed to follow the law. They are also supposed to uphold the integrity of the judiciary. These conclusions come from Canon 1, 2, and 3 of the Code of Judicial Conduct. In recent months, I have written about a Florida Judge who allegedly held someone in contempt without a hearing. See Judicial Intemperance (July 2024). That could mean going to jail without a hearing. A Georgia judge recently removed from office likewise held someone in contempt frivolously. See She Must Go (May 2024).

Those two came immediately to mind when the news broke of a Detroit judge who had a "16-year-old girl" in court on a field trip arrested, handcuffed, and dressed "in jail clothes." He also threatened her, baselessly, with juvenile detention. In short, from the news reports, he acted inappropriately and likely illegally. To magnify the tone-deaf attitude, this judge apparently later spoke to the assaulted teen's parents and offered to be a mentor to her.

In the somewhat jaded environment in which we live, it is not often that a news story exceeds belief. It is unfortunate indeed that such an exceptional story would do so about the behavior of a judge.

Some will question what the teen did to merit this assault and battery, false arrest, and threats. Yes, the judge caused the teen to be touched against her will and handcuffed. The judge caused the teen to be incarcerated against her will. Yes, the judge threatened the teen with further incarceration. In the process, the judge allegedly polled her fellow students drawing them into the hazing process. The conduct was outrageous!

To be clear, the judge's conduct, not the teen's. What did this child do to merit this attention? The teen had the absolute audacity to fall asleep in the courtroom. The judge was hurt and offended, perhaps insulted. He took the student's inability to remain awake as an affront and decided that he would execute his own "version of ‘Scared Straight.’” Those are his words. 

I find myself struggling to comprehend.

For over a decade, I volunteered in local schools with students between 6th and 12th grades. I had to undergo a training program in order to work with youth. I was instructed by both that organization and the teachers in the school that when a student falls asleep, appears inattentive, or is disruptive, I was to leave that to the classroom teacher.

One of the leaders of that volunteer organization explained they adopted that policy for multiple reasons. First, the teacher is responsible for the classroom and the students. That makes sense. She also said that teachers know their students over many interactions, while volunteers are more sporadic or fleeting. That makes sense also. She noted that teachers are trained for such challenges and we were not. That makes a lot of sense.

I later had an instance in which one student put her head down each time I visited a particular class. I noticed that the teacher never addressed this young lady. She was allowed to sit through my presentations with her head on her desk. I suspect the teacher saw that I noticed, and eventually explained his decision to allow that.

What I learned was that student had various challenges that the teacher did not detail. Essentially, she was in a home environment that was challenging her, disrupting her rest and more. The teacher was complimentary of the student's academic progress and effort and was sympathetic that by the sixth period of the day she often struggled with staying focused and awake. Her inattentiveness neither hurt my feelings nor disrupted my work with the other students.

No matter how smart you may be, you never know what someone is going through. See Starfish (February 2022). Someone is neither disturbing you nor others. She is falling asleep and hurting your feelings or self-esteem? So what?

The news coverage of the Michigan judge jailing the sleeping teen reached out to the group that brought the Detroit student to court on this field trip. The Court system was asked to comment. A law professor was asked about the judicial behavior. No one came to the judge's defense. There was a resounding and unanimous conclusion that the behavior was unacceptable. 

The judge, however, made further comments. These imply his good intentions, diligence, and confidence. These evidence a tone-deaf lack of comprehension. The news coverage does not include any hint of remorse, regret, or contrition. In short, nothing in the news suggests that this jurist has accepted that the behavior was outrageous, inappropriate, and wrong.

The news coverage also did not note whether any complaint has been filed with the Michigan authorities. The state has adopted a Code of Judicial Conduct. Nonetheless, despite whether there is an official complaint, the judge should immediately acknowledge this outrageous behavior was inappropriate. He should acknowledge the damage he has done to himself and the court, noting Canons One and Two. He should issue a public apology at the courthouse and seek an appointment to apologize to the youth and her parents in person. 

