Skittles for the Community

After writing the following, I was reminded of a lyric from Karn Evil First Impression, Part Two (1973), by Emerson, Lake, and Palmer: "Welcome back my friends to the show that never ends." 

There has been a great deal written about pill mills and the distribution of opioids in America. See The Hot Seat, Opioids, Marijuana and More (September 2017); Florida's 2018 Session - Opioids (March 2018)(including a list of all the prior opioid posts dating back to 2013). America has been fighting opioid addiction for decades, and though there have been victories the challenges remain. 

A November 2020 press release from the United States Attorney in New York announced the filing of charges against a New York physician and his employee. It stresses that these are only charges or allegations and that everyone involved is presumed innocent. The physician operated a clinic for pain management in Manhattan. It is alleged that he accepted "cash payments" for writing "thousands of prescriptions for large quantities of oxycodone." Furthermore, the authorities allege that those scripts were for individuals that the doctor "knew did not need the pills for any legitimate medical purpose." This, the release states, demonstrates the doctor "betrayed his profession."

The process that authorities have alleged is not unfamiliar. We have all heard of and lamented the "pill mill" practice that exploded over the first decades of the twenty-first century. The authorities claim that clinic patients in this instance referred and recruited new patients to the clinic. The recruiters are labeled "gatekeeper patients" and one of those at this clinic was allegedly later hired to participate in "managing the (clinic) operations." The authorities allege that the clinic was open "only a few hours per day," perhaps only between "2:00 p.m. and 5:00 p.m." Despite these allegedly limited hours, it is alleged that the doctor ran a "grotesquely lucrative pill mill."

The authorities allege that oxycodone prescriptions were written for patients that the physician "knew did not need the pills," and that many of those patients "were addicted to opioids," "failed drug test administered by the clinic," and some "traveled long distances to obtain the illicit oxycodone."  They allege that some patients "sold oxycodone pills on the street to drug users."  

In about three years, between "November 2017 and in or about September 2020" the authorities allege that the physician "prescribed more than 1.3 million oxycodone pills," "generally . . . after conducting limited or no examination of the patient."

The magnitude of this struck my interest. One way to appreciate this is by discussing the sheer pill volume. Between November 1, 2017, and September 30, 2020, there were 1,066 days; without Saturdays and Sundays there were 761 days; removing the federal holidays leaves 732 days. the 1.3 million pills divided by 732 days yields 1,776 pills per day; at the three hours per day the clinic was allegedly open, that is 591 pills per hour, or about 10 pills per minute. 

That is an incredible volume of pills. One study suggests that patient consumption of such pills is about three pills daily, so a thirty-day supply might be 90 pills. The 591 each hour might represent 7 patients per hour receiving a 30-day supply.  Statistics support that doctors average about 20 patients per 8-hour day (2-3 per hour). The physician in New York was perhaps prescribing enough Oxy to suggest a much higher patient-per-hour ratio or prescriptions for more than a 30-day supply. 

Another way to appreciate the magnitude might be financial. Addiction Center reports that Oxycodone has a prescription price (without insurance) of $.33 per pill, but the "street price" is $20.00 each. The "street value" of the pills dispensed according to the allegations in this case equates to a total of $26,000,000. That is a significant markup that could be profitable even after costs such as travel and doctor fees are considered. Profitable, that is, to those who might visit such a clinic, obtain these medications, and then resell them elsewhere rather than consume them in palliation of symptoms or complaints.

Based on these allegations, the U.S. Attorney has charged the physician and the clinic manager "each with one count of conspiracy to distribute oxycodone illegally. The allegations are that over one million pills were involved throughout hundreds of days of clinic operation. The allegation is of "thousands of medically unnecessary opioid prescriptions." And yet, each is charged "with one count of conspiracy." It is worth considering that the charges could result in "a maximum sentence of 20 years in prison," which the press release stresses remains discretionary, to "be determined by the judge." One may wonder whether it would be more productive to pursue multiple charges against those who engage in such activity thousands of times?

An FBI official quoted in the press release contends that pill distribution such as this is detrimental to communities, to those "struggling to overcome (the) addiction," and is "an offense against all of society." The import of those comments seems critical of these two defendants, but more a broad indictment of the type of behavior alleged. That such activity may occur, the release noted such a "greed-fueled" and "callous" "scheme" places "an immense burden on communities." The significance they state is, however, perhaps undermined by the filing of only one criminal count against each despite the implication of millions of pills and dollars?

As noted, these kind of drug distribution allegations are not new. There are reports of prescription medications dispersing into communities, from person to person. Years ago, I heard a presentation in which a police officer referred to the manner in which students in his community shared illicit drugs; he referred to gatherings as "skittle parties," a label I have seen repeated in various publications. And yet, in 2021, we continue to see news about the operation of clinics in the manner described above. One wonders why it is so difficult to identify and deter such "grotesquely lucrative" activity and its "immense burden on communities?"

Drugs like this do not come from back alleys or illicit producers. These are manufactured by pharmaceutical companies, distributed through pharmacies, and prescribed by doctors. The medical profession is highly regulated, as is the distribution of medication. And yet, we persistently see these stories about fantastic numbers over long periods. It seems that statistically spotting such "medical practices" would be reasonably simple? How do these volumes rise into the millions of pills over hundreds of days? There is no debating the existence of a problem or its seriousness. 

Despite that, here we are in the third decade of the new century facing the same old problem of prescription opioids and "grotesquely lucrative pill mill(s)." One wonders whether it will ever end, and perhaps whether society really cares enough about it to want it to end? The lyrics from Karn Evil return us to reality with the refrain "right before your eyes, we pull laughter from the skies, and he laughs until he cries, then he dies, then he dies." How many Americans have to die from the opioids being distributed? How many is enough?

Bloviating Paraprosdokian

I’ve spent a fair number of hours in meetings. I remember once when an attendee made some pertinent and brief remarks (essentially "we cannot do that") and then that speaker apologized in a self-deprecating manner saying the speaker would "stop bloviating now." That one made me laugh. Miriam Webster defines "bloviating" as "to speak or write verbosely and windily.” Other dictionary's definitions are more critical of "bloviating." How does one know when they are bloviating? One might suggest that a lengthy blog post my fall in that category? But, in my experience, those who accuse themselves of bloviating are rarely the bloviators. 

The self-deprecation in this instance was a Paraprosdokian. That is a "device in which the final part of a phrase or sentence is unexpected." This is a tool that is often used to make jokes funny. The unexpected and often contrary portion at the end surprises us and makes us laugh. The "bloviating" punchline makes us laugh, or at least lightens the mood of the conversation. One of my personal favorite Paraprosdokian is "I want to die peacefully in my sleep, like my grandfather, not screaming and yelling like the passengers in his car."

But, back to bloviating.

I have sat on more than one panel at which speakers over-spoke their time. I have been left as the last speaker with ten minutes or less of a 50-60 minute lecture. In each instance, I have striven to make the most of the very few minutes left to me by my fellow panelists. Brevity is not in my nature, but the clock waits for no one. When this happens, one hopes to deliver something of value. However, it is difficult in such a scenario to focus upon anything but the limited time remaining on the clock. 

I once sat in the audience for a memorable presentation. I was enjoying a succession of individuals presenting short personal perspectives on a unified theme (more on that later). There were to be 6 speakers in a 50 minute time (about 8 minutes each if no introductions or questions; more like 6 minutes each actually allotted). During the course of the first three speaking, another of the presenters appeared late for the program, and quietly took a seat. 

