Technology Dream or Nightmare

Remember the vaccine folks who were convinced that the government was conspiring to track us all through the vaccine program? There were a multitude of references, but this CNBC story provides some interesting insight: Why the COVID vaccines can’t contain a tracking microchip or make you magnetic. Make me magnetic? There is some appeal to that one. Remember when I discovered I was becoming cooler? See Changes Getting Cooler (November 2020). To be both cool and magnetic? Outstanding! But, alas, CNBC says that at least the magnetic part is not to be.

Oh, we can all be tracked. That has been in the news recently. See Tech Stalking News (March 2022). It is note even that difficult, apparently. Of course, the idea of being tracked has been a long-time Hollywood trope. Shows like Person of Interest (CBS 2011-2016), Stalker (CBS 2014), and One Hour Photo (Silverlight 2002). Furthermore, with the advent and proliferation of digital cameras we are all being watched much more than we might expect. See Evolving Issues of Bodycams (July 2018)

I must spend an inordinate amount of time watching movies? Perhaps. Hollywood is fairly successful with showcasing tech, but it is perhaps no Jules Verne. One intriguing device was highlighted in Total Recall (the remake, Columbia 2012 - Think Colin Farrell instead of Arnold Schwarzenegger). It was a telephone circuit implanted in the hero's hand. To make a call, he simply used his hand. This would be very handy for us forgetful folks since it is difficult to walk away and absentmindedly leave your hand on: the desk, the bathroom vanity, kitchen cabinet, top of car, etc. etc. But, I digress; we are not quite to phone implants just yet. 

However, in December 2021 it was reported that a chip could be implanted in your hand that would validate your vaccination status. France24 reported that over 6,000 in Sweden had such an implant installed. The story had breadth, and was covered in domestic sources such as the Orlando Sentinel also. The cost of this convenience was apparently about €100 (that[s 100 Euros to you or me). This would perhaps be a great convenience if you were living in one of the world's repressive regimes, like Philadelphia, but of no value here in the free state of Florida. See Pandemic Regulation a World Away (September 2021). 

And more recently still, the British Broadcasting Corporation (BBC) reports that folks are having implants installed that are linked directly to their personal finances. Gone is the need for a "bank card or his mobile phone to pay" at a business. With such a chip, one merely waives that implanted hand "near the contactless card reader, and the payment goes through." Pretty convenient. You don't have to remember your wallet, or have your cell phone (picture climbing from the pool or the sea to saunter to the bar, ala James Bond, and ordering a Vodka Martini, shaken not stirred, with a wave of your hand.

Wonder and intrigue are my first reactions. One of the most intriguing points in the article is that this is not all that new. People have had these implants since 2019; however the microchip idea dates to the 1990s. This little (about "a grain of rice") includes the chip, an antenna, and requires no "battery, or other power source." The company marketing this has not reached the level of the Swedish COVID passport folks, but claims to have installed "more than 500 of the chips."

Webroot notes that all the banks claim their chips are encrypted, but that 

"it's been proven that scanners—either homemade or easily bought—can swipe the cardholder’s name and number. A cell-phone-sized RFID reader powered at 30 dBm (decibels per milliwatt) can pick up card information from 10 feet away."

Seemingly, if such a scanner can read your phone or credit card as you walk through the airport or mall, it could similarly read your implant perhaps? Wired suggests you turn off Bluetooth and and WiFi when you are not using it. There is some suggestion that you can lose private data that way. How do you turn off the communication capability of a grain of rice implanted in your hand? Or, am I just being paranoid?

Well, those marketing this chip claim that "the reading distance is limited by the small antenna" (in the rice-sized chip).  Perhaps. They contend that the reader would have to get very close to effect a connection. Perhaps. And, possibly, I am just too much of a cynic and this is all both inevitably coming and undeniably positive. Perhaps it is the precursor to a cool phone implanted in your hand just like Collin Ferrell's Douglas Quaid in Total Recall (again, the remake, I generally hate remakes, with much more action and CGI, no offense Arnold). 

The BBC acknowledges that chips are becoming increasingly rich with data, personal data. And, those chips might be a path into the vendor's (seller's) data systems in which even more personal information might reside. In all, the cyber world is one of great opportunity and efficiency, in which lurk a vast array of miscreants and ne'er do wells. 

In the end, as the BBC author notes poignantly, we are all choosing to sacrifice some degree of the safety of our personal data for some degree of convenience and access. We will each make such choices, and be challenged by the evolving world of data, the miscreants and malcontents, and our own feelings of risk aversion. I hope you will join me at the WCI in August for a command performance of the Cyber-Security breakout and strive for a better understanding of the risks and benefits we are all weighing each day.

Maybe this whole chipping proposal is all just a dream, as Quaid's recollections of his visit to Mars turn out to be. Or, perhaps it is more apt to describe it as a nightmare worthy of avoidance? For now, color me skeptical and for now not interested in being chipped for any reason. But, perhaps "time changes everything," or so Bob Wills and Merle Haggard claim. 

 

Long Covid Seminar

The American College of Occupational and Environmental Medicine (ACOEM) hosted a free webinar (with excellent written materials) on April 13, 2022 regarding the topic of "Long-COVID." Readers may remember that I first explored that topic first in COVID-19 Regressive Impact (May 2020), in COVID-19 in Comp - October Update (October 2020), Always on my Mind (February 2021), and Mental Health (January 2022). "Long-COVID" was a potential I identified early and have studied and followed now for almost two years. That is noteworthy: we feel like it has been forever, but SARS-CoV-2 has been with us only about two years. See Happy Anniversary (March 2022).

Through it all, COVID has graced these pages. In 2020, that word appeared in over 35 posts (cataloged and linked in Florida COVID-19 Litigation September Update (September 2020). The COVID posts since September 2020 are cataloged and linked at the end of this post. It is fair that the virus, its disease process, and its impacts to our world of work and workers' compensation have been on my mind periodically in the last 24 months. Perhaps there is some name for such attention (obsession?).

The ACOEM presentation was absolutely fascinating, and involved multiple experts: Kerri Wizner, MPH, CPH; Greg Vanichkachorn, MD, MPH, FACOEM; Kurt Hegmann, MD, MPH, FACOEM; Les Kertay, PhD; and William Niehaus, MD. This was certainly a who-is-who. The discussion was detailed, focused, and supported by multiple statistics and reports. Ultimately, I concluded one critical point: Long COVID it is complex and disheartening. Ancillary to that is the conclusion that it may be significantly subjective, and there is potential for emotional factors to play a role in patient perspectives.

The entire COVID-19 community experience, without even personally suffering any infection per se, has been notably emotional for some, likely many, potentially even most. I touched on our expectations and anxieties in Mental Health (January 2022) and Uncle Buck to Ray Kinsela (July 2021); Some poignant reactions to anxiety are also discussed in Is There Repair (April 2021). Long before the pandemic, I penned Can We Help Each Other (January 2014). There I suggested that we have no way of knowing what people are subjectively experiencing; emotions and pressures surround us, and recognition of that can go a long way in working through conflict and litigation. That was true before COVID, during COVID, and will persistently remain now that COVID is largely fading in our rear-view mirror. 

