When its Over

Over is a challenging term to some. There may be a reluctance to accept it. Over has been the topic of a few lyricists over the years. Sugar Ray (2001) asked "When it's over, Is it really over?" Loverboy (1981) simply intoned "It's over, it's over, it's over." Both songs had the same title When its Over, and each addresses the end of a relationship as songs are wont to do. 

The lyrics recently came back to me regarding the potential for a "nothing's over" posture as to claims. There are a variety of paths to "over" in workers' compensation litigation. A party can resolve her/his claims for benefits. This is referred to as "all issues resolved," and means merely that the pending petition issues have been resolved. The resolution of "all issues" does not mean "it is really over." That merely means that these issues, at this time, are concluded. 

Or a party can resolve the current issues and all future potential benefit issues, referred to as "settled." A settlement, by comparison will mean that "It's over, it's over, it's over," unless some class of benefits is specifically excluded from the settlement, such as when only indemnity (monetary wage replacement) or only medical benefits are settled. 

But, compromise is not the only path to resolution of a claim. A party may instead proceed to trial. A party has the opportunity to present her or his evidence to the Judge of Compensation Claims, from which a final order will follow. That order may award or deny specific benefits. In the event such an order denies benefits, it may be, again, that merely the present claims are over, but that the employee's case remains open and subject to future claims of entitlement to other benefits. 

It is also possible that the employer will deny that any compensable injury or accident occurred, or other broad defenses. The employer might allege that misrepresentations were made. If such a broad defense is accepted, it is possible that this particular final compensation order may mean that not only are those present claims denied, but that the case itself is concluded. That is, that no future petition filings can re-open the case to further consideration. 

Thus, through resolution or adjudication, an employee's litigation may at various times be over for now, and at some time may instead be permanently over. 

When a decision is rendered by a Judge of Compensation Claims, it is never the final word. Any party may seek appellate review of a judge's decision, see section 440.271 Fla. Stat. Before doing so, the party should generally point out any alleged mistake or error to the trial judge through a motion for rehearing, see Rule 60Q6.122. This allows the trial judge to correct flaws in the trial order. The time to seek rehearing is limited to 10 days, a reasonably short deadline. 

The time within which to seek review by the appellate court is also limited. The party seeking review must file her/his/its notice of appeal within 30 days of the date the challenged order is "rendered." The date of rendition is the day the order is sent to the parties. And, if the notice is not filed within this time, then the appellate court does not have jurisdiction to review the order. See, Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685, 686 (Fla. 1st DCA 2007). The failure to file timely may be fatal to the request for review. 

While the appellate court has jurisdiction over the case, while the case is pending before the court, the trial judge's authority over certain issues may be limited. The authority over the specific issues decided and appealed shifts from the trial judge to the appellate court until it concludes its review. But, other issues may also be beyond the trial judge until such time as the Court rules. This is dependent, in part, upon the manner in which those tried issues were decided, the nature of the defenses, and more. It can be difficult at times to discern what does and does not remain in the trial judge's authority while the appeal is pending. 

If a timely notice of appeal is filed, the appellate court may instruct the one seeking review (called the "appellant") to do particular things, by issuing orders. There may be actions required instead by the Rules of Appellate Procedure. The appellate court may conclude, for a variety of reasons, that an appeal should be dismissed (meaning it will not address the specifics). 

The court may consider the allegations in the appeal, and remain unpersuaded. The Court may conclude the appeal based upon the allegations in the challenger's (appellant's) initial brief. In that instance, it may instruct the other parties not to even file a brief. It may make its decision based upon that brief and the "answer" brief of the party that did not seek court review (appellee). And, in some instances, the court instead will consider all the briefs and still invite the parties to provide oral argument regarding the issues. 

The court may fully consider the challenges and then either affirm the trial judge (meaning the appellant does not prevail and the trial decision stands). This "affirmance" may be expressed in a written opinion that provides an explanation and edification as to the outcome (affirmed) and the reasons or precedent relied upon by the court in reaching its conclusion. Or, the court may "affirm" in a brief opinion that provides no explanation for its decision. 

The court might instead reverse the trial judge's decision. Often, in that instance, the court will tell the trial judge to reconsider specific evidence in light of its opinion, or perhaps even conduct a new trial. This process of returning the case to the trial judge is called a "remand." When the Court reverses, it is common for it to instruct the trial judge to revisit the topic, correct the mistake, and issue a new order either with or without further trial proceedings. It is also possible that the appellate court may instead reverse the trial judge's conclusions and simply state the outcome of the case. In those cases, no "remand" of the decided issues is necessary, the appellate court decision summarily concludes the issue. 