There is a burden that comes with judicial service. We live in a polarized society and there has been some tendency for attacks on the judiciary, the courts, and their work. Judges must not invite criticism, cynicism, and worse through bad behavior. Mistakes will be made. No one may expect perfection or infallibility. Nonetheless, mistakes should be acknowledged, corrected, and sincerely apologized for. 

Updated 082224: The Detroit Free Press reported on August 21, 2024, that "Eva Goodman, 15, and her mother filed a federal lawsuit" against the judge for violation of civil rights. The story notes that this is a teen "without a permanent home" (homeless). I noted in the original post above that you never know what someone's circumstances might be. Criticism is appropriate. Public debate is appropriate. The lawsuit will determine how this should be resolved. What is absolutely inappropriate is the vitriol against the judge. Whether he did or did not, should or should not, "death threats" are not appropriate. That is mob rule, violent, unhinged, and inappropriate. Allow the system to function. This judge will face another judge. Let that process work, and keep your threats and violence in check.

WCI 2024 is Upon Us

We rapidly approach the 78th annual rendition of the Workers Compensation Institute. The stage here is set, and activities have already occurred. Yesterday, hundreds went to the Give Kids the World Village and performed maintenance and upkeep. See Give Kids the World - Our Community (August 2018). Last night, the halls here were full of costumed superheroes (I think), all headed to the Give Kids the World Gala. 

People were bustling about making other preparations, and the lobby was full of familiar faces. WCI 2024 has begun in earnest. Certainly, the "Opening Session" is not until Monday morning, but on Sunday the Mediation Institute opens with a full day of incredible insight into mediation. I am persistently amazed at people thinking that is "just for mediators." Lawyers, adjusters, and risk managers could learn a great deal from that programming. 

Sunday brings the collegiality and community of the Kids' Chance Golf Tournament, the Zehmer Moot Court Competition semi-finals, and a variety of other events. The best event today will be the OJCC Meet and Greet at 5:00 in the Anaheim, Atlanta, and Boston rooms. Last year, hundreds attended this and it was a cordial and crucial part of the WCI kick-off in anticipation of the Monday opening.

I have been attending the Worker’s Compensation Institute since 1992, having missed only a couple of years for important other pursuits. I am fairly confident that 2024 marks my 31st conference. In a sports vernacular, it seems to be the "granddaddy of them all." That's not likely true, conventions have persisted for eons. But, in my era, this is a fairly apropos label.

The event has really grown. I am assured this year there are more than 400 speakers taking the stage to deliver their knowledge and background to audiences. Imagine how many speakers have appeared over the 78 years this conference has persisted (1946). Even if the average is 100 per year, that is 7,800 speakers. Of course, some of those are repeats. Over my career at WCI, I have spoken more than once. In fact, without digging too much into ancient history I have spoken over 30 times at the WCI (partial list at the end of this post).

But, where did it start and how did it get here? The following is a piece I compiled years ago, largely excerpted from the work of Creston Nelson-Morris. All of the italic text is attributable to Creston's work, not mine.

The Florida Workers’ Compensation Educational Conference celebrated its 50th anniversary in 1995.

The first conference was held in 1945 at the Carillon Hotel on Miami Beach. Entertainment in the early days was provided by the conferees themselves, who performed in skits, many of them written by claimant’s attorney Izzy Abrams and defense attorney George Lanza, both of Miami. The subject matter of the skits more often than not was politically incorrect. One skit, brought back by popular demand year after year, was entitled “Sin and Love It,” based on a real case, Winn-Lovett Grocery Co. v. Stevens, 145 Fla. 209, 198 So. 835 (a940), involving a butcher who injured his back while grabbing the buttocks of a female customer. The educational value of the conference was limited.