Thus, the ACOEM inclusion of emotional challenges is appropriate. The speakers noted that clinicians are documenting a litany of symptoms and complaints being reported by various patients. Common "Long-COVID" symptoms include fatigue (80%), respiratory (59%), neurological (59%) subjective cognitive impairments (45%) sleep disturbance 30%), and mental health (26%). It is fair to say that I am not a medical doctor, and have no formal medical training. In fact, I have never played a medical doctor on television, and have not even stayed at a Holiday Inn express recently. Despite that deficit in expertise, I was able to reach some solid conclusions.

First, the research and investigation of this virus' physiology has just begun. There are a multitude of scientists and practitioners that are gathering data. There are teams working on isolating various aspects of both virus and disease processes for further study. There are research projects underway intended to lead to a better understanding of various intricate portions of the viral process, impact, and recovery. In short, the time seems long, but we have only just begun to fight the battles regarding COVID-19.

Intriguingly, one set of data demonstrated that the average time between evaluation for “Long COVID“ and initial infection was about three months. In that data set, it was demonstrated that 63% of patients had returned to work in some form by the time they were evaluated. Only 46% had returned to work “at baseline.“ In this population, 34% were experiencing impairments in the activities of daily living and 82% were experiencing impairment in the IADLS (Instrumental Activities of Daily Living (more complex). For a simple explanation of the distinctions between those two task lists, see ADLs v. IADLs: Understanding Daily Care in Assisted Living (September 2019).

Thus, as subjectively reported, there are significant volumes of patients experiencing notable deficits long after initial infection recovery. Dr. Vanichkachorn described a decision tree being used for the evaluation of such complaints. This begins with a general evaluation and testing, with a focus on things like vitamin levels, blood count, metabolic panel, and more. The second stage is "psychosocial support," followed by more "targeted evaluation." It is noteworthy that the emotional component is addressed immediately in this process (at least in the Mayo Clinic process described by Dr. Vanichkachorn).

Note here that we are discussing, largely, "subjectively reported" symptoms. There is not, as yet, a great deal of objective testing with which to verify symptom causation, that is to directly tie fatigue to infection (an example only). I am often fatigued and have never been infected with SARS-CoV-2. There is certainly a coincidence (had COVID-19 and now has shortness of breath, fatigue, brain fog, or other complaints). There is certainly some consensus (lots of people who had the infection are voicing similar or identical ongoing current complaints). But, as to science, experiment, and study, there is still much to learn and we are only in the beginning of what will undoubtedly be thousands of studies, experiments, papers, journal articles, and presentations. 

The "targeted evaluation" discussed in the ACOEM presentation next brings focus to specific complaints or deficits. This is largely in cardiac, pulmonary, neurological, or psychological specialties. A variety of symptoms are considered, as is the potential causative factor(s) for each. One obvious conclusion from this spectrum of specialties is that the "Long COVID" is notably complex and the investigation potentially extensive (and expensive). The discussion included references to the breadth and depth of medical investigation that is invested in the treatment of "Long COVID," and it is extensive. The panel did not address how this impacts those of us with less than "Cadillac coverage," except the oblique acknowledgment that testing and investigation can be expensive and a patient's ability to pay may be a factor in any plan for remediation of "Long COVID." For the younger folks, there was a time in America when "Cadillac" was synonymous with the epitome of luxury and perhaps excess; the younger generations might instead use "Mercedes," "Lexus," or other adjectives instead. 

Dr. Les Kertay provided an interesting and informative perspective regarding mental health in the wake of COVID-19. He noted that anxiety is a normal reaction to uncertainty and stress. The rapid and unexpected arrival of COVID-19, the rapidly shifting societal and governmental reactions to COVID-19, the 24-hour new service with politicized perspectives, and the various uncertainties of disease, economic impact, social isolation, etc. are all probable contributors to some level of stress and anxiety. In short, he emphasized that the pandemic was and is a stressor even absent personal infection or symptoms. Upon that foundational, societal, stress is layered the additional personal experience of infection, recovery, family impact, and then the "Long COVID." Dr. Kertay cites various studies in support of the prevalence of anxiety and other emotional challenges. His perspective is refreshing, informative, and worthy of consideration.

Notably, studies were cited in support of various characteristics identified with increased risk of mental health symptoms: gender, age under 40, pre-existing mental or physical diagnoses, unemployment, being a student, frequent social media exposure," substance abuse, pre-existing obsessive-compulsive disorder, and occupation (specifically noting "healthcare workers." This portion of the discussion reminds us we are individuals with challenges, needs, and emotions that are personal and subjective, if not completely unique. And, our individual reaction to stressors may be influenced by any number of pre-existing stressors, emotions, feelings, and predispositions (and the same could be said of ongoing, but similar, comorbidities). 

There were various mentions of the process of forming opinions about "Long COVID." Speakers lamented the present lack of numerous peer-reviewed quantitative, scientific studies. There seems a great reliance on scientific consensus at this stage of the investigation, care, and treatment. I have repeatedly noted the potential pitfalls of consensus, but have noted that in certain situations we are left with consensus as our only guide post. See Consensus in the Absence of Proof (January 2021). From the discussion in the ACOEM seminar, it appears that consensus will have to tide us over until we gain better chronological distance from the pandemic, as well as the corresponding greater chronological opportunity for the completion, review, and publication of more empirical and qualitative data. Undoubtedly, greater scientific proof or disproof is coming in time, but in the interim consensus reigns. 

This webinar and the accompanying slides are worthy of consideration and study. It includes questions, doubts, and conclusions. The personalities are amiable and the dialogue valuable. There is much presented regarding the accumulation of data, and some edification regarding better understanding a portion of the complaints and symptoms being presented, and being blamed on "Long COVID." 

As this pandemic evolves to endemic, and the world increasingly returns to normal (the plexiglass is disappearing at retailers the last few weeks), there will be challenges with the physical and emotional sequelae in its wake. We will all either face ongoing challenges from the SARS-CoV-2 virus or know someone who is. Those who must then make decisions as to compensability, care, and impairment/disability will be faced with questions, challenges, and disputes. It is, indeed, an interesting time through which to live. Surreal at moments, frustrating, stressful, but interesting. 

Fifty plus (approx. 57) Prior COVID Posts:

Florida COVID-19 Litigation September Update (September 2020) - includes links to 25 other posts.

COVID -19 in October Update (October 2020)

We're Back (October 2020)

Evidence and Evolving Medicine of COVID (November 2020)

Incidence or Prevalence (November 2020)

COVID-19 Update November 2020 (November 2020)

Litigation of COVID-19 Update November (December 2020)

COVID and Florida Adjudication (January 2021)

COVID-19 in Florida December Update (January 2021)

The Future is So Bright (February 2021)

Vaccinations and Implications (February 2021)

Vaccination Tribulations (February 2021)

Catch a Cold (March 2021)

A Great Hamburger with a Smile (April 2021)

Hope for No Breakthrough (April 2021)

We're Really Back (April 2021)

Is there Repair (April 2021)

The Science of Consensus and Masks Again (June 2021)

Presenteeism and the Coming Divide (June 2011)

Uncle Buck to Ray Kinsela ((July 2021)

How does the Story End? (July 2021)

Breakthrough Vacillation and Consensus (August 2021)

Tootsie Pops Make you Think (August 2021)

Inoculation Tribulation (August 2021)

Vaccines and Movies (August 2021)

Show Me the Science (September 2021)

Common Sense or Evidence (October 2021)

Departures from the FDA (October 2021)

Comorbidity of Obesity (October 2021)

Mental Health (January 2022)

Never COVID Cohort (February 2022)

Shocking Diabetes Findings (February 2022)

Happy Anniversary (March 2022)

We Are Hiring

A deadline nears on April 22, 2022. Actually, two deadlines near. In short, this organization is in a transition marked by various long-standing district offices ceasing. Counties are being relocated to other districts, workload is shifting, and it is an interesting and exciting time of change. That is likely unsettling for some. See Consolidation, Mediation, and Remuneration (March 2022) and Consolidation Plans (March 2022).