Those appellate decisions are generally rendered by a panel of three judges. It is also possible that a party may be unsatisfied by the appellate court ruling. A dissatisfied party may ask the same three-judge panel to reconsider the decision, in a similar motion for rehearing. The party could ask the entire court to consider the outcome of the appellate challenge, an "en banc" consideration. The court might or might not agree to such a rehearing. 

The unsatisfied party may also seek review of another court, such as the Florida Supreme Court. She/he/it may express dissatisfaction with the conclusions of the appellate court, and/or continuing dissatisfaction with the trial judge. Whether the Supreme Court will undertake a review is generally a decision within its discretion, though there is a small category of appellate outcomes that the Supreme Court must hear. 

When this appellate process has concluded, or after the 30 days a party has to instigate the appellate process, the case may in fact be over. If the decision of the trial judge did not address the case, but only specific issues, it is possible that merely those issues will be over following the appellate process or the 30 days. In either instance, one might conclude that understanding and traversing this process is somewhat complex and even confusing. 

But, in either instance, "over" may be the ultimate outcome. Once an issue is litigated and decided, a party may not be able to pursue that issue ever again. It may be that the issue or the entire case is over. Really over, as in "It's over, it's over, it's over." That may be difficult for a party to accept. There may be an inclination to feel that some path forward always exists. But, the reality is that eventually the litigation will come to an end and the case or issue will be over, whether for good or ill. 

However difficult that conclusion is to accept, "when it's over" it may truly be over. The issues in any litigation may be highly personal and important. It may be emotional for any party. But, it may nonetheless be simply over. 

Comp Laude.Choice

Nominations are all in (but wait, there's more). The list of 2020's nominees has been published. It is a fantastic array of individuals who merit recognition for a variety of reasons. 

In reflecting on Comp Laude this week. I ran across an email from one of my prior nominees. It included the text of a speech he had later delivered, titled: "the most meaningful month of my career." It was a touching note that I asked permission to publish. You see, I am reflecting on the over 70 individuals that I have nominated over the years for Comp Laude recognition. It struck me that this year I nominated 23 and 21 made it through the first round of vetting, see Comp Laude 2020. That is a sound compliment to each of them (I just filled out a simple online form). Nominating is short, to the point, and easy. You should try it in 2021!

But, that nomination process is but one path to a Comp Laude recognition. The People's Choice is one you can sign up for yourself. It was a People's Choice speech that this lawyer delivered at Comp Laude. You too can deliver a speech; it is similar to a TED talk, but with slides, pictures, and sound (about 6 minutes maximum). During the program, the attendees will vote for a winner. If no one has ever nominated you, consider submitting your People's Choice proposal now, and in effect nominate yourself. The proposal deadline is September 18.

I was touched by the "most meaningful month" speech delivered by attorney George Kagan because it touches on critical themes: mentors, dedication, and remembering that each injured worker is a person deserving of respect, dignity, and courtesy. I have known Mr. Kagan a number of years, been privileged to see him speak, and even shared the stage once. He is one of the most engaging, energetic, and gregarious people I know. It is my hope that his persistent enthusiasm and spirit may somehow rub off on me one day.

What follows is attorney George Kagan's People's Choice speech delivered at the 2019 Comp Laude Gala and awards program (the video on this link begins at about 5:31, before that is introduction, etc.). 

October 2018 was THE most deeply meaningful month of my career.

And at age 69, .... that covers a lot of months! 

But No matter how many months you’ve been at it, I promise to impart something worthwhile.

In October 2018 I went to San Diego —as a proud Comp Laude finalist in the legal defense category — GREAT start; but only the beginning.

By remarkable coincidence — or maybe something more than that —the trip gave me a chance finally to accept an invitation from two folks who’ve become quite dear over the last couple years and who’d been inviting me to visit at their home in either Palm Springs or Laguna Beach; 

They are: retired rear Adm. Warren Aut, former supreme Allied Cmdr. of NATO, North Atlantic Fleet; Commander of the naval base at San Diego, and last but not least, commander of the recovery crew for Apollo 12, ....... And his wife Darlene, retired VP and director at Coldwell Banker, with spellbinding stories of her own (ask me later!).

They were delighted by my brief visit and even gave me mementos.

