Another Long-COVID View

WCRI presented a Long COVID seminar on May 3, 2022. This provided an excellent overview of the challenges of the health effects of the recent pandemic and infections. The presentation in some specifics echoed the program presented recently by the American College of Occupational and Environmental Medicine (ACOEM). That is overviewed in Long COVID Seminar (April 2022). That post contains a link to view the ACOEM program. I recommend watching each of these.  

Francesca Beaudoin, a medical doctor with Brown School of Public Health presented an overview of symptoms and challenges that are alleged to be COVID-related. In a very practical argument, she stressed that the best methodology for avoiding the "Long COVID" effects would be to avoid the COVID period. The benefits of vaccination were thus stressed, and that answer is likely somewhat frustrating to those who have already suffered infection. 

Dr. Beaudoin stressed that many physicians are striving to treat "Long COVID." She mentioned that some are specializing with clinics that are dedicated with the challenges of long-term effects of the infection, while others are persevering in the midst of a broader clinical practice. There seems suggestion that the specialized focus may be of benefit to patients due to the complexity of the various impacts of this infection. 

She mentioned National Institute of Health (NIH) has invested heavily in the research on Long COVID and has published information. However, it is notable that the publication began in September 2021. There has been some tendency for this pandemic experience to seem like it has gone on forever. But, it has been just over two years. See Happy Anniversary (March 2022). Thus, it is notable that the NIH publication of data is dated September 2021, just over six months ago. There is research, but it is just beginning, details are scarce, and science (evidence) is as yet somewhat elusive.  

Dr. Beaudoin mentioned that there are burden of proof challenges in general, but that these are mentioned often in the workers' compensation context. The potential variety of patient subjective complaints is extensive. The CDC lists a panoply on its website (the entirety of this list is quoted verbatim from the CDC site):

"General symptoms
Tiredness or fatigue that interferes with daily life
Symptoms that get worse after physical or mental effort (also known as “post-exertional malaise”)
Fever

Respiratory and heart symptoms
Difficulty breathing or shortness of breath
Cough
Chest pain
Fast-beating or pounding heart (also known as heart palpitations)

Neurological symptoms
Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
Headache
Sleep problems

Dizziness when you stand up (lightheadedness)
Pins-and-needles feelings
Change in smell or taste
Depression or anxiety

Digestive symptoms
Diarrhea
Stomach pain

Other symptoms
Joint or muscle pain
Rash
Changes in menstrual cycles"

The potential for multiple possible causes of many of these perhaps helps us all understand the physician's struggles. So many maladies might cause stomach pain, joint pain, headache, or fatigue (examples only, from the list above). A physician evaluating a patient might attribute such complaints to a vast array of underlying diseases, maladies, or pathology. Thus, there is a challenge here for the scientist and the patient. As we focus on workers' compensation, there is then a challenge for the risk manager, and in a variety of contexts for the human resource manager. In all, many challenges, questions, and few definitive answers as yet. 

Dr. Beaudoin stressed that there are critical emotional health issues related to the complaints patients report. This is likewise similar to Dr. Kertay's comments and perceptions in the ACOEM program. Dr. Beaudoin explained that these complaints and symptoms are reasonably new, this pandemic is new. She explained that there are perceptions that patients are being extensively tested in regard to complaints and symptoms, and these pathways of testing are perceived by some patients as "being dismissed by the medical community." That is, essentially, that more testing is a way of doing something when there is frustration over not being able to provide definitive treatment.

There is a term in medicine "turfing," that can have a negative implication. Described in the Journal of General Internal Medicine, is the concept of an internal medicine physician referring patients for additional care. Such transfers are appropriate for gaining knowledge and expertise regarding complaints and challenges. The Journal notes, however:

"if the receiving physician cannot provide a more effective therapy than can the transferring physician, medical residents consider the transfer inappropriate, and call the patient a turf." J Gen Intern Med. 1999 Apr; 14(4): 243–248.

It is possible that patients who receive many referrals or who are evaluated by many specialists may come to feel they are being "turfed," and are not being taken seriously. See Can patients tell when they are unwanted? "Turfing" in residency training."

That is not new to workers' compensation. It is concordant with some perceived challenges of soft tissue injury, which are legendary in the field of occupational medicine. Patients often present with complaints of pains and discomforts that are perceived as discordant with other medical signs and symptoms, exaggerated, or otherwise questionable. In some instances, there is an incomplete or inaccurate description of the mechanics of injury that can be of interest or distraction. 

It is not uncommon for a patient to be initially treated with conservative care and then receive referrals to a parade of specialists in search of anatomical and physiological explanations for symptom(s).  The root cause of symptoms and complaints in soft tissue and orthopedics can be elusive, and there are instances in which doctors may be perceived as disbelieving or dismissing a patient. In the long run, it is likewise not uncommon for some persistent physicians to ultimately identify some pathology that is then addressed, often leading to symptom improvement. Some readily lament the delay that is at times seen in the process of reaching an ultimate diagnosis and instigating specific and focused medical care for it. 

Dr. Beaudoin stressed that patient groups are interested in being believed and receiving treatment beyond testing and investigation. At this moment, only two years into this pandemic, the science is just beginning and there is likely some academic curiosity about each and every symptom, constellation, and presentation. But, as worthy as the efforts at research and measurement are in terms of future patients, doctors must remember that each present patient is in need and is seeking relief or amelioration, not merely study and evaluation. 

Patients are said to be frustrated with the lack of definitive treatment specific to the "Long COVID-19" as opposed to more generic treatments and care usual for the spectrum of symptoms being reported such as respiratory challenges. They may benefit from generalized symptom amelioration but want to be confident that the constellation of COVID-19, their perceived cause, is being addressed.

Dr. Beaudoin added that the Americans With Disabilities Act (ADA) now contemplates Long COVID being "a disability," in that it may "substantially limit one or more major life activities." It is important to focus on the word "may." The ADA has published a guidance on this topic. Remember that diabetes is listed as potentially being an ADA disability, but that millions live with that disease and are not necessarily disabled. It is not the diagnosis of a condition that equates to disability, but the impact of that diagnosis or disease. The government has an extensive publication of COVID-19 considerations as regards disability. 

Dr. Beaudoin noted that the issues of disability are complicated by the lack of empirical data regarding whether a particular patient was or was not even infected (see above, the best way to avoid "Long COVID is to avoid infection). She opined that antibody testing is not yet of significant assistance in differentiating between a patient that has been affected by the disease/infection as opposed to one that has antibodies from vaccination efforts. She describes how the challenges of differentiation are further frustrated by the early periods of the pandemic when testing availability and reliability were challenging, a situation that may have even persisted during more recent pandemic times in certain areas and communities. Without a test to authenticate the initial infection, the proof of relationship of ongoing symptoms may be challenging. 

Employer groups have been concerned with disability, but also with issues around the legal constraints of vaccination requirements, the ADA, and more. There is a desire for clearer understandings of the potential legal exposures, the operational processes that are appropriate, and the determination of both diagnosis and impairment or disability. The mention of these challenges was an appropriate adjunct to this presentation, but in all sincerity the legal challenges are as broad and difficult as the medical and could easily overwhelm the full time of a separate seminar dedicated to them. 

Of interest, there are seemingly issues with the need for documentation and accommodation of the impacts of COVID. These are not necessarily different challenges than workers' compensation experiences in a variety of maladies and conditions, including even the most common orthopedic or soft-tissue issues. The differentiation of effects of current trauma from the potential pre-existing maladies, conditions, and effects has been part of the diagnosis and treatment challenge in various workers' compensation cases forever. There have long been forensic evaluation challenges to make such determinations in the context of "major contributing cause" and other similar statutory standards. That this is not different in "Long-COVID" is likely neither surprising or encouraging from any perspective. 