When this speakers turn came, with about 30 minutes remaining for her/his portion and then the last two speakers, this speaker explained that her/his busy schedule had not allowed him/her to finalize a PowerPoint for our enjoyment (unlike the other presenters). However, the speaker promised to "describe" the PowerPoint that had been intended. The speaker then proceeded to pontificate for well over 20 minutes (of the 50 minutes allotted for five speakers).

At the end of this speaker's long exposition, as the end of the hour rapidly drew nigh (about 5 minutes remaining), her/his conclusion was a blithe, “I guess we have a few more minutes if anyone has any questions." At this time, another of the group's presenters interjected to remind that two speakers remained (which the speaker might have known in the event of a timely arrival for the program). Although those two remaining speakers then got their brief (2-3 minutes each perhaps) opportunity to share, the results of their invested effort were markedly truncated. 

And, due to the time expiring, they each likely lost a small portion of the audience who proceeded to other commitments. Fortunately, most of the audience was able to politely stay and accommodate their brief opportunity, which had been compromised through no fault of theirs.

As the protagonist, Adam, (Brendan Fraser) says in "A Blast from the Past" (1999):

”Manners are a way of showing other people we care about them.”

How do we feel about other people? Do we value their time? Is our sentiment demonstrated solely by our gracious apologies? That is, do we persistently show up late but are gracious and apologetic? Or, do we regularly show up on time and make our statement of our respect and appreciation through that action? The above leads me to some brief observations, the accuracy of which is left to the reader.

The volume of time that one will be afforded for anything is often unknown. Whether making an argument in a hearing or speaking to a group, we may or may not know how much time will be available. What we know is that their time is as valuable as our own. What we know is that our behavior speaks volumes about our respect for our listeners and fellow speakers.

In that 20-plus minute presentation, one of the lucky speakers that preceded the bloviator reminded of the potential to lose an audience with too much. In truth, as lawyers, we are hard-wired to make our point, and many will argue until someone stops them. But, that may not be the best way to convince and persuade. In my early years of practice, I recall a judge who was rumored to rule in favor of whomever spoke last. Proceedings before that judge were exhausting. The judge was cordial and accommodating, but the energy required by that competing cacophony was a serious and unnecessary challenge.

Some speaking formats recognize the reluctance of speakers to self-limit. These may provide a countdown clock, flashing lights, or even an interceding moderator to enforce time limits on those who cannot self-regulate. It is a rare lawyer I find that has never been told "enough" by some judge somewhere. Ironically, the bloviator discussed above had the benefit of a timekeeper showing signs. They were, unfortunately, ineffective. 

Notably, it is a challenge to both "have enough" material and yet know when to stop and sit down. I learned from an exceptional mentor to try to put more in the PowerPoint than will be needed; he explained that I could always  finish with "I have run out of time, there is more in the printed material that you can review later." With that safety net, perhaps we are more comfortable stopping when the time comes? That can likewise work with "the brief," or "the motion." Expound in the writing, then keep the oral presentation focused, brief, and relevant. But, this only works if you file the motion, file the brief, and prepare the PowerPoint.

On the other side, when we witness boorish behavior, is there more that we can do? Perhaps the greatest kindness, when someone’s opportunity gets pushed to the final minute(s), is to remain in the audience and accommodate their discomfort? Or, should we in the audience be the ones to rise and suggest to someone that they are running long, bloviating, or boorish?

In the end, let me deliver the punchline to the 20-plus minute oratory described above. Coincidently, the overarching theme of this presentation was essentially on effective communication. It was focused in part one on the need for lawyers to be brief, focused, and concise. If that is not a Paraprosdokian, I doubt I know what is. I wonder if the irony was lost on anyone in the room? I suspect, unfortunately, it was lost on the bloviator. 

As I later reflected on the presentation, I was drawn to an essay I read in an advertisement in my youth. You see, in the deep past, we mashed trees into something called "paper" and thoughts were printed thereon and delivered to your home. We called it a "newspaper," which the Internet of course rendered obsolete. This author (I believe an official with a company called United Technologies) wrote:

"Overstate and bore. Understate and score," and then provide examples. Perhaps we might yet all learn from that expression of opinion? Below is that ad pasted in whole. No part of that is this author's writing, but is quoted verbatim:

When is the Best Time to Stop Talking?

Probably now.

A story is told about FDR when he was a young lawyer.

He heard his opponent summarize a case before the jury in an eloquent, emotional, but lengthy appeal.

Sensing the jury was restless, FDR is reported to have said, “You have heard the evidence. You have also listened to a brilliant orator. If you believe him, and disbelieve the evidence, you will decide in his favor. That’s all I have to say.”

He won.

Overstate and bore. Understate and score.

When a baseball umpire says, “Strike three!”
he doesn’t have to add, “Yer out.”
That’s what strike three means.

Hope for no Breakthrough

I have been enthusiastic about our collective recovery from the challenges of SARS-CoV-2 avoidance. See The Future's So Bright (February 2021); Vaccination Implications (February 2021); Great Hamburger with a Smile, and We're Really Back (April 2021). I have been ridiculed publicly for my support of vaccines. One lawyer, in a public meeting, laughed out loud at my enthusiasm and questioned "Judge, don't you remember Thalidomide?" Thalidomide was an interesting, and frankly tragic, pharmaceutical failure that influenced and impacted many individuals and a generation.

Vaccinations are preventative. The impact of the vaccines for SARS-CoV-2 has already been noted. In 2021, are progressively improving socially, economically, and professionally with these scientific wonders. I continue to remind that many "experts" said deploying a vaccine in 12 months was overly optimistic. They essentially said it could not be done.

The first SARS-CoV-2 vaccine was deployed in the U.S. in nine months, last December. By the 12-month anniversary of the "experts'" expressions of deployment doubt, according to Everyday Health: 

"50.8 percent of the U.S. population age 65 and older has now been fully vaccinated, and almost three-quarters of those in this age group have received at least one dose of the vaccine. About one in five adults age 18 and up have been inoculated."

The doubters who said it could not be developed in 12-18 months were spectacularly wrong; "Dewey Defeats Truman" wrong. The vaccine was deployed in far less than 12 months, and 20% of the adult population was already inoculated by the 12-month mark. By 18 months, we will likely have administered the vaccine to everyone in America that wants it. 

But, the National Public Radio (NPR) pundits are cautioning that we should not be too optimistic. Let's not forget that they make their "livin' off the evenin' news" (Don Henley, Dirty Laundry 1982). They warn that the Centers for Disease Control is studying "Breakthrough COVID Cases," infections in those already vaccinated. USA Today reports that as of April 23, 2021, the U.S. has inoculated (at least partially) 41% of the population, about 134 million vaccinated. Millions more are vaccinated every day.

The NPR folks warn of "some relatively rare cases of coronavirus infection" occurring "despite vaccination." They provide anecdotal examples of individuals who obtained the vaccination, assiduously stuck to masking, sanitizing, and distancing, but became infected with SARS-CoV-2 nonetheless. Some report their reaction to becoming infected as incredulity.

NPR reports that this is referred to as "breakthrough" infection and that the Centers for Disease Control is "tracking these coronavirus infections." There have been "reports of about 5,800 breakthrough cases." These are a subset of the vaccinated public. By definition, one cannot experience a vaccination breakthrough unless he/she has been vaccinated. Thus, the 5,800 must be compared to the 134 million currently vaccinated Americans. They represent .000043 or .0043%. In practical terms, it is an exceedingly small percentage.