Not ordinary mementos: For instance, a strip of gold foil insulation from the Apollo 12 capsule, given the commander by his recovery team crew. 

We stay in contact: I visit them tomorrow. (Side note: want a great table and incredible service? Put Adm. on your reservation! He didn't like to do it but his wife snuck it when I visited).

So How does this connect with our program! – – and HOW in the world did this Florida Comp attorney become so highly regarded by the admiral? 

The answer is counter-intuitive – – but also infused with tragedy.

The admiral’s son was rendered a quadriplegic in a Florida Workers’ Comp accident -- but alas: for that intelligent and stoic young man — his injuries were only the beginning of the unfortunate things that would happen to him, things most disturbing, closer to home, and preventable. He died, arguably of THESE things, three years ago. Parts of the case remain open so I must be circumspect.

But, to make a long story “People’s Choice” short, Admiral Aut reached out to me a few years ago with this message: 

As he put it, he and his wife (Claimant’s stepmother) believed there was one person in his son's corner throughout -- fighting for his well-being and for his dignity:— not his multiple attorneys though they were capable and professional – but, counter intuitively: me, the “insurance company lawyer!” 

(As an aside I must confess much of the heavy lifting was done by nurse case manager Dorothy Custer, a whole different story in itself; again, ask me later.)

But I could not have asked for a greater testament to career-long philosophies which I seek, more often than not, to embody. 

Here too, however, I cannot take all the credit: I did not invent the philosophies: I was young and impressionable, and in the wrong environment, I could have gone to the Darkside.

From whence did ‘my’philosophies spring? 

October was not done with me yet.

A few days after my return I had the sad duty to attend the funeral of my revered mentor and senior partner who hired me as a kid out of law school for the only firm I ever worked for (until going out on my own 2 years ago to concentrate on appeals), a firm I eventually ran.

I was truly, literally blessed to have had him as my life-long mentor — to within a month of his passing. 

I was asked to speak at his standing-room-only service and there relayed the story of the Adm. and me. 

Here is the relevance of that story then – and now: 

I told friends and family that Jack Miller, who started out as an adjuster by the way, taught me from my first day on the job as so-called insurance company lawyer: 

"Worker's Comp is different; we have a host of built-in obligations to our 'adversary,' and the attorney — or adjuster — who could not embrace this nuance — who saw them all purely as adversaries, could not be truly successful in this work." 

And so, my first day on the job was tied by an invisible cord to my eulogy on Jack’s behalf forty-three years later, a connection beautifully validated by my visit with the admiral just days earlier! 

I don’t believe in coincidences by the way.

That was Jack Miller’s legacy — and I am grateful to say, with greater self-assurance now, it will also be part of mine.

If you’re involved in claims, let it be part of yours.

(Okay there were two more October events: a dear client’s wedding to which I felt honored to be invited, and my 50th high school reunion, where I schmoozed with guest stars Jerry Mathers as the beaver, and Mercury Morris of the 1972 “perfect season” Dolphins -- —and I not only have selfies to prove all my tales of October..............here is gold foil that went to the moon and back attached to Apollo 12. Thank you.

Who was your mentor(s)? What did they leave as a legacy? What will you leave?

Think you can do better? Now is the time to find out. Submit a proposal and deliver a speech. You might just get the recognition you deserve.

Placebo or Diagnostic?

Recently, Forbes questioned the efficacy of fever screening in Why Fever, Temperature Checks Are Inaccurate Ways to Screen for Coronavirus. In March 2020 there was not a thermometer to be found in retailers. Much like Lysol, toilet tissue, and Tylenol, thermometers became as rare as water in the desert. Untold sums have been expended on thermometers of all descriptions. I have been scanned entering medical facilities and even restaurants, on some occasions more cordially than others. 

Back in March, there was a drive to study temperatures. This blog recently noted in Artificial Intelligence Surveillance that some businesses are even measuring temperatures surreptitiously and systematically. I have even heard of businesses that perform daily temperature checks on all arriving employees. This requires equipment and competent staff to use it. The Forbes author suggests many of us may lack the skills to effectively use electronics and the periodically flashing time on my appliances may indeed support his contention. 

That is not to say that temperature testing is necessarily legally advisable. The American Civil Liberties Union has questioned both efficacy and legality. The main focus of the legality perspective centers on the right to privacy. Your right to privacy is discussed in Griswold v. Connecticut, 381 US 479 (1965). That case is discussed in both Artificial Intelligence Surveillance and The Rush to Repeal Our Rights. After that was published, I actually had an educated individual ask me what people's rights have to do with workers' compensation. That was an interesting and somewhat disappointing conversation. 