Teasing the cause of current symptoms from a spectrum of complaints that may relate to COVID or a variety of comorbidities and pre-existing conditions is seen as a medical challenge. Dr. Beaudoin opined that differentiating will be dependent upon critical analysis of prior medical history, various testing, and studies. Her discussion seemed to make reference to a forensic approach to differentiating former symptoms, diagnoses, testing, and the current symptom universe in a particular patient. In that context, it is notable that the volume of patients appears significant and the population of available physicians really has no potential for expansion (the existing profession will perhaps have to divert attention to "Long-COVID" to the potential detriment of other maladies and conditions). 

The doctor noted there are "knowledge gaps today." There is more that remains unknown about COVID-19 than is known. This is frustrating for all involved, and is likely impacting the emotional function and recovery of the patient. The patient, at a minimum, believes her/himself to be suffering from the long-term impact of this viral assault. With all of the questions and unknowns, much remains to be studied, cataloged, documented, and analyzed. 

And, it is possible that medical progress may be years in addressing some issues related to COVID-19 just as there have been long challenges with a variety of human ailments including the previously mentioned diabetes, as well as cancers, lupus, Parkinson's, and the list goes on. To further frustrate matters, there are questions of the impact that various COVID variants may cause and how changes in the virus itself may impact the progress of individuals and the medical reactions to those symptoms and challenges. 

Dr. Beaudoin concludes that the situation overall is not under control and that science and medicine are struggling with "Long-COVID." Her perspective and comments had parallels to the ACOEM conclusions but brought a somewhat different perspective and focus. The presentation is well worth viewing. As the scientists bring more study and results, it is probable that future presentations will bring further edification and progress. However, for now, the information in such programming is a fundamental necessity for those in claims, employee relations, and more. 

The Best of NCCI's Symposium

The 2022 Annual Issues Symposium presented by the National Council in Compensation Insurance was an enlightening experience. As per usual, there were a variety of statistics, measures, and data. Say what you want about this industry, but do not ever forget that it is data-driven and the volume of data seems to increase each year. However, perhaps the most valuable presentation was an interview by Bill Donnell, president and CEO of NCCI.

This was billed as "A Conversation with Roger Ferguson,"  on inclusion. He is a former CEO of TIAA, has worked with Swiss Re, and was Vice Chair of the Federal Reserve System. His experiences, leadership, and involvements speak for themselves. But, his views on leadership dovetailed into some of my recent writings. See The Time is Now (April 2022) regarding the up-and-coming generations, and and Consensus in the Absence of Proof (January 2021), and Science, Standards, and Government (April 2020) regarding the dangers of “groupthink.“

Mr. Ferguson is seemingly not a fan of groupthink. Groupthink occurs when there are no dissenting voices in discussions, and thereby "echo chambers" march forward without meaningful discussion or introspection. Mr. Ferguson introduced the importance of both diversity and inclusion. He likened diversity to being "invited to the dance.“ However, inclusion is “being asked to get out on the floor and dance." That is, to contribute, to provide input, criticism, and feedback. Mr. Ferguson stressed that such dissent is a prime methodology to combat groupthink.

Mr. Ferguson is a vocal fan of mentors. He had multiple encouraging comments regarding mentorship generally and offered some concrete examples and suggestions. He first encouraged recognition of mentors that we perhaps too often overlook. He explained how individuals in his past, beginning with his parents, provided him experiential and tutorial mentorship opportunities. His comments reinforced that mentorship and leadership can be demonstrative (by example and experience). Mr. Ferguson stressed how these experiences have instilled in him a spirit of academic interest, and valuing mentorship. 

Diversity came into this discussion again as regards mentorship. He further described how individuals with very different world views managed to both foster his development and assist with finding his voice. Mr. Ferguson described how he has striven to deliver the same kind of diverse approach as he mentors those who are following in (or perhaps parallel to) his footsteps. There is a commitment in his comments to mentoring people who are not necessarily like us in background, foundation, or experience. This is tied to the concept of gathering and providing different perspectives, and resisting the groupthink. 

One of the most intriguing comments that he voiced regarded "reverse mentoring.“ This seems perhaps a misnomer, as mentoring is mentoring. With that caveat, what he described comes from his leadership role(s) in corporate America. He explained how he expanded efforts beyond his mentoring the next generation of leadership by recruiting young employees to provide him mentorship from their expertise. He mentioned that as regards technology, and social media. Thus, he actively engaged young individuals in his organization, pulling them into discussions of their strengths, to teach and train him. This built rapport and community, as well as acknowledged that leaders are not all-knowing. Leaders can and should learn, and the perspective of the young is valuable and worthwhile.  

Finally, Mr. Ferguson's perspective was demonstrated outside of the presentation capacity. Through various events at the conference, he interacted with small groups at luncheons, receptions, and networking breaks. As I discussed this in a small group, it occurred to me that I am exceptionally poor at this. I go to conferences, and I tend to gravitate to those I already know and who are familiar to me. Why do I not gravitate to the unfamiliar? Why don't I take the time to engage younger, up-and-coming individuals when I see them at receptions, dinners (or even in the event hotel restaurant)? Why don't I (you) lead by following Mr. Ferguson's suggestion, example, and premise? 

Let's get out there and engage in a meaningful way. Let's approach the next generation and absorb their perspectives, energy, and intellect. Let's challenge ourselves to ditch groupthink for good and actively seek and engage those who are not like us, do not share our professional foundations, and who bring diverse ideas, perspectives, and even emotions to the world of workers' compensation. I am committing to do this, despite it being out of my personal comfort zone. I hope you will do so also and that you will call foul if you catch me not living up to the idea. 

Immunity, Coworkers, Clarity

The Kansas City Star reported a workplace fatality in a community close to Detroit, Michigan. Certainly, such an event is newsworthy in a general sense but is perhaps of additional interest to those in the workers' compensation community. We strive for workplace safety, and at times struggle. Despite the ongoing threat of workplace death, safety has improved markedly in that regard. See Happy Memorial Day (April 2022). In this particular instance, a lawsuit is garnering more general national attention because the owner of the car is being sued instead of the car dealership.

This story illustrates aspects of the concept of workers' compensation immunity, the potential for co-workers to be impacted, and the clarity challenges that sometimes confront the efforts to understand these complex laws. The story begins with a "42-year-old" mechanic at a "Michigan car dealership." He was changing the oil and rotating the tires on a vehicle with a manual transmission (one that requires the operator to physically engage a clutch in order to change gears). 

These are becoming quite rare, and CarMax says they represent less than 3% of vehicles sold in this country. Despite such a small percentage of the total, Motor Trend says there are a surprising number of models for which the manual remains an option. As a result, perhaps the population of those experienced with such vehicles is likewise diminishing. 

There is some lack of clarity in the story, both factually and legally. The "court records say the vehicle 'lurched forward' and "crushed mechanic Jeffrey Hawkins against a cabinet." Careful attention to the story reveals that Mr. Hawkins was not operating the vehicle at the time; He was in front of the vehicle with his back turned when another technician attempted to start the vehicle. The technician was "19-year-old . . . Daniel Thompson." And, the estate of Mr. Hawkins is seeking damages from the owner of the vehicle, who had entrusted it to the dealership for service. 

As it turns out, the "19-year-old technician" did not know how to drive a manual transmission vehicle. He reportedly "did not have a driver’s license," had "never taken a driver education class," and was not "taught how to use stick shift vehicles." Thus, perhaps it is more apt to say he did not know how to drive at all? The legal implications of the accident are significant. The dealership is immune from a civil lawsuit because of workers' compensation. The employee's sole recovery from the dealership is to be from that social safety net. 

What many tend to forget is that the same immunity also usually applies to co-workers whose negligence causes injury, in this case, the technician who attempted to start the car. The lawyer's job is to search for some manner to recover for the client (Mr. Hawkins' estate). It is unlikely that the 19-year-old technician has the means to pay significant damages. Having no driver's license, it is as unlikely that he has automobile liability insurance, which perhaps would be responsible for his operation of a "borrowed" automobile. 