Two deadlines near, for applications as either judges of compensation claims (x3) or state mediators (x2). There are two judicial positions posted in Orlando and one in West Palm Beach. The two mediator positions are regional and there is potential for any of the state mediators to work remotely and provide mediation through the video Zoom platform; therefore, these positions might be in either Orlando, Tampa, St. Petersburg (Central Florida) or in the West Palm Beach, Ft. Lauderdale (South East Florida) areas.

It is new. It is different, and it is now. Early in my blogging career, I penned Baseball, Hot Dogs, Apple Pie and Chevrolet. (July 2013). There, I noted

"change is part of our lives. While we may find comfort in the way things were, or our perceptions of the way things have always been, the truth is that there are few constants in the world, and our industry."

In 2019, I penned The Experience on our Bench (December 2019), and noted the fluctuation we have seen regarding the cumulative experience of those who serve as adjudicators. This illustrates change and evolution in the makeup of the OJCC bench. 

We have seen some judges serve with astounding longevity. Alan Kuker served for ten terms, forty years. I know that seems unique, and it is indeed notable. However, Judge Daniel Lewis has recently been reappointed and has served since 1988. When he next faces reappointment in 2025, and hopefully he will then seek yet another term) he will have served 37 years. Longevity remains, and he may yet surpass the Judge Kuker record.

When last I looked, only about 21 JCCs have ever served in excess of 20 years. The history of this agency has been far more dominated by judges serving shorter careers here. That 21 includes Judges Lewis, Anderson, Medina-Shore, and Langham. Roughly 20% of the longest-serving (that 21) judges are on the OJCC bench today. This role can readily be a long-term career choice. A great many more judges serve ten years or more.   

The Governor's recent reappointments were very broad. Governor DeSantis reappointed 17 Judges in a single group. The vast majority of those recommended for reappointment were afforded another four year commitment. In short, the odds on reappointment and the opportunity for long-term service are outstanding. How many law firms provide the certainty and stability of providing someone a four-year commitment? There is stability and continuity in the role of Judge of Compensation Claims and stability.

After years of languishing salaries, the Judges of Compensation Claims will enjoy a significant pay increase in 2022. The salary adjustment has been a long time coming, but the process is now in place for more regular attention to this detail. The pay will not equal that of County or Circuit judges, but the new $160,000 figure is significant and evidences the judge's service is valued and appreciated. Certainly, one would make more in private practice, but the bench is a calling, a service, and a privilege. There is value here. 

Challenge? There are challenges, daily challenges. The world is a complex place, and workers' compensation is an intricate and sometimes convoluted little corner of the world. The questions that we are confronted with are a tribute to the ingenuity and intellect of the amazing lawyers who practice in this niche. Every little nuance and conflict in the law, medicine, and employment are brought before us as the parties seek the outcome that their respective argument supports.

Disputes? There are many. Trials continue to occur, but the frequency is perhaps decreasing. More cases seem to be settling, and the focus of many seems to be on issues other than remediation, rehabilitation, retraining, and reemployment. It is possible that those issues are more likely to take care of themselves than in decades past, but it is also possible that settlement is the easier path out of conflict with some measure of money being the right answer for all involved.

However, disputes remain. Some of the smartest attorneys I know practice in this little corner of the law. They are creative and imaginative. They bring well-organized, complex, and detailed disputes to trial. Unfortunately, some lawyers periodically bring half-baked, ill-conceived, or poorly defined disputes (in regard to both claims and defenses). Each category requires exceptional judicial intellect, patience, research, and effort. This is a challenging job in which there is rarely a dull moment, and there are daily intellectual challenges. 

Change? The world is undoubtedly changing. The law is seemingly evolving. See It's Not That the Wind is Blowin' (June 2021). The world of medicine is changing, as is the economy generally. The world of work is undergoing transformational change, as is the practice of law. The work and practice worlds are in the midst of new demands such as Zooming, telecommuting, management of remote staff and more presenting challenges. The world is changing; so is the OJCC. Not more or less, but changing. 

The fact is that this is a new and exciting time. It is a time in which the OJCC needs the best and the brightest in order to thrive. I am proud of the many judges with whom I have served in my tenure here. Admittedly, I have had some animated conversations with a some. I have disagreed about the law with a few. I have certainly perceived some to have had an easier time adjusting to this role than others, but similarly, I have witnessed great efforts in adapting and adjusting to this role. As I pen this, it occurs to me that I have likely supervised or practiced before well over 100 of those who have served as Florida JCCs. But, that will be a great topic for another day.

This Role. It is at various times, in a nutshell, exciting, intriguing, challenging, changing, routine, surprising, exhilarating, vexing, and in a word wonderful. It is a great job, which multiple judges have noted is the best they have ever had. See Perspectives on Being a Judge (April 2015). Unlike the practice of law, in which one might be economically constrained as regards legal research, the Judge of Compensation Claims can follow threads in the law, solve puzzles, explain distinctions, and bring certainty to workers, employers, and the community at large. It is, in short, a calling. Will you answer?

The mediator role is no less challenging, intriguing, and complicated. Those who thrive on facilitating compromise, conversation, and solutions could likely find no better profession. The OJCC mediator is busy, challenged, and in many instances revered. Our mediators help thousands of people to determine their own outcomes every year. They face workdays that include those intriguing challenges, legal conflicts, and evidentiary dilemmas. They provide a service and value that is undeniable and critical.

The deadline for Judicial applications is April 22, 2022. The details for applying are here. The mediator application deadline is also April 22, 2022, and details are available here for Central Florida and South East Florida.

I encourage you to apply. I am at your disposal if you have questions about either role and how you could fit into this team. 

 

New Section 90.2035 Judicial Notice

Judicial notice is not a topic of conversation in many groups, other than us law nerds. However, those who litigate for a living find some interest in the topic. From years of experience with litigation, there are indicators that the tool is underutilized and periodically misunderstood. Familiarity with Sections 90.201-90.207 is recommended for trial counsel.

Some judicial notice is mandatory ("shall take judicial notice") and includes constitutions, case law, statutes, and various rules of court. Section 90.201. Other provisions are seemingly permissive ("may take judicial notice"). Section 90.202. However, the "may" in 90.202 can be rendered a "shall" by an appropriate request as described in Section 90.203. This includes in section 90.202 a broader variety of court rules, foreign laws, court records, rules of governmental agencies (such as the 60Q Rules of Procedure for Workers' Compensation Adjudication), and "official acts" of the national and state governments. Often litigators forget that the OJCC is part of "state government" and takes "official acts" that might be worthy tools in a given case (notices, orders, etc.). Also included is a catch-all for "facts that are not subject to dispute." That last one is a bit subjective perhaps. 

The Florida Legislature took an interest in judicial notice in the 2022 session. Senate Bill 634 was passed and ordered "enrolled" on March 4, 2022. (It is labeled "CS for CS for SB 634," meaning that what passed was a "committee substitute" for a "committee substitute" for the originally filed bill - there were significant amendments during the process). It awaits presentment to the Governor for consideration.