On the question of rights, I have frequently warned legal studies students to remember the power of fear. When we are scared, we look to the government for safety and protection. It is then that we may be individually or collectively inclined to forego our rights in exchange for protection. There are those who see the passage of the Patriot Act following September 11 from that perspective. The government declaring a curfew, limiting access to some location, or otherwise limiting us may simultaneously protect us and yet infringe on our rights. Some see various reactions to SARS-CoV-2 and COVID-19 in this same contrast. 

Returning to the recent Forbes piece Why Fever, the author suggests that fever "may help determine whether you want more cowbell" a reference to Will Farrell and Christopher Walken, not to Mississippi State University (dinka, dinka, dinka, dinka). However, he posits, "A fever is not a great way to tell if you have a Covid-19 coronavirus infection."

The author proceeds to explain that medical studies now support that one may have COVID-19 and not display an increased body temperature. The July 6 "study published on July 6 in the Proceedings of the National Academy of Sciences (PNAS)" concluded that most people contract the virus from someone who had no symptoms whatsoever at that time (including fever). Studies on patients who exhibit COVID-19 symptoms support that significant numbers of them do not report fever in their symptom constellation. Thus, the absence of fever is not necessarily demonstrative of the absence of disease. A "normal" body temperature upon entering the restaurant or workplace does not assure anyone that you do not carry SARS-CoV02 or that you will not infect those around you. 

The "false" positive potential is as troubling. The Forbes author notes that fever or increased body temperature may very well be demonstrated for a variety of non-SARS-CoV-2 reasons. In fact "A wide range of different things can cause a fever besides cowbell deficiency." These include a variety of maladies, both viral and otherwise, medications, exposures, and beyond. Science Daily even contends that mere stress can escalate body temperature. And, of course, exercise can do so also as an acquaintance recently found after a brisk pace from the parking lot to the hospital emergency room (after parking and finding entrance after entrance locked and inaccessible). Thus, the presence of increased body temperature could be inappropriately relied upon to produce a false positive (fever = presence of COVID-19). 

Yet another caution Forbes proposes is the ease with which fever can be concealed temporarily. The author notes the effects of "fever-reducing medication like Tylenol," which might be taken for a variety of non-COVID reasons. This use "could mask any fever that you may have." In January, the British Broadcasting Corporation reported on a traveler from Wuhan China who boasted on social media regarding her use of medication to avoid officials inhibiting her exit from China or entrance to France. Thus, the use of medication might be fever-altering through happenstance (innocent use for some non-COVID purpose) or intent. 

These points are worthy of consideration as is the author's suggestion that there remains some potential for user error with temperature scanning devices. Admittedly, the author concedes, that temperature scanning may in fact screen some potential risk individuals. However, the probabilities and possibilities suggest that we should perhaps not feel so protected or so safe because our present location includes such scanning, or because our own temperature is "normal." There is the benefit that someone is doing something, and there is potential that it may result in some success.

But, it is far from pervasive success or certainty. In the end, answering the question in this post's title, there is some measure of diagnostic potential, but apparently more placebo than not. Or, at least, more "supportive" than "conclusive." There is merit in this testing as part of a broader approach to premises safety, but it is no be-all or end-all. Similarly, social distancing, masks, hand washing, and disinfectant may each alone also not be the be-all or end-all, but each nonetheless has merit and improves our individual odds despite not rendering us absolutely or indubitably safe. 

In the end, short of a vaccine, perhaps there is no "end all" effort we can undertake. More likely, success against this pandemic will include many little efforts that each produce some small benefit and that combined help us either avoid exposure or resist infection. And, along the way, we seem to be gradually learning more about it and perhaps ourselves. 

West Nile Disease in Comp

There has recently been a great deal of discussion regarding occupational disease in workers' compensation. The Florida Court explained the Florida standard extensively in two decisions late in 2019, discussed in Florida Occupational Disease Burden (12/19). More recently, the early days of workers' compensation were discussed in Occupational Disease and the 1918 Flu (07/20). There are reminders in these discussions that workers' compensation is a conglomeration of more than 50 jurisdictional statutes that have been drafted and evolved in light of a variety of environments. The outcome of a workers' compensation claim in one jurisdiction might surprise subject-matter experts in another. 

