Middle Management

There has been a recent focus on the mental health of employees. Dr. Kertay recently published Workplace Mental Health - More Questions than Answers? It includes a quote that captures the situation well: "Stress and burnout exist at the intersection of individual resilience, workload, and employer enlightenment." Dr. Kertay proceeds to discuss the challenges of employee wellness, and I am left with the impression that perhaps none of the workplace challenges are necessarily new. He laments that general workplace wellness efforts have not necessarily lived up to potential, and questions the role of efforts focused on mental health.

Reading the perspectives, I was reminded of a recent article published by the British Broadcasting Corporation (BBC): Why millennial managers are burned out. This suggests that the pressures of management have somehow changed and that middle managers "today face a unique set of circumstances that make burnout more likely." That is an interesting hypothesis, particularly so in light of the recent history being referred to as "the Big Quit," the "Great Resignation," and the "Mass Exodus." In short, The Washington Post reports this week that the rate at which people are leaving their jobs "remains extremely elevated," with over four million in October alone.

The BBC strives to address the segment that is management, specifically middle management. It highlights a young worker promoted to manage a team she "was already on.” She soon felt overworked, suffered "physical and mental exhaustion," and resigned. The authors note that middle management can be "isolating and taxing," in explaining this example. But, the authors do little to explain how that is any different today than in the workplace of my youth, or that of the Silent Generation, or the Greatest Generation. The workplace is stressful, management is hard, water is wet, the sky is blue.

Despite that, research is cited that middle management is currently reporting "symptoms of depression" at greater rates than other workers. For some reason, "millennial middle managers are far more likely than managers of any other generation to report burnout." Note that this says "report," so perhaps that is a distinction. Perhaps today's managers are more enlightened and willing to expose the stress or burnout that their predecessors hid and denied? 

And, the authors lay fault not on the workplace so much as on the way millennials grew "up in a culture that glorifies overwork." That is intriguing when reflecting upon the exhaustion of the 1980s workplace. I cannot speak to whether the focus on work and success is different today, but I have known a great many people over many years who glorified overwork and the drive to success. I struggle to accept that it is something novel or unique, but accept that I may merely not have the perspective to fully understand this particular generation's challenges. 

In short, the BBC article describes various challenges of middle management: "dual roles" required, managing "for the first time," struggles with "finding their place in the work" place, and pressures of proving ability while managing people who are near their same age and possibly are former co-workers turned subordinates. And, to be blunt, the article does little to explain how any of those challenges are different in today's workforce than they have ever been. Despite the article's theme of millennials, it candidly notes "middle management has always been tricky."

The BBC also focuses on the millennials "being a generation saddled with care responsibilities for both parents and children." It provides no data to suggest that such a challenge is new or unique to millennial managers. Pew reports that most people caring for parents are over 40, a milestone millennials are just achieving. It seems more likely that parental care is just now becoming a challenge for most millennials. At best, the author suggests that such dual care is a particular challenge in the time of COVID-19, which is certainly a potential (probability? certainty?). Without a doubt, those who have persevered through this pandemic in the working world deserve respect and recognition, and that goes for everyone, not merely managers. I am particularly impressed by all those who have persevered in medical care, service industries, and retail as challenges have abounded. The parents of young children have also particularly inspired me with their dedication and focus on the big "pivot" to homeschooling and more. 

The BBC concedes that a great many workers, not just middle managers, are "feeling some form of work stress during the pandemic." It focuses us on a study that demonstrates that "women are the most burnt-out group." A staggering "74% of women said they were very or somewhat stressed for work-related reasons, compared with just 61% of employed male respondents." While the 74% is staggering, the 61% is not particularly reassuring either.

Some suggest that what is different is technology. The workplace has evolved, as has work. The job today "follows us everywhere at all times.” The digital age has made it more convenient to work, and perhaps too much so. Some see the result as an "absolute collapse of boundaries between work and life.” This boundary failure may be contributing to stress and burnout. The BBC also contends that somehow "millennials may have been more susceptible to burnout than other generations."

The entire BBC article is worthy of consideration. From my perspective, it poses a great many questions and provides conclusions that seem short on data. The conclusions seem to be that the stressors of millennial managers are different, more difficult, and perhaps unique. However, absent the hypotheses regarding technology and the failure of boundaries, there is a scant explanation of the distinctions.

The fact is, however, that the workplace has become harder to escape. Email, cell phones, and more have made it easier for work to stalk us relentlessly. The workplace is likely to present stress. Life with children and parents that require care will always be stressful. The pandemic has heightened stress for everyone, but the fact remains those with others to care for (children, parents, etc.) are undoubtedly more stressed and stretched. And, in the end, a vast volume of people are quitting their jobs. That is undeniable and quantifiable, and it is creating more stressors and challenges for the co-workers who are left behind.

I return to Dr. Kertay's contention that "stress and burnout exist at the intersection of individual resilience, workload, and employer enlightenment." It is entirely likely that resilience can be learned and developed over time. We must all perhaps accept that workload has absolute limits and that they will differ from person to person. The focus, perhaps, will have to be on that "individual" element, with a recognition and appreciation that performance and capability are personal attributes. It seems that the acceptance of human limitation and resilience will have to be understood and accommodated by upper management in figuring out how to deliver products and services, that is at least part of the enlightenment mentioned. But, there is also the probability that some people will need accommodation for the emotional strain that competition, stress, and challenges bring. I leave that to the mental health professionals, but recognize the potential. 

In short, there is "stress and burnout." That is seen in the cited surveys. It is suggested that is seen in the "mass exodus." Management is going to have to comprehend both, adjust to both, and find a path forward that engages and accommodates the current generation of workers, managers, and team members. Whether the challenges are new or distinct, the fact is that those challenges are affecting today's workforce and if they are left unchecked employee turnover will continue and perhaps increase. The impact on co-workers in the wake of such departures is likely to be more stress and pressure, followed by more turnover. A problem unaddressed will only lead to more problems, and distraction from production, service, and success.

Management that addresses the challenges will likely find success, and the first step seems to be appreciation for the pressures. How can management address the stress and challenges? How can personal time and boundaries be better recognized and respected? How can retention be fostered and turnover prevented? My suggestion, as a first step, is some hard introspection by upper management in any organization, some perhaps difficult conversations with employees, and some concrete plans for moving forward with a recognition that the workplace is symbiotic and every element (person, environment, process) plays a role both in how we work within it and contribute to either the success or the ongoing and expanding stress.

Monetary Costs of Obesity

The U.S. News reported this year that obesity is troublesome for Americans, and expensive: Obesity Costs the Average U.S. Adult Almost $1,900 per Year. This in the midst of COVID as some have allowed weight to increase and fitness to languish, see Comorbidity of Obesity (October 2021). The fact is, the American physique is large and getting larger, see What's in a Name (August 2020). 

But, $1,900 is a significant amount. For context, the mean American income in 2019 was "$51,916.27, and the median annual wage was $34,248.45," according to policy advice. That means the $1,900 is between 3.6% and 5.5% of income for the average, and thus definitionally more expensive for those whose income is lower. Obesity thus has a significant financial impact.

The U.S. News story notes that weight is not news. It acknowledges the variety of challenges that may come with increased weight such as contributions "to health conditions like arthritis, diabetes, heart disease, and certain cancers." The report details that increased medical costs are not dependent upon "significant weight gain." Instead, once one enters the "obese category," then healthcare costs may increase with "even incremental increases in weight." The increases are not insignificant. An individual whose body mass was sufficient to be labeled "obese" (BMI over 30) could expect to spend an additional $253 per year with "even a one-unit increase."