Beginning in the 1960s, the conference was run by the state Division of Workers’ Compensation. The site of the conference was moved to Orlando, and the educational aspect was given more play. For many years, the conference was administered by a committee organized at the direction of the division. Conference registration numbered between 400 and 500, and the program was chaired alternately by representatives of the different workers’ compensation interest groups. In 1978, responsibility for the convention was given to the Florida Workers' Compensation Institute (FWCI) by the acting director of the division. The institute was created to plan the program and administer the conference. After the 1987 conference, the institute was incorporated as a nonprofit educational organization.

Since 1987, the conference has grown dramatically in size. Attendees now number in excess of 6,000, and 150 exhibitors are represented. There is a waiting list of prospective exhibitors, and rooms at the hotel each year are filled months prior to the conference.

The institute is a cross-section of every interest group in the workers' compensation system. Employers, employee groups, physicians, rehabilitation providers, adjusters, safety professionals, state and federal regulators and attorneys are represented in the institute in an attempt to provide a broad-based educational effort for the workers' compensation industry. All representatives serve without remuneration or profit. Before 1988, the conference program consisted primarily of presentations of general interest to state regulators, claims adjusters, medical providers and attorneys. Beginning in 1988, the program was expanded to include "breakout" sessions.

Each year at the conference, state regulators report on the preceding year's activities. This includes reports from the insurance commissioner and the director of the workers' compensation division. Members of the workers' compensation judiciary, both at the trial and appellate levels, are participants. During legislative sessions when workers' compensation emerges as a major issue, the governor and key lawmakers also participate. In short, the conference has provided a forum for the workers' compensation industry to discuss matters of interest and to pursue its primary function: the improvement of the entire system for Floridians.

Although the main purpose is education, the conference also is entertaining. Keynote speakers over the years have included Dave Barry, Robert Klein, Jerry Clower, Lewis Grizzard and Jeff Foxworthy, and entertainers at the reception have included the Four Tops, The Temptations, Kool and the Gang, The Neville Brothers, Billy Preston, and James Brown.

The FWCI board of directors, claimant attorneys Jerry Rosenthal and David Parrish and defense attorneys Steve Rissman and Jim McConnaughhay, and its program membership are not paid for their efforts. Participation in the institute is voluntary. The institute currently has three full-time employees and boasts administrative costs of less than 5 percent of gross proceeds. Profits from the conference are used to enhance the workers' compensation system.

Initially, the institute provided a series of "grants" to assist the system. Significant contributions were made to the adjusting community to establish a statewide educational association especially directed toward the workers' compensation claims handler. Out of that contribution, the Florida Workers' Compensation Claims Professional Association (WCCP) was founded. Contributions were made to the University of Florida, Florida State University, and Mercer University to encourage the study of workers' compensation legal issues. Continuing scholarships were established to help defray the cost of higher education for children of injured workers with financial need. Contributions were made to help retrain division employees who had lost their jobs because of automation and state restructuring. Research materials were purchased for use by judges, and an annual educational conference for judges was funded. Contributions were made to establish telecommunications for the appellate court system, allowing litigants to present oral arguments to the court without having to travel to Tallahassee. FWCI published uniform local rules and recommended forms for distribution to the judiciary and established the annual Southeastern Workers' Compensation Moot Court Competition, attracting teams from law schools throughout the Southeast.

Contributions were made to charitable organizations including "Healthy Kids" and the Florida Lawyers Assistance Fund. Contributions to the Division of Workers' Compensation have helped defray the cost of printing its annual report. Special awards recognize those individuals who provide extraordinary contributions to the workers' compensation system.

Following the initial period of providing grants, the institute has focused on creating "educational partnerships" with other nonprofit associations and interest groups, still with the primary purpose of contributing to the improvement of the system. The emphasis here is to provide ongoing educational opportunities throughout the year.

FWCI recognizes that other laws affect the Florida workers' compensation law. Both the Americans with Disabilities Act and the Social Security Act impact workers' compensation. The institute has sponsored two conferences to look at how federal legislation impacts the Florida law.