The lawsuit in this instance therefore alleges that the "vehicle owner . . . is 'vicariously liable for the negligent acts' of (the) technician." The attorney who filed the lawsuit contends that the liability of the auto owner is no different from "when you lend your car to somebody so they can pick up lunch." He contends that if that borrower then acted in a negligent manner with your car, you would be liable. The vehicle's owner has apparently agreed that he “is liable for damages under the owner’s liability statute,” Michigan statute section 257.401, and has tendered his insurance coverage of about $100,000, despite admitting “no active negligence.”

That statute states that 

"The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law"

Thus, there is a liability created by statute so that someone is responsible in the event of an accident. Florida has a similar law, called the "dangerous instrumentality doctrine." This protects "members of the public who are injured by the negligent operation of a motor vehicle. It "impos(es) strict vicarious liability on those with an identifiable property ownership interest in the vehicle." Christensen v. Bowen, 140 So. 3d 498 (Fla 2014). Essentially, if your name is on the vehicle title, you are responsible for the acts of whomever you lend the vehicle.

Despite the statutory liability described in Michigan, the attorney representing the vehicle owner reportedly intends to defend the allegations in court. He is quoted by Yahoo News describing this as a challenging situation for any vehicle owner who allows a valet or vehicle servicer or others to operate a vehicle. How the dispute is resolved of course depends on the intricacies of Michigan law. In Florida, it is possible that the same immunity that protects the employer, section 440.11, might well protect those who lease or lend (the vehicle owner) to the employer, if "the leased or borrowed equipment was in the exclusive control of the employer." See Clements v. Wildlife Conservation Soc., 750 So. 2d 715, 716 (Fla. 5th DCA 2000). Thus, perhaps the outcome of such a case may depend on the law of the state in which the tragedy occurs. 

The lawyer for the Michigan plaintiff (Mr. Hawkins' estate) is seeking $15 million, and claims there is no damage or injury to the car's owner because the "dealership where the incident occurred has been ordered by the court to indemnify" the vehicle owner. As the lawyer explains it, "in reality, the (vehicle) owner is going to be held responsible, but the dealership’s insurance company is paying.” There is, therefore, no similar "exclusive control" workers' compensation immunity extension to the vehicle owner who allows some business' employee to operate it.

Thus, in a somewhat circular fashion, the immunity of Michigan workers' compensation is perhaps being circumvented. See Section 418.131, Mich. Statutes. The technician is (or was) also reportedly a defendant in the lawsuit, according to Yahoo. There is a decided lack of clarity in the news stories regarding whether the coworker technician remains a defendant, or has been afforded the coworker immunity described in section 418.827, Mich. Statutes. If the coworker is liable for operating the vehicle as alleged “in a careless, reckless and wanton manner in total disregard of the rights and safety of others,” that may be merely a foundation for the plaintiff to seek damages from the vehicle owner. In other words, the technician's presence as a defendant may be essentially to set the stage for establishing the vehicle owner's responsibility. 

Interestingly, however, will be whether the "dangerous instrumentality" law in Michigan is successfully employed by Mr. Hawkins' estate to reach tort recovery from the employer despite the purported shield of workers' compensation immunity that an employer might anticipate would prevent such lawsuits. The posture of the case in the trial courts is currently trending in the news. However, the case remains in litigation and any outcome in the trial court may be subject to review in an appellate court. The story, however, illustrates much.

State laws regarding workers' compensation may differ from those of other states. Employers would be well served to consider the exceptional (manual transmissions) that can confront their employees. Co-workers may or may not be immune to tort liability, depending upon state law. Seemingly, and similarly, those who own dangerous instrumentalities could potentially face liability in the event of injury (beyond a car in this example, consider cranes, drilling rigs, and other tools of various trades). There can be much time invested in litigation, and many legal intricacies to sort.  

It is an interesting story that brings much about which to think. How the Michigan courts, or the parties there, sort out these various questions may be interesting to watch. 

Transitioning in the 2022 Consolidation

In March 2022, the Office of Judges of Compensation Claims announced that there would be consolidation of district offices. See Consolidation, Mediation, and Remuneration. Days have morphed into weeks, and the plans for accomplishing the re-districting are becoming more concrete. It is an apt time to provide the workers' compensation community with more detail regarding the process and our progress. To review, the consolidation map is posted in the Regulatory Workers' Compensation blog.

The implementation will begin with counties moving to District Tallahassee. This began last week with Liberty from Panama City (PMC), and will be followed in the coming days by Dixie, Gilchrist, and Levy from Gainesville (GNS). All cases in any particular county, "active" and "inactive" will be transitioned and reassigned to a new judge. Thus, the impact of the change may be immediate (an active case), irrelevant (a case settled and closed decades ago), or potential (an inactive case that is merely dormant and which could possibly re-activate for some future petition, motion, or settlement). 

The week of May 15, we expect other counties to begin transitioning. This will include Hardy and Highlands Counties transitioning from District Lakeland (LKL) to District Sarasota (SAR). The same week, Hendry and Glades counties and will transition from District West Palm Beach (WPB) to District Fort Myers (FTM), and Indian River, Martin, St. Lucie, and Okeechobee will transition from Port St. Lucie (PSL), and Melbourne (MEL) into West Palm Beach (WPB). Any of these moves could cause complications or questions in any particular case. Keep reading. 

Obviously, the first transitions will be the simplest. Counties transitioning from District Panama City (PMC) or District Gainesville (GNS) into Tallahassee (TLH) will obviously become the responsibility of Judge Jackie Newman. This one-judge to one-judge transition process should not raise many logistical challenges. As there is only one judge in Tallahassee, this transition has few moving parts. The same can be said for the transitions of Hardy and Highlands from the one-judge district in Lakeland to the one-judge district in Sarasota (SAR), with all cases becoming the responsibility of Judge Eric Grindal.

The transitions from District West Palm Beach (WPB) to District Fort Myers (FTM) will be somewhat more complex as three judges' assignments in those two counties will be distributed among the two judges in Ft. Myers. This should result in an even distribution of the population of cases in those two counties (Hendry and Glades) to the two judges in the now larger District FTM. 

The transition of cases into West Palm Beach will also be somewhat more complex, with various cases from the five counties being re-distributed from Melbourne (MEL) or Port St. Lucie (PSL) amongst the West Palm Beach (WPB) judges and mediators for ongoing responsibility. This should result in a fairly even distribution of the cases from those counties (Indian River, Martin, St. Lucie, and Okeechobee) in West Palm Beach. 

This initial process will conclude with the transition of Brevard County from District Melbourne (MEL) into District Daytona (DAY). Again, transitioning from a single-judge district into another single-judge district, this process should be among the least complex. 

Similarly, the transition of Polk County from District Lakeland into District Tampa will be relatively simple, but somewhat unique. In transitioning the work related to the largest former District Lakeland (LKL) county (Polk), the least disruptive methodology is for Judge Arthur to remain responsible for those Polk county cases as they transition into the larger consolidated District Tampa (TPA). Thus, existing cases will remain assigned to JCC Arthur for the most part. However, following the transition, new filings in Polk County will be randomly assigned to any of the three (then) District Tampa (TPA) judges: Anthony, Arthur, or Massey.

This will leave work ahead regarding the transition of the bulk of District Gainesville (GNS) work (Alachua, Columbia, and Marion). Those transitions will proceed in fiscal 2023 (after July 1, 2022), and the transition of the larger District Gainesville (GNS) counties will likely each be similar to the transition process described for District West Palm Beach (WPB), with cases assigned from a single judge district to a rotating assignment in either Jacksonville or Orlando. However, the final plans for the District Gainesville (GNS) transition remain under development and more will be published later as we approach that time.  