The bill creates a new section of the Florida Evidence Code, section 90.2035. It is specifically focused on the progress we have all lived through in the last 30 years and the presence of information on the world wide web (Internet). It is permissive ("may"), and relates to "an image, map, location, distance, calculation, or other information taken from a widely accepted web mapping service, global satellite imaging site, or Internet mapping tool." The first notable caveat is that such an image must "indicate() the date on which the information was created."

Section 90.2035, created by CS/CS/SB 634, is reasonably detailed. It requires a notification of the intent to "offer such information," which must include specifics regarding where the data may be located on the Internet. Moreover, the section is careful to remind that such a notification can be opposed by another party with an objection (which is seemingly absent from other judicial notice rules). Despite the right to object, the new Code section leans in favor of such information.

It provides that "in civil cases, there is a rebuttable presumption that information sought to be judicially noticed . . . should be judicially noticed." An opposing party would have to demonstrate by a "greater weight of the evidence" that the information is not portrayed "fairly and accurately" in order to overcome that presumption. There might be significant expense involved with travel to and photography of such a site to rebut the accuracy presumption. If such an objection is overruled, then the "may" turns to "must take judicial notice." In the criminal context, additionally, the "court must instruct the jury that the jury may or may not accept the noticed facts as conclusive."

It is notable that Florida has both an Evidence Code passed by the Legislature and Evidence Rules adopted by the Supreme Court. See To D or not to D? That it appears, is the Question (January 2016); See also Dissing Daubert (January 2019), and Daubert's New Day (May 2019). In short, it remains up to the Florida Supreme Court to incorporate the Legislature's Code change into the Rules, or not.

What is the practical impact of such a change? The appearance of an intersection or road might be pulled from such a web platform to help the finder of fact with context and background regarding an accident site. The appearance of traffic warnings, road markings, and more might be readily presented in such a form. This is likely why the new Code section requires the presence of "the date on which the information was created," because progress is all around us perhaps. In a more general sense, one might use such an image to portray the outward appearance of a business/structure (before a storm or after), the location of adjacent or close businesses/structures, and the general topography of the land.

The main benefit to the litigant, of course, is the ease with which such images might be obtained. The cost of travel to such a location, preparation of photographs, and then provision of an evidentiary predicate to admit such photographs is likely largely avoided by this new provision. See Internet, Evidence, and Admissibility (December 2019), Better Understanding the Hearsay Rule (March 2016), and Hearsay and Authenticity (March 2020). Smart litigators will take heed when this is signed into law.

The process, of course, is not concluded. The Governor has not been presented with the bill, and a veto is always possible. However, this bill is one that may create law that any litigator in Florida should remain aware of in preparing for trial. 

Timeliness, Tolling, and Disaster

The Supreme Court of Iowa rendered an interesting opinion in December 2021 in Askvig v. Snap-on Logistics. It is a poignant reminder of the challenges of timeliness, and the challenges of a pandemic. 

Essentially, an injured worker's application for rehearing was "deemed denied," and thereafter the worker's "attorney failed to file a petition for judicial review within thirty days." This was "during the early months of the COVID pandemic." The attorney was alerted by receipt of a letter from the employer's attorney, and immediately "filed a petition for judicial review." The inevitable motion to dismiss was met by the Claimant with two "supervisory orders tolling statutes of limitations, statutes of repose, and 'similar deadline[s] for commencing an action in district court.'” 

The trial court concluded that the "thirty-day deadline for petitioning" was not a “statute of limitations, statute of repose, or similar deadline," and thus was not suspended by the Court's emergency orders related to the pandemic. Instead, the Court reminded, "it is fundamentally different. It is an appellate deadline." In this regard, similarly see Sections 440.25(5)(a), 440.271 and Florida Rule of Appellate Procedure Rule 9.180(b)(3). If an appeal in Florida is not filed within 30 days, then the court lacks jurisdiction to review a matter. 

The Court concluded that there are "practical reasons" why such an appellate deadline would be treated "differently from original deadlines", for the filing or service initiating a case. It noted that the record in the review or appeal situation is "already complete," and that the attorney/client relationship is "pre-existing," which suggests that there is minimized or no "person-to-person contact" necessary for the review or appeal. The Court explained that avoiding such contact was "the fundamental concern" that led to the administrative orders of the Court "tolling statutes of limitations, statutes of repose, and 'similar deadline[s] for commencing an action in district court.'” 

While that is undoubtedly true, it seems plausible that another concern was the work environment, office presence, lockdowns, etc. Iowa's Governor issued an emergency order in March 2020, and a reiteration of constraints in April. In short, schools were closed, businesses were restricted, and life became tumultuous in a very rapid manner. Though the Court recognized that turmoil in one respect, the filing of new cases and related deadlines, it seems to acknowledge the general disruption of life and livelihood less. 

The Court explained the timing of the administrative decision awarding some benefits in this particular case, and the Claimant's request for rehearing. As in Florida, the rehearing request did not stay the commission order. That is a challenge for many lawyers, a mistake I have seen repeatedly over the years. The time for filing an appeal just keeps ticking while a motion for rehearing is pending. It is important to seek rehearing. Always allow the trial judge to correct any error when practical. This minimizes the necessity for appellate involvement. In fact, in Florida, failing to ask for a rehearing may result in denial of relief by the appellate court, which may conclude that absent a rehearing request issues are not appropriately preserved for appeal.

In Iowa, the rehearing was "was deemed denied," because it was not acted upon. The outcome in Florida is similar, with Rule 60Q6.122 deeming such an order denied if it is not ruled upon within 10 days of service. In Florida, the thirty days to appeal begins to run upon issuance of the order. In Iowa, the situation was a bit more forgiving, with the appellate deadline of thirty days beginning upon that deemed denial of the rehearing. 

Unfortunately for the attorney and Claimant, that time began to run in mid-March 2020 just as the scourge of Sars-CoV-2 was upon us and efforts began for the "short pause" we were all told was expected to "flatten the curve" before we all returned to normal. In retrospect, those promises themselves were a bit flat and uninformed. The Claimant's attorney pled those challenges, the fact that the attorney's staff was "working from remote locations," and how the pandemic challenged law practice. The Court was not persuaded. 

The Court explained that the review statute is "different from a statute of limitations or a statute of repose in that it is an appellate deadline." It noted that "the party petitioning for judicial review is not 'commencing an action,'" but is "continuing the action." Therefore, it noted that there is "often less tolerance for equitable modification of appellate deadlines." The Court perceived "real obstacles to filing and serving original actions" in COVID. It noted the challenges of meeting with clients, the service of process, and the pandemic. However, it concluded that "these concerns do not apply to judicial review cases."

The Court also seemed persuaded by math and impact. It noted that extending a statute of limitations, which are typically calculated in years," by 76 days would be different than extending an appellate deadline that was only 30 days. Increasing a two-year statute by 76 days is a 10% increase; increasing the appellate deadline of 30 days by 76 days is a 250% increase. That may seem to some an argument of impact rather than logic. More importantly, perhaps, is the Court's reminder that the appellate deadline in Iowa, as in Florida, "is jurisdictional." Thus, it explained, the deadline "is not subject to equitable tolling doctrines like estoppel." Before COVID, the Court had previously concluded that courts "cannot expand their judicial review jurisdiction by allowing" late filed appeals. While the math might provide solace, it is this second explanation that more likely supports the Court's conclusion and decision. 