It is as small as the percentage of patients that suffered blood clots following injection of the Johnson and Johnson vaccination. Scientific American reported that a particular vaccine was paused following the discovery of blood clots in 6 women, one of whom died. At the time, 6.8 million doses of that vaccine had been administered. The 6 clot cases equaled .00009% of uses. Notably, before SARS-CoV-2, about 274 people died daily of blood clots, according to the National Blood Clot Alliance. 

That the sample is exceedingly small is no reason not to study the breakthrough cases. The CDC is looking for "demographics or vaccine characteristics." They are looking for commonalities that might explain why the vaccine is not effective for some people. The statistics demonstrate the for some reason they are more predominant among those over 60 years of age and (presumably biologically) female. 

One expert was quoted by NPR says that the existence of "breakthrough" cases is not unexpected. He says that the vaccines were predicted to be "at least 94% effective." The expert explains that 94% is "not 100%." Under Florida law, we allow experts to express opinions "if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence." Section 90.702, Fla. Stat. So, perhaps it is helpful to some for this expert to explain in such clear terms that 94% is not 100%. The expert also reassures us "the bottom line is: It's expected. No need to freak out."

So, the NPR headline that breakthrough cases are being studied perhaps overstates the obvious. In short, this news is not news. The SARS-CoV-2 pandemic is not "over" and we are not societally "over it." So, many will continue in the coming weeks, months, and perhaps years, to wear masks, socially distance, fastidiously apply sanitizer, and otherwise exercise caution. Bless them. In the widespread relief from fear and trepidation, let us certainly rejoice and strive for a return to collective normal. Let us also remember that 94% is not 100% and some among us may continue to experience fear, anxiety, withdrawal and worse (infection itself).

Let's remember that their feelings are their own, subjective, personal, and sincere. Moving forward through our collective return to normal, let's be understanding of those who still do not want to shake hands, embrace, or perhaps even maintain their social distance. From a time when much or all of that was "normal" for each of us, let's remember that for some it may remain normal for some time. That you are ready to embrace does not mean others share your optimism, and we can all agree to accept and respect that.

For us all, let's remember Ronald Reagan's theme in dealing with the United Soviet Socialist Republic, "Trust, but verify." We can trust the vaccine, each other, and our health. But, if we get symptoms that have been associated with COVID-19, we would each do well to remember 94% and verify. Testing may be uncomfortable or inconvenient. However, if you are among the .0043% with a breakthrough, you would be better served to know it.

Stress

Stress, it appears, is part of life. I recently read a new book, "Workplace Stress: Past, Present, and Future" (2020), by Don DeCarlo and Judge David Torrey. The book is focused on the workplace specifically, and divided into three chapters focused on the existence of stress, workers' compensation compensability of stress claims, and then methods for addressing stress. Of course, the workplace is where we spend about two days out of our week (48 hours). Many spend another 56 hours each week sleeping. Those two account for over half (104) of our weekly 168 hours (24 x 7). Despite that math, a great many often feel as if sleeping and working is all they accomplish. 

Somehow, we still find time to be stressed. Stress contributes to our individual lives, the occurrence of injury and disease, and is costly. Staggeringly costly, "roughly $100 billion yearly."

The authors define stress as a "'non-specific' response of the body to any demand made upon it." Stress is thus not singular, but plural. There are a variety of responses to outside stimuli: "physical, mental emotional strain or tension" or "a condition or feeling experienced when a person perceives that demands exceed the personal and social resources the individual is able to mobilize." The authors contend that the scope of stress is increasing, as the term is used to describe "progressively broadened" items and categories.

The book is timely, addressing the subject matter through the lens of our collective 2020. There are references to the "COVID-19 pandemic," and "the death of George Floyd," but curiously not specifically to the senseless violence and destruction we watched. The scope is broader than 2020, however, acknowledging our news-focused society, various economic challenges, foundational shifts in the way we work, and our old friend social media. I recently abandoned social media with the exception of a daily LinkedIn visit, and have found the move nothing but positive. I have experienced not a single bit of remorse regarding my absence from the toxic soup of social media.

There is a palpable suggestion in this book that we may subject ourselves to stress in the decisions that we make regarding subjecting ourselves to social media, livestreams, alerts, news services, and more. Do you find yourself longing for a period when there was less "instant" access to so much data, invective, and diatribe? Perhaps you are being subjected to stress merely by reading this review of stress? I can think of nothing more potentially stressful than having to listen to me.

The authors point us to the accepted "commonly mentioned personal stressors." We seem persistently worried about commonalities such as work, money, time management, other people, and doubts about our futures. Whatever our personal causation, the statistics support that most of us are experiencing stress; more than our grandparents did. The authors contend that stress is "universal." And, they suggest that we do not get the periodic relief from stress that was more common in a less-connected world. Our stress, they warn, is persistent and chronic.

And, it is affecting us mentally and physically. The authors contend that "75-90 percent of all doctor visits are due to stress-related illness." They provide a laundry list of conditions to which "stress is intimately linked." The list is troubling and the maladies are all too familiar. The impacts in terms of treatment, hospitalization, and lost productivity are discussed. The economic impact is said to be a productivity loss "to the tune of $300 billion each year." Combined with the medical treatment cost above, stress approaches half a trillion dollars annually. 

The text provides definitions, legal attempts to categorize mental/emotional claims by state workers' compensation laws. The most challenging of these, the book says, is the "mental-mental stress claims that were virtually non-existent in the past," but which the authors see gaining a growing acceptance. Interestingly, this acceptance is specific to the "courts." But, there has also been legislative acceptance of such claims for special employees in recent years also.

We are reminded ot the existence of stress as a universal experience. It is not, it seems, an isolated experience of the "first responder" (or other special people); is is not, it seems, isolated to work, home, family or any such singular characterization. It is all around us, permeating, pernicious, and persistent. The authors coyly remind us of challenges in definition, likening our struggles with defining stress to the absurdly vague definition of obscenity foisted upon us by the U.S. Supreme Court: "I know it when I see it." As a legal standard, that phrase is untenable, but in the context of personally understanding stress, it is perhaps worthy of consideration. Stress, we might agree, is highly personal and subjective. 

We are reassured by our guides here that stress may be "normal" and even positive. It is a natural human reaction any of us might experience (thus, the "flight" response). But, the authors warn, too much of this normal human reaction may be detrimental, damaging, and overwhelming. While the focus here is the workplace, the authors concede that stress has many causes and that we may cross-contaminate, bringing our personal stress to the workplace and our work stress home.

An old friend of mine used to claim that he began each day eating a green frog, whole, from his garden. He said that way, no matter what, the day always got better as it proceeded. Perhaps stress is related as much to how our expectations are met as it is to the actual occurrences we encounter? Might we be less stressed if we were better informed, less surprised, and less frequently ambushed?

The book is replete with examples of what may cause stress both in and out of the workplace. As the experience of stress may be very individualized and subjective, these lists may or may not be of assistance to a particular reader. I would suggest, however, that it is also possible to experience generalized stress and anxiety without specifically identifying the source. For that purpose, it may be of benefit for the reader to review these lists and to ponder how one's personal feelings align with the potentials they suggest.