The primary touchstone for practitioners and parties is to remember that the judge to whom cases are reassigned in this process will be the judge's responsibility thereafter as to any questions or concerns. Requests for information or for relief should go to that judge, and in the consistent and persistent voice of Rule 60Q6.115(1), the appropriate process for seeking relief of any form is through the filing of a motion. All litigants and counsel should remain focused on this tried and true process for alerting any assigned judge to the need for assistance or relief. 

Another Judge Makes the News

Judicial behavior is back in the news. Just recently, there was an interesting story about a judge's performance. See Medical Excuse (April 2022). It is a troubling story of an Ohio judge who seemed less than focused upon the Code of Judicial Conduct and the challenges of avoiding the "appearance of impropriety." I got some interesting feedback on that situation, and for the most part, there was skepticism of the medical excuse, similar to that expressed by the Justice cited there.

More recently, in Kentucky, an Owensboro judge made the news when she was "removed from office" in April 2022. The record in that matter is 160 pages long, and interesting reading. Despite being very comprehensive, it does not include the Commission's final decision of April 22, 2022. See the Courier-Journal, Owensboro judge ousted from office for multiple violations of judicial conduct rules. The allegations in the seven counts were numerous, and not just a little disturbing. The Kentucky Judicial Commission unanimously "order(ed) . . . (the judge's) ouster from the bench." The Judicial Conduct Commission noted:

“This case does not involve one or two isolated occurrences, but instead involves Judge Gordon’s pattern of misconduct and her repeated exercise of extremely poor judgment and her engagement in profoundly unwise action — on and off the Bench — that continued for years”

The judge was accused of keeping odd hours. Her assignment was family law, a jurisdiction that can often involve young children in proceedings. The judge was accused of holding "court late into the night, sometimes requiring parents and their children to appear after midnight." The report concludes that the presence of children was "unnecessarily require(d)" in "JDNA cases . . . with few exceptions." This involved absence from school, "force(d) children to be at the courthouse for long hours," and in one instance the judge "had a child on the witness stand after 12:30 a.m." 

The Commission lamented that "many of the children are too young to understand what is going on in the courtroom and too young to participate in any proceedings." Perhaps the timing of hearings/proceedings could be viewed as a sincere and focused work ethic. However, those are very long hours, and difficult timing for the most resilient of us. And to keep children in the courthouse such late hours would be difficult to justify outside of specific emergent circumstances. If such emergent issues were present it seems likely the Commission report would mention them.

The judge was also accused of calling the presiding judge in a case that involved her own son. Allegedly, this call was intended to "influence the amount of the bond in the case against her son"; she was also accused of "destroying evidence" in that case. This allegedly included "attempt(ing) to alter, conceal, or tamper with (the son's) social media accounts and cellular content to protect him from criminal liability." The judge's explanation for this behavior was she was merely "'acting as a mother' when she tried to help her son." Another news outlet, U.S. News, reported that she "tried to influence both the judge and prosecutor in (her son's) case," and "used her position to get special visitation with her son while he was incarcerated."

Coincidentally, the judge was able to get her adult son accepted into a rehabilitation program through direct communication with an official there. While persuading that official to accept her son and thus allow him to leave the jail facility, the judge allegedly "placed two children with him . . . and engaged in ex parte communication with him regarding the placements." The conflict apparent there, even in the absence of a specific quid pro quo, is troubling. The Code of Judicial Conduct is explicit in its prohibition of even an "appearance of impropriety."

The judge was accused of "abus(ing) or exceed(ing) authority" by sanctioning officials regarding the submission of timely reports. Those officials were responsible for making determinations regarding the evaluation and placement of children, and the judge was accused of interfering with that process. The report concludes the judge "overstepp(ed) your judicial authority" and that "this was a recurring issue." Rather than use a "rotating list of eligible attorneys" in guardian matters, the report concluded the judge "took control of GAL assignments . . . showing favoritism to" and attorney that had represented the judge's son.

In other instances, when a facility "refused to test defendants for drugs," the judge allowed court staff to perform the testing and to store "urine samples in the same refrigerator where they stored their lunch." Not where I want my lunch stored. This was noted to have been inappropriate in a general sense and to have interfered with the chain of custody requirements of those samples. There were also allegations that misrepresentations or misstatements were made as regards the drug testing and staff training. 

The judge was also accused of filing a judicial complaint against another judge "as a retaliatory measure." The Commission report alleged the judge "demonstrated a lack of candor and misrepresented material facts" during its investigation. There are multiple instances and conclusions listed. Examples included the involvements with her son's attorney, interactions with other judges, drug testing procedure training of the judge's staff.

Of particular note by the Commission was the conclusion that the judge "continued (her behavior) even after she learned she was the subject of a massive complaint." As reported by U.S. News, the judge also "was untruthful with the Judicial Conduct Commission."

Two days after the Commission decision, the judge filed a motion for reconsideration, according to the Messenger Inquirer. The record reflects that reconsideration was promptly denied on April 27, 2022 and again on May 2, 2022. The news story says that the judge may seek review of the Kentucky Supreme Court within 10 days of the Commission decision, a deadline that has passed.

The Judge's difficulties are thus front and center in 2022. Notably, there were previous allegations regarding the judge in a Change.org petition. Purportedly over 900 individuals supported that petition before it was closed. Such is not as persuasive, as being a judge is often an unpopular responsibility. Many who appear in judicial proceedings are disappointed, angered, or worse by the outcomes and results. There are hard decisions to make, legal constraints to respect, and challenges to face. However, the presence of such a petition might be seen as an opportunity for introspection and consideration. No judge must accept representations or allegations in such a petition or complaint but would be well advised to consider how perceptions or appearances may be reflected in such a tool.

At the end of the day, there are a variety of challenges involved in the role of judge. Family commitments and interactions can perhaps draw attention and suggest conflicts in which one's emotions and sentiments are implicated. There must be a persistent consideration of the law, the Code, and appearances. Judges cannot even appear to be invoking or asserting official influence in such personal settings.

The process and procedure allegations in this matter are as serious. The conduct of hearings at odd hours, and involvement of young children without (or with minimal) discretion or exception may be seen as unyielding, overly regimented, and inelastic. There are many reasons for procedures, rules, and processes. However, the role of judge is imbued with discretion, and the epitome of sound judicial behavior is the appropriate engagement that discretion to avoid outcomes such as minor children on the stand in a proceeding after midnight, and indiscriminately being required to miss school.

The record is not clear regarding whether the jurisdiction of the Kentucky Supreme Court will be invoked in this instance for appeal or reconsideration. However, the allegations and conclusions in the Commission proceedings are illuminating, cautionary, and worthy of consideration by judges everywhere.

Previous posts on judicial behavior or discipline include

Fund Raising and Politics by Judges (October 2010)

Conferences and Consequences (November 2011)

An Example of Judicial Discipline (February 2014)

The Judge, a Bookstore, and the State (October 2015)

Judge Reprimanded for Ex Parte Communication (September 2016)

Judicial Ethics and the Great Pumpkin (June 2017)

Sleuthing Addressed Again (January 2018)

Judge Dawn Gentry (September 2020)

A New Miranda Warning (April 2020)

A Miserable Example (February 2022)

Hippocrates, Harm, Racism

I am persistently interested in use of the quotation "first do no harm" that is so often mentioned in medical contexts. There are those who attribute this to the "the ancient Greek Hippocratic oath." However, it turns out that "no translations of the oath contain this language." Scholars note that there are other potential sources of the sentiment or the actual words, perhaps even from other writings of Hippocrates. Some believe, however, that the

"first known published version of 'do no harm' dates to medical texts from the mid-19th century, and is attributed to the 17th century English physician Thomas Sydenham"

The phrase was used more recently in explaining why pediatricians are working to alleviate or eliminate race from medical science. Associated Press. Race-based medicine has been under scrutiny for some time. Recently, in Race Based Medicine (August 2021), the manner of inherent and assumptive racism is discussed as regards the National Football League. That application is largely founded upon historic unscientific conclusions of supposed experts. Before one is too critical of the NFL, it bears considering that the U.S. Government apparently once used the same unscientific methodology in its hiring practices (in its defense, it stopped decades ago).