The Court was also critical of the Claimant's expressed reasons for delay. It noted that the Claimant did not assert "reliance on the Court's" tolling orders. Though Claimant argued those orders should afford her relief, she did not expressly rely upon them in consciously electing not to proceed in a timely manner. Claimant's counsel's arguments instead were related to deadlines "overlooked," the changes in workload, work assignment, and the more generalized challenges that COVID presented to the working world, such as shut-downs and sheltering. 

The Court found those representations of challenges believable and credible, and noted that they "could have justified the extension of any deadline." However, it noted that extension of deadlines is not what the Court had done in the two "supervisory orders." that it issued in April 2020 and beyond. It responded to the Claimant's assertion that despite not being "statutes of limitations, (or) statutes of repose," the Courts' additional language "'similar deadline' must mean something." Therefore, that "it must include appellate deadlines." The Court reiterated that this was an appellate deadline and that Iowa law includes various other deadlines "that are more akin to statutes of limitations or repose." Thus, the meaning of "similar deadline" could be seen elsewhere in the law and therefore not specifically focused only upon the appellate deadline that would provide Claimant relief in this instance. 

The impact of the analysis is of course critical in Iowa. However, it is worthy of consideration by those in other jurisdictions. Certainly, one hopes to never face the challenges of another pandemic. However, the fact is many of us face the potential of similar challenges from things as mundane as weather emergencies. See Weather, Allegations, and Comp (April 2022). Would the Florida courts similarly view time extension and the jurisdictional nature of the 30 days for appeal? Undoubtedly, that may well depend upon the language used in any such tolling orders and the nature of such emergencies. That could also depend, as it apparently did in Iowa, on any argument of "reliance" upon such an order. 

In short, the best answer is "it depends." The fact is that the pandemic, particularly its onset, was stressful, distracting, and challenging in many ways. Similarly, so might a hurricane, flood, or any number of similar situations or events. The Iowa decision reminds all that nonetheless timely filing may be necessary for the protection of a client's interest, and therefore attorneys and parties must remain focused even in the most challenging of times. In the era of electronic filing, such action is facilitated. Notably, perhaps such timelines should be among the attorney's primary concerns when disasters and challenges threaten.  

The Time is Now

Aging is not new. Generations before us have come, stayed, and moved on. In their wake, there has persistently been some population of the "next generation" (note that is not capitalized, and not "Generation Next") ready to step forward into leadership. The world of workers' compensation faces a crossroads of sorts. It is not new, we've discussed it before, but it is time to get serious. We find ourselves surrounded by many greying and seasoned professionals, and we might well worry about the conspicuous dearth of the "next generation." Yeah, yeah, yeah - "OK Boomer . . .." But, seriously folks. 

I have counseled many young people, striving to be a mentor. See Bring Value (February 2020) for a discussion of the various generations and how they may play in our future. We always have great opportunities to assist those who would strive to replace us in this (or any) community. See Reminders of the Value of Mentoring (September 2016). The Inns of Court movement has recognized that, and across the state and nation various seasoned attorneys have striven to advance the next generation. See Pet Peeves of Judges (February 2021). It is not limited to the legal community, various professions are struggling with their "next generation."

At the Forum in April, See Back to the Forum (April 2022), I was again struck by the collective chronology of the gathering (we are old). As one of the younger folks in the crowd (sarcasm), I noted that while we found ourselves back together and celebrating the pandemic's demise, there were not many new faces in the crowd. I say this not to offend you, and apologize if I have, but to strive to bring home the challenges we face as a community.

This is not a new issue. Bob Wilson and I addressed this on the Workers' Compensation Hot Seat in March 2020: Rise of the Millennials, the Passing of the Baton. Barry Bloom and Mark Pew wrote a compelling piece in Risk and Insurance in 2020. They noted:

"We are confronting an existential threat to the long-term viability of our industry due to the huge and complex passing of the torch to subsequent generations."

Yes, we are old, worn, and perhaps a bit jaded. We may be set in our ways, despite our self-congratulations at having weathered the recent SARS-CoV-2 storm, and brilliantly innovating in the process. We may feel we are "with it," that we innovated, that we improvised, that we overcame. But, at the end of the day, I might suggest that as I look around - "Most have seen too many winters . . . or too few." (The Two Towers, New Line, 2002).

This theme was illustrated in various exchanges. Mark Touby noted, in introducing the Current Trends panel, that Dawn Traverso has served for 17 years as the Continuing Education (CE) Chair of the Section. While that is laudable, why has no one from the "next generation" come along to assist her and to grow into leadership? Notably, Rogers Turner is taking over this CE responsibility, there is change, but he is more of my own generation. Where is the "next generation?"

There are the typical explanations or excuses to which we might retreat over cocktails (the more cocktails, the more philosophical the conversation seems to become). We might lament "these kids today," and we might assuage our sensibilities with self-justification of the merits of our own experiences and perceptions. But, in the end, however, we explain or cast blame, the fact is that our community is seemingly not attracting young people. Or, are they just not interested in hanging out at conferences with us old people? I look up and down the convention center at the Forum and I ask aloud "Will this event occur in 2032?" Will the current leaders like Stacy Hosman, Leopold Garcia, Mark Touby, and others still be producing such content? Call me skeptical. So, if not them, then who?

There are apparently not as many young people in this community. I can accept that. So, it may be that the "next generation" finds value in things we may not (or less so). It may be that the "old ways" are not necessarily the best ways for the "next generation." And I am certain we can all find plenty to lament, to doubt, and to denigrate ("You kids get off my lawn"). We can be cynical, delusional, or worse. But, at the end of the day, none of us is going to be here forever. Who is the future of workers' compensation?

We have asked this rhetorically for years. We have lamented, prognosticated, discussed, and published. A generation or two ago, Theodor Geisel penned Marvin K. Mooney. In it, he expressed immediacy, "The time has come. The time is now." How many companies, law firms, or organizations brought the "next (comp) generation" to the Forum? I met one young attorney. It was a delight. She was lauded by, accompanied by, introduced by, a partner for whom she works. She is being supported and integrated into our community. That is heartwarming. But, when I note "I met one," the tragedy is that I met only one.

"The time is now."

It is time for the "older adults" to focus.

The "next generation" is seemingly not coming looking for us. We must go looking for them. How do we hire them, motivate them, and retain them?

The "next generation" may not share our values, see our imperatives, or appreciate our lessons. But, we pre-geriatrics are fast collectively approaching irrelevance, and they are the future. Like it or not, it is their values, imperatives, and lessons that matter. We have to get over how "they" are not like "us." They will take the wheel, and we must adjust to them. It is their values that will be the future, whatever they choose. 

How do we pass on what we've learned in a manner that brings them value, appeals to their needs, and affords them growth? How do we show them why we appreciate and value what we do (gathering, collaborating, educating), so that they might come to value something similar?

How do we pass the torch, recognizing that the future is not ours but theirs? I tell my students I want them to succeed (so they can pay taxes and support me in my old age - I am only half joking). 

We antiques ("classics"?) can fade into the past sitting in a circle and complaining to each other and telling war stories. There will be a future with or without us. Or, we can find ways to connect with the young now and provide them support, encouragement, and growth. We can be a part of their future as they choose it or consign ourselves to sit on the porch and yell as their future happens without us.

Like this, or don't. Tell me I'm wrong! Or, send me a note and let's start talking about how we help the "next generation" or Next Generation build a foundation for their future in the law, claims, medicine, risk, or beyond.