Workplace safety is recognized as having a considerable effect on reducing workers' compensation costs. The institute assumed responsibility for the formerly state-supported event known as the Governor's Safety Conference. The institute also established the Florida Safety & Health Institute, Inc., (FSHI) made up of safety professionals throughout the state. The safety and health institute moved the conference from Jacksonville to Tampa, and since 1991, it has proved consistently successful, both from an educational and financial standpoint. Attendance at the annual safety conference continues to grow each year and now exceeds 1,000.

Safety also is emphasized at the workers' compensation conference, and the institute currently plans to provide regional "mini-conferences" on safety throughout the state, with local safety professionals participating both as speakers and attendees. Contributions to the University of North Florida in Jacksonville enhance its continuing educational programs in the field of safety. The OSHA regulations, as found in 29 CFR, Parts 1910 and 1926, are published for distribution at the safety and health conference and for sale.

The medical community has long played a vital role in the Florida workers' compensation system. A series of six seminars were sponsored by FWCI in conjunction with hospitals throughout the state to provide more in-depth knowledge of workers' compensation rules and regulations.

The 1993 special legislative session mandated that medical providers receive five hours of training in workers' compensation issues in order to become certified to provide care to injured workers. In coordination with the Florida Medical Association, the Florida Osteopathic Medical Association, the Florida Podiatric Medical Association, the Florida Optometric Association, and the Florida Dental Association, the institute sponsored physician certification educational programs at about 20 hospitals throughout the state. Profits generated were given to the sponsoring medical associations to promote workers' compensation awareness in the medical community. The medical courses will continue on a permanent basis. Funds have been designated to establish a workers' compensation medical managed care institute to study managed care in the Florida workers' compensation system.

FWCI annually sponsors a series of seven seminars throughout the state to educate employers about their duties and responsibilities under the Florida Workers' Compensation Act. Held following the legislative session, they focus on changes in the law. These increasingly popular courses are held in Fort Lauderdale, West Palm Beach, Tampa, Orlando, Jacksonville and Fort Walton Beach.

The institute publishes numerous books and periodicals. In 1992, FWCI assisted in the startup of a monthly newsletter on workers' compensation issues in Florida. This publication has developed into the leading information source on workers' compensation issues in the state. The current subscription list numbers well in excess of 500. Cases decided by the appellate courts are summarized on a monthly basis. When workers' compensation measures are moving through the legislative process, special editions give subscribers an "insider's view" of proposed legislation that may affect workers' compensation.

Other FWCI publications include medical fee schedules used by Florida health care providers, hospitals, ambulatory surgical centers and work hardening and pain centers. An annotated update service is provided for these publications as new rules are adopted and as interpretative rulings and bulletins are published by the division. The institute also publishes the Florida Impairment Guide, the Physician’s Survival Guide, written by the division's Physicians Advisory Committee, and an automated software package containing this information.

Annually, the institute prints an indexed edition of the worker’s compensation law. The 800-page Florida Workers’ Compensation Reference Manual includes the latest rules and regulations relating to workers’ compensation, judicial rules of procedure, present value and life tables and a summary of all cases decided by the appellate courts on workers’ compensation issues.

From time to time, FWCI identifies issues in the workers’ compensation system that are of particular interest. One such issue is the use of managed care arrangements (MCAs) in providing medical treatment to injured employees, which has been mandated by the Florida Legislature beginning in 1997. The Institute’s publication of A Guide to Selecting and Evaluating Workers’ Compensation Managed Care Arrangements discusses the role of managed care in the workers’ compensation system and how to select MCAs.

FWCI is made up of people from different backgrounds whose common interest is improving the Florida workers’ compensation system. The Institute does not lobby for any industry or special interest, instead providing assistance and education to all involved. The institute continues to strive to be a positive force in workers’ compensation in Florida. Its future success depends on the support of the entire industry.

So much has happened in the thirty years since that 50th anniversary book was published. So many leaders have come and gone, so many new leaders have emerged. So much information, collegiality, and growth (personal and collective). I look forward to seeing people in Orlando next week. Please stop me in the halls and let's chat about workers' compensation, Florida, and where we are headed.