A "one-unit" increase is generally five to six additional pounds. The BMI chart for various heights and weights is here. You may locate your current BMI using your data, then consider how few pounds it would require to push you into the next column. If you are 30 or over, then this BMI process labels you "obese." Various prognostications then associate an increased risk of the conditions above as well as sleep apnea, arthritis, high cholesterol, infertility, and more. Included in this is "increased risk" from COVID-19, according to Truthaboutweight.com. 

The U.S. News author quotes one commentator who encourages this news about "one unit" and risks from "incremental increase" should be interpreted as positive news. That was an interesting take, and eye-catching. A "one-unit increase" costing an additional $253 annually should be seen as positive? 

This commentator contends that the inverse should be considered: "that (similarly) small improvements in weight could save health care dollars." She encourages a "glass half-full, half-empty" perspective to encourage us to each see the potential for cost savings through even moderate reduction in body mass. And, in keeping with the study findings reported, perhaps even small incremental decreases might impact our health and upon our annual healthcare expenditures. 

The impact overall is significant according to the study cited by U.S. News. "Adulthood obesity" is apparently responsible "for nearly $173 billion in annual medical expenses nationally," and the most significant age range is those in their 60s. That similarly hit home a bit. Like it or not, we are all getting a little older with each passing day. I have been troubled in recent years as more and more of my contemporaries have begun to suffer significant medical issues and health challenges. Aging is a tough path, but as they say, it beats the alternative. 

Proponents are quoted by U.S. News as urging regulation of nutrition in children. They contend that government regulation would be appropriate to enforce sound caloric consumption, activity, and thus resulting weight. They advocate more tax burden on us all  and provision of more healthy food through government programs like "the Food Stamp and Women, Infants and Children programs" and . . . School Lunch Program." 

A study released in 2020 concluded that efforts toward more focused school lunch menus last decade had a positive impact. The University of Washington School of Public Health concluded that the 2010 Healthy, Hunger-Free Kids Act "was associated with significant increases in consuming dark green vegetables, beans, peas and whole grains and decreases in consuming refined grains." Thus, improvement in the quality of foods consumed. The study found improvement in among those eating school lunches, most significantly among those in the "low" (30% increase in score) and "low to middle" (31% increase) income categories. Thus, there is the suggestion that diet can be adapted.  

The school lunch program is already a $10.4 billion annual expenditure, according to the USDA.  Women, Infants, and Children (WIC) was another $4.9. Some estimate that the total spend on federal food assistance programs approaches $70 billion annually. The U.S. News contention that increased taxpayer burden on such programs would lead to more healthy food consumption is therefore perhaps challenging. In fact, a detailed study in 2017 found that the food stamp program (SNAP) funds were significantly spent on soda and "disproportionately" on unhealthful foods." Lots of money is being spent, and constraints in a somewhat controlled environment like school lunches may alter consumption, but discretionary food spending is largely not focused on healthy foods.

Thus, we are led back to the age-old conclusion that diet, exercise, and health are largely personal decisions. Significant weight gain or loss may be important. The good news, however, is that small incremental weight loss can bring immediate benefit. A small weight loss of 5-7 pounds (one unit) can bring $253 per year in medical cost savings. A fifteen to twenty-pound loss becomes more significant, and so on. The conclusions of the report noted by U.S. News suggests that there is immediate and significant improvement from incremental weight loss. 

As we near 2022 and consider resolutions, perhaps there are worthy goals we might make regarding small adjustments to eating habits, unhealthful food consumption, exercise, and more?

Cyber Security at WCI

The WCI will present cybersecurity as a breakout on Wednesday, December 15, 2021 (8-12:15, Crystal Ballroom J-1). I am honored to be hosting that breakout with the UWF Center for Cybersecurity, GoldSky Cyber Security, and  Eric Adams, a Tampa attorney experienced in defending businesses that face liabilities as a result of having been attacked, breached, ransomed, or worse. It is going to be an outstanding look into the threats that face small businesses in 2021, the probable path forward through increasing government scrutiny and regulation, and the challenges of tomorrow. It is a "Must-see" on a topic that your business will have to address, now or later.

When? That is a critical question. GoldSky characterizes this as a "war on cyber threat actors." We have heard that vernacular before. The government likes that phrase anytime it begins to focus on problems it perceives as major. For the "small-midsize business" (SMB), this topic is coming to the fore. Virtually all companies will have addressed threat protection by 2030, we have a busy decade before us. But, they contend the volume will be on a bell curve and that some began addressing threats in 2015, and that most will do so by 2025. The next few years will see a frenetic pace as SMB struggle to appreciate threats and guard against them. Will it become your focus before or after your business is stricken?

Where? There is a vast quantity of computer servers out there, places in the cyber world similar to states, counties, and towns in our physical world. Without offending anyone (perhaps), we can all admit that some places are decidedly less safe, less alluring, yes more seedy than others. In the Internet, those seedy spots are in the "deep web" and the very worst are in the "dark web." Do you know the difference? Why would you care? Because those are the spots in which your data will be offered for sale, where your business' reputation is threatened. 

Because, with software to protect their identity and anonymity, there are miscreants populating the Internet. They include organized crime, state-sponsored attackers, hackers, hacktivists with a cause, and ordinary people with some purpose or cause, perhaps as simple as boredom. They are in search of data and information, yours. They seek to deprive you of it in exchange for ransom. They seek to simply steal it and then threaten or ransom the people who are exposed within it. They seek to sell that information to other miscreants who will exploit that information for financial or other gain.

How? Intrusion is a usual path. They may trick one of your employees with a clandestine link in an email. They may hide a program or process in a shared document. They may plant a bug on a flash drive and leave it on the steps of your office in hopes a well-intentioned employee will plug it into a computer just to find out who "lost" the flash drive. There are a multitude of threat paths, and each of them depends in large part upon human frailty, forgetfulness, and mistake.

So what? every business in the workers' compensation industry has long labored under the burden of confidentiality and fiduciary. For decades, the treatment records of injured workers have been generated, stored, duplicated, and shared throughout care, recovery, and even palliation. For decades, we have appreciated the sensitivity of that information and spent millions of dollars storing, maintaining, and even shredding such records (and the many copies shared with other treaters, IMEs, lawyers, rehabilitation providers, financial professionals, judges, and more).

The Internet did not create identity theft. It merely made it more lucrative. The Internet allows us to sit in our living rooms and shop for products at thousands of retailers, miles distant, and make our purchases. It has changed the accessibility of those retailers, the convenience. In a parallel, the Internet did not create data security challenges, it merely made theft and attack more convenient for the miscreants.

And, unfortunately, most SMBs are approaching the challenges with the mantra of ignoring the problem in hopes that it will disappear. Others are in panic mode and jumping to solutions they do not yet understand, which may or may not even address their particular threats. Time and again, in preparing for this conference, I have heard "it can't happen to me," "I'm too small for them to fool with," and "I have anti-virus, I'm safe." The fact is that everyone is a target, Everyone will be faced with threats, decisions regarding data protection, assessing of risk, training of employees, compliance with government or client requirements, and financial risk. And, no antivirus can simply provide protection against the panoply of threats.

What if you are the target of an attack, what then? Attorney Eric Adams notes that a breach of your business may impact your company, those who trusted you with data, and even third parties. Will there be financial liabilities you face because you were victimized? That is a chilling thought. You are the VICTIM, and yet the results of some miscreant's breach of your facility could place you in further and ongoing peril. If someone broke into your office and stole critical information, the challenge would be no different. See Lloyd and Harry Wreaking Havoc (November 2021). The Internet just saves them the trouble of actually entering your office.