"The time is now." 

Back to the Forum

The 2021 Workers’ Compensation Forum in Orlando was a much-anticipated event. The world at large was seemingly just awakening from a pandemic, though Florida had largely returned to normal in 2020. See Happy Anniversary (March 2022). As we neared April 2021, I was asked time and again about operations, and when "normal" would return. Though the workers’ compensation litigation system (the OJCC) had persevered through 2020, there were various businesses that were still struggling with adaptation to various challenges. The OJCC had, however, remained largely "normal" in pace and process; we had avoided closures, though telephonic and video processes had been adopted and adapted.  

I wrote about the 2021 Forum. See We're Really Back (April 2021). It was a great event, with many of the expected programs and presentations. I am privileged and honored to be repeatedly invited to participate in the Current Trends in Workers’ Compensation panel on Track 2. In 2021, that was largely devoted to the perception, predictions, and curiosities of the Court’s analysis in Valcourt-Wiliams v. Sedgwick. Mr. Rogner provided an overview then that formed the foundation of our discussion. See It's Not That the Wind is Blowin (June 2021). My attempts to (then) predict the future may or may not be worth consideration in the present day (which used to be the future); Mike Myers has perhaps helped us all understand time travel).

A year has passed, and here we are at the Forum again. I ran into Stacey Hosman as the Forum set-up was underway. She shared that close to 600 people are attending this year! There will be much to learn and so many with whom to learn it and share it. Notably, Valcourt-Williams will not be a discussion in the Current Trends this year. However, it will undoubtedly be part of the discussions in "Compensability of Accidents; Mental and Nervous Injuries," "Heart Attacks (Other than Presumptions) and Internal Failures" with Mr. Winer and Mr. Turner on Thursday morning, the "Case Law Update" Friday morning with Ms. Gilmartin and Mr. Touby, and in the "View from the Appellate Perspective" Friday morning with Mr. Rogner and Mr. Porcher. 

While the last year has brought some explanation of the “arising out of” analyses, questions remain. One of the cases set for oral argument at the Forum centers on an “arising out of” decision that is thought-provoking and interesting. Some focus on the court's latest analyses and distinction-building over the last year is perhaps inevitable this year. See More Explanation of Arising out of (February 2022).

The Current Trends in Workers’ Compensation panel that kicks-off Track 2 Thursday morning includes Hon. Jacquelyn Newman, Attorney Dawn Traverso, and Attorney Kimberly Syfrett. This is a blockbuster panel and a "must see," which will focus on the practice and procedure of workers’ compensation, with particular emphasis on the application of the procedural rules in Chapter 60Q of the Florida Administrative Code. The rules were recently amended effective February 14, 2022 and while the changes were not as broad as some had sought, there are points about which practitioners and litigants should be aware. Though those rules were published over a month ago, and announced in broadcast emails and blog posts, I am periodically surprised by those who do not know of the changes.

Also included in the program are the usual vast assortment of topics and discussions that are critical for the competency of this community. Workers’ compensation is an ever-evolving challenge for those involved in the risk management, claims management, medical, and legal professions. The program promises edification on the perennially challenging exposure and occupational disease claims that were highlighted in the age of COVID. There will be a discussion of the seemingly mundane but often vexing average weekly wage calculation, bad faith claims, fees and costs, presumptions, permanent total disability, medical care delivery, major contributing cause, Social Security, and much more. This program is an excellent opportunity for novices and experts to hone skills and gain perspective. The complete program and agenda are available for download, and the only real challenge will be in picking among the many options. 

The First District Court of Appeal will hear two oral arguments. One centers upon questions of “arising out of.” The trial order being reviewed is available here; Case number 19-20798. Notably, the style at trial was Bouayad v. Value Car Rental and Normandy Insurance. The style in the appellate court is Normandy Insurance v. Bouayad and Value Car Rental. That is a curiosity perhaps. The second case being argued is Casey v. City of Hallandale Beach Police, Case number 19-022520, regarding PTSD, and the trial order that is being reviewed is available here. Oral arguments in this setting are an outstanding opportunity for the community to understand the scope and process of appellate review.

Undoubtedly, there will be much conversation about the future of the OJCC at the Forum. The recent announcement of office consolidations and changes to the mediation process will likely raise questions and discussion. The currently advertised judge and mediator positions may likewise be of interest to attendees. 

Currently, we are seeking applicants for two mediator positions. One in Central Florida (Orlando, St. Petersburg, Tampa), and the other in Southeast Florida (Ft. Lauderdale, West Palm Beach). All of the state mediators, including these new positions, will soon have the discretion to conduct mediations using Zoom video technology either from one of our District Offices or in a telecommuting paradigm. Applications for these positions are available on People First, at the links above. The deadline to apply is April 22, 2022.

The judicial positions currently posted are in Orlando (x2) and West Palm Beach. Applications for these positions are available on the OJCC website, and instructions for applying are in the Nominating Commission Notice. The deadline for application for the Judicial positions is also April 22, 2022. Thus, approximately two weeks remain for completing and submitting applications. 

In all, the Forum 2022 promises to be a great outing. I look forward to seeing you there! If you have questions about the judicial or mediator vacancies, I hope you will stop me and ask. Or, email me at david.langham@doah.state.fl.us. 

 

 

Weather, Allegations, and Comp

There have always been severe weather events (remember Noah?). Those who live in places blessed with a minimum of such challenges may rejoice, but for many, there are persistent fears of hurricanes, volcanos, tsunamis, tornados, wildfires, earthquakes, floods, and more. It is a dangerous world in which we live. According to CRED (Centre for Research on Epidemiology of Disasters), the averages between 1994 and 2013 included 218 million people in the world "affected by natural disasters" annually and about 68,000 lost lives. Those numbers assist us with the breadth of the threat, but they do not necessarily prepare us for when the postman rings.

Some such disasters are preceded by warnings. Hurricanes nowadays are usually fairly well predicted in both strength and path. Often the warnings are disregarded by the brave (or not so smart), but they are there nonetheless. On the other end of the scale are the earthquakes, which are utterly unpredictable. And other examples offer some degree of potential forewarning somewhere in between. Tornados offer perhaps some potential for warning, but if it comes it is likely to be in terms of minutes, rather than the days we get for hurricanes. In one recent example, a meteorologist interrupted his television broadcast in Washington to phone his children with such a warning, according to USA Today. 

In the working world, such natural events are a part of our daily risks. Such events may come while we are at work, may interfere with our ability to work, may cause damage that thereafter impairs our ability to reach work. In December 2021, tornados came to call in Kentucky, and their impact was severe, unexpected, and in some instances tragic. Anytime there is loss of life, we struggle with the challenges of comprehension and acceptance. When the impact occurs during work hours, then workers' compensation often becomes an added consideration. Some allege that in the December storms there were hours of warning, but it is less than clear whether that refers to warnings of potential severe weather or warnings of the specific of a tornado in a specific location. 

Employees at a candle factory made the national news as a tornado impacted that facility in December. The Courier-Journal reported that 110 people were inside when the factory was struck on December 10, 2021 and "turned the building into a pile of twisted rubble." Nine people perished in the disaster. Questions soon turned to why the factory had remained operational in the face of the severe weather warnings. Some employees asserted that they wanted to leave but were told they would be fired if they did so, an allegation that the employer denied. Though the article linked above focused on those who died, it is probable that still others were injured. Thus the discussion of workers' compensation in its broadest context of either injury or death. 