My readily Recalled Presentations and Participations (there were various others that stick in my head, but I lack the time to pull the program books):

2024

Artificial Intelligence

National Case Law Update

2023

Ethics and Professionalism with Social Media

Evidence

2022

Regulator's Roundtable

National Work Comp Review

2021

Out Front Ideas (opening session)

Cybersecurity

2019

System Challenges and the National Conversation

Regulator Roundtable - SAWCA

2018

Attorney Fees in Florida

Regulator Roundtable - SAWCA

2016

National Trends Panel

Regulator Roundtable - SAWCA

2015

Multistate Law Panel

Regulator Roundtable - SAWCA

Advanced Evidence - NAWCJ

2014

Supreme Court Analysis of Workers' Compensation Panel

Regulator Roundtable - SAWCA

2013

View from the Bench Panel

Regulator Roundtable - SAWCA

2012

MSP Compliance Panel

Regulator Roundtable - SAWCA

2011

Code of Judicial Conduct - NAWCJ

Administrator Roundtable - SAWCA

2010

View from the Bench - Attorney Breakout

Ask the Judges - Adjuster Breakout

2009

100 Tips in 60 Minutes

Ask Judge Langham - Paralegal Breakout

Ask the Judges - Adjuster Breakout

Case Study - Show Me the Science - Health Care Breakout

2008

View from the Bench - Attorney Breakout

Electronic Filing - - Paralegal Breakout

2007

View from the Bench

2001

The Florida Fee Schedule

Return to Work Strategies

Crossing the Rubicon?

The WCI approaches next week in Orlando. It is an August tradition that has evolved over the years. In a post this weekend, I have republished a conference recap I compiled several years ago. The history is interesting on several levels and includes locations like Miami, the Dutch Inn, the Peabody Hotel, and since 2000 the Marriott World Center. I have attended and spoken many times at the WCI.

I have had the opportunity there to share the stage with George Kagan, and will again this year. There are a variety of personalities in Florida Workers' Compensation, but George is unique. His humor is ever-present, as are some other quirks. For example, I suspect George has never met a stranger in his life. He has a welcoming and engaging personality that draws people. And just ask him for a voice impression. Who can forget his crystal ball? So many great memories.  

This year, he asked me to participate in "Case Law Highlights from Around the Nation," a title that some might perceive as oversell. The entire nation? There are more than 50 workers' compensation programs, and this area of the law is rich in context, complexity, and sometimes controversy. I initially chalked the title up to good marketing. Then I got the instructions from George - he was not kidding about the whole country approach. He assigned each speaker several jurisdictions. Somehow, I got Florida. In the end, where else matters? (Kidding - hubris, apologies).

The fun comparison is that on Monday afternoon at WCI there will be a "Case Law Update" that covers Florida law. But Tuesday morning 10:30-12:00 in Grand Ballroom 8A, there will be this much broader "Case Law Highlights from Around the Nation." The breadth is amazing. And, with his charm and finesse, George has recruited speakers from around the nation. This includes Chicago, Nashville, Austin, Salem, Philadelphia, Delray Beach, and Paradise. The panel is a significant geographic cross-section.

What do programs all seemingly have in common? There are always a variety of personas, personalities, and styles. But, in all my years of presentations (let's just say hundreds), literally from coast to coast, I have never received instructions akin to those George sent last winter. Essentially, he said "Welcome to the program," and continued with something like "here are your states, prepare an outline of all the noteworthy workers' compensation cases in those states between August 2023 and August 2024."

An outline? Research? Homework? - Unprecedented.

He explained that we would have only 1.5 hours at WCI, and admitted that covering Everything Everywhere All at Once (A24, 2022) would be impossible. With his perennial optimism, that admission had to hurt. But, seriously, 50 American jurisdictions in 90 minutes? Really? So, our homework assignment essentially empowers George to author/edit a comprehensive outline of the highlights for an entire year across the entire country. Herculean? An understatement (maybe George’s dirt initial “H” stands for Herculeas?). A project of that magnitude would be Herculean even if you were not essentially herding cats. 