When you are compromised (not "if"), what are the costs? There will be "response costs" that will include your time, other management time, your IT team, outside IT experts, replacement of computer assets (hardware and software), and the impact on your reputation ("Did you hear about ________, they got hit and lost tons of data, they lost ________ as a client over it"). There will be the chance of being sued, and associated costs of "defense and damages." And, there are the potentials for costs and penalties imposed by the government for failing to protect or safeguard the information in your possession. Costs. There are a multitude of them. Attorney Eric Adams will provide critical thoughts and advice on this subject. 

Then, he will address the potentials for limiting liability. Every business makes decisions regarding risk tolerance. Each will make decisions about the potentials for liability and the products available for mitigation. Cost of insurance coverage, availability of coverage, and perceived benefit will all be worthy of consideration.  Mr. Adams will outline the "first-party" coverages that provide support and response to your business after a breach. He will dive into "third-party" coverage, in the event that the breach of your business results in damages to others (your customers, suppliers, vendors, or more). 

A major consideration in any discussion of insurance is the prevalence of "exclusionary provisions," that is contract clauses that result in non-coverage. Through stated "exclusions" and through word definitions that create exclusion, insurance policies can be a difficult read. Mr. Adams will provide insight and an overview of the complexity that may present in evaluating a cyber-coverage purchase or in dealing with the aftermath of an attack. 

How will you plan for an attack or react? Strike that, when will you be well enough informed to decide how you will plan or react. What better opportunity will you get to understand the threats and options than the "Lessons Learned" program from 8:00 to 12:15 on Wednesday, December 15, 2021, at the WCI, Marriott World Center in Orlando (Crystal Ballroom, J1)? This will be a deep dive but is a program for business owners, managers, and more. You may think you are a doctor, lawyer, or any number of other professions. BUT, you are also a businessperson, a custodian of records, and this is a critical concern you will face, now or later. 

This program will answer questions, open eyes, and help you appreciate your personal risk and path forward. I am flattered to be involved and hope to see you there.

WCI 2021 - Must See

The Workers' Compensation Institute 2021 is right around the corner. In less than two weeks we will all be back in the familiarity of the World Center, among friends, colleagues, and contemporaries. There will be the familiar lamentation that one cannot absorb it all, there is an abundance of programming. As Willy Wonka said: "so much time and so little to do. Wait a minute. Strike that. Reverse it." (Paramount 1971). 

What are we to do? We make choices, as hard as that is. So, in an attempt to assist in your endeavor, here are some thoughts on the program this year. 

Monday, December 13, 2021 10:00-11:30 Palms Canary

First, the Industry Keynote is a "must see." I am privileged to be on this panel for 2021, but it is not me you should come to see. The insight you will gain into the challenges of workers' compensation will be both broad and deep. The Out Front Ideas team (Kimberly George and Mark Walls) have built an amazingly insightful panel. Michele Adams from WalMart, K. Max Koonce from Sedgwick, and Susan Shemanski from Adecco. This is a national or international perspective on the workers' compensation process and systems. The main question to be answered is not the "does our system do harm" as the title suggests, but "how does our system do harm." Come excavate with us and get perspective on where we are challenged, and thus where we might shine.  

Close second: Monday, December 13, 2021 9:00-11:00 Crystal J-1

If you want to focus instead on equity and inclusion, This is a packed program focused on DEI - Diversity, Equality, and Inclusion. There are a multitude of speakers and they are addressing the challenges of talent management, moving beyond "lofty policies," and developing "sustainable actions." This is a hot topic and the roundtable participants will be outstanding. 

Monday afternoon it is traditional to recommend the District Court Oral Arguments (Canary 2:15-3:15). That is always a great alternative. 

However, you also cannot miss with a Lessons Learned (Crystal J-1) beginning at 1:00. This will explore our changing world, industry, and community due to the "Impact of COVID-19 on Claim Composition" (1:00-2:15) and evolve into the impact on the players and practices (2:30-3:30). You could easily glean valuable insight and foundation from these speakers. The list includes a who's who, but Dave North of Sedgwick, John Ruser of WCRI, Abbie Hudgens of Tennessee's Bureau, and more will bring an unbelievable gravity and perhaps some levity to what we have all been through. More importantly, on what tomorrow holds. 

If you have any energy left, the SAWCA Regulator Roundtable is just around the corner in Crystal G-1 from 2:00 to 4:30. When the Lessons Learned wraps, you are steps away from one of the most talent-packed rooms at the WCI. Regulators from 18 jurisdictions will be addressing what is hot in the industry. What a great way to cap off your first day. 

On Tuesday, the Lessons Learned theme continues 9:00 to 10:00 in Crystal J1 with Frank McKay of Georgia leading discussion of judicial perspectives on litigating in a "COVID Age." What has changed, where are we, and where are we headed?  Texas, Tennessee, Georgia, and Florida adjudicators will be in this discussion. It is followed by a stellar panel of attorneys bringing us what the practitioners have learned at 10:15- 11:15. A Must see. 

A close second for Tuesday morning is the perennial favorite live surgery. From 8:45 to 9:45 in Palms Canary, Randy Schwartzberg will be performing a lower extremity surgery while Dr. Warrell narrates and addresses questions. This is a favorite, because it is visual, instructive, and interesting. But, it makes for tough choices Tuesday morning. 

Later Tuesday morning (11:00-12:00), there is a fantastic program in the Risk Manager group. Publix Risk Management VP Marc Salm will lead a discussion (Grand 7A) on what is "next" in workers' compensation. With  "three of the most prominent and respected representatives" in the community, this discussion will bring incredible insight as to our future. 

Tuesday afternoon there is a Florida-centric case law update (Palms Canary) 2:15-4:15; an outstanding perspective on "Women Trail Blazers (Grand 8B), 3:00-4:00; A first-responder occupational disease expose (Crystal H) 3:15-5:15; and more.

Wednesday morning, 8:00-12:15, I will host the conclusion of the Lessons Learned (Crystal Ballroom, J1) theme as we address cybersecurity for the first time in WCI history. I will be joined by the University of West Florida's Center for Cybersecurity, GodSky Cybersecurity, and Attorney Eric Adams. We will strive to make the threats of hackers and data interference make sense. We will be focusing on the impacts to the business of workers' compensation, the sharing of information and data, and the threats that loom. This will also include critical information on the legal implications of cyber threats, liabilities, insurance and more. If you touch anyone's data, you should be concerned about and interested in your responsibilities, threats, and challenges. 

I am so looking forward to seeing everyone and hearing of your trials and triumphs. In a nutshell, there is undoubtedly too much to do and too little time. But, it is also fairly hard to go wrong with a curriculum this broad and deep. The speakers are phenomenal, and frankly it has just been too long since we gathered. I hope to see you soon in Orlando!

Learning from History

We hear it all the time. Systems or processes are overwhelmed and there are dire predictions regarding potential scenarios in our future. People argue for resource allocation based upon circumstance and their prognostications for the future. It is somewhat reminiscent of the assiduous hurricane preparation we witness the year immediately after each "big one," followed by a steady retreat to complacency as we lose our appreciation for the severity of what we have lived through.