This lengthy book is divided into only three chapters. The first provides definitions, examples, constructs, and details. However, there are familiarities and recurrences that help the reader to find identification with the topic. Chapter Two brings the focus back to the occupational arena, focusing on workers' compensation laws. Here, the reader may readily discern the influence of Judge Torrey. His style and prose are familiar to us after decades of reading. Chapter Three is focused on our reaction to the challenges of stress. It provides some guideposts and channel markers for our consideration of our stress responses. 

The authors concede that stress has been well covered, but remind us it remains debatable, despite being less often debated of late. They focus us on PTSD, and the paths by which some states seek to accommodate such complaints either on a population or special employee basis. In the inimitable Judge Torrey style, Chapter Two "features tables in which the laws of the state and federal programs are identified and specifically referenced." Judge Torrey is the Rembrandt of comparative law tables. That is all the more admirable considering that his subject (the various laws) seem sometimes to have been painted by Jackson Pollock with an attitude.

The authors help us with categorizing mental health claims, describing "three categories . . . crucial to the understanding of how mental injuries are treated by workers' compensation laws." These may not be all-encompassing, but they are a framework for our comprehension. Despite the challenges of the topic, the authors suggest states have been successful in defining these claims with reasonably "bright lines" of definition.

There are definitions, history, and theories. There is then a discussion of perceived arguments in favor and against the compensability of mental injury claims. Many will find solace in those arguments, "pro and con, with regard to compensability," but may wonder whether one's personal solace is in the reinforcement (confirmation bias) of one's predispositions or in an academic analysis of the strengths or weaknesses of either argument. A careful reading of both sets of arguments, in a dispassionate perspective, is worthwhile (even if that requires repeated re-reading).

There is also an interesting discussion of the perceived rise of mental injury claims in the 1970s, and the label of "crisis." The perceptions, judicial interpretation ("liberally allowing"), legislative reaction, and resulting further perceptions illustrate a pattern that some may perceive as all to familiar in statutory law. Though our topic is workers' compensation, many would argue that this community is an illustrative exemplar of statutory lawmaking writ large.

The context of this analysis in workers' compensation is also discussed because of the larger complexity of mental health. There is acknowledgment here that mental health issues present challenges that are complex. The authors discuss "landmark cases" that began the consideration of mental workers' compensation. They are interesting and informative. Not the least of which harkens from Florida in 1954, involving the onset of "chest pain and other maladies" when an employee was "shocked when lightning struck the" workplace. Despite no visible wound, the Court reversed a denial of benefits, strictly construing the statute in which the court could find "no definition which limits the word to a visible wound."

It is likely fair to say that the state of mental injury compensability in 2021 remains complex. There are a variety of themes present in the various states. More intriguing, however, are the various interpretations and exceptions that are possible within a particular state based upon factual settings, or more generalized criteria.

The authors note that arguments for and against compensability abound. They note that "the most compelling argument favoring compensability is that mental injuries and their causes are no longer great mysteries." The pro argument also apparently takes solace in the conclusion of Arthur Lawson that "drawing a distinction . . . is simply 'unsound.'" In this conclusion, we have the solace of "modern science" (which gave us the Thermogram and more recently the assurance that no COVID-19 vaccine could possibly be developed in less than 18 months). Science, it seems, is not infallible (just ask the "don't wear a mask," then "everyone wear a mask" scientists we've recently watched vacillating). 

It is interesting also that Professor Larson's conclusions are cast in a criticism of "reluctance" regarding mental claims, which "contrasts markedly with their stated desire to liberally construe workers' compensation statutes." Of course, the "liberal construction" paradigm has been eroded in various jurisdictions and outright rejected by statute in others, including Florida. There is no discussion of this foundational erosion. When a fundamental premise changes, do we re-examine the results previously rendered on that premise?

A more compelling argument is perhaps the safety interrelationship of the workers' compensation equation. Many see liability for workplace injuries as a detriment to employers. They perceive the threat of that detriment as an encouragement for employers to strive for safe workplaces. Thus, they contend, if mental injuries are not compensable then this "provides the employer with no incentive to work on reducing stresses that are hard to detect, or to create a more bearable or pleasant working environment." This argument pre-supposes that employers can diminish stress, and perhaps assumes that workplace stress in the two days per week we spend there is more predominant than what we all face outside of work?

The other perspective, advocating against simple compensability of mental claims is largely based upon the challenges with verification of both existence and causation of such maladies. There are perceptions that diagnosis is difficult to objectively establish or verify. There is also a perception that given a wide path to compensability, such claims might "place an economic burden on the workers' compensation and occupational disease systems." The consensus in this perspective seems primarily to the ultimate downside rather than the merits of inclusion or exclusion based upon principles of workers' compensation. 

Admittedly, all people face stressors both in home and work environments. However, the onset of back pain while lifting a box at work is probably compensable to some extent (perhaps only as exacerbation or aggravation of a pre-existing condition, but that is a discussion of degree). Lifting a similar box at home is not compensable. Much of the compensability determination in such an event (without the more obvious, witnessed, sudden, trauma) may depend upon the chronology, credibility, and consistency demonstrated. Thus, some might argue that complicated and difficult evidentiary challenges are not isolated to mental injury claims. 

Or, is the difference that there might perhaps be a greater volume of such credibility claims, or resultingly just more claims generally, and thus impacts upon resources? The authors note that "to blithely say that questions as to cause can simply be fought out in dispute resolution before compensation judges is not a satisfying answer to these concerns." They also note the impacts of lost time, "discovery of the most invasive kind," and the potential for animosity and friction between employer and employee in the litigation of such credibility-dependent claims.

The discussion of the competing perspectives and arguments is worthy reading.

Chapter Three of the book suggests paths toward addressing stress. It reemphasizes at the outset that stress is real, pervasive, and potentially "overwhelming and harmful" to us all. The fact that it may be chronic and persistent is also noted. The chapter returns to the opening discussion of causes and encourages introspection.

Introspection is a path Americans seem to covet. The authors note that "the self-help industry is valued at $10 billion." We are all striving to be a better something, somehow, someway. Might we address our stress by reading a book, gaining perspective, and reflecting? That path has not been fruitful with our other challenges, but self-help books nonetheless abound. We are unique, different, and evolving. What is workable for one may be excruciating for others, in any context. That complicates any analysis of macro systems with construction intended to accommodate our individualism while maintaining overall consistency and predictability.

The authors focus us, in closing, on recognizing that stress may be aptly approached in either a remedial or preventative methodology or perhaps both. There is a value, they stress, in recognizing the impact of stress regardless of the compensability potential, or workers' compensation context. There is value in recognizing and dealing with stress in the context of wellness or overall personal health, a necessary adjunct of which is occupational health.

At this moment, I digress for the professionals reading. You are literally employed for the purpose of shouldering the stress and challenges of others. Lawyers, doctors, nurses, case managers, adjusters, and more take on the impact of stressful situations that are not of their making nor of personal import. And, we nonetheless make those impacts personal. We empathize, sympathize, and allow others to offload their stress and anxiety upon us. We shoulder it, embrace it, and encourage it ("tell me how this affects you"). Despite our professional training or attempts to remain above circumstances, that stress can become crushing, debilitating, and darkening. As professionals, we owe it to ourselves and those around us to recognize our potential and to focus on our well-being.

So, I close with my personal advice. Exercise daily, whatever that means to you. I find a way daily to be outside and to raise my heart rate. Find outlets to bring those periods of relief from the onslaught of this world. Disconnect from the feeds, streams, news, and other socially mediated stress. There is much in our lives that we cannot control, but finding daily moments of peace and respite are well within our control. If, that is, we choose to do so. Understanding our sources of stress, our most effective personal methodologies for mediating stress, and our personal path out of stress is critical. 