Sure, he has some help from us, but the coaxing ("Where is your homework"), collecting, collating, and coalescing is an amazing undertaking. As a result, the WCI attendees who wander into Grand Ballroom 8A Tuesday morning 10:30-12:00 for "Case Law Highlights from Around the Nation," will get the triple-whammy of an engaging, rapid-fire, panel combined with the wit and wisdom of Dr. Kagan (and, if history holds, a vocal impression or two), and a take-home study guide overview for national reference and review.

The program is going to be intense and engaging. It is designed for the "attorney, claims professional, risk manager, or employer." It is designed and built to help professionals "stay ahead of the curve in the rapidly changing world of workers’ compensation." And there is a George Kagan-edited "Cliff Notes" (R) to memorialize the last year and provide a ready reference. The program says that "we’ve worked hard to afford attendees an unbeatable return on their 90-minute investment." That is an understatement.

"The die is cast" (Alea iacta est, Julius Ceasar, 49 BCE). We are "crossing the Rubicon" with a presentation unprecedented in both the depth and breadth of content. I look forward to it and interacting with the intrepid adventurers who will join us there. This is a "can't miss" opportunity.

AI at the WCI, Oh My!

The Associated Press reports on people who struggle to accept and comprehend Artificial Intelligence. The real challenge is said to be for the "older Americans." The focus of the story is

"adults - many of whom lived through the advent of refrigeration, the transition from radio to television, and the invention of the internet."

This group is struggling with AI, what it means in the near term, and tellingly "how do you know if its fake or not." That question is seemingly a popular inquiry as we begin to dip our toes in the AI pond. There are many who see beauty in these waters, some who fear serpents lurking just under the surface, and others who are unsure what they are looking at or what it might mean.

Now, I am not that old, but I have been to a house that had a real icebox. I don't remember the age of radio, but I do remember a world without personal computers, the internet, and more. A lot has changed in my lifetime, and more change will come. I hate change, and yet I am diving into dealing with it. 

There are reportedly classes being taught for seniors as they strive to both arm themselves with the advantages of AI while they learn of the pitfalls and serpents. There seems little choice in the advent of AI, it is here. The seniors are particularly "susceptible to both scams perpetrated using artificial intelligence and believing the types of misinformation that are being supercharged by technology."

There are pitfalls, questions, skeptics, and fans. There is much to learn. The article is enlightening because of the historical perspective discussed. Certainly, it is easy to commiserate with these seniors and their struggles.

That said, they are not alone in their wonderment and curiosity. The fact is that AI is new to us all. We are each going to face change, personal and societal, from this new technology. It will be as disruptive and restricting as the internet, the personal computer, and the smartphone. It is possible that AI may alone wreak more change and discomfort than those three combined.

Some of the seniors have the luxury of rejecting it. One candidly departed a senior's class with an honest and straightforward "it's not for me." Perhaps some can live fruitfully without AI impacting, but I am dubious.

The described feelings reminded me of the great opportunities next week in Orlando. The Workers' Compensation Institute includes some great technology insight, including AI. I am not able to link to the breakouts for you, as the program online is somehow tied to an app rather than individual URLs. So, the PDF program is linked with page number references for my fellow Luddites.

There is a fantastic program on Monday afternoon at 1:15 - Harnessing the Power of AI  in the Medicolegal Realm: Practical Insights and Applications (page 22)(Grand Ballroom 8A). I was supposed to speak on this panel, but they substituted in someone smarter. If you want to hear someone that really understands AI and what it will do in legal settings, attend this session. My wife, Pamela Langham, has been studying this revolution and will enlighten you. As if being smart is not sufficient, she is also prettier and funnier than I am. 