Imagine hospitals overcome with too many patients. Imagine a scenario in which hospitals would pitch tents in an attempt to accommodate an epidemic "in every state." Imagine a situation so dire that staff is stretched and strained, overtime becomes a necessity, "friends and family" are precluded from visiting those in the hospital, and facilities turn to "canceling elective surgeries." OK, it is 2021 and no one needs to imagine any of that. If you lived through the great pandemic anywhere but under a rock, the recent reality is all-too-well-known. The oxymoronic juxtaposition of the last 18 months, our reliance upon medical professionals and others, and the current push to separate the uninoculated from employment is challenging in this context. 

But, consider that all of those effects were quoted in an article well before SARS-CoV-2 came to call in 2020. All of those dire consequences were a reality in America in 2018 as an "influenza epidemic" swept through our midst. It was "especially bad" and the system was "overwhelmed," Time reported in January 2018: Hospitals Overwhelmed by Flu Patients Are Treating Them in Tents.

Facility managers complained that they were “managing, but just barely.” Facilities were described as "inundated" and medical appointments were unavailable. States declared emergencies. Tents were pitched and care was rendered in "places where we normally wouldn’t, like in recovery rooms.” Emergency rooms were overwhelmed. Facilities strove to handle the "surge" in viral complaints, including the flu. I do not recall much news coverage of that urgency. 

There were staff shortages. Nurses pulled from other departments to care for the virus patients. Schedules were altered, and enhanced pay was offered to cover the needs. Extra shifts were worked, and some described the situation as "difficult and overwhelming." And, it was essentially the flu. The great flu epidemic of 2017-18 was a challenge. And, one might think, a learning moment. A year later, there was reflection in 2019 on the lessons. Healio reported Bad Flu Season Tests U.S. Hospitals.

It reported that hospitals had learned from the 2017-18 challenges. However, the article lead with concerns that "America’s health care systems would still be seriously challenged by another bad influenza season." There was lamentation of a lack of funding and preparedness for events like the 2017-18 influenza "surge," which impacted an "estimated 48.4 million people." There was, it seems, history occurring around us, but without our noticing too much. 

There were also lamentations regarding the need for people to be vaccinated. There was praise for hospitals that had begun vaccination programs for employees, though no mention of mandates, terminations, or recriminations. Prevention was stressed as a critical element in the effort to manage treatment resources. However, there was not discussion of masking, social distancing, or hand-washing. As a non-physician, I lack the qualifications to make such recommendations, but washing hands and maintaining distance seem minor accommodations to prevent illness. I was admittedly surprised that such precautions did not merit discussion. 

One expert was quoted regarding the failure to plan. He lauded those hospitals that had persevered through the 2017-18 influenza because "they had a pandemic preparedness plan in place." He describes how that thinking and planning had benefitted those engaged in managing care facilities. One critical element that was noted was for patients "to be discharged as promptly as medically appropriate to make sure there were enough beds available." One might wonder if discharging patients when medically appropriate is ever not the right answer? Is that really just an urgency/emergency thought? Or, is that what "medically appropriate" means? In non-surge, is there a tendency to retain patients beyond what is "appropriate?"

The 2019 article warned that "hospitals may not be prepared for an influenza pandemic." It warned of a "tight" supply of hospital beds. It noted that "Intensive care unit facilities are finite, ventilators are finite, the staff that is knowledgeable about managing patients on ventilators is finite." That remains persistently true, all resources are by definition finite. One expert warned that in the event of "a major new pandemic influenza virus," facilities and resources would be "very, very challenged.” And, that came to pass in 2020. Throughout a long experience with SARS-CoV-2, we witnessed stretched resources, overwrought personnel, and a multitude of challenges. 

There was discussion of "surge capacity." This is "unused capacity just sitting there waiting for a crisis to happen.” One expert explained that the investment in "overbuilding . . . capacity" for a potential sporadic spike in demand may not make financial sense. That capacity has cost all the time, though it may be used little or even none of the time. Will students study for medical careers if the supply drives down compensation in those fields? Despite the financial challenges of preparedness, the article noted the 2017-18 flu season “brought preparedness issues to the surface" in that regard. But, there was no rush to build capacity. 

The authors were critical of federal funding. They lamented physical facilities and personnel shortages. There was criticism for the manner in which "medical surge strategies" were developed and coordinated. In the end, there was criticism for the overall "funding for hospital or public health preparedness." Critics were broadly disdainful and asserted this widespread flu event illustrated challenges that are as important in any "surge" event though some other catastrophes may be more localized than a flu epidemic, more susceptible of addressing through outside help or patient transport. Thus, the "surge" impact could be localized or widespread, approachable in various manners, and essentially dynamic in impact or response. 

The recap concludes with the admission that predicting flu season severity is difficult. There was no prediction of COVID-19 or similar, so we might presume predicting such a pandemic is equally challenging. It lamented the lack of public understanding regarding the benefits of prevention (again no discussion of details such as hand washing or distancing), and warned that "an increase in hospitalizations by even just a few percentage points" could again push hospitals "beyond their capacity.” It warns hospitals that while responses may vary, "hospitals would find it more challenging and disruptive than if they were better resourced, prepared and rehearsed in implementing medical surge strategies.” 

In short, the recommendations were to study the 2017-18 influenza surge. There was recognition that facility and personnel supply may be outstripped by demand. Precautions and education were advocated, with a major focus on avoiding the need for medical care, and the burdens on the system. Thus, there was lamentation, prognostication, and prediction. And yet, the 2020 pandemic of SARS-CoV-2 and COVID-19 seemed to nonetheless catch many unprepared and unaware. 

It is important that these challenges were recognized, discussed, and forewarned before COVID-19 was a thing. Some of the predictions and foreboding came to pass in 2020 and beyond. Perhaps there will be more recognition in the wake of COVID-19. Like many, I do not recall the 2017-18 flu season. Despite the impacts it had, it did not impact me. Perhaps the broader impacts of COVID, the longer impacts of COVID, the deeper impacts of COVID will lead to improved "surge" planning, capacity, and preparedness? Or, perhaps with our hospital ships, field hospitals, and more we medically responded fairly effectively to the surge of a modern pandemic?

Lloyd and Harry Wreaking Havoc

We are all focusing more on security, and the World Wide Web has become a staple of our challenges in this world. Within the past couple of years, I have proceeded from blissful unawareness to a critical focus on cybersecurity. I have been fortunate to run into some of the best and brightest engaged in addressing the threats we all face in the Internet domain. On December 15, 2021, I will host a morning at the Workers' Compensation Institute, at which a preeminent group of subject-matter experts will provide cybersecurity insight for the workers' compensation world.  

As my awareness of the topic has grown, I have addressed various concerns. I am focused on this because we are all dependent upon the Internet. This community of workers' compensation has evolved, like much of the world, and is now utterly dependent upon digital data, and interdependent upon others in the systems. We see it in medical records, case-management reporting, adjusting, and more. There are vast quantities of data moving through the web to keep the world's workers' compensation benefits processes flowing, and all of that data is of potential interest to the miscreants who troll the web looking for some profit or advantage. 

Thus, there have been some posts about security; see Cybersecurity 2020's Hot Topic (January 2020); The Physical Premises of Cyber Security (August 2020); Your Cybersecurity is Your Job (June 2021); Cybersecurity Forum 2020 (August 2020); and, It Can Happen to Everyone (July 2021).

We even dedicated an edition of the Workers' Compensation Hot Seat to the topic in August 2020. That the Workers' Compensation Institute has decided to focus on this topic is telling. Over the years, it has become somewhat of a tradition that one hears of new challenges and solutions at the WCI each August. Sure, we are a little late this year in an accommodation to the SARS-CoV-2 and COVID-19. But, with vaccinations and other persistent precautions, we will gather soon in Orlando to continue that tradition.  