On a national community discussion, a peer from Louisiana noted the determination of its Circuit court in Allen v. Graphic Packaging Intl., No. 51,080-WCA, (La. 2nd Cir. 2017). This is an occupational disease case regarding West Nile Encephalitis, a mosquito-borne infection that has no known vaccine or medication treatment. In recent years, the malady has affected people in various states, as reported by CNN. 

In Allen, an employee alleged that he had been in the Employer's facility break room one day when he was bitten by a mosquito. His recollection included the identities of his coworkers present when the bite occurred. He later developed symptoms and presented at a hospital for care. By that time, he was somewhat incapacitated and his girlfriend provided the history for the admission. There was some testimony that within the time for a bite to have caused the onset of symptoms (within the "gestation" period), the injured employee might also have engaged in some outdoor work at home, including cutting grass (presenting a second potential opportunity for mosquito bite).

There was no dispute in the case regarding the presence of the disease. Everyone agreed the employee had contracted West Nile Virus. The dispute was whether the employee had proven that his disease resulted from a bite at work. As discussed in Occupational Disease and the 1918 Flu (07/20), the statutory language is critical for the analysis of the compensability of any work injury. What is or is not compensable will depend upon the language employed by the elected representatives that draft a particular jurisdiction's law. 

The standards in Florida include such elements as "major contributing cause," and a requirement that the disease "resulted from the nature of the employment," the presence of "a particular hazard of such disease," and there is an exclusion for "all ordinary diseases of life to which the general public is exposed," "unless the incidence of the disease is substantially higher" in that employment. In at least some exposure cases, the statute requires "clear and convincing evidence" proof, a heightened burden. The bottom line from many perspectives is that proving occupational disease under the Florida statute is not easy.

The Louisiana statute is not as restrictive as regards occupational disease. The Court there noted that the parties in Allen had presented conflicting evidence regarding various factual points. The factual history provided, of the bite in the break room, was not uncontroverted. The Court explained these various conflicts in minute detail. The judge had therefore been presented with issues of credibility and had to reach conclusions regarding what facts were to be believed or disbelieved. 

She had concluded that the injured employee's testimony was credible. The Judge did not find conflicting evidence "discredited or cast into serious doubt his version of the incident," and "placed considerable emphasis upon" specific evidence presented. The Court concluded that the trial judge had performed that function of determining credibility appropriately and that her decision should be affirmed.

The Court noted that an employee in Louisiana has the burden of proving "injury by accident arising out of and in the course of his employment," and that the state's law is to be "liberally construed in favor of coverage," "proven by a preponderance of the evidence." This suggests a lower burden of proof in Louisiana, and a different set of challenges than those in Florida. The "liberally construed" and "preponderance" describe the burden of proof elements in that law. For more on burdens see The Burden of Proof Matters.

The Court also explained that in Louisiana the appellate court considers whether the trial judge's factual conclusions were "manifest error" or "clearly wrong." It noted that in Louisiana a worker's "testimony alone may be sufficient to establish an accident" when "corroborated by the circumstances." The Court also noted other insect bite and disease cases in which compensability was similarly affirmed.

The Court also discussed Easly v. D & O Contractors, Inc., 895 So. 2d 23 (LA 5th Cir 2005) which illustrated an opposite conclusion. There, "the plaintiff had not proven by a preponderance that he contracted West Nile while working." Thereby, the Court explained the application of the standard and the potential for the same factual determinations to result in different results. There, the trial judge similarly reached conclusions regarding the credibility and the evidence, and there the injured worker did not prevail. 

The comparison is worthy of consideration. The circumstances and the weight of evidence is critical. The credibility of the witnesses may be critical in any event, regardless of whether the burden is on the worker or employer, whether by preponderance or clear and convincing. The explanation of the Court in Allen reminds us that credibility, circumstance, and competency of evidence are important considerations for counsel in any case. 

Though the Allen Court affirmed the conclusion of compensability, it concluded the finding of permanent total disability there was premature and remanded that issue. It further reversed the trial judge's conclusion that attorney fees should be paid by the employer. It noted that "there were numerous factors sufficient to validate Graphic's reasonable controversion." Therefore, the judge's award of "penalties and attorney fees" was "not warranted." 

Comp Laude 2020

It is that time of year again. Fall brings some great things: the end of hurricane season, Halloween (chocolate), college football, the American Academy of Orthopedic Surgeons (AAOS) Workers' Compensation Seminar, and the annual Comp Laude. That may be a bit too much of a view into what drives me? I like calm weather, chocolate, and talking about workers' compensation. 