I will also address AI at the WCI, but on Tuesday at 9:00 Dr. Christopher Brigham has recruited me to a panel that also includes Connor Atchison, Ben Nwachukwu, Joel Raedeke, Karen Yotis, and Ken Eichler. This will address the "transformative upheaval" and the "pivotal role played by the AMA Guides" (page 41)(Grand Ballroom 8A). Much is happening with integrating new processes, AI, and significant human intellect. If your profession touches on injury, remediation, and impairment, this is a must-see.

Wednesday offers a full buffet on technology and AI, a full morning presented in conjunction with WorkCompCollege.com and their team. This morning of perspectives will include tech that empowers recovery, myths about AI, tech innovations in claims, and a roundtable for "frank discussions on technology today and tomorrow" (page 54). This runs from 8:30 to 12:30 in Grand Ballroom 10-12. 

All this reminds me of a great scene in The Empire Strikes Back when Luke exclaims he is not scared. The wise Yoda replies "you will be." We will all be scared by some element of AI. There will be some for whom the mere change is enough. Others will be taken in or taken advantage of. But, in the end, AI is here. So, take a lesson from all the seniors who are striding into the breach. Come join one or all of these discussions and at least find out what you should be thinking about.

Maybe you will be like others who conclude "This is not for me." Or, perhaps you find yourself challenged, intrigued, and wanting more. The programming outlined above should help you in that personal journey. Come join us to get a taste of the buffet, and an inkling of what is here and on the way. 

"No" Tax Changing Comp?

There is suddenly a fair amount of discussion about not collecting taxes on tips. The British Broadcasting Corporation (BBC) reports that "no tax on tips" idea is enjoying some favor in various discussions. The financial implications are not clear in any perspective because it depends on what the meaning of the word "no" is. 

From the standpoint of the government, any alleviation of tax burden will result in less government income. Every dollar the government spends, it takes from someone first. The BBC notes that about "4 million workers regularly receive tips – less than 3% of the overall workforce." Thus, the affected population is seemingly small. And, it notes, "a significant share of those workers – about 37% - earn so little that they do not currently pay income taxes to the federal government at all." 

Years ago, the news excoriated someone for claiming that close to half of Americans don't pay income taxes, as reported by ABC News in 2012. The statement was factually accurate, but some interpreted it to mean that 47% pay no taxes. Some were quick to publish their rebuttal to the "47%," and a recurrent theme of that was essentially that while they pay no income tax to support the operation of our federal government and its burdens, they do pay "payroll taxes," see Five Myths, Urban Institute.

In the current discussion, there is some curiosity as to what "no" means. There are sometimes "nos" that mean "some." The question seems to be whether "no tax" in this context means no income tax, or whether it means "no tax."  There is more to the "tax" category than federal income tax. In some states, there is a state income tax. In all states, there is the share for your lifelong partner - FICA - the "Federal Insurance Contribution Act," a euphemism for social security and Medicare taxes. You can call them "contributions," but many call these "payroll taxes," which some might quibble with.

Nonetheless, it is more likely that an individual would pay "payroll taxes" regardless of income level. In order to be mandatorily liable to "contribute" to the expenses of the national government through income taxes, higher earnings are necessary. In terms of national defense, federal services, and more, a significant portion of the wage earners contribute nothing. Of course, anyone is welcome to "contribute" more at any time. Dollars are seemingly always welcome.

I can hear the two old guys up in the balcony (Statler and Waldorf) "isn't this blog about workers' compensation?" or "what do taxes have to do with workers' compensation?" Ok, good point. But, the answer is that perhaps tax definitions have a significant impact on workers' compensation and are worth considering.

Back in the day, the world of workers' compensation began providing "indemnity" benefits to workers injured on the job. The rub was how those would be calculated. The ultimate answer was an "average weekly wage" (AWW). The point was to add together some period of wages and divide for an average. This averaging was intended to smooth over potential peaks and valleys in someone's recent earning history so that the calculation was not based on some figure that was coincidental and fortuitous to one party or the other. 