We are now all persistently focused upon the ether. There are so many threats to our data, coming from miscreants in the cyber world. We will have lots of discussion of that in December. But, in organizing for the December 15 program, my thoughts have returned to the physical world aspects. It is too easy to lose track of the physical threats of loss or theft that we all face from corruption or loss of flash drives, laptops, and servers. Yes, servers. 

In July 2019, The Florida Supreme Court permanently disbarred an attorney in one of the most intriguing examples of identity theft I have ever read. The referee's report is interesting and descriptive, a harbinger worthwhile for anyone that is interested in our expanding digital present. There are those in Cybersecurity who repeatedly warn us that our human elements are the greatest threat. They typically refer to someone in your office making an error, clicking on a deceptive link, or similar. But, what if you work with someone that is simply a bad actor?

In The Florida Bar v. Brady, SC19-39, an amazing recitation of facts illustrates again the physical challenges of cyber security. Following testimony and argument, the referee concluded to recommend that the attorney involved "be found guilty of violating each of the seven rules as alleged in the Bar's Petition." There is an interesting discussion of trial preparation, following instructions from the tribunal, and the appellate process as well. Any attorney interested in the Florida disciplinary process would do well to read the report issued in this unpublished Court decision. 

The attorney in this matter was an employee of a law firm but was terminated. Soon thereafter, the attorney established a website with a very similar URL (uniform resource locator, the "www" that you use to find a website). With that close similarity, this lawyer established a web presence that looked a lot like the law firm he had just departed. The owner of the real law firm, the attorney's former employer, eventually managed to get that new website closed through a court proceeding and injunction. But, for a while, the law firm owner had to contend with essentially a usurpation of his business' identity. 

The former associate who was terminated also filed information with the Florida Secretary of State to incorporate a business under the website URL name, a very similar law firm name, but that attempt was rejected as too similar. The lawyer nonetheless made contact with some opposing counsel in existing cases. He communicated that he was now "the lone true owner of" that law firm and directed future communication to himself. Thus, in a few subtle maneuvers, this attorney strove to capitalize on someone else's identity and misdirect communications and data to himself.  

But, he was not done. The attorney next resorted to simple burglary. In a scene that one might think could only be conceived by Hollywood, this attorney "and his twin brother," staged a "broad daylight" assault on the law firm (I have not named the attorney or the brother, let's simply refer to them as "Lloyd and Harry," fictitious names for convenience). Unfortunately for them, surveillance video captured the scene. See Assume Everyone is Watching (September 2015), cameras are everywhere. 

Lloyd and Harry (not their real names) backed a "truck up to . . . (the law) firm." They tied "a rope from the truck to the front door," and "rip(ped) the front doors open." They then removed "two sizeable items from the law firm," the "firm's safe," and "the firm's computer server." Thus, a physical assault evolved into a cyber attack in a somewhat spectacular manner, on video. In the event the video was not sufficient, the former employee's attorney sent the owner of the law firm a text message confirming the liberation of the data storage. 

The law firm owner sought and was granted equitable relief from a court. There were injunctive orders entered precluding the former employee lawyer from "interfering with his business," or even making contact with the firm or its clients. But, the harassment did not end. The referee noted that this attorney eventually was "held in contempt on three separate occasions by the Circuit Court for intentionally violating this injunction." There is a description in the referee order of ongoing behavior including "false and unauthorized (legal) filings," and even "forg(ing) another attorney's signature." 

The referee makes specific reference to one such filing as "patently false" as well as "a flagrant fraud upon that court." In another instance, the attorney sought to solicit the business of a client represented by the law firm that had terminated him. When that business declined to hire the attorney, he proceeded anyway to sign and file documents "in various pending . . . cases handled by" that law on behalf of firm clients and to assert that he was personally "entitled to fees from those cases."

Thus, the operation of a law firm's business was interrupted and inconvenienced. The contrarian individual committed acts that either procured the business' data or deprived the firm of that data, the theft of the server. Not addressed by the referee is whether the data on that server was backed up to allow the firm to continue to function or encrypted to prevent the miscreants of the world from harvesting that data once in possession of that server.  As easy as it may be to envision the loss of a laptop or flash drive containing a trove of data, the idea or a physical theft of a server from an office may come as a surprise threat to some readers.  

The referee recommended permanent disbarment in this instance, and the Florida Supreme Court agreed. The referee cited various precedents involving "conduct prejudicial to the administration of justice," "inability to maintain personal integrity," and more. The referee examined potential for mitigation in the facts of the case and noted that the attorney had never been disciplined for violative behavior previously. 

The referee made particular mention of the server theft. This was characterized as "an intentional interference with the administration of justice" because the theft presented "the potential to hobble the firm's practice entirely." This is a recognition of the critical nature of data in our modern world and businesses. The actions "caused significant injury to" the server's owner and the law firm, but also "indirectly, his clients." The owner of the law firm substantiated this harm in his testimony before the referee, and the referee noted that the former associate attorney "clings to his justification for his actions with a ferocity that is quite disturbing." In short, it appears that some people believe strongly in their right to interfere with or take the data that belongs to others, to you perhaps. 

No doubt, our inboxes or spam folders are often inundated with phishing emails and worse. The bad actors are striving for us to make mistakes, click links, or otherwise grant them access to our digital data. But, there is physical security involved with all of this data as well. Are physical premises appropriately secured? Is information encrypted and protected from the loss or theft of some storage media like a flash drive or a laptop? Have you ever considered the potential for someone to rip the office doors away with a truck and drive away with your server, data, and more?

Cybersecurity continues to vex and challenge us. I look forward to speaking with you about the subject as I introduce a stellar succession of speakers on December 15, 2021, at the WCI. See you there. 

Fentanyl is Killing, Still.

The Guardian recently published an expose of drug overdoses in America. The glacial pace at which we have come to grips with this crisis is intriguing and disappointing. The story is titled "How fentanyl is unfolding as one of America’s greatest tragedies." Fentanyl is a powerful synthetic opioid. Despite some voices alarmed with opioids, it is a pandemic that has run largely unabated. I have posted on the topic a few times, many of which are linked in Florida's 2018 Session - Opioids (March 2018). Drug overdose is killing Americans.

How many? In Contemptuous? (October 2021), I noted that drug overdose deaths are increasing. Forbes announced in November that deaths in 2020-21 are up 28.5% over a year prior. The overdose death toll in that period is thought to exceed 100,000 Americans. It says that roughly two-thirds of that, 64,000, are thought to be due to Fentanyl. Will the numbers matter? Forbes suggests that there are "some promising signs."

Forbes notes that following the investment of tens of millions of dollars, there has been:

"a 28% jump in the distribution of (Naxalone) medication in Pennsylvania."

"a new first-of-its-kind online portal to provide naloxone via mail order (in Michigan)"

"greater access to medical treatment for opioid use disorder, especially in prisons."

While 2020 "overdose deaths were up 16% in Michigan and Pennsylvania, these increases were significantly lower than the approximately 30% average increase seen nationally." Thus, there is progress or success seen in the increased distribution of other drugs and overdose deaths increased by only 16%. The promising signs are that with huge investments, the growth rate in deaths could be cut in half?

The Guardian article features a 13-year-old tragically taken by Fentanyl. A budding young life engaged in a community and preparing for an exciting school year. The young person had undergone a surgical procedure and was in pain. Rather than engaging a parent or the surgeon, this young person sent a "message on Snapchat" and sought marijuana. The dealer that responded offered "something better: Percocet." But, what the student received was "a counterfeit laced with fentanyl." It killed him.

