GPS Surveillance Evidence

A 2020 decision by the Florida First District Court reminds us of various realities in our modern world. Bailey v. State of Florida, No. 1D18-4514, 45 Fla. L. Weekly D2559 (Fla. 1st DCA 2020). The trial there resulted in conviction "for first-degree murder, armed robbery, and possession of a firearm by a convicted felon." It is an intriguing look into the process of police investigations, but more so into the way technology implies itself into our lives.

Surveillance video from a hotel established the victim and defendant had departed together, but the defendant returned alone. The defendant's girlfriend testified that she periodically allowed him to use her vehicle. Coincidentally, on the night of the murder, she reported her car stolen and the next day used a "GPS tracker," of which she was aware, to locate the vehicle. The police later obtained these vehicle tracking records without a subpoena and used them to demonstrate the car had been in the area in which the victim's body was found. 

In particular, the vehicle was at a specific home early in the morning when the victim was found. Police visited that home and were given surveillance camera footage with the homeowner's consent. This demonstrated the defendant's presence at that home. A warrant was then issued allowing for a search of the home revealing clothing the defendant wore the night of the murder. A warrant for the defendant's cell phone records produced electronic records that "matched the timeline of the GPS (car) records."

The appeal centers on the appellant's contention that the "GPS records" regarding the vehicle should be excluded from evidence (as well as the warrants thereafter for the home and cell phone records, referred to as "the fruits thereof"). The trial court focused on the ownership of the vehicle, concluding that as it was not the defendant's car, he "had no expectation of privacy." The appellate court focused upon this expectation of privacy argument. 

The Court explained that the privacy argument in this context is founded upon the Fourth Amendment to the United States Constitution. This precludes "unreasonable" searches. Such searches, conducted "without prior approval by judge or magistrate, are per se unreasonable." However, there are exceptions. The Court also explained the origins of the Fourth Amendment, and its "redefinition" in 1967 that "expanded the protections." Thereafter, the standard has become "the ‘reasonable expectation of privacy’ test."

If one feels somewhat unclear on the legal standard, the First District seems sympathetic, characterizing the standard as suffering from "murkiness of its application." In part, that seems intertwined with the technological (r)evolution through which we have recently lived. Despite the modern "subtler and more far-reaching means of invading privacy," the courts nonetheless strive "to ensure that the progress of science does not erode Fourth Amendment protections.” 

Thus, the analysis has evolved into two potentials for challenge: physical intrusion of the government and intrusion where "a person possesses a reasonable expectation of privacy." To prevail on this second potential the defendant must show:

he/she "sought to preserve the information in question as private," and "exhibit(ed) an actual, subjective expectation of privacy," and this "expectation is one which society recognizes as objectively reasonable."

Whether a person allows information to be revealed may be relevant in determining this expectation, however, the Court explains this is not "a mechanical" analysis. The context and expectation are critical. 

The Court turned to the specifics of the allegations in Bailey, and Supreme Court precedent in which a tracking device placed upon a vehicle was a "trespass" and thus its yield was deemed inadmissible. There were conclusions in that analysis (Jones, 565 U.S. at 430,) that hinge on the duration of such surveillance, and whether it might be characterized as "long term" or "short term." Essentially, the distinction there lies in what might be demonstrated by repeated visits to a particular venue as compared to a singular instance. 

The court here affirmed the trial court's decision not to suppress the GPS data. It noted that the evidence in this instance was "business records that might incidentally reveal location information." There is also an explanation of the distinction between tracking related to a cell phone (which "the overwhelming majority of individuals more or less must own") and how that is "distinguished from cars, which contrarily have “little capacity for escaping public scrutiny.”). In effect, vehicle GPS data is less subject to privacy concerns than cell phone GPS. This seems to be a reasonably general conclusion.
In summary, the Court noted 

"The fact remains that Appellant chose to operate a car on public roads - a car owned by another who consented to GPS tracking. The police played no role in the recording of the information and simply availed themselves of the advantages afforded by the (existing) electronic recording. Under these circumstances, any expectation of privacy on Appellant's part was not objectively reasonable."

The Court panel was unanimous in affirming the trial court. However, one judge wrote a special concurrence to express a different foundation for affirmance, the "good faith exception." Here, an interesting analysis is provided regarding the timing of the murder investigation (before Carpenter v. United States was decided by the Court - the expectation of privacy regarding cell phone information). More interesting, however, is the explanation that the vehicle in question had been "reported stolen to police," and that the police efforts to use the GPS with "the owner's apparent consent," was consistent with locating the car. The use was an "objectively reasonable response of law enforcement."