This is in keeping with the themes in "Workplace Stress: Past, Present, and Future." First, that stress can be understood and discussed. Second, there are valid perspectives on stress that are worthy of consideration. And, finally, that despite the inevitability of stress we are capable of addressing stress in our lives, occupationally or personally. 

A Great Hamburger, with a Smile

The United States rapidly closures in on herd ("community") immunity to SARS-CoV-2. The scientific news continues to be positive, with increasing access to inoculation, recent revelations regarding the efficacy of interferon (Catch a Cold, 2021), and decreasing rates of death. Several authors have recently provided their thoughts stimulated by the perception of the one-year anniversary of COVID, and its impact on their business, industry, etc.

Certainly, March 2020 brought recognition of COVID-19 risks. Reactions began in earnest through last March and April; confusion among the scientific community, exacerbated public sentiment, curiosity, stress, and questions. We lived through much over the last 12 months. Some of us more comfortably than others; the simple truth is that some people are less prepared for such a situation vocationally, logistically, economically, emotionally, and more. We are a diverse people confronting a multi-faceted challenge.  

Last week, I found myself in a restaurant (a business focused on the preparation and serving of food, you may remember them). The patrons and staff shared a common feature of some curiosity. Below their eyes, where one has become accustomed to seeing swaths of fabric or paper, each of these folks exhibited a proboscis and mouth. There was a patent display of abounding smiles. 

The food was delivered on china plates, and various condiments were readily available on each table. The menu contained no caution regarding menu limitations, and those menus were not specially printed, one-use disposables. In a word, it was somewhat surreal. Customers were using a fountain to refill their own drinks. 

It caused me to reflect this morning on the last 12 months. Specifically, images of various actions and reactions. I find myself wondering if I will live to see these images repeated.

I recall the prescience I somehow had. In January 2020 while stocking up on various commodities (in a hurricane-type mindset). A few of us stocked up on non-perishable food and paper supplies. Some of our fellow travelers were openly mocking, and disdainful of those preparing. In the later months of summer, I wondered how those disdainful folks faired. 

I recall the March 2020 email notification that schools would briefly sequester, spring breaks would be extended, and the curve would be flattened. The sentiment then predicted a two-week pause to control this thing. Shortly thereafter, on a trip to Pensacola Beach for carry-out, I recall parking lots jammed with vehicles. These largely, as is normal in this part of Florida, bore the license plates of Alabama, Mississippi, Louisiana, Kentucky, Indiana, and more. The tourism early last spring was not subdued. 

Later in the spring, as this pandemic wore on, I recall traveling to Mobile Alabama. Heading west on I-10, I witnessed an exceptionally long line of vehicles queued to enter the eastbound weigh station. Upon returning to Florida, I found myself in that line. Each car was stopped. We were questioned by health officials regarding our point of origin, potential exposures, and experience of symptoms. Florida was protecting its borders. There was an effort to keep those from heavily impacted states from traveling here to convalesce. The news then was full of stories about hospitals and their challenges. We were just returning to the delivery of some medical care. 

I recall grocery shopping in the summer. Various shelves were empty (paper, cleaning supplies, various meat). I recall the signs setting limits for how many of particular items one person might purchase. On one trip, I was amused by a family of five that included a toddler no more than three years old. Each dutifully carried a basket with various items. I overheard one parent explained to the toddler, “I will carry it for now, but when we get upfront you have to carry it to the register." I wondered if that child will remember that shopping trip well enough to relate it to her/his grandchildren in 70 years?

On another shopping trip, I selected items from shelves marked with signs that read “You may only purchase one of each item.“ I dutifully selected my items. At the check-out, I was accosted by an irate store employee who berated me for purchasing two distinct name-brand cleaners. She has loudly explained to me that I could "only buy one of each." She loudly complained that I really should "read the signs." When I explained that I had one Lysol cleaner, and one Clorox cleaner, as in "one of each" as both she and the sign stated, she loudly exclaimed that I obviously did not know what “each" means. I pitied her. I can only imagine the stress that such employees faced.

Throughout the last 12 months, I listened repeatedly to lectures regarding the efficacy of facemasks, and the necessity I wear one. I also listened to contrary lectures regarding my use of masks and the lack of necessity for them. If I had been told in 2019 that Americans would wear masks, I would’ve been doubtful (perhaps even dismissive). Had I been told then that the government would attempt to mandate masks, I would have openly scoffed. As a side note, curiously, during the time that the scientist recommended against masks, I cannot recall a single government entity threatening to prosecute those who chose such use voluntarily. For following some government recommendations there is recrimination, but not for all?

In the Chinese calendar, years are named. Oddly, 2020 was the year of the rat. I had an engaging conversation late in 2020 in which our debate raged as to what label would best define that year, with several suggesting the “year of COVID.” Another conversant humorously suggested instead the "year of plexiglass." 

It was mid-summer 2020 that high-end priced plexiglass began appearing everywhere. One of the more humorous instances I experienced was a local retailer. While checking out, I was separated from the store clerk by a modest plexiglass shield. The credit terminal was 2 feet down the counter, which is further than I could reach. When I stepped towards the terminal, I was admonished by the individual bagging my groceries, who stepped back two feet to maintain social distance and who stated loudly “There’s no plexiglass between us!“ 

There’s no humor in that, the individual was striving to self-protect and was scared, and I respect that. However, having stepped back to the plexiglass portion of the counter, it occurred to me that one foot behind me stood the cashier for the next checkout lane. This employee who was separated from her customers by similar plexiglass stood a foot from me, separated by none. The incongruity of this was humorous and curious. I mentioned it to a store manager on a later visit. 

That same retailer evolved through no masks, encouraged masks, mandatory masks, recommended masks, and now seems ambivalent at best. That retailer evolved from no directions to one-way aisles, "stand here" floor markers, and shopping monitors back to shopping at will. That retailer evolved through constant cart washing, persistent store cleaning, and employees clad in goggles and gloves. It was a wild ride for some striving to meet the challenges in both safety and public perception. 

The summer 2020 news cycle will remain in my memory. Our leader's dire warnings encouraging our social distancing, encouraging our isolation, and decrying our gathering were starkly contrasted by the acquiescence in and even encouragement of riots, looting, and lawlessness. When spring 2021 brought images of spring break, the destruction, the anti-authority, and the crime, I wondered if we find ourselves on the brink of a "new normal" regarding our personal and collective safety? Has COVID changed our national DNA as regards public safety, the law, and leadership? Are we permanently changed?

Fall brought fear and dire warnings. The holiday season would be exceptionally dangerous. Simple family gatherings would be super-spreader events. Many continued to listen to the same scientist whose prior prognostications vacillated on subjects such as masks, and vaccines. How can someone be spectacularly wrong so often and still be listened to? And, Christmas came and went. Our greatest gift was the provisional approval of vaccinations (the ones that cannot be developed in less than 18 months). As I received my inoculation, I laughed remembering their mocking assurances last April that a vaccine within a year was impossible. 

The Super Bowl came to Florida in 2021. I will forever remember the prognostications of dire consequences. There was apparently a football game (I didn't watch). There was apparently not the predicted Armageddon outcome thereafter. Some experts predict Florida will reach "herd immunity" by summer, others believe it is possible sooner. Others are more skeptical, some are defeatist, and others are more optimistic. 