The Associate Press reports recently that pediatricians are striving to come to grips with racism in medicine. The American Academy of Pediatrics has published a policy and intends to reexamine various guidance (advice) in order to acknowledge and "eliminate 'race-based' medicine and resulting health disparities." It is, after all, 2022. The concern is that such previous guidance has been responsible for "Black youngsters hav(ing) been undertreated and overlooked." Why has this recognition and move toward remediation taken so long?

The article notes that the pediatrician's move is not novel or unprecedented. There is discussion of "similar pledges" by groups such as the American Medical Association. It notes that the reexamination is "spurred in part by civil rights and social justice movements," which is notable. However, there is also recognition that science is an influence particularly as to how "social conditions, genetics and other biological factors play in determining health." It is possible that the foundations and ideas that are now being reexamined and discredited were nonetheless previously viewed at some point as "science" and that those who held the beliefs perhaps back then encouraged others to "follow (that) science. How is it that science has not itself challenged those inappropriate racist foundations previously?

The Associated Press provides specific examples of Pediatric Academy progress, notably as regards issues with urinary infections and newborn jaundice. There are recognitions by some physicians or scientists that new foundations and guidance may include an explanation “of how some of our frequently used clinical aids have come to be — via pseudoscience and racism.” Thus, in a nutshell, those guidances have been longstanding, discriminatory, and not based on science. It is probable, nonetheless, that the groupthink they represent was nonetheless something doctors and society were encouraged to believe or to "follow" (likely blindly). 

An interesting side allegation is that at least one expert contends that the racist medicine group think, or pseudoscience, has "harmed patients." That result is noted in the article as regards scientist's "oath as physicians — to do no harm." Which reminds us again of the  Hippocratic oath (or other writings, perhaps), or should we say the "Sydenhamic oath?" From whatever source, the concept of avoiding harm is admirable and appropriate in science, medicine, and likely elsewhere. How should that avoidance come, through consensus or science?

The pediatric group is encouraging others to follow its anti-racist lead. It advocates that "other medical institutions and specialty groups" should similarly address their foundations, premises, and guidance to "work() to eliminate racism in medicine." One source was quoted therein characterized medicine as a "a pipe full of holes," and advocated that plugging one hole (pediatrics) will be merely a start that other specialties and groups must emulate in order to address all of the potential faults (leaks). The implication is that there is systemic racism in a variety of specialties and premises. 

The broader interest being pursued in this regard has also been newsworthy. An excellent example is a 2021 Nature publication Health Inequities and the Inappropriate use of Race in Nephrology. It concludes

"ignoring the biological and social heterogeneity within any racial group and inferring innate individual-level attributes is methodologically flawed"

Heterogeneity is "the quality or state of being diverse in character or content." The criticism is of bias, stereotypes, and race-based assumptions. In short, it seems suggestive that the physician should examine the patient, observe the specifics, define a diagnosis, and instigate treatment without reference to biases, prejudice, or racist groupthink. That this may seem a novel approach, is troubling and offensive. Treating the patient based on her/his symptoms, testing, etc. should always have been our course. Learning that care and treatment has been influenced by prejudice and bias is disturbing. 

The critical point is that humans are each potentially physically distinct or different based on a variety of causes including personal genetics and biology. Medicine cannot treat each of us identically because we are not identical. Clearly, racism regarding medical diagnosis or treatment is both illogical and inappropriate. One wonders how the scientific community has awaited 2022 to address the false assumptions and foundations that have apparently been heretofore applied.

In a world in which we are all told to "follow the science," there exist such untoward examples of science and scientists not themselves following the science. There are, instead, instances in which consensus and "group think" have prevailed in a scientific community, to the detriment of some, perhaps many, maybe most. Whether we conclude that the pediatric association's current mandate does or does not include "do(ing) no harm," we must remain aware of the potential for consensus thinking masquerading as science. 

We must applaud any effort to reexamine theories and postulates which may or may not remain appropriate. That such conclusions previously achieved consensus should not dissuade us from reexamination, critical testing, and new science-based postulates when appropriate. When asked to make assumptions or to reach conclusions based on a person's race, the entire chorus should ask why, challenge and question the science, and decry racism and prejudice. Medicine and science face many challenges, the unknown, the evolving, the pernicious. Racism should not be one of them. 

Theft and Violence

In It Isn't Maybe So Simple (March 2022), the importance of security and stability is discussed. The point there being that towns are dependent upon the people who live and work there. There is a symbiosis in in which the whole (town) thrives, or not, largely in keeping with whether the people and businesses there thrive. A recent news headline about business raised similar thoughts. 

CNBC recently reported that Fed up with the rise in thefts and shoplifting, small-biz owners across U.S. are taking action. The crux of the story regards laws that have left store owners largely on their own as regards theft. Various governments have set "theft thresholds" and are unlikely to pursue criminal charges when the value of what is stolen is below such thresholds. From the perspective of government, some level of theft has become not criminal, but merely a nuisance or perhaps a "cost of doing business." 

A similar argument was made decades ago as regards the minimal impact that any particular misguided farmer might effect by growing more wheat than the government thought appropriate. In 1941, an Ohio farmer exceeded the harvest limit that the government had dictated for him (by about 250 bushels). Despite having some rather large fish to fry (Nazism, Hitler, Japan), the full might of the federal government was brought to bear on this farmer in the midst of World War 2. 

Eventually the United States Supreme Court in 1942 unanimously upheld the government's authority to regulate this farmer's wheat production. Wickard v. Fillburn, 317 U.S. 111 (1942). A major conclusion in the court's analysis was that the cumulative effect of many small incidents could have a significant effect on interstate commerce, thus empowering the federal government to regulate under the Commerce Clause. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)("an aggregate impact on commerce"). An apt comparison of the logic might be the "death of a thousand cuts," in which each is perhaps minor, but the overall impact is significant ("death").

In a seemingly similar spirit, the article notes that some police agencies will now pursue criminal activity if an offender is seen as a larger threat due to multiple otherwise non-actionable allegations. An industry group spokesperson notes that "several states are looking at ways to aggregate multiple crimes so that when an individual does go above the felony theft threshold, it will be easier to bring charges." It seems that such an aggregation would necessarily mean that the police would have to respond to calls regarding the smaller thievery and thus identify the thief and quantify her/his spoils from each theft. Or, perhaps video evidence could be used to charge multiple offenses upon an initial arrest. 

Any propensity of the police not to respond may implicate safety. Workplace violence is a real threat to the health and safety of workers. The Occupational Safety and Health Administration (OSHA) identifies this as "the third-leading cause of fatal occupational injuries in the United States." However, it can also be a broad range of behavior that is not fatal, including "any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior." OSHA suggests that employers strive to minimize the potential for workplace violence.

Various employers are said to have instituted policies directing employees not to confront or to touch shoplifters, an avoidance technique at least in part driven by apprehension of workplace injury. Atlantic Public University (APU) claims employees perceive employers as "ignoring the problem," as they are "forced to stand idly" and not confront suspected shoplifters. This article contends that shoplifting losses in the U.S. "exceed(ed) $45 billion" in 2021. Some would conclude that cost is significant, and it likely impacts the cost of goods for all consumers and perhaps retailer decisions about ongoing business.

The APU article notes another disturbing impact on workers, the business closure alternative. It asserts that some companies are closing stores and withdrawing from communities. Although examples are cited, there is not broad evidence provided to support that such closures are predominantly related to shoplifting losses, compared to the many potential factors a company might consider. However, the example of Walgreens' closure of 53 locations in San Francisco is cited as one notable example in support of the hypothesis. This cites theft specifically. 