And, whether we believe it or not, there were some who perceived that some workers did not report all their earnings regularly, nor paid the tax man on them. These were seen as intentionally underreporting income, but in fact such could have been inadvertent mistakes or could have stemmed from challenges with the burdens of self-record keeping and self-reporting. However, those same perceivers felt that such workers were apt to nevertheless seek workers' compensation on all of their earnings following an accident.

In some instances, that led to disputes over the appropriate AWW for a particular worker. Some would jump to "it's not fair for the worker to receive less than a full measure of what was actually earned." However, it is important in this regard that the insurance company collects the premiums in workers' compensation insurance using the "payroll." Thus, how much a company pays a worker (or how much an employee earns) is wrapped up in the premium paid for the insurance.

In that regard, this insurance is perhaps not much different than car insurance. The benefit (replacing a car) in the event of a loss is more expensive for a brand-new Bentley than for a twelve-year-old rust bucket. So, insuring the Bentley costs more - a higher premium. In the same way, workers' compensation insurance is more costly for a high-payroll employee than for one with a moderate or lower payroll. That is all ameliorated some by the "maximum compensation rate," but that is a discussion for another day.

So, real or not, the perception was of the potential for underreported income. The Florida Legislature amended section 440.02, Fla. Stat., the definition of "Wages" as in "average weekly wage":

"(40) “Wages” means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury and includes only the wages earned and reported for federal income tax purposes on the job where the employee is injured and any other concurrent employment where he or she is also subject to workers’ compensation coverage and benefits, together with the reasonable value of housing furnished to the employee by the employer which is the permanent year-round residence of the employee, and gratuities to the extent reported to the employer in writing as taxable income received in the course of employment from others than the employer and employer contributions for health insurance for the employee or the employee’s dependents." (Emphasis added).

Thus, if an employee wants benefits post-injury that are based on all earnings, including tips, "gratuities" are limited to those "reported to the employer as taxable income received ..." Well, if "no" means "no?" That does not mean, as is too often overstated, that wages are limited to earnings that taxes are paid on. Earnings may be reported and yet not rise to the level on which income taxes are due. But that is not necessarily the end of the analysis. 

The question about what "no" may mean thus comes into focus. If, as Mom always said, "no means no," then perhaps gratuities will no longer be reported to any employer by any employee "as taxable income received." If tips are no longer "taxable" income for any purpose, the employer may not care to have that information. Logistically, collection and documentation perhaps take time (perhaps somewhat less so in the modern day of apps, touch screens, etc.).

If an employee is not liable for any taxes on tips, will that be different? If tips are no longer "taxable income," perhaps the federal government quits asking for the tip information, and employers quit collecting it? But, what if "no" means "some," as in "payroll taxes?" Will the federal government insist on reporting of gratuities then? If exempt from "payroll taxes," that will decrease the employee's "contribution," and may impact her or his future Social Security benefits. Some perceive such benefits as inadequate in their present calculation, and so a decrease may be undesirable. 

In the event that the government does not require reporting, will the provisions of section 440.02(40) matter? If reporting changes, that could possibly alter the operation of this law. If the definition of "income" changes, that could have an impact as well. 

But, would the effect be to change the "wages" or the premium for that matter? Would there be any amendment to this Florida statute for clarity on the impact of such a "no" tax federal outcome? This is a topic that may receive some debate in Florida. And, it is noteworthy that such concerns and questions may be addressed in other states differently. Workers' compensation, after all, is a state law program.

The questions are intriguing and as yet academic. Everyone knows that many proposals or ideas can be discussed and debated. The laws we live with, however, require successful trips through the legislative process and then Executive approval. Thus, the point may be better addressed one day in the future after such a "no tax" bill is drafted, passed, and signed. The implications may be clearer when there is a definition of what "no" means. 

Until then, the "no" tax is interesting. The questions about what such a law might do to change workers' compensation are easily answered - "it depends." And, until the details are defined, the answer will remain a curiosity.