The Guardian notes that supplies of fentanyl are up across the country. The contention is that the other pandemic, SARS-CoV-2, is driving demand. As Forbes puts it the COVID "pandemic uncovered and perhaps worsened a lot of underlying existing problems in society." Life, it seems, is hard and full of challenges. The onset of the SARS-CoV-2 fears, lockdowns, isolation, unemployment, and more exacerbated those challenges for many. Thus, bad situations were worsened by both infection and government reactions to it. The contention is that these stresses led to more drug use, and thus the perils of overdose. 

There is a lamentation of the supply and potency of fentanyl, though heroin and pain pills are noted also. They are referred to as "a triple wave" of opioids. But, fentanyl has a primacy because it is so potent and so profitable for dealers. The Guardian article laments that a "single fatal encounter" by "people who have never used opioids" is killing people. Those folks "don't know that these drugs are contaminated" with fentanyl. It is difficult to understand how someone who has "never used opioids" makes a decision to turn to drugs obtained illicitly. Perhaps it is through some faith in the safety of what they believe is a prescription drug merely misdirected.

Further, even "those who are accustomed to taking opioids" may find it "difficult to judge a safe dosage of fentanyl." It notes "alarming numbers of people, even children, (are) taking what they think are legitimate Percocet or Xanax pills with friends." This suggests that there are repeat users of pills they obtain from sources other than pharmacies or physicians. Despite their experience, and their familiarity with what some pill is supposed to legitimately look like, they are being fooled into deadly substitutes. 

This is troublesome to some, and tragic to many. People are literally dying because they choose to ingest substances that are dangerous. They are seeking some outlet for pain or discomfort. They lack the knowledge to judge a non-fatal dose. They are being preyed upon by dealers seeking profit at their expense. And, while there are many challenges in this world, few are both (1) killing over 100,000 Americans each year and (2) entirely preventable.

How is it that a thirteen-year-old can use Snapchat to seek marijuana? We hear of the perils of social media, but in this instance is it merely a medium for a conversation that could occur on a street corner instead? How is it that a child finds post-surgical pain and the immediate reaction is not a conversation with a parent or further care from whoever performed that surgery? How is the first reaction finding some marijuana for the pain? Has society's posture on recreational pharmaceuticals influenced a generation? How is the focus on how authentic the fake medication looks, and not on the real question of why people are putting any opioid into their system? More importantly, how many people will die before this crisis ends?

The Guardian concludes that the crisis is "causing devastation.” It notes that help may come to "those who are addicted" from taking other medications. Or, that overdose may be reversed by the administration of medication that reverses opioid effects. There are even "test strips" to detect "fentanyl in other drugs." Is is rational to believe that those who find their personal path leads to illegally obtained pills will take the time to use test strips? Will we generate enough publicity that teenagers will know to use such test strips? Will the dealers take the time to verify the safety of their product with test strips?

The Guardian concludes that drug overdose will continue because it is a symptom of an inequitable society. One source cited advocates for overcoming "instabilities," warning that "civilizations do fall if they don't." The sentiment of the article is that if people had more, did not have to work hard, and could enjoy the easy life that resort to such substances would decrease. The bad news is that there is no easy life. Certainly, some lives are easier than others, but all of them are full of stressors, complications, disappointments, and worse. 

I do not pretend to know what the answers are. But, it seems like we are reaching a tipping point. You can only suffer 28.5% increases annually for so long. At that rate of increase, Opioid overdose will be killing a million Americans a year within the next decade. Without knowing the answer, it seems fair to suggest that we need to find some answer. In the meantime, the vulnerable in society will likely keep looking for answers on Snapchat and finding solutions that are way too permanent. 

Don't Text and Depose

We have each sent an email, text, or other communication to someone in error. It happens to the best of us, even the generations that are far more adept at technology than I. We get in a hurry, we get distracted, and we just plain make mistakes.

The Florida Bar filed a complaint against a lawyer that related to text messages. That they were sent to an unintended recipient is not the crux of the matter, but it played a role nonetheless. In SC20-128, The Florida Bar complained, a Bar grievance committee "found probable cause," and the matter proceeded before a referee designated by the Florida Supreme Court.

According to the complaint, an attorney was engaged to represent the defense in a workers' compensation proceeding. During a telephonic deposition of the insurance adjuster, the defense attorney was alleged to have "surreptitiously sent text messages to the adjuster regarding her testimony." These messages "included coaching and specific directions on how to respond." Claimant's counsel noted the "typing sounds" and asked if the attorney and witness "were engaging in texting," which defense counsel denied; defense counsel asserted that he was instead texting with his daughter.

The claimant's attorney nonetheless asked that texting cease, and counsel allegedly agreed. The defense counsel later allegedly "inadvertently sent a series of text messages, intended for (the adjuster), to" claimant's counsel. At that point, claimant's counsel was reasonably convinced something was going on. A motion was filed, and an in camera inspection was conducted of "the texts sent and received." The assigned JCC concluded that the texts sent "were not protected by attorney-client privilege because they dealt with 'testimonial matters and some of them constitute witness coaching.'” Thought the judge ordered all texts produced, those supposedly between counsel and daughter never were. 

The Bar alleged that the messages sent by defense counsel were violations of Rules Regulating The Florida Bar: 3-4.3 Misconduct; 4-3.4 Fairness to Opposing Party and Counsel, and 4-8.4(d) Conduct Prejudicial to the Administration of Justice. The referee recommended that the attorney be found guilty, except as regards 4-8.4, and that a thirty-day suspension be imposed as punishment. Thus, the referee, a Florida trial judge appointed by the Court to hear the allegations and make recommendations, concluded that such behavior was not "prejudicial to the administration of justice."

The Bar sought review from the Supreme Court, which rendered its opinion on November 18, 2021. The Court agreed with the finding of guilt, but also concluded the circumstances did violate Rule 4-8.4(d), noting "that dishonesty in connection with the practice of law is prejudicial to the administration of justice." It noted referee findings that statements were "misleading and a matter contrary to honesty," and that the attorney "misrepresented" that the texting had concluded when it had not. Honesty and misrepresentation are serious conclusions of the Court. 

The Court noted that this attorney felt that workers' compensation "proceedings are informal" and therefore "felt compelled to aid his witness during the deposition . . .." The Court noted that thereafter, the attorney strove to convince opposing counsel that texting was "during the break, not during the deposition." It concluded that the attorney "failed to be transparent and forthright with the judge regarding his texts . . .." The Court addressed Rule 4-8.4 and concluded that the texts were "dishonest." It noted that they included advice "to avoid providing certain information," and "to not give an absolute answer." This, the Court concluded, violated Rule 4-8.4.

The Court noted that the referee recommended a thirty-day suspension. It noted that the behavior was:

"conduct aimed at defeating the opposing party’s lawful attempts to obtain evidence, undermining the adversarial process, and as a result, the trial court’s (JCC) intervention was required."

Furthermore, that the attorney "then made misrepresentations to cover up his misconduct." It noted that the conduct included he "repeatedly misrepresented," and that his "failure to be forthright with the Judge of Compensation Claims" was "particularly egregious." See Candor, Omission, and Persuasion (October 2021). It concluded therefore that the appropriate punishment was a ninety-one-day suspension from the practice of law. In addition, the attorney was ordered to pay The Bar $2,851.80 in costs related to the inquiry into the matter. The Court was unanimous in its conclusions regarding the three rules that were violated. 