Very recently, on a similar shopping trip, I encountered an ultra-safe individual clad in a facemask, face shield, and bright purple latex gloves. As we went about our shopping, I ran into her on three occasions. On two of those occasions, I saw her place her gloved hand inside of her face shield and adjust her face mask. I was left with the distinct impression the mask was irritating. 

Having completed my purchases, I encountered her again in the parking lot. She had loaded her groceries, and was backing out of her space (I paused as she was driving with that face shield and I worried about being backed over). She was still clad in the bright purple surgical gloves. I wondered if she believed gloves offered some antiseptic benefit? It occurred to me that any germ she encountered in the store might as easily stick to those gloves as to her skin. I wondered if such a germ could not as easily transmit from the gloves to her face or even the steering wheel of her vehicle. Hopefully, the purple gloves made her feel safe. 

And finally, I return to that dinner last week served on reusable plates, ordered from normal menus, and delivered by smiling wait staff, sans-masks. I want to believe that the COVID pandemic draws to a close, at least in my little corner of the world. I want to revel in the scientific triumph that was recently injected into my arm. I want to believe that as individuals and a Worker’s Compensation community, we have learned and grown from this experience. I want to hope that no such future experience will so challenge us. I want to believe in the rule of law, the faith of our leadership, and the strength of our society. But, I have doubts. 

Perhaps I might live to share these experiences with my grandchildren. With time, possibly my memory of 2020 will fade. But, maybe these lessons will return to the fore in some future challenges. Some may look back on 2020 for lessons and guidance one day. Will we all remain at each other’s throats? Will violence in our streets remain the societal norm? Or, can some semblance of normalcy return to our collectivity? 

I know this for sure, that hamburger and onion rings last week were amongst the best I’ve ever had. Whether that was the food or the environment, I may never know. If I forget the rest of this, I suspect that meal will stick with me for a long time, as will the smile with which it was delivered.

Another Great High School Year

In the spring of 2021, the Florida High School Mock Trial Competition was more challenging than ever. This annual event brings together outstanding students who perform a trial in teams of six. Three take on the role of counsel, and three of witnesses. Time and again, the organizers and judges note that none of us had the wherewithal to undertake such a task in our youth. These young people are rather awe-inspiring.

All of that is true in the best of times. I refuse to believe the publicity suggesting that these are the worst of times. COVID has impacted us all, and there have been challenges this year. But, I see so much positive progress occurring in this world. I truly believe the future is very bright.

Based on the parameters set forth for the state competition, we modeled the First Circuit competition on a virtual platform. I have handled a fair number of Zoom hearings in the last year and learned a lot from those experiences. For example, I learned that equipment redundancy makes a great deal of sense (have two computers ready, just in case). It continues to astound me how many ways our old friend Murphy insinuates him/herself into our technology. And at the end of the day, if something can go wrong it will. Despite having used Zoom a great deal since this pandemic started, I learned new things last week in the competition. 

Of note, I learned how to “livestream.“ This is a topic I’ve heard mentioned over the years. Not being a Kardashian, I had never perceived its value to me. Suddenly, however, I was presented with a need to manage trial participants and found the prospects of any observers quite daunting. With two teams in a Zoom conference, along with the coach or two, myself, and some help, you are very soon beyond 15–20 people. The limitations of the platform are accommodated by creating pages of thumbnails in the “gallery view.” With many participants in a Zoom room, the thumbnail pictures become small, and scrolling is required to view participants. The "live stream" allowed spectators that did not impact the logistics of participants. 

You can also run the risk in any virtual proceeding that some interloper will choose your meeting for harassment, self-aggrandizement, or worse. Time and again I have been asked how the OJCC can fulfill its statutory obligation to conduct live hearings, consistent with the challenges of maintaining order in the hearing room. The answer, it seems quite clear, is live streaming. This allows the Zoom broadcast to be replicated in a short time-delayed chronology on our YouTube channel. – Any member of the public may attend, fulfilling our statutory duty. However, their attendance is limited to viewing and will not allow interference.

The lessons I learned from the 2021 High School competition:

Lesson one, it may not be impossible to do two things at once but it is impractical when it comes to Zoom hearings. My advice to anyone attempting such a competition is to stagger the start times. I tried once to start two rounds at one time, and it was stressful. On the second night of the competition, I offset the start times by a mere 30 minutes and it made all the difference. 

Lesson two, have help. In years past we have been fortunate to have college student's assistance with time-keeping. This year, I asked for technical help. With two college students present in each round, one to focus on timekeeping and the other to be cohost, my stress was greatly diminished. I am deeply grateful for the volunteers from the University of West Florida Legal Studies department. They supported me, caught me repeatedly when I tripped, and patiently kept us on track. I know it is biased, but I perceive young people as technology proficient. These fantastic young people did nothing during the course of our competition to diminish my faith in their technological superiority.

Lesson three, recruit great volunteers. I wish I could take credit for this. I wish that somehow these fantastic people were somehow my responsibility. We were so blessed this year to have presiding judges from the OJCC, County Court, Circuit Court, District Court, and Florida Supreme Court (retired) in this local competition. In our little, quiet, corner of the state, we had fantastic, patient, and engaged presiding judges. The attorneys who volunteered were gracious, frank, outgoing, forgiving, supportive, patient, and more. Their amazing contribution to these young people‘s lives is frankly immeasurable.

Lesson four, there’s always a kind word. We live in a stressful and challenging time. Certainly, COVID-19 has exacerbated this. But, So much more pressure is apparent around us. We live in a society fraught with divergent perspectives. We struggle at times with challenges that seem sometimes insurmountable. We may struggle with the mundane day-to-day in our lives and sometimes are faced with crushing realities. In the course of this competition, I saw competitors support opponents. I heard kind words exchanged graciously. And, as is so common with these young people, I heard a great many gracious and sincere expressions of gratitude and thanks. 

This experience caused me to look back upon my experiences with the high school mock trial program. I recall my first exposure at Fletcher High School in Jacksonville decades ago. I remember the many faces and personalities of hundreds of students I have met in the last 15 years working on the program in Pensacola. And, as I struggle to recover from an event full week, I realize how much these students have given me. I get more from this program than any of them do. 

The news is persistently focused on the “dirty laundry,“ Don Henley 1982. It is easy to believe our society has basic problems. I am not naïve enough to believe that these students are perfect, flawless, or better than we were at 17. But I’m confident that they are every bit as capable, determined, and focused as prior generations ever were. They are our future, and our future is bright indeed.