This analysis regards a criminal case, suppression of evidence, and constitutional rights. But, the analysis is pertinent to the broader world of litigation, including workers' compensation. The points to take away are that appellate decisions, even from the United States Supreme Court may present parameters and considerations that are not contained or defined by "bright lines." What is or is not reasonable in the context of privacy may be a similar trial proceeding determination to any issue requiring reasonableness. There is nuance and distinction in litigation, and therefore there will likely be facts that are pertinent in most disputes, subject to the interpretation of the trial judge. 

In this decision, there are two examples of thought processes through difficult precedents. There is discussion and edification of the role of trial court and appellate review. There is a discussion of how the concept of law struggles with the inescapable fact that our world is evolving and that technology may periodically create as many questions as it resolves. And, finally, there is reminder that a there are factual distinctions that require analysis, such as people's affinity for and dedication to their cell phones compared to their ability and willingness to park their car and walk away. The analysis of that distinction in terms of privacy and expectations is fascinating.

 

Statutory Interpretation in Colorado

The Colorado Court of Appeals rendered an interesting decision in March 2020: Kerry Fisher, v. Industrial Claim Appeals Office of the State of Colorado and State of Colorado Department of Corrections.

The central issue focused on the assignment of an impairment rating by the treating physician. The Court recognized that the American Medical Association Guides to the Evaluation of Permanent Impairment have been in use for years, and that reference to various editions of those Guides may result in various impairment ratings for the same malady and complaints. It is somewhat intriguing as consistency is one of the overarching goals of the Guides. 

The Court explained that the inconsistencies between various Editions result from “emphasis of certain areas," and as "a reflection of the latest consensus in medical science within its subject matter.” The Court noted that the Colorado statute "mentions" the Third Edition, which was published in 1988. Colorado's court concluded that the statute states that "impairment rating guidelines ... shall be based on the revised third edition of the [Guides] in effect as of July 1, 1991" (when the statute was enacted). 

This form of adoptive language is a contrast to the language used in states such as Pennsylvania and New Mexico. See Pennsylvania High Court Magnifies Protz (June 2017) and As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional (September 2015) and Will the New Guides be Lost in Translation (January 2021). States continue to struggle with the use of impairment guides while ignoring the fundamental issue.

At the core of this issue is an admission that impairment and disability are two distinct constructs. Impairment is a measure of bodily system function. It is focused on what an injury, or the residual of an injury, affects in terms of bodily function loss. That is distinct from whether a person with such an impairment can or cannot perform a (or any) occupation or job. I recently sat with two workers' compensation scholars for a discussion of comparative law in Florida, California, and Texas. The engaging conversation included highlights of how our three largest states have had different approaches to such Guides. There are intriguing differences in state approaches. 

  

Colorado's issue in Fisher Focused upon the legislature's intention when it adopted those Third Edition requirements (or "mentions" them as the Court phrased it). The statute says that impairment “shall be based on the revised third edition.” The Court struggled a bit with what that sentence meant. Essentially holding that the plain language of that sentence is unclear, the Court concluded that this language does not mean that the Guides must be used. When a statute is clear and unambiguous, the courts' analysis should end with the plain meaning. When there is ambiguity, however, the analysis should continue. 

The question arose because the treating physician assigned a 13% impairment rating, which was contested by the injured worker. The worker contested the physician's use of a method called "normalizing the impairment," which the worker contended was a departure from the method described by the AMA Guides Third Edition. The worker asserted that as the method departed from the Guides, it was inconsistent with the statutory requirement ("shall").

The “normalization” was described as the physician comparing the range of motion (the movement ability) in the patient/worker's injured joint (left knee) with the range of motion in his other (uninjured) knee. In this manner, the physician is not comparing the actual result in the injured knee to some overall population studied by the authors of the Guides, but to the more focused example afforded by this particular patient. The treating physician essentially concluded that the "normal" range of motion for this particular patient was less than "normal" in the large sample relied upon by the Guides. The physician therefore reduced the impairment rating for the injured knee to reflect the injury's effect upon that personal normal.

The practice of "normalization," the Court noted, is not the creation of the treating physician. It is quoted from a state publication, the Desk Aid, that identifies and describes the process. The publication asserts that such a practice "may be 'a better representation of the patient's pre-injury state than ... [the] population norms.'” There is also criticism of the methodology of the Third Edition as compared to the discussion of "normalization" found in the Fifth Edition. 