Two Justices dissented in part. This opinion noted the "very serious nature of . . . (the) misconduct." However, the Justice would have concluded to accept the "referee's recommendation to impose a nonrehabilitative suspension." The opinion noted that the recommendation for punishment "was largely based on credibility determinations and an assessment of . . . demeanor." Concluding that the recommended thirty-day suspension was "consistent with our precedent," and that the referee was best situated to determine the credibility, the dissent would have adopted that 30-day suspension recommendation. This is consistent with the deference of appellate courts to trial judge fact-finding. 

For many readers, the Court's phraseology may engender curiosity. What is "nonrehabilitative suspension?" The Florida Bar Journal featured a story in early 2021 that provides both explanation and edification: Florida's Lawyer Discipline System - What Every Attorney Needs to Know. This describes several potential punishments that the Court might impose for lawyer behavior, from disbarment down to admonishment or even probation. It provides a clear explanation of the suspension process:

"If for '90 days or fewer,' the suspension is labelled 'a nonrehabilitative suspension.' following such a suspension, the lawyer 'is automatically eligible to practice law,' so long as 'all other conditions of the suspension order have been satisfied.' There is no process or permissions needed, no 'approvals required.'"

Thus, a nonrehabilitative suspension would be a significant interruption in one's legal practice. It would necessarily involve another attorney taking over the representation of clients, and protection of their interests. It could impact income and the acceptance of new clients. However, there have been instances in which a suspended attorney continued advertising uninterrupted for new clients. Some see incongruity in that, but it perhaps makes sense in the nonrehabilitative instance where an end date is known. 

Then, there is the rehabilitative suspension. The Bar Journal article explains:

"The suspension for '91 days or more is a rehabilitative suspension.' To return to the practice of law following such a suspension, the 'lawyer (must) . . . be reinstated to the practice of law by the court after showing that they have been rehabilitated.'"

Thus, a more significant interruption is patent, simply in the duration, though that increase may be seemingly slight (91 days versus 90 days, one day), but is significant. The rehabilitative process requires the

"lawyer must file a petition for reinstatement, undergo an investigation, establish to a referee that the lawyer has been rehabilitated and is not otherwise disqualified, and be reinstated by the court."

It is probable that such a process will be time-consuming and that a 91-day suspension could effectively be significantly longer. As reinstatement is not automatic, the potential exists that a lawyer sanctioned with a rehabilitative suspension might not ever return to the practice, and might not satisfy the Court of their contrition and rehabilitation. As Dinah Washington sang in 1959, "What a difference a day made." 

The takeaways from the Court opinion are clear. First, do not text and depose. Coaching a witness in this manner is inappropriate. In a virtual world, there is undoubtedly frustration with our environment and our surroundings. Many have taken to the "chat room" during meetings in which getting a word in edgewise is impractical. More than one has likely resorted even to a text or an email beginning with "what do you think of _____ instead?" But, in the context of a deposition, that text or email is as inappropriate as would be whispering in a witness' ear. It is wrong, coaching, and should not be done or condoned.  

Moreover, lawyers are not supposed to misrepresent and they are supposed to be forthright with the judge. When they misrepresent or are not forthright, such "dishonesty in connection with the practice of law is prejudicial to the administration of justice." This is a justice system in which the parties are afforded the opportunity to be heard regarding their claims and defenses. There is value in truth. All parties should strive for the truth. Lawyers are bound by it. In the end, the justice system works largely upon the shoulders of attorneys. Judges have to rely upon attorney representations. See Candor, Omission, and Persuasion (October 2021). 

Truthfulness is critical. Forthright responses are critical. The administration of justice depends upon it, and the profession demands it. Lawyers must be trusted to be truthful and to demand it from others. Dishonesty is the fodder of bad lawyer jokes and a demeaning of the entire profession. Those who tolerate it demean us all and discredit the very process in which we strive to help people and earn a living. Dishonor, no matter how brief or even unintended demeans the very practice of law. 

In the end, everyone has made mistakes. The very concept of "rehabilitation" expresses our hope that such mistakes can be overcome and rectified. In SC20-128, we hopefully see facts from which many can learn. Perhaps there are reminders there regarding candor, fairness, and obligation. Perhaps many would benefit from reviewing the Court's decision?

Cyber Hits the News

Ransomware is a major component of the cyber threat we all face each time we touch one of these electronic devices. In a persistent and pernicious manner, the miscreants of this world find ways to leverage our failures, capitalize on our mistakes, and monetize their malfeasance. So much of the theft that affects business has been traditional, in the world of bricks and sticks as it were. But the new age has brought new challenges aplenty.

A huge volume of informational "theft" is not about the thief possessing information, but about you being deprived of it. In the ransom setting, the thief may deny you access to your data in order to disrupt your business. Or, the thief may simply threaten you with the potential damage that could result in disclosure of your information. To a large extent, how the thief may strive to leverage you may depend in large part on how savvy, prepared, and reactive you are.

Make no mistake, there are those who are interested in flat-out theft of your data. They would love to have it, refine it, and sell it out there in the dark underbelly of the digital world. If you are in possession of data such as social security numbers, home addresses, dates of birth, credit or bank account numbers, driver's licenses, or passport numbers, then it may have value.

However, there is value also in depriving you of your data. Even a temporary interruption could affect both your ability to do business and the trust of your customers. In the first instance, imagine being locked out of your computer files. You might be unable to generate bills to your clients, unable to send/receive emails, check inventory, or deliver your services. Deprivation of your data could bring operations to a standstill. And, hours or days of staff time could be diverted to rectifying the problem.

What if you have been careful, proactive, and backed up that data? It is possible that you may be able to reasonably quickly restore your data from a backup and restart your operation. But, despite that, may still face the reality that some miscreant out there is in possession of a copy of your important data. You may find yourself faced with the unenviable task of notifying officials, notifying those whose data has been breached, and your reputation may suffer in the process.

The impacts can be felt by anyone. And, the biggest threat is likely sitting in your office today. It is not a malevolent or ignorant employee. It is a valued employee who will make a simple mistake, click a miscreant link, and admit some worm or horse into your network. The malfeasants of the underworld do not care whose data they get. They will be pleased to find someone they can leverage for millions of dollars, but won't refuse to leverage someone for less.

In short, there is no business that is safe. There is no data that is undesirable or unworthy of their attention. But, the big hits make the news.

This all returned to my consciousness in October when Sinclair Broadcasting quit broadcasting as normal. This is a big entity operating "300 stations across the country." Entities this large have IT departments and cybersecurity experts. They have software, training, and plans. And yet, they are vulnerable like we all are. Imagine the chagrin at becoming the subject of the news rather than just the purveyor of it?

ABC News reported, "Sinclair Broadcast Group hit with a ransomware attack." It described that there have been "at least two major ransomware attacks in the U.S. this year." This did not impact the company's ability to produce local news stories on the Internet. In fact, many of the stations owned by the company maintain a regular web presence in tandem with the broadcast news. Those pages are where many find the bulk of their daily local news. And, intriguingly, some of those pages did not carry the story that Sinclair had been hit, and their broadcast was interrupted.

The attack was about disruption of the business. The attack was about the access to information. And, in a significantly public forum, the threat of cybercrime was on display for many. In the spirit of 1985's "I Want My MTV," there were more than a few that exclaimed, "I want my local news." Possibly, there were those who elected to change the channel and seek that news from competitors. Ransomware and malware can be damaging to businesses in the moment and in their reputations.

Two? According to CNET, there have been five more "major" cyber events in 2021: Kaseya, JBS, Colonial Pipeline, Brenntag, and CNA Financial. Major, that is, but CNET does not list the Sinclair attack. It is fair to conclude that there have been many, many more that are not making the news, or reaching your ears. The threats are real and tangible. The big and small are at risk, and an entire industry is evolving to do battle with the miscreants, assist with recovery in their wake, address financial impacts, mitigate risk, and more.