Each spring there is the opportunity to nominate people for Comp Laude awards. Spring 2020 was definitely different as the world adjusted, re-calibrated, and strove to remain on course. It was a spring when Comp Laude nominations might have been difficult to generate, the furthest from one's mind. Despite all we were going through personally, professionally, and as a community, there was a vast volume of nominations. Over 140 were nominated. 

Each of those is a compliment. I am flattered to have been nominated again in 2020. I am hopeful that the judges recognize a couple of things: first, I was already honored; second, there is a vast number of really spectacular people on this list and it makes much more sense to honor them than to revisit me. It is humbling and gratifying to be nominated. I stress that year after year. You do not have to win to be deeply honored. When you nominate someone, you are delivering a compliment. It is simply "I noticed you"; "your effort matters"; "I appreciate you being in our community."

In 2018, I nominated many (15). In 2019, many more (32). This year, I nominated 23. I know how it feels when someone takes the time to nominate you, and it is a great honor. Overall, I have made about 70 nominations over the years. For the nomination, you need someone's name, phone number, email address and a brief statement about "why" this deserves recognition, about how this emulates or demonstrates the spirit of community. It is easy to forget about the nominations as spring then turns to summer, everyday responsibilities drive you, and this year with the challenges of a pandemic interwoven into your world. 

Then the "second level" emails started to arrive from WorkCompCentral in mid-August. Those emails are to let you know that your nomination has made it through the initial vetting, and will be considered by the judges. For that, you need to kick it up a bit: a reference person, a narrative of up to 500 words, a biography, and a picture. That may seem fairly perfunctory, but accumulating it all can be a chore. When that email arrives, it is also sent to the nominee. Some of them take a few minutes and email you all you need to finish the job. That is appreciated. 

So, last week I dictated 21 narratives. That sounds like work, but just picture yourself describing why you admire someone in our workers' compensation community. It is really easy to write or dictate something about someone you admire. The biographies tend to be out there on the Internet, but a few I had to piece together from a nominee's LinkedIn profile. Amazingly, finding a professional picture of some can be a real challenge. Some folks are just camera-shy. The easiest, by far, is the references. Nominate great people and the references are plentiful, gracious, and eager to volunteer. 

I get the chance in this process to speak with many nominees. They are gracious and grateful (usually). I once had a nominee confide in me that it was not the first nomination received. This nominee actually complained that s/he had not been picked as the winner on a previous nomination and was downright dismissive of the person that did win that year ("can't image why they picked ____ over me"). I frankly found that attitude crass and insensitive. I was disappointed in the missing spirit of celebration. Certainly, it is an honor to win, but it is a massive compliment to be nominated. When you review the list of nominees, it should be apparent that many stellar individuals cannot win because everyone on the list is exceptional.

I am proud to have nominated 21 that have now reached the second level (listed below). I am proud of their achievement that led to the nomination, but also of their professionalism, humility, and community spirit. I am confident that each of them is flattered and honored by the nomination; I am most proud, however, that they are part of our workers' compensation community:

• Michael Alvey, Kentucky (Public Servant)
• James Anderson, Mississippi (Defense Attorney)
• Marjorie Eskay-Auerbach, MD, JD (Physician)
• Tammy Boyd, Florida (Vendor)
• Stacy Hosman, Florida (Industry Leader)
• JM Family, Florida (Employer)
• Laurie Lamy, Georgia, (Industry Leader)
• Hon. Deneise Lott, Mississippi (Public Servant)
• Mark Melhorn, MD, Kansas (Physician)
• William Rogner, Florida (Defense Attorney)
• Stephen Rosen (Florida (Public Servant)
• Marc Salm, Florida (Risk Manager)
• Jacob Schickel, Florida (Claimant Attorney)
• Christopher Smith, Florida (Claimant Attorney)
• Hon. Jacqueline Steele, Florida (Philanthropy - Zehmer Moot Court)
• David Stills, Arkansas (Risk Manager)
• Hon. Kenneth Switzer, Tennessee (Public Servant)
• Richard Thompson, Florida (Defense Attorney)
• Hon. David B. Torrey, Pennsylvania (Public Servant)
• Linda Vendette, Florida (Claims Professional)
• Workers' Compensation Claims Professionals (WCCP), Florida (Philanthropy - Teddy Bear Roundup).