The Court concluded that the statute which says the impairment "shall" be based upon the Third Edition does not "bar the physician from employing the process of normalization. " The Court focused not upon the "shall," but instead upon the "based.” That word, it concluded, "is critical to interpret(ation)." The word, it explained, "as a verb" means "“to find a foundation or basis for; to find a base for” and “to make, form, or serve as a base for.” (Citing the dictionary). As a noun, the Court noted multiple definitions including "a main ingredient”; “a first or bottom layer of something on which other elements are added”; “the fundamental part of something”; and “the starting point or line for an action or undertaking.” 

Therefore, the Court concluded, that the legislature's intent in enacting the Colorado statute was that the Third Edition is to be "the starting point, not the exclusive fount, of impairment rating methodology." Had the legislature intended more limited reliance only upon the Third Edition, it would have used more concise language than "based on,” such as perhaps the word "only.” The Court noted that Kansas has reached "the same conclusion" regarding "based on" earlier in 2021. 

The injured worker raised interesting arguments about the State's adoption of the Desk Aid. He contended that this was essentially the adoption of a regulation or the promulgation of a law. The Court conceded that it might be so if doctors were required to follow the Desk Aid or if it had been created or adopted using the "rule-making process of the Administrative Procedure Act." However, the Court concluded that this publication does not  "require doctors" to use the Desk Aid or to depart from the Third Edition. The Court found no support that the State "intended it to serve as a rule that would mandate a particular result in all cases."

Alternatively, the Court explained, that even if the Desk Aid is a rule, it is not an inappropriate rule. Rather, it is a guide or interpretation that does not mandate an outcome. Therefore, it is "an 'interpretive rule' . . .  which is not subject to the formal rule-making process." Finally, the Court noted that whether a physician has appropriately "applied the Guides" is a question of fact in any case. Therefore, the trial judge's determination in a particular case should be affirmed if it is "supported by substantial evidence." Thus, the chance of a worker to challenge a physician's impairment assignment is essentially limited to the trial process rather than the appellate process in most instances. 

The Time has Come, the Time is Now

The title of this post is a quote from "Marvin K. Money will you Please go Now," by Theodor Geisel (also known as Dr. Seuss). 

The protagonist in Groundhog Day (1993), Phil Connors (Bill Murray), noted that "When Chekhov saw the long winter, he saw a winter bleak and dark and bereft of hope." That quote returned to me as I read the sobering news recently of addiction and worse in the time of COVID-19. It has been a long winter indeed. Certainly, there is much for us to celebrate in the spring of 2021, see The Future's so Bright (February 2021) and A Great Hamburger with a Smile (April 2021).  

For much of the last year, there have been prognostications that COVID-19 could result in personal and societal issues beyond the immediate scope of infection and treatment. ABC News reminded last year of concerns regarding "suicides, drug overdoses, and domestic violence." There were those who raised concerns about mental health repeatedly throughout our recent isolation and constraint secondary to COVID-19. I say "our" but some of us were fortunate to weather the year in a relatively open and free Florida. I cannot imagine the stress of living in those more constricted states, territories, or countries often featured in the news. 

I heard from people in response to the Great Hamburger. They assure me that the lockdowns, isolation, masks, and other challenges are not over everywhere. Some expressed envy that Florida's economy is running wide open and lamented their own local inability elsewhere to enjoy dining out, retail shopping, and other social interactions. But, in short, we will all eventually put COVID-19 behind us. It is not yet, by any means, over everywhere. I feel for you if you remain masked, locked down, and unvaccinated. Hopefully, however, we can each see signs of hope and improvement.

I have focused on overdose death before. In January 2017 I posted Like a Broken Record regarding overdose deaths. I lamented that the American death rate was an excruciating 55,403 in 2015. I recounted the history of increasing deaths (2012 = 33,775; 2013 = 37,542; 2014 = 42,225). The Center for Disease Control reports that "Nearly 841,000 people have died since 1999 from a drug overdose." In 2019, the rate of overdose death was 70,630, double the number in 2012. The situation, it seems, has not been improving.

Statnews reported in February 2021 that in the "12-month period ending" June 2020, there were 81,003 deaths from overdose. It says that reflects "a 20% increase and the highest number of fatal overdoses ever recorded in the U.S. in a single year." The Commonwealth Fund report is more dire still. It says that "September 2019 through August 2020" recorded 88,295 predicted deaths." It notes this is "a record high," perhaps when the final figures confirm this prediction it will be about "27% (higher) than the prior 12-month period."

The drug overdose situation, it seems, is getting worse. As a nation, we near one million overdose deaths since 1999. It is entirely likely that we will reach one million by the time we are 25 years into this still new century, 2024. At our current pace, with it nearing 100,000 annually, it is almost a certainty. And, if that rate continues, the path to the second million deaths of this millennium will be shorter still. 