CNBC notes that as a result of multiple small thefts, some businesses claim to be "losing thousands of dollars each month." They are allegedly fearful to submit all of those losses to their insurance companies for "fear of being dropped." Thus, they perceive that they are in business in environs where the local laws do not protect their property rights and have concluded, right or wrong, that their contractual relief (insurance) is not the best path either. One retailer cited claims to have lost about $8,000 per month in Denver. 

Instead of resorting to insurance to socialize the losses, these small retail businesses (and perhaps larger ones) are "taking matters into their own hands." They have begun "charging a 1% crime spike fee on all transactions" in some settings. Others are hiring private security, and some are allegedly "shutting down completely," according to some sources (as noted in the Walgreens example above). Locations noted in that story include New York City and San Francisco. Overall, the issue of theft appears to be increasing, according to a cited poll. 

Although the story refers to the theft as "shoplifting," it also describes incidents that involve weapons. Shoplifting is defined as "willful theft," but the definition does not mention violence. One cited "shoplifting" instance allegedly documented on video shows a thief who selects plunder, "then threatens employees with a 2-foot-long machete and walks out of the store with stolen merchandise." That, to some, may instead be armed robbery. And, that potential for violence has shop owners concerned also. It is very likely that any employee threatened with a machete would feel "harassment, intimidation, or other threat," as OSHA warns.  

The situation is notable in that thievery is now seemingly accepted as a part of our lives in some places. One shop owner noted poignantly "I can't depend on the police anymore. I just have to protect my business." What is the impact on workers? There is a symbiosis between workers and employers, illustrated nowhere better than in workers' compensation. Here, each yields rights in this legislative compromise and gains benefits in exchange. There is no winner or loser, but a détente that somewhat protects each. In a larger sense, business needs workers and workers need jobs. Communities need retailers and retailers need customers. There is a balance at work. 

The situation of workplace violence threats is not limited to retail. CNBC notes restaurant operators expending resources on "protect(ing) our managers and our staff from some unruly guests." The cost of security is significant, and the threats of violence are too prominent in the news. The news has brought us descriptions of fast food disputes, mask disputes, and more. People's frustrations and anger are being directed against innocent employees who face potential injury, and indirectly against employers that face potential liability for injuries to employees or others. 

In the world of work, what will be the cost of commerce? Will businesses remain willing to operate local retail facilities (and provide those community jobs) despite the perceptions of insufficient legal protection? Will employees be threatened and harassed in the workplace, flee from assailants, or otherwise be put in situations that risk workplace injury? Societal acceptance of some level of theft as a cost of doing business is impacting employers, as well as the employee who is threatened with or injured by violence. 

The end result of the challenges may be lost jobs, or worse personal injury. It is challenging. There are those who are vocal about law changes seen as precipitating or allowing poor behavior. The Los Angeles Times notes criticism of California law changes there regarding punishment for theft of less than $950.00 "A thief can go from store to store grabbing $900 worth of merchandise at each and it’s still a misdemeanor"). A similar value limit has been criticized in Chicago, according to ABC7 News. 

While the issues of theft seem unrelated to workers' compensation, the issue of work availability and a safe workplace seem to be intertwined. The safety of workers can be a significant challenge in the best of circumstances and may be more so in the worst. If the law leaves retail and service businesses unprotected in the interest of community savings or otherwise, there seems a real potential for business closure, loss of jobs, and workplace injury. It is a curious and intriguing challenge for government, business, and workers. 

Happy Memorial Day

I am not a veteran, though I have the utmost respect for those who have (and do) served this country. I have known my share over the years, and have reflected even upon those whom I never met. I recognize that many have suffered and many were lost. See Remembrance (September 2021). I am beholden to those who have made the life we live possible.

Long before my birth, in another age, there was a conflict on this continent that remains deeply ingrained to this day in all that is America. There is often disagreement about the Civil War and those who fought it. There are many perspectives on the causes of war, and the perspectives that contributed to it. However, death in any instance is troubling, even when women and men are ordered into battle for a cause or supposed cause one does not fully understand or with which one does not agree. History is replete with evidence of such deaths in battles. 

The aftermath of such conflict is inevitably sorrow, remorse, and reflection. According to the Constitution Center, our American Memorial Day began when "On May 5, 1868, an organization of Union army veterans," called the "Grand Army of the Republic (GAR)":

"established Decoration Day as a time for the nation to decorate the graves of the war dead with flowers. Maj. Gen. John A. Logan declared it should be May 30. It is believed the date was chosen because flowers would be in bloom all over the country."

On that first recognition of "Decoration Day," a congressman spoke at Arlington Cemetery, and noted:

“We do not know one promise these men made, one pledge they gave, one word they spoke; but we do know they summed up and perfected, by one supreme act, the highest virtues of men and citizens. For love of country they accepted death, and thus resolved all doubts, and made immortal their patriotism and their virtue.”

The Constitution Center goes on to explain that despite this 1868 GAR recognition, some communities had been recognizing those sacrifices as early as 1866 with flowers and "similar ceremonies." Then "Decoration Day" became a "Federal holiday in 1938," with emphasis on those who passed in "The Great War," which was also labelled the "War to End all Wars" (which, I might remind it was not). Then, the "name 'Memorial Day' became more commonplace after World War II," and that name was not eventually "officially adopt(ed) . . . until 1967." So, for the past 50-some years since, we have celebrated Memorial Day on the last Monday in May.

I know, it is not May yet. Stick with me for a few paragraphs on why I am wishing you Happy Memorial Day today.

This is a blog about workers' compensation, which has few parallels to the service of members of the armed forces (my job could become dangerous, but the purpose of a soldier's job is inherently dangerous). But one congruity bears mentioning. Albeit in smaller numbers than in the human conflicts of forces, great and small, people die in occupational settings every day. As the Occupational Safety and Health Administration (OSHA) reminds, "Dying Shouldn't be Part of the Job," and "Safety is Every Workers' Right." Thus, a second "Memorial Day" has been established and observed each April 28 - Workers Memorial Day. Its history is much shorter, attributed to an initial effort of the AFL/CIO in 1989, not yet 50 years ago.  

Are those who die on the job any less meritorious than those who die in military service? I would suggest that there are differences, but I would also suggest that those people likewise "by one supreme act" similarly merit our recognition and appreciation. They went to work as we all do, and by some circumstance or happenstance, they did not come home. Some because of violence. You must read Ms. LaVoie's recent post The Day My Husband Didn't Come Home from Work (April 2022). But many are instead by accident, inattention, and happenstance. Most, however, are largely preventable or at least capable of precaution and care.

The Bureau of Labor Statistics (BLS) noted that 4,764 workplace deaths occurred in 2020. That is the lowest total since 2013, and equates to a death about every two hours of every day. That is all day, every day, year round. That number is thankfully lower than what we have seen historically. The Economic History Association documents the notable improvements we have seen as this country has maintained focus on workplace safety, implemented workers' compensation, and improved working conditions. BLS provides extensive detail in this regard:

The preceding chart from the Centers for Disease Control demonstrate the improvements over a 15 year period beginning in 1980. The chart below illustrates the change in workplace injuries more broadly and over a longer period, beginning coincidentally with the passage of the Occupational Safety and Health Act in 1972 (which included the focus on workers' compensation, see Friends, Romans, Countrymen Lend me your ears (March 2022). There was a renewed focus on workplace safety in the 1970s and despite much for which we can criticize the OSHA and the National Commission on State Workers' Compensation, the decrease in workplace injury and death is marked, notable, and certainly welcome.