It may occur to the reader that 5 of these are public servants, and there will be one winner. I nominated 2 philanthropies, 2 claimant's attorneys, 2 industry leaders, 3 defense attorneys, 2 risk managers. Some might question why I nominated more than one in any category? They cannot all win. I believe in each of them. The real point is that the nomination itself is a compliment and recognition. To me, the Comp Laude is not about winning, plaques, or photos. It is about the compliment. 

Comp Laude has gone virtual this year. Free educational programming will be presented remotely on 4 days: October 22, 29, November 5, and 12. The big day will be November 12 with the People's Choice presentation, which started out similar to TED talks and has evolved (now brief presentations accompanied by visual aids or power points), the injured worker panel, and the presentation of Comp Laude awards. There will be much to see, plenty to learn, and opportunities for interaction with our community.

David DePaolo believed that there is good in our community of workers' compensation. He knew that good came from people who strive each day to make the various processes work for the beneficiaries of this system: employees and employers. I am proud to have been involved, and to have been honored. But, I am more proud to have been a nominator, and to have shared with you the many outstanding people I have been honored to share. If you know anyone that impresses you, you owe it to them to nominate them in 2021.

The Physical Premises of Cyber Security

Comedian Jeff Foxworthy waxes eloquent about learning that aircraft windshields are throughly tested; he says "they shoot chickens out of a cannon at them." He notes that he "remembers career day in high school," and that included "plumbers and lawyers." But, he does not recall "a booth where you could sign up to shoot chickens out of a cannon at the windshield of an aeroplane (phon)." He believes at his high school there would have been a line for such a booth. There might be those who would do such a job simply for the novelty?

That comedy routine came back to me recently when I ran across a story on Wired.com that explains a "Courthouse Break-in Spree" and "White-Hat Hackers." When that article was published on August 5, 2020, the Workers' Compensation Hot Seat was presented the next day: Cybersecurity Threats: What You Can’t See Can Hurt You. Cybersecurity has been on my mind this year, with multiple posts devoted to the topic: Cyber Threats 2020 (July 2020) Cybersecurity 2020 (November 2019), Cybersecurity, 2020's Hot Topic (January 2020), and Cybersecurity 2020 Again (April 2020).

The Wired article introduces the idea that people are paid to attempt to breach computer system security. They are the "White-Hat Hackers" who are engaged to test the measures that have been put in place to keep networks and data safe from those who would misuse or abuse them. This apparently includes both cyber and physical attack simulations. The physical attacks involve actually breaking into buildings (by what are called "physical penetration testers" and "security consultants") to see what cyber access can be achieved, and it is the focus of the Wired article. There are companies that specialize in such cyber-testing (I do not recall that table from the high school career day, but then there were not really computers back then, or perhaps Aeroplanes, it was a long time ago). 

Two individuals were hired by the Iowa court system (the judicial branch of state government) to test the computer security afforded in various courthouses. This assignment may immediately cause one to question who owns those courthouses. That is a valid concern that these "White Hats" might have wished to ponder. This ownership of premises point raises an undercurrent of the separation of powers that exists in government. While the state court system hired these individuals to break into courthouses, that court system does not own those courthouses. They are the property, apparently, of the counties. 

As you can imagine, these individuals become fairly adept at working around security. The article describes how they "case their targets," and find outside doors unlocked, alarms unarmed, and engage in tricks such as "lock-shimming." They wander through facilities in which they pick locks, install devices to monitor networks, and even find passwords written on post-it notes or other fairly conspicuous locations. In short, they find opportunities for network breaches. 

In September 2019 they they broke into a courthouse and went about their business. Eventually, they set off an alarm, which attracted law enforcement. Though the police arrived, they ironically could not enter the secure courthouse. The two "White-Hat Hackers" exited the building, greeted the police and identified themselves. They presented the responding officers with a letter from their employer explaining their mission. This led to some friendly discussion with police, which included one office having a Foxworthy-type question: "How does one get a job like that?” A fair question. 

But, the situation devolved when the county sheriff arrived. After comprehending the situation, the Sheriff noted “This is not state property, this is county property.” Later in the conversation, he returned to that theme with "this isn’t the Iowa court’s property.” The Sheriff had the two arrested for trespassing and burglary, mugshots were taken, and they appeared before a judge the next morning (in the courthouse they had broken into). The judge expressed disbelief in their mission telling them “You’re going to have to come up with a better story than that." Despite calls from the jail the previous night, no one from the state court system (the client) appeared in court to corroborate their mission or status. 