The government is involved. As the government tends to be, it is involved a bit too slowly, too reactively, and with limited resources. But, we are seeing standards evolve. There are requirements for protecting networks and data. There are recommendations and information for the taking. And yet, there is a vast amount of business inaction, inadvertence, and ignorance.

We aim to go after some of that at the WCI this December. On Wednesday, December 15, 2021, I will lead off a breakout on cybersecurity, a WCI first. We will have the stellar team from the Center for Cybersecurity at UWF with us. They are the premier experts on this threat in the southeast, and among the world's best. The center is designated by the NSA as a hub regarding such threats and responses.

I will be joined by speakers providing the nuts and bolts of cyber presence and threat. And, the program includes an attorney discussing the liabilities that such threats bring to businesses great and small. There will be discussion of insurance for such challenges, and the intricacies that business faces in both obtaining such coverage and complying with the minimum basic standards to maintain coverage.

Is it workers' compensation? Not in the strictest sense. Does it affect everyone in the workers' compensation community? Absolutely, and without question. If you are in business, have data, or work with those who do, cybersecurity, insurance, compliance, indemnity agreements, and questions lie in your future. It is likely that they all lie in your present as well. It is time that you know what you face and how you may prevail. I hope to see the audience full of curious faces on December 15 as we start a workers' compensation community conversation about this subject. I hope you will be there. 

The Metaverse

As predicted in October, social media giant Facebook has changed its name to Meta. See The Metaverse is Coming (October 2021). Rebranding can be about a name change, or could just be focused on a logo specifically. Such efforts have been successful, but there have been some relatively memorable failures as well. Time will tell where this one falls on the spectrum, in terms of maintaining company loyalty and building the new perspective seemingly desired.

There seems to be some consensus that a metaverse is coming. It has yet to arrive and already has critics. The virtual experience is going to include headsets, avatars, enhanced graphics, and perceived benefits. There will be repetitions of the perennial cycle between software challenging hardware capabilities followed by new and expensive cards and capability, followed by more demanding software upgrades, and the cycle will be persistent. We have seen this with business software for decades. And, there will be demands for more bandwidth, faster Internet, and lamentation for the underserved (yes, here in Paradise that 5G thing is science fiction in a "Galaxy Far, Far Away").

Some perceive that the metaverse is thus an eventuality. One critic recently penned a criticism for Inc. of the Facebook marketing regarding "its vision," and concluded that he's not "pessimistic about the metaverse, . . . just pessimistic about the idea of Facebook building it." The contention is that recent advertising reveals "everything wrong with" Facebook. Despite that, it is not an indictment of what Meta does or fails to do. It is a critique of Facebook/Meta's vision of social interaction. 

This describes the Facebook "grand vision" is "that people will spend hours a day wearing headsets, living and working in virtual reality." To illustrate this, the advertisement features two neighbors who don't get on so well in person, but become friends in the ether (even to include complaining online about each other, a stab at irony and humor). The article concludes "The ad is meant to be humorous, of course. It's not, but that's not even the biggest problem."

The criticism is about the draw of spending hours daily wearing a headset immersed in another world. The author blames social media generally, but Facebook specifically, for creating a false impression that loose online exposure to people's images, comments, and otherwise somehow "is a substitute for actually engaging with real people." He contends that such interaction "doesn't mean you have a relationship," and may not mean you even "know the person."

The connections established through social media exhibit that virtue and vice are sometimes inextricably intertwined. Our greatest strength can be our greatest weakness. It is exceedingly simple to become connected to people through social media, to perceive what they publish, and their presence, and to not go through all that there is to build a relationship, or get to really know them. The very strength many find in the Internet is the ease of connecting, and that ease of "connecting" (and later dumping or ghosting) perhaps leads us into superficial and largely illusory "relationships" that pale in comparison to the real world.  That they distract us from the more present and real relationships is more lamentable. 

We need human interaction. We need community. And, for decades the busy and engaged have lamented that is is hard to meet people, to make friends, to maintain relationships. That challenge is met by social media, but with a superficial solution that builds superficial relationships. They are easy and frictionless, without consequence, disposable. But, they are likewise apt to each be worth exactly the what was invested in them - little or nothing. And, they may distract from the real and ethereal, the here and now. 

The Inc. article suggests disappointment that the metaverse vision addresses none of the criticisms that have been levelled at social media. One commentator says these include privacy, loneliness, ownership, and distraction. Those are likely worth consideration. Others contend that criticism of social media is merely the concern du jour, and like heavy metal and hip hop, concerns will fade. That may also be worthy. Is social media dangerous per se, or merely detrimental as a distraction, or just good fun?

Is there merit in asking questions about how we are "connecting" without really connecting? Is the superficial nature of social media and online relationships likely to become more meaningful in the metaverse, or as Inc. questions will it merely "be an amplified version of the kind of relationships people have been building online for years?" Is our community benefited, are we benefited by online interactions in which we might be unaware that our "friend" lives right next door?

Instead, some believe that there are challenges presented by the present situation. There are criticisms of social media. The experience is said to be manipulative, and driven by artificial intelligence and algorithms. Some claim that it is designed to appeal to our brain's chemical response system (dopamine and more), and is particularly dangerous to people predisposed (such as the young). There have been discussions of protecting children from it, but little in the way of regulation or even public health recommendations. 

Would such recommendations matter anyway? We are in the midst of one of the greatest failures of the modern age with the Opioid scandal in our midst. Public policy protects us from it. Public information on its detriments abounds. Despite this, a vast population remains engaged in consumption and use even as they see the destruction and detriment suffered by those around them. Others remain engaged in methamphetamine, alcohol, and a variety of other challenges. Would frank discussion of social media perils be any better heeded?

The Inc. author concludes that the Meta ad likely portrays exactly what Facebook sees, "an accurate picture of what Facebook is building." But, he questions whether it is the message Facebook should want to send. It leaves the author "pessimistic about the idea of Facebook building" the metaverse.  

But, it ignores that perhaps what is being built, the superficial and the shallow is exactly what people want. I know a great many who complain about social media, but very few who have walked away. Some remind me of friends who lamented cigarettes so bitterly, but always had a pack to share. People find themselves believers in what it delivers even as they criticize its weaknesses or failures. If they will not walk away from what is, why would anyone doubt the strength of an enhanced and google-cized expansion of the present?

What does it have to do with workers' compensation? A great deal actually. 

The vision for the metaverse is for it to consume your time, and fulfill your needs. This is intended to include leisure, entertainment, and gaming. However, it is also envisioned to include interaction, meetings, and collaboration. Those designing this "space" envision work being regularly conducted in the metaverse. The challenges of the environment may thus readily evolve into challenges of business, employment, and yes workers' compensation. It bears monitoring and ongoing evaluation. 

How work occurs is evolving. That will mean more remote meetings. Will hours a day in a headset lead to chronic injury (think of the ergonomic revolution in the 1990s), eye strain issues, accidental engagement (forgot to take of headset, neck jerked; did not see table, tripped and fell)? There may be future challenges in the area of work injury. Will the interweaving of virtuality and business affect work hours, fatigue, and injury? Will the mixture of work and more lead to issues regarding "course and scope" or "arising out of" and compensability?

Will businesses leap into this new paradigm? Will it bring strength, performance, savings, and profit? Will it bring complications, challenges, and injury? The future is coming, and it is potentially intriguing.