All that said, there remains room for improvement. Though 2020 saw a decrease in workplace deaths, and a notable valley ("lowest annual number since 2013"), 4,764 people nonetheless died at work in 2020. The leading cause was motor vehicle accidents, accounting for 37.3 percent of the total, 1,778 fatal injuries. It is also worth noting that 259 of those deaths were workplace suicides, a reminder of the challenges of mental health services and workplace resources. Other leading contributors to the total were workplace violence and "exposure to harmful substances or environments." In short, there are various issues with which an employer might yet be validly concerned; in the same vein, employees might do well to also take note. 

In the end, there will likely always be room for improvement in workplace safety. The focus that has been brought to bear in the last 50 years is laudable, as are these improvements regarding the occurrence of accidents and death. But, there remains work to do, focus to bring, and attention to pay. The point of April 28 is to remember those who have died, who "made immortal their patriotism and their virtue,” perhaps not in the same manner as those who defend us (or perhaps in precisely that way as regards police, fire, and some others). It is to remind us that "Dying Shouldn't be Part of the Job." It is to remind us that workers' compensation plays a significant and vital role in workplace safety and that all workers benefit from its presence, persistence, and protection. We should be thankful for all workers, and the sacrifices that too often occur. 

Happy Workers Memorial Day America! And, as a character made famous on a television show decades ago, "let's be careful out there." (Hill Street Blues, MTM Enterprises, 1981-1987).

The 1918 Flu in the News

We have recently lived through the pandemic of our times. Although there is the potential for future challenges that have similarities to SARS-CoV-2 and COVID-19, it is unlikely that many of us living today will be around to remember this when the next challenge comes along. We have seen a great deal of mistakes and missteps in this instance, and reflection is perhaps a worthy use of a few moments.

Beginning in March 2020, we were unequivocally told much about this virus, experts provided the government with advice and we were exposed to their predictions and prognostications in the news. For example, we were told not to wear masks and later told absolutely to wear masks. That debate even included then-U.S. Surgeon General Jerome Adams. See Show Me the Science (September 2021). We were told it was not airborne, and then eventually that it was (is). Two years after it first appeared in America (they think), various mysteries remain for investigation despite all we have been told. 

Some of the contradiction and policy decision-making was perhaps not based on science. We saw wholesale lockdowns, shutdowns, reactions, and precautions, all largely based on consensus, fear, and perhaps an overabundance of caution. The caution was perhaps driven by the potential for widespread death. Let's face it, the potential for millions dead was a very scary proposition in March 2020, and the reality of the deaths now experienced remains sobering. In discussing the science, it is notable that the source of SARS-CoV-2 was not unequivocally identified, and the exact path that led it to human infection remains unclear today. Two years since our first infections and we don't yet definitively know the source. 

When the miracle occurred, See The Future's So Bright (February 2021), I reminisced at the many scientists who had found the potential for a vaccine within a single year after infection began to be fanciful and doubtful. But, in less than a year, there was a vaccine (to be fair, there was more than one). Those scientists who doubted it were wrong. Public statements by so-called experts and scientists (opinion, without data) about the vaccine effort and its rapidity were possibly responsible for various people's reluctance to accept the vaccination when it did become available. Despite those public opinions, in the first year after the vaccine debuted, "over 200 million Americans, just over 60% of the population, had been fully vaccinated," according to CNBC.

Science, in its real terms of hypothesis, testing, and conclusions, has really only just begun to address many of our COVID questions. This was illustrated recently in a great program produced by ACOEM regarding "Long COVID," a reference to the ongoing symptomatology and complaints of those who have recovered from the infection but continue to suffer. To a person, those experts noted that there remains much to learn and that studies and proofs are only just beginning to bring data. Those symptom challenges will likely be a part of our national health considerations for many years to come, and as such will be part of workers' compensation and the tens of thousands of already accepted workers' compensation COVID-19 claims.

Throughout the pandemic, there have been those who drew parallels to the 1918 influenza pandemic. I referenced it in Occupational Disease and the 1918 Flu (July 2020). It is mentioned again in West Nile Disease in Comp (August 2020), and yet again in Disease and Causation (February 2022). There are some parallels in terms of both disease and workers' compensation implications. However, as the data is accumulated, it appears that there may be valid parallels to draw regarding other pandemics as well. 

And, it turns out, that sometimes the challenges of our natural world can be beyond the present ability of science to grasp and explain. The Microsoft Network recently published a critique on the 1918 scientific reactions and illustrated the dangers of consensus among the scientific community. The article is titled The 1918 pandemic mistake that changed medicine forever.

This describes a "bacteriologist named Richard Pfeiffer" and his error of 1892. He, and other scientists, did not then grasp that the flu resulted from a virus (there were things science did not then know). Researching the "suite of infectious respiratory symptoms" then referred to as flu, this scientist/researcher then connected the disease instead to "a new bacterium in 1893."

Through a series of experiments on "31 patients who had died in the flu pandemic of 1889-90," Pfeifffer "discovered a new type of bacterium," "bacterium Bacillus influenzae" (which became in common parlance "Pfeiffer's Bacillus"). He concluded that this was "the exciting cause of influenza.” The article noted this scientist's stature and standing, and noted "his stature was such that people readily believed him." (side note, Society is often impressed with the consensus of physicians, or dentists or others). 

When the 1918 flu later struck, "multiple groups developed and administered vaccines" which were often "based on the assumption that . . . bacillus caused the disease." There was, it seems, some degree of consensus among the experts regarding what they were dealing with and how best to proceed. This included "then-U.S. Surgeon General Rupert Blue" (see also, above, re another surgeon general in 2020). Those vaccines, of course, did not prevent the flu. However, the article notes some remaining consensus that various other infections were perhaps prevented by those injections, and thus "reduced deaths from secondary infections." They did not, however, stop the flu virus.

The article notes that the story of this German scientist of such stature is "a potent reminder of the challenges scientists face when a novel microscopic threat emerges." In 1918-19 "tens of millions were dead across the globe," and both cause and mechanism still largely eluded science. However, some degree of consensus drove the response nonetheless. It was decades ("roughly 40 years") before "scientists eventually discovered the viral strain that caused the 1918 pandemic." Those many vaccinations then, based upon the bacterium theory, were largely mistakes. Mistakes in which seemingly wide swaths of the era's scientists engaged through the consensus, or "group think," of the moment. See Consensus in the Absence of Proof (January 2021). 

The article notes that "the scientists" at that time “were very thoughtful, smart, hard-working people, doing their very best, using their knowledge base and their technology.” However, their collective efforts aptly demonstrated that science had not fully grasped the threat with which humanity was confronted, and consensus proved a poor substitute for science. However, their work undoubtedly led to new treatments for other diseases, hastened the formation of national and global public health institutions, and left us better prepared to deal with modern pandemics, including COVID-19.

The scientists in 1919 continued to research. They collected pathology samples and did examinations and experiments. They identified the so-called "Pfeiffer's bacillus" in some samples, but larger "teeming colonies of Streptococcus, Pneumococcus, and Staphylococcus aureus." They also found the "Pfeiffer's bacillus" in the lungs of "many healthy people" and were troubled by that incongruity. 

They performed tests by "spray(ing) a pure culture of Pfeiffer’s bacillus into volunteers’ noses," but they did not become ill. And, experiments continued, became bolder. Despite various exposures to the "Pfeiffer's bacillus," the article notes "no one got sick." This direct exposure experiment process is called "human challenge" and it has begun anew with COVID-19, as reported by Reuters. In that article, note how many similarly intentionally-infected subjects did not contract COVID-19 (47%). Note that. Some people do not contract COVID-19 when they are intentionally, directly, and completely exposed. Might we still have things to learn?

One of those studying and experimenting in 1919 later reflected that “We entered the outbreak with a notion that we knew the cause of the disease. Perhaps, if we have learned anything, it is that we are not quite sure what we know.” Perhaps, that caution remains yet today as we face new challenges? There is room for experimentation, gathering of real data, and study.