In February 2021, we collectively lamented that the SARS-CoV-2 coronavirus, COVID-19, had killed over 500,000 Americans. Flags were ordered to half-mast. We were encouraged to remember the suffering and death wrought upon us by this virus. I do not suggest in any way that we should not acknowledge and mourn those losses. However, it seems that we remain inclined, societally and individually, to ignore or overlook that we lose so many Americans to overdose. 

Will recognition and flag lowering occur when we hit 100,000 per year? 150,000? At what point will we decide that society cannot endure the loss of these people, these thousands of people, each year? Why is there not a similar focus on this killer? Why is there no massive education and research focused on stopping it? Why do we not collectively focus on somehow saving these people? After flooding our conscious and communities with Narcan to treat overdoses, the deaths continue and are accelerating. Perhaps more attention and imagination are needed?

But, the worst news is that overdose has been exacerbated in the last year. One of the more dire consequences of our governments' COVID reactions appears to be the impact on our mental health and stability. StatNews reports that "drug deaths started spiking last spring." Some are attributing the increase to the pandemic. They note that it "has ushered in stress, isolation, and economic upheaval — all known triggers for addiction and relapse." There are, more simply stated, stressors that result from a pandemic.

And, perhaps more so, there are stressors that are created in response to a pandemic? The pandemic did not shut down a single economy in 2020. The shutdown was a government response to illness and the threat of infection. What if the scientists had not advised us against wearing masks last spring? See Anger and Acting Out. Might our outcome have been different without the massive work stoppage, economic impact, and sequela?

Lamentably, we will now study the impacts and results of those government efforts. Academics and researchers will spend coming years pouring over data and writing to describe the impacts that this virus has had on mental health, addiction, and some say violence, suicide, and more. Last spring, I read a piece that predicted there would be mental health impacts of this pandemic. Last spring, when many of us predicted a return to normal within months. Last spring, when our history and experience with the pandemic in America was very limited. Last spring some predicted a coming storm. 

Last Spring, I authored Stress in the Time of COVID (March 2020). I suggested that we remain vigilant, and offered some unscientific and untrained advice on dealing with stress. I suggested that there was a need for us to remain cognizant of the needs, emotions, and challenges of those around us. I have spent much of the last year striving to remind people that we have all faced challenges and have struggled. 

I was encouraged to that view, in part, by articles written by others. One, by Pew (no, not the RxProfessor, the other Pew) was an early predictor of potential challenges. On May 12, 2020, Christine Vestal wrote "Fear, Isolation, Depression: The Mental Health Fallout of a Worldwide Pandemic," and America had only entered what Chekhov might foretell as a coming long winter. She warned that there would be "emotional trauma." She warned it would be "long lasting." She noted that in May 2020 "more than 4 in 10 Americans say that stress related to the pandemic has had a negative impact on their mental health." That is 40% to you and me. That is like 131 million of us.  That was a year ago, light years ago. 

There has been a somewhat related discussion also of suicide. There were predictions during 2020 that the pandemic, stress, and challenges could lead to increased suicide rates. There were some reports of "spikes" in rates, and prognostication of pandemic implications. The Washington Post recently noted conclusions of increased suicide rates expressed by national leaders but says the current data does not necessarily support that American suicide increased last year.

The outcome of that discussion seems to be uncertain for now. The author suggests that after further study, with the passage of time and investment in research, some might eventually conclude that suicide attempts in 2020 were influenced by COVID-19 implications. It also notes overdose in a broader context than the deaths noted above. It reports an "almost doubling" of calls for help regarding overdose in 2020. It suggests that some of those, or some of the currently categorized "unintentional injuries" may end up categorized instead as suicide.

Note that. Hidden in that discussion of suicide, is an overdose fact worthy of reiteration and our careful attention: calls for help regarding overdose almost doubled in 2020. Drugs are a problem. As regards the surfing fad of the 1960s, the Beach Boys noted in "Surfin' Safari" (1962) "I tell you surfin's mighty wild, It's getting bigger every day." I would suggest that opioids, drug overdose and related societal challenges are likewise "getting bigger every day."

It is lamentable that so many faced overdose challenges last year, and that so many died. It is more lamentable that we now approach a million dead since the turn of the century and the trend shows no sign of relenting. Not to be a broken record, but I ask yet again, how many will be enough? I suggest, again, that the time has come for action and progress in our fight against drugs, overdose, and avoidable deaths. 

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.