I am grateful to all who participated, supported, judged, and watched. We are lucky to have a solid state competition, an organizing and coordinating leadership, and outstanding local coaches and sponsors. But, this is my opportunity to express thanks to those who volunteered here in the First Circuit to support this program and these students:

Dr. Charlie Penrod, University of West Florida (Presiding)
Bonnie Staples, Esq (Scoring)
Brenton Goodman, Esq (Scoring)

Hon. Jennifer Frydrychowicz, First Circuit (Presiding)
Aaron McCurdy, Esq (Scoring)
Valerie Prevatte, Esq (Scoring)

Hon. Michael Allen, First Circuit (Ret). (Presiding)
Patrick Martin, Esq (Scoring)
Tara Sa’id, Esq (Scoring)

Hon. Gary Bergosh, First Circuit (Presiding)
Amy Shea, Esq (Scoring)
Aaron McCurdy, Esq (Scoring)

Hon. Ross Bilbrey, First District (Presiding)
Adam Royal, Esq (Scoring)
Amanda Kidd, Esq (Scoring)

Hon. Margret Kerr, Florida OJCC (Presiding)
Pamela Langham, Esq (Scoring)
Hana Bilicki, Esq (Scoring)

Hon. Jonathan Walker, Florida OJCC (Presiding)
Alan LaCerra, Esq (Scoring)
Shekka Drayton, Esq (Scoring)

Hon. Amy Broderson, Escambia County (Presiding)
Tara Sa’id, Esq (Scoring)
Shannon Morris, Esq (Scoring)

Hon. Kenneth Bell, Florida Supreme Court (Ret.) (Presiding)
Jessica Etherton, Esq (Scoring)
Travis Morock, Esq (Scoring)

Medical Mileage and Legislative Lessons

In 1935 workers' compensation came to Florida. We were not among the first to adopt this social safety net, in fact, we were among the very last. We are perhaps forever grateful to have beaten Mississippi to the punch; Mississippi was last in 1948. There have since been those who lament their perception that workers' compensation has contracted in its coverages and benefits, they decry a "race to the bottom" in which they perceive state legislatures engaged in a cost-focused competition to attract industry and jobs.

But, workers' compensation has also seen expansion of benefits over the years. One example is the 1964 decision of the Florida Supreme Court in which "medical mileage" was judicially added to the Florida Workers' Compensation Act. The legislature had not included this benefit when it adopted the law. The Court noted "it is true . . . that Chapter 440 does not specifically require or authorize payment of travel expenses incurred in obtaining medical treatment." Mobley v. Jack & Son Plumbing, 170 So. 2d 41, 47 (Fla. 1964).

However, the Court also noted that the law did require the employer "to furnish to the employee ‘such remedial treatment, care and attendance’ as the injury shall require." From that requirement, the Court's analysis addresses a hypothetical ambulance ride, noting that it would not "technically" be such care. From that premise, the Court reasoned that no one "would question payment of an ambulance charge." The Court next noted that "if" medical care were offered out-of-state, such an offer without accompanying transportation would be "an empty gesture."

Upon its two hypotheticals, and upon its finding of fact, the Court relied upon decisions by other states that had required medical mileage payments, including Minnesota, Nebraska, and Oklahoma. On a side note, appellate courts are generally expected to utilize the facts established in the record by lower tribunals, but there are those who advocate for appellate fact-finding. 

The Minnesota case cited by the Florida Court reached its conclusion to award transportation based upon it being "humane" and that the law "should be liberally construed." Huhn v. Foley Bros., 221 Minn. 279, 22 N.W. 2d 3 (MN 1946). The Nebraska analysis is largely a deferral to the Minnesota analysis in Huhn. Newberry v. Youngs, 80 N.W. 2d 165 (NE 1956). Finally, the Oklahoma case involved railroad fare and reached conclusions as to it being reimbursable without extensive elucidation.

Thus, in Mobley, Florida's Court added an element of benefit through inference. In part, at least, this interpretation was bounded upon the "liberally construed" foundation in Huhn. Though the original Florida workers' compensation law did not include statutory reference to "liberal construction," The Florida Court had, by 1964, long committed to that sentiment. 

In Parker v. Brinson Construction Company, Fla., 78 So. 2d 873 (Fla. 1955) it noted itself as "committed to the proposition that the Compensation Act is to be construed more favorably towards the working man. That same year in Townsley v. Miami Roofing and Sheet Metal Company, 79 So. 2d 785 (Fla 1955) it held that "it is the duty of the Court to liberally interpret the act in favor of a claimant." Thus, Mobley may have been influenced by that liberal construction sentiment indirectly without statement or citation, but certainly so in the reliance on Huhn.

In 1990, the Florida Legislature corrected the Court's "liberal construction" precedent with the creation of section 440.015. This provides:

"Disputes concerning the facts in workers' compensation cases are not to be given a broad liberal construction in favor of the employee . . . or . . . the employer."

In 1993, any doubt that this foundation applied to both factual and legal disputes was clarified with the legislature's addition of

"and the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer."

This Court

 is committed to the proposition that the Compensation Act is to be construed more favorably towards the working man (Parker v. Brinson Construction Company, Fla., 78 So.2d 873). It is the duty of the Court to liberally interpret the act in favor of a claimant (Townsley v. Miami Roofing and Sheet Metal Company, Fla., 79 So.2d 785)

Boden v. City of Hialeah, 132 So. 2d 160, 162 (Fla. 1961)

More than a dozen years after the Court decided Mobley (1977), the Florida "legislature added a provision to section 440.13 expressly authorizing such medical mileage." As the Florida First District explained later, that statutory provision remained until "the legislature amended section 440.13 in 1993 (when) it deleted this provision." The District Court's analysis of that 1993 deletion was essentially that the legislature had not changed the employer's obligations regarding transportation by removing this from the statute. Sam's Club v. Bair, 678 So. 2d 902, 903 (Fla. 1st DCA 1996).

The District Court conceded in Bair that "the legislature is presumed to have intended to alter the law unless the contrary is made clear. But, it contended that after a "court has construed a statutory provision, subsequent reenactment of that provision may be considered legislative approval of the judicial interpretation." The District Court found therefore that the removal of medical mileage from section 440.13 in 1994 was "ambiguous." The Court essentially concluded that because the 1993 statute nonetheless retained the "care and attendance" language which the Mobley Court found so inferentially persuasive in 1964, the 1993 legislature must have been endorsing Mobley, and the court-created medical transportation benefit from 1964. 

This perhaps ignores a curiosity or two. First, what did the legislature intend when it enacted the transportation statute in 1977. Did it, as "presumed," "intend[] to alter the law?" If it did not so intend, how and where is there a clear indication to the contrary? Some, perhaps, would find that clarity in its seeming adoption of Mobley in 1977? However, that might have been worthy of a sentence or two in Bair.

But, in a broader sense, when the legislature in 1993 removed the medical transportation statute enacted in 1977, the "liberal construction" foundation upon which Mobley was built had been legislatively negated and disaffirmed. In point, the very foundation of the Mobley analysis no longer stood, and thus its precedential value was at least questionable by the District Court. For some reason, that distinction was interestingly not discussed by the Bair decision. Possibly, the Court recognized and was unpersuaded by the resulting flaw in Mobley, but it is interesting that it was not explained. 

In this regard, the dissent of Justice Wells in Aguilera v. Inservices, Inc., 905 So. 2d 84, 107 (Fla. 2005) is interesting. Justice Wells recognizes the import of section 440.015, and argues that the Florida Supreme Court reliance there on Sibley v. Adjustco, Inc., 596 So. 2d 1048 (Fla.1992) was misplaced in light of its facts. The work accident in Sibley was governed by the 1989 law. As Justice Wells noted, in questioning the Court's 2005 reliance on that precedent, "Sibley was decided (by the trial court) before the passage of section 440.015, Florida Statutes." Thus, recognition of the potential for foundational shift is not unheard of in such analysis, specifically as to the sentiment of section 440.015.

The recognition of the 1993 change to section 440.015, seemingly overlooked or disregarded in 1996 in Bair, appears to first receive recognition by the appellate court in April 1998 (Orange Cty. MIS Dep't v. Hak, 710 So. 2d 998 (Fla. 1st DCA1998)), and is recognized repeatedly that year (Okeechobee Health Care v. Collins, 726 So. 2d 775 (Fla. 1st DCA 1998); McClung-Gagne v. Harbour City Volunteer Ambulance Squad, Inc., 721 So. 2d 799, 803 (Fla. 1st DCA 1998).