The bacteria and the flu were studied for years after "Flu deaths finally returned to pre-pandemic levels in 1921." Science worked on the potential causes and focused still on this bacillus. In 1933 researchers began to focus strongly on a virus. It would not be until 2005 that science would determine conclusively "the deadly strain that caused the 1918 pandemic . . . was H1N1, and it had leapt from birds to humans." Over 80 years of work and science were needed for somewhat definitive answers on H1N1. 

That H1N1 flu killed "At least 50 million people . . . in 1918." It evolved to an endemic state and has since killed "tens of millions of people" more.  MSN notes that the science method has improved in the century since. In 1918, there were "no standardized methods of research or testing, virtually no peer review, and no common protocols for clinical trials." Our evolution since then has included better communication and critical thinking, guidelines for trials, even the establishment of the National Institutes of Health, and global efforts through the World Health Organization.

And progress continues. A 2005 paper suggested that neither H1N1 nor SARS-CoV-2 was the first virus to "leap" from one species to another. There is a study now to determine if a coronavirus "leapt from cows to people" in 1890 when Pfeiffer was studying the bacillus. There are symptom similarities cited between the 1890 event and COVID-19 ("including the loss of taste and smell, seizures, and long recovery periods"). Some therefore now wonder if "the 1889 pandemic was not caused by a flu virus at all, but by the CO43 coronavirus." Maybe humans have lived through other coronavirus "leaps?" Science, it seems, does not have all the answers, and in some instances perhaps even struggles with finding the questions (whether that event was a coronavirus is only now being considered over 100 years later).

The MSN article cites one scientist explaining that "it’s a modern mistake to think the researchers working during past pandemics were missing the obvious." Instead, the point is that much remains unknown, even now. He contends that even today

"we’re still in the dark about some aspects of COVID-19, including its origins, its long-term impacts on the body, and its ultimate evolutionary trajectory."

He contends that in another century, "there are definitely going to be insights that should have been quote-unquote ‘obvious’ to us now." And, he reminds us "that’s the way of science.” It is not exact, all encompassing, and conclusory. Science is evolving and developing. There are new discoveries, theories, and proofs. Despite the inclination to blindly and obediently "follow the science," and its best consensus of today, perhaps the better course is to challenge the science and seek further discovery and illumination? If not, we might still be treating the flu virus as a bacillus and how many more millions might continue to suffer without the now ubiquitous influenza vaccines that evolved from better study and focus?

The science has admirable moments. The miracles of vaccination and prevention are clear. But, the consensus of the moment can be wrong, has been wrong, and time will be required to validate or disprove that to which consensus leaps.  

 

Medical Excuse

We are each a conglomeration of many factors. On a given day, I might be hitting on all cylinders and pushing the envelope. Yet, on another day it is possible that I might be tired, irritable, anxious, and a myriad of other emotional states all rolled into one. Bill Gates has said

"The human body is the most complex system ever created. The more we learn about it, the more appreciation we have about what a rich system it is."

And, he has dealt with some reasonably complex systems and challenges over the years. One source concluded that our bodies "contain() around 37 billion cells," and that therefore "there were about 37 billion billion (37 x 21 zeros) chemical reactions, taking place every second." Yes, we are complex in our physical composition, and all those little cells are acting and reacting nearly constantly.

Is it any wonder that sometimes "you are not you" for whatever reason? Or, perhaps you are are you at a given moment despite perhaps wishing no one would notice your behavior?

News 5 Cleveland last year reported Board recommends 2-year suspension for judge for misconduct. The Board is the Ohio Board of Professional Conduct, which appears to be similar to the Florida Qualifications Commission. The recommended suspension is a very significant period of time. Of equal note, however, the judge is accused of "over 100 serious incidents of misconduct over the last two years." This is detailed in "a 58-page report filed with the Supreme Court of Ohio."

The Board accused the judge of violations that are within the broad categories of: "issuance Capiases and False Statements," "Ex Parte Communications, Improper Plea Bargaining, Arbitrary Dispositions," "Improper use of Capiases and Bond to Compel Payment of Fines and Court Costs," "Public Confidence, Lack of Decorum and Dignity Consistent with Judicial Office," and "Abuse of Contempt Power and Failure to Recuse."

The allegations include persistent conduct of proceedings after the pandemic lockdown began. The judge is said to have refused to continue or "reschedule her cases and issued warrants for defendants who failed to appear." The article is quick to point out that the "administrative order" that was violated "was designed to ensure the safety of the public and the court’s personnel during the pandemic.” In addition, the Board alleged that the judge "lied about it to the press and to the presiding and administrative judge of her court."

The Board also accuses the judge of "routinely conducting hearings without the prosecutor present," and of "recommend(ing) pleas to unrepresented defendants with no prosecutor present." The absence of all parties is a clear warning that ex-parte may be at least perceived, even in the best of circumstances. See Judicial Behavior and Ex Parte (October 2015), Ex Parte Yet Again (September 2019). 

The crux of ex parte is that conversations and communications that include the judge (or in may instances even judicial staff), but do not include all the parties are problematic. They are sometimes unavoidable, because someone declines to attend despite receiving notice. However, in such instances, if everyone was provided notice (the opportunity to attend), the judge may still proceed. Such communications should always be on the record.

Beyond the process issues alleged above, the Ohio Board also found issues with a “lack of decorum and dignity consistent with judicial office.” It alleged that the judge wore "inappropriate attire to the courtroom," including "tank tops, shorts, T-shirts and sneakers." It has been a rare "casual Friday" on which I might wear jeans and sneakers to the office, but even that level of informality is inappropriate in the hearing room. Proceedings should be dignified and shorts or t-shirts are simply not in that category absent some exigent circumstance or emergency. 

The informality of such attire, in the Ohio case, was also allegedly verbal. The judge is accused of making "frequent" references in which she compared herself to a character in a cable television series "about a Mississippi strip club," "joking about accepting bribes and kick-backs," and "suggesting ‘hook-ups’ as a quid pro quo for lenient treatment." 

Some of the allegations are somewhat salacious and the sheer volume of cited examples is troubling. One must remember that the Code of Judicial Conduct cautions against many behaviors specifically, but has a "catch-all" of concern: avoiding appearances of impropriety. Canon 2. Thus, even if the intent and action is all absolutely honorable, the appearance created can nonetheless be troublesome. The multitude of allegations in this case certainly suggests an appearance of impropriety, even if some particular instances of casualness, dress, or decorum were justified by some excuse or circumstance. 

Back to the complexity of the human mind and body. In this case, the Judge's attorney plead medical excuse. Counsel explained that the alleged behavior was caused by "the effects of sleep apnea and menopause," and "presented expert testimony and a report from a clinical psychologist" to support the diagnosis of “Generalized Anxiety Disorder.” The news reported that the Board was somewhat critical of the expert's process and conclusions. In short, it was not persuaded by the medical excuse that essentially argued that our bodies can be complex and at times out of balance due to our sleep and other complications. 

The Ohio Supreme Court will decide the Judge's fate. In a recent hearing, there was an additional indicia of skepticism about the medical excuse(s). According to Fox 8 News, one justice asked “how does sleep apnea or menopause contribute to lying?” It is practical to conclude that we are complex, and may each have an off day from time to time. It is possible for medical conditions to affect our persona and demeanor. However, the proof of that for a given instance may be required. That is, something beyond the allegation. As in all disputes, the candor and credibility of any expert opining on such a defense may likewise be an issue. 

It will be interesting to see if the Ohio Supreme Court finds the evidence in this case, with so many individual instances and allegations, to be compelling or persuasive. In their deliberations, one challenge will be similar to what workers' compensation judges face daily: how do described symptoms match with diagnosis, and which experts are most credible in describing and explaining the complex issues of the human mind and body in that instance? Is the judge simply not herself due to some cause(s) or is there a generalized lack of comportment that merits this significant suspension?