Within a few days, there were discussions of lawsuits against the employer, focused on the decisions to remain open and operational. The Courier-Journal reported in late December that "it will be virtually impossible for workers injured" in that event "to win their lawsuit against the company." Legal experts were quoted regarding "a 17-year-old Kentucky Supreme Court ruling," which they believe limits such lawsuits to instances in which the employer "intended for workers to be injured or killed." 

Despite that reference to the Kentucky Supreme Court, the article goes on to explain that workers' compensation is "the exclusive remedy for workplace injuries unless management inflicts them intentionally." Thus, it is the law that provides protection from lawsuits to the employer. While the court interprets that law, it is not the court that somehow protects or fails to protect people, businesses, or others. The article's focus on the court is unfortunate in this regard and risks misinforming the public. When the press is not clear about the law, the public can suffer. See Mischaracterizing Pot Again (February 2020). 

The law in Kentucky is not dissimilar to the law in many states. There is a high probability that someone injured or hurt on the job will be limited to workers' compensation as a remedy. The employer, in the vast majority of instances, is protected from civil lawsuits by the legal protections of such statutes, referred to as "exclusive liability," or "exclusive remedy." The workers' compensation statutes limit the redress available, usually defining and delimiting what damages can be recovered as well as the proof and evidence that will be required for such recovery within workers' compensation. It is appropriate to use "remedy" rather than "damages" as the recovery is almost certainly limited to some defined recovery short of the broader concept of "damages."

Thus, when a company is arguably or patently negligent, it is usually protected from a variety of legal claims and descriptions of damages (usually noted are "pain and suffering" as well as "punitive" damages, but there are more one might discuss). However, the employer yields a great deal in return for that protection. The employer is also as liable for workers' compensation in the vast majority of workplace accidents/injuries in which it was arguably or patently not negligent, not at fault, not to blame. The employer pays for many claims in which it had no fault in exchange for only paying benefits in those other claims in which it is at fault.

There is thus recovery from the employer in many instances in which it did no wrong balanced with the same constrained recovery even if it did. The article linked above is also dismissive of, critical of, workers' compensation. It refers to the potential recovery as "the meager benefits afforded by workers’ compensation." The suggestion is that the injured worker or her/his estate should be more robustly compensated, in this instance because of the allegation (not proof as yet) that the employer "'put profits over lives' and refused to let employees leave Dec. 10, the night of the tornado." Though this allegation was made, "a spokesman has (also) denied," and thus it remains unknown whether that allegation could (or will) be proven. 

Thus, it is likely that the recovery for those injured and killed in this tragedy will be the social safety net that is workers' compensation. A solid and enduring safety net that is generally there for support and care despite the circumstances of most accidents (fault, no-fault, contributory fault, comparative fault, etc.). However, one Kentucky law firm is said to be attempting an end-run around the workers' compensation law. 

Relying upon a state statute that allows "Kentuckians to bring lawsuits for violations of any state law," this lawyer is suing to try to enforce the "Kentucky Occupational Safety and Health law, which requires employers to provide a safe workplace." By not evacuating employees, or more succinctly perhaps by not allowing employees to leave (if that is proven), the attorney alleges the workplace was rendered unsafe. There are those who do not expect this approach to be successful, but until a court rules that remains to be seen. The lawyer representing the plaintiffs in the suit provided a statement proclaiming "These survivors have facts and law firmly in their favor, and that’s why this lawsuit was properly filed to fight for their rights.”

Thus, it remains to be seen whether the lawsuit will proceed or be dismissed. There is the potential that plaintiffs may enjoy "potentially enormous" benefits if successful. However, there is also the potential that in pursuing the employer in court for civil damages the plaintiffs will effectively "waive any payments from workers’ compensation." The potential exists, it seems, for such a lawsuit to present both potential benefit and harm to the plaintiff. And, according to some quoted in the article, the case would likely have to reach the Kentucky Supreme Court at some point. 

They describe how a 2004 decision applied the Kentucky statute and "upheld the dismissal of a $2.7 million verdict for the family of a construction worker who died in a trench cave-in." They note that in that decision one Justice dissented and argued that the court should create a different standard, like that applied in North Carolina. There employer immunity is waived when employers "intentionally engage in misconduct, knowing it is 'substantially certain to cause serious injury or death to employees.'” Thus, there is some potential seen for the Kentucky Court to ignore its state's statutes and create some new and more relaxed standards. 

NBC News published a similar story, which is more of an editorial though not labeled as such. It is worth a read; the fading of the line between news and editorial in America is a subject for another day. 

While one's first inclination might be to reject the possibility of a court creating law, the fact is that the field of workers' compensation law is littered with instances in which various courts wandered from the pages of their state's statutes and created presumptions, inferences, and more "out of whole cloth." In the pandemic, we even saw governors create laws through emergency actions. See Interesting Word Choice (July 2020). Such excursions and expeditions beyond the state's laws, while not uncommon, have also periodically impacted the predictability of state law, the underwriting of risk, and the efficient operation of the concept of workers' compensation. Predictability is an important characteristic in many events; before filing a civil suit a plaintiff might want predictability regarding the potential for waiver discussed above. Parties to litigation need predictability. 

The lawsuit against this particular employer will be interesting to observe. The tragedy to many lives and families will be undeniable in any event. The impact of the storms on the community is evident in the human suffering and in the announcement that this employer will not reopen the destroyed factory, according to WYMT. Many jobs are thus lost and the community changed. Thus, the impact of the storms is clear, the tragedy defined, and as Don Henley noted in The End of the Innocence (A&M, 1989), in the end, the "lawyers clean up all details." 

Housing Inflation

In an alien and unpredictable turn, the government’s efforts to flood the economy with borrowed dollars have achieved some extraordinary impacts. See Shrinkflation and SB 959 (December 2021). Inflation has worsened even since December. Over the last decade, advocates and news outlets have pushed for increases in the minimum wage. In some instances, such as Florida, a constitutional amendment has been the path to increasing wages. There was little discussion of supply and demand in these wage increases and pandemic relief efforts. What is the impact of rising wages? Might it be rising prices that counteract the purported employee benefit of the increased wage?

The economy operates on the fundamentals of supply and demand. When there is less of something, it is likely to have an increased value. As supply increases, the demand will likely adjust, and in all instances, there will be some point at which price and supply meet in what economists refer to as “equilibrium,” which merely means that the marketplace demand has met that going price. Whether a market economy or some form of controlled (purportedly) market, supply and demand will be persistent and pernicious. There is no magic about the equilibrium point, and it may shift as either supply or demand is adjusted by internal or external forces. There are a host of students in constant study of these forces, economists, and they are challenged to help us all make sense of the impacts. 

In the pandemic, the government did more than pour borrowed dollars into the economy (increase supply). It also altered the enforcement of contracts, precluding some of those who had made contracts from enforcing their rights. The Center for Disease Control established an eviction moratorium in the name of public health. The argument was, essentially, that with a contagion upon us eviction would potentially drive large numbers into close quarters in shelters or otherwise (living with family or others), and the spread would be empowered. Remember, in the early days, we were assured that our efforts at distancing and masking would “flatten the curve” and end this thing.