This is an intriguing history of Florida's workers' compensation evolution. The Court implied a benefit based upon imported Minnesotan, or broadly inferred, "liberal construction." Then followed a subsequent legislative enablement of that creation, a statutory transportation benefit published for 16 years. During those 16 years, the legislature specifically countermanded the "liberal construction" foundation of the Court's implied benefit. And, when the legislature later removed that statutory transportation benefit, the District Court concluded that the legislature nonetheless must have been legislatively endorsing the (then) thirty-year-old Mobley inference decision that "liberally constructed" that benefit in the first instance. And, to make it all the more interesting the District Court chose not to explain the inference, the import of section 440.015, or the apparent foundational shift. 

Aguilera v. Inservices, Inc., 905 So. 2d 84, 107 (Fla. 2005)

From the standpoint of legislatures, the lesson is perhaps that judicial shift may simply be easier than legislative change. It requires fewer votes and perhaps less time and process. Similarly, it often lacks broad public input that the legislative process may provide. Some would note alternatively that judicial change may be more of a challenge as it nonetheless requires both a fitting case and controversy and a litigant with the resources to individually pursue the change. 

From the perspective of the courts, the path to a Minnesotan "liberal construction" is both curious and intriguing, but the later interpretation of the legislature's removal of that statutory benefit is more intriguing still. In retrospect, one might wonder if the patent change to that "liberal construction" was argued and ignored in Bair, or neglected by the parties.

In a larger context, the "race to the bottom" argument needs to be considered in the broader nature of workers' compensation. Is it practical to conclude that legislative enactments are necessarily reducing benefits in the aggregate, or is it possible that such legislative action may merely address some judicially implied expansion of benefits, which legislatures perhaps did not intend? Is it for courts or legislatures to add or detract from the benefits and burdens of the respective parties to the "Grand Bargain?" 

Is the "Grand Bargain" about what the legislature gives or takes away? Is its measure of viability in what the courts give and the legislature takes away? Are there as likely instances of what the legislature gives and the courts takes away? In the overall analysis is there recognition that anything taken away must come from somewhere just as anything given must? That is to say, there are two parties to the "Grand Bargain," and the benefit to either is necessarily a burden in some fashion to the other. 

None of this presupposes the need for, appropriateness of, or cost of medical transportation (or any particular benefit). Sound policy justification can be made on either side of such debates by policymakers. This blog is neither an endorsement nor a criticism of any benefit under the law. The point here is that the analysis of the legislative enactments by courts is intriguing and worthy of consideration regardless of the underlying simplicity of a particular benefit such as medical transportation. And, some might say, it may be an analysis of how one defines "policymaker."

Catch a Cold!

For some idiosyncratic reason, we started feeling superstitious about wishing someone "good luck" and instead expressed it contrarily by saying "Break a leg." Contrarily, we often say to someone "Be well," "Stay safe," or similar. Why don't we instead implore them to "catch a cold?"

Some say "The best defense is a good offense." That is an old idiom of questionable origin. The point of it is that attacking your foe will consume its attention, thus leaving it less resource or attention to engage in attacking you. In a similar vein, it is sometimes possible for some foe's resources to be consumed by some other entity or force, thus resulting in a similar depletion of the foe's resources but without your effort. The old idiom for this is "my enemy's enemy is my friend." Idioms can be illuminating.

The offense and enemy idioms came to mind recently as I read a new article recently published in The Journal of Infectious Diseases, jiab147. Scientists in the United Kingdom have been studying the manner in which viral infections interact with one another. Specifically, they were interested in the relationship between the common cold (rhinovirus) and SARS-CoV-2 (which causes COVID-19). Their conclusion is that "this virus-virus interaction is likely to have a population-wide effect."

Without a doubt, there are steps that humans can take to protect against SARS-CoV-2/COVID-19. For the last year, we have heard about hand washing, not touching our face, and social distancing. For months, we have heard about mask-wearing though that has been a bit of a rollercoaster. For weeks now, we have heard about vaccines available to prevent the most serious effects of COVID-19. Each of these represents an effort we can exert. And, once inoculated, the vaccine can exert some effect of its own.

The UK research identifies an ally though; an enemy of an enemy. It is not new. The researchers note that previous studies have demonstrated that the common cold (rhinovirus) infection can stimulate the body to protect against the flu. Similarly, the rhinovirus has demonstrated some success in attenuating the severity of influenza.

The common cold has demonstrated the ability to help us defend ourselves against other viral infections. The cold has been a challenge forever, and despite herculean efforts, we as yet know of no cure. In recent years, however, we have heard promising news of progress against these pesky respiratory infections.

In 2020, there was discussion of the common cold and T-cells. The National Institute of Health (NIH) reported that our bodies can effectively learn to defend themselves against the cold virus using t-cells. That same "pre-existing T-cell memory against common cold coronaviruses can cross-recognize SARS-CoV-2." In other words, some people had a head start in resisting the novel coronavirus or in minimizing its symptomatology. In short, having had past colds assisted some of us with dealing with the exposure to SARS-CoV-2.

The new research is even more promising though. The UK scientists examined the manner in which SARS-CoV-2 replicated. The success of any virus is in its ability to invade some host and to then replicate. The simplicity of that model is then challenged if more than one virus is in competition in the same host. And, there is some hope that the common cold, while not our friend by any means, may be a less dangerous enemy than the SARS-CoV-2. Furthermore, that cold is a selfish friend that may help us ward off COVID-19 or even evict it once it has taken up residency.

That said, there is also an incidence discussion that is valid. It is noteworthy that the last year of hand washing, distancing, masking, and more have been largely successful against COVID-19. But, all of those efforts have also been largely successful against the cold and flu also. Thus, the opportunities to study SARS-CoV-2 interacting with influenza or rhinovirus have been limited. So, the UK scientists introduced these to each other in the laboratory.

What they found was intriguing. The Rhinovirus stimulates the production of interferon as a defense. And, the scientist noted that when both rhinovirus and SARS-CoV-2 were present there was a "block in SARS-CoV-2 replication." Though the virus that causes COVID-19 entered the human tissue, it was not successful multiplying. The presence of the rhinovirus was beneficial in that it does not tolerate the presence of the other virus. It inspires our immuno-response more readily and thoroughly than the SARS does. This is good news for people who have colds.

So, rhinovirus "infection impairs SARS-CoV2 replication and spread." Better news, however, is that the rhinovirus entering the body impacts COVID-19 "even . . . 24 hours after SARS-CoV-2." One can be infected with SARS-CoV-2, and catching a cold within 24 hours can be beneficial! Thus, there is a body of research developing that supports the "incurable" common cold may be more of a benefit to us than the nuisance we have always perceived.

The cold stimulates our immune systems in a more profound manner than the flu or SARS-CoV-2. Our reaction to the cold, the interferon, is effective against these and other viruses. And, as we learned early in the COVID-19 experience, our bodies' learned cold response with T-cells has the potential to help us react to new, "novel," coronaviruses to some degree. In short, the much-maligned common cold may be our best friend.

Sure, no one wants a cold. But, who wants a broken leg? Perhaps we learn to live with SARS-CoV-2 as it has come to call. Perhaps our futures bode well for ongoing habitual hand washing and vaccines. But, let me part with this wish to you - catch a cold!