Thus, there were stories in the news of individuals who quit paying their rent. Landlords were largely powerless to take any action to remove such a tenant. See The Supreme Court Strikes Down the CDC's Second Eviction Moratorium (ABA, September 2021). Some who did not pay that rent instead allegedly spent those dollars elsewhere. The Daily Mail reported a tenant purchasing boats instead of paying rent. Back in 2020, Time warned that eviction moratoriums were hurting small landlords and that this might impact future housing availability (hint, it mentioned the supply of rental housing). 

The Washington Post recently reported that “rents are up more than 30 percent in some cities, forcing millions to find another place to live.” It notes that across the country increases have ranged from 14% to 40%. Economists anticipate that these increases, while not necessarily permanent, are unlikely to decrease in the near term due to the nature of real estate investing and financing. 

These rising rents are seen by that publication as “a driving force in inflation.” However, it may be a fair question to wonder if these rents are a force or an effect (hint, they are almost certainly both). The article provides anecdotal examples of renters who have experienced significant rent increases. Notably, one of those examples is a mother of two who earns that $15.00 per hour that has been so touted in recent years. She complains that rent and food consume virtually her entire earnings. The $15.00 minimum wage it seems is perhaps not the panacea promised. 

Possibly, the rent increases are being referred to as “force” rather than “effect” because “economists say there is a lag of 9 to 12 months before rising rents show up in inflation measures.” Thus, these increases (14%-40%) are purportedly not currently being felt as effects; thus, the overall inflation rate today is perhaps worse than we even yet realize? That is sobering indeed in light of the reports that the effect we are feeling is already the worst we have experienced in 40 years. One may wonder how much worse inflation can get? Perhaps the right answer is to borrow a few trillion more dollars and send out some additional checks to increase the money supply? (sarcasm, sorry). 

That is one approach. The government is reportedly “reallocating” (I love euphemisms) what it sees as “unused funds from its $46.5 billion Emergency Rental Assistance program” to assist people with paying these increased rents and high utilities in urban centers. Thus, the government reacts to the impact of an oversupply of money by injecting more money. Potentially, this helps some consumers in the short term with meeting their existing lease obligations but may drive further inflation in the rental market as those current leases expire. 

Not all of the challenge is in terms of rent. There are other government actions that have striven to constrain the rights of people to contract. Some localities have imposed rent controls, restricting the rate that a property owner may charge for rent. Imagine for a moment a similar government talent control that limited how much someone could be paid to play basketball or to sing songs or to act in movies. Some note that landlords have responded to such artificial limitations by increasing charges for amenities (trash pick up, exercise facilities, etc.), or by charging tenants fines. Thus, they have increased revenue despite artificial caps on “rent.” The same effect has been seen in other efforts, such as legislative constraints on university tuition that led to a parade of other fees and costs.

The story stresses that life is unfair. The phrase for this is usually something like “inequity” or “inequalities.” The economic critics stress that low interest rates have benefitted homeowners and that renters have suffered increasing costs and expenses. They are cited by the Post attesting to the pervasive nature of rent challenges (“1 in 4 renters, spend more than half of their monthly income on rent”). Thus, the author concludes “for too many Americans, housing is unaffordable.” And they concede that the issue is on the supply side of the equation.

However, it may be too much emphasis is afforded the distinction between homeownership and renting. Consider that the cost of ownership is also reportedly increasing. For the first time since a cost ownership index was created in 2014, the price of a home in Atlanta has increased to a point of "not affordable, according to WSBTV.com. This index compares median home price to median income, and currently that calculation in Atlanta indicates "potential buyers would be paying 30.8% of their pre-tax income on housing." This impact may further frustrate the market as buyers are encouraged instead to remain in the rental market, contributing to a diminished supply and keeping prices high.

The Post cites people who could pay increased rent, but are reluctant to do so. They see this as an untoward imposition on their livelihood or lifestyle. Others note that landlords are evicting again and that it may be common in places to see personal belongings removed from an apartment and stacked in a parking area or on a sidewalk. Evictions, it seems, are back. Still others are reportedly opting for a less tethered future of nomadic search for something better or even taking up residence in their automobile for the time being. In short, people are losing housing through choice or imperative. The economists suggest that as supply increases, the prices will perhaps become more manageable, but the eventual remediation is not of particular use to those impacted today. That was likewise true for the landlords left holding the bag by the CDC back in 2020. 

And that ignores two critical points. First, the real estate is less elastic (slower to respond). While that additional housing supply is being produced the worker wages are likely to increase such that high rents are accommodated (somewhat at least). Those wages will be driven by the housing shortage and prices, and the “highest inflation in 40 years,” according to the Associated Press. There will be those who, as they persistently do, will suggest that this should then be countered with more government spending (borrowing), regulation (rent controls), and mandates (perhaps if a $15.00 per hour minimum did not fix everything, then a $20.00 wage would?).

There are arguments for and against inflation. There are arguments for and against artificial government controls of the marketplace through mandated wages, artificial price constraints, and other manipulations. But, the point here today is with the workplace; Statler and Waldorf persistently remind me this philosophy blog is really about workers' compensation. 

The challenge with all of this is that real people will face real challenges in the marketplace. And that is going to invariably impact the workplace. Payroll costs will be impacted whether by the market or some new minimum wage imperative, as will the expenses that are related thereto such as general taxes, unemployment taxes, and the cost of workers’ compensation insurance premiums. 

As mentioned recently, American labor finds itself in competition with foreign labor as a natural consequence of cost competition. See Friends, Romans, countrymen (March 2022). Furthermore, workers everywhere are in competition with automation, robotics, and artificial intelligence. See More on Robots, AI, and Job Displacement (May 2017). As the price of labor rises, the producer's eye may be inescapably drawn to alternatives like foreign production, robotics, or AI. 

Motivated manufacturers have offshored many jobs because of the comparative low cost of labor. It is important in this regard that American labor comes with a variety of add-on expenses for taxes, social security, safety, workers’ compensation, and more that much foreign labor is free of. It is important too that the cost advantage of offshoring is now being impacted by the soaring cost of transportation, affording American labor some additional attractiveness at least in the near term. 

But, it is critical that the business invests in manufacturing and in locating its production. Pivoting to a new location in reaction to such costs may involve significant expense, just as a pivot might do so for us personally. See It Isn’t Maybe So Simple (March 2022). Despite soaring transportation costs, the alternative cost of labor may prevent any significant return of jobs. In this pandemic, perhaps we have learned some lessons about the "supply chain," and the reliability of production. Perhaps there will be some return of manufacturing (PPE, microchips, etc.) to address our challenges and tribulations of the last two years, despite the associated labor cost?

In the end, the fact is that our lack of stability is bringing inflationary effects. Inflation itself is inflationary, as the market seeks some equilibrium between the cost of manufacturing or producing goods and services and the customer’s ability to afford the production. It is extremely complex, involving the local and national policies of various nation-states, economies, and leaders. There will be appreciable challenges for the American workforce as these uncertain times persist through the challenges of Putin, pandemic (or endemic), inflation, various government actions, inactions, reactions, and more. 

The solutions are unlikely to be easy to implement, simple to understand, or free from other unintended or underappreciated consequences. But, the solutions will invariably come, and the market will likely remain challenged for years to come. Through that time, workers will be challenged with inequity as will be employers. There will be sufficient hurdles and pitfalls for us all as we navigate individually and collectively through the recovery from the Great Pandemic. It will be a tough time for the wage earner of course, and perhaps more so for those who find themselves on more fixed retirement incomes.

Perhaps those who steer our progress will remember Newton's Third Law, and will strive to understand the intended, unintended, near, and delayed impacts of actions?