As time passed, the two "hackers" found themselves charged with crimes. There were apologies and yet acrimony between the state court system, the "Hackers" employer, and the county. There were allegations that the physical break-in had not been anticipated by those at the state that hired the "hackers," and evidence that the state employees certainly knew. Eventually, the Courts conceded that they had instructed the "hackers" and intended a "physical penetration"; however, a statement was then issued that the state and the "hackers" had “different interpretations of the scope of the agreement.” 

Eventually, the charges against the "hackers" were dropped "with just days until their trial." The computer "security industry" has taken the situation as a warning, a "teachable moment." There are implications asserted involving the interrelationship in Iowa between the legislative and judicial branch, as well as between the judicial branch and the counties. It is a long article with a variety of interesting details. 

In the end, there are a number of lessons. First, it appears that penetrating computer networks either in a cyber or physical sense is not that difficult. The failures of users to secure networks, protect passwords, and more are disconcerting. Beyond that, for those who would undertake such testing, the lesson appears to be two-fold: (1) get the scope and intent of the mission in writing beforehand, and (2) notify the local police in advance of any such "physical penetration" of a facility. Those likely each apply equally whether the testing is cyber or physical in nature.

That reminded me of a vehicle repossession fellow I knew years ago: "When you go to steal a car, always find a payphone and call the police just before you do, but not too long before you do." That old fellow had been chased by an unknowing sheriff or two and had been shot at by a few car buyers as well. There is danger in this world. It is astounding how much "street knowledge" is required to perform certain jobs well. 

The Wired story illustrates the dangers to networks and processes. It reminds us of the separation of powers both among state branches and among the various levels of state government. It is an intriguing story with multiple warnings on cybersecurity. But, it never answers the inquiry of "How do you get that job" which would perhaps be of the most interest to Mr. Foxworthy. Apparently, the answer to that is apply. The experts say that jobs across the board in cybersecurity are plentiful, well-paying, and waiting for graduates.

Are your passwords written on Post-it notes stuck to the bottom of a desk drawer or keyboard? Worse, is it your dog's name or similarly simple?

Complacency or Zealousness

There is an exchange between lawyers in The Rainmaker (1997). The movie is full of interesting quotes and overall provides an indictment of lawyers. The quote that sticks with me is this exchange:

"Rudy Baylor : I'm curious.

Leo F. Drummond : About what?

Rudy Baylor : I'm just wonderin'... do you even remember when you first sold out?"

That line returned to me recently when I was doing some audit work in preparation for the OJCC annual report that will be published yet again this fall. The thread I followed led me from a final order to some pleadings that had been filed. I was frankly stunned by the quality of some of those documents, and not in a good way. Frankly, I suspect that no one had proofread them, not even the most cursory or complacent review before filing. 

It made me wonder, at what point after law school does a lawyer become so lackadaisical about the practice of law that simple spelling and punctuation errors become unworthy of attention or correction? My journey through these pleadings included word choice mistakes (they're, there, their), punctuation errors (sometimes missing completely), and spelling erorrs (sic). And I wondered, why?

Law school is a challenging endeavor emotionally, intellectually, practically, and financially. It is a journey that many will aspire to, some will undertake, and frankly too many will likely complete. I recently learned that some law school professors have retreated from their emphasis on writing by substituting multiple-choice examinations for the classical essay examination or written paper. When I inquired about that, I was told that grading is much easier with multiple choice. Well, if it is easier, I guess that is good. Perhaps that conveys an important lesson for the law students - "do what is easiest."

Another quote from the Rainmaker is 

"Rudy Baylor: Every lawyer, at least once in every case, feels himself crossing a line that he doesn't really mean to cross. . . it just happens . . . And if you cross it enough times it disappears forever. And then you're nothin but another lawyer joke. Just another shark in the dirty water."

I hope that is not true as to ethics or professionalism, which seems to be Mr. Grisham's connotation or intent in that context. But, I am similarly wondering if that progression is what has happened to drafting and writing? Does each lawyer at one point in some case fail to proofread? If we fail to proofread "enough times," does the practice and habit just "disappear forever?" Does the avoidance of proficiency and assiduity once lead to an encore, followed by an encore, and so on and so on?

How many poorly drafted pleadings does one file before it becomes commonplace and habit? It is possible that these documents are being provided to the lawyer's clients, as well as being filed with the judge? Perhaps those clients do not read or care? I had a client years ago to whom I would send minutely detailed and specific correspondence that concluded with recommendations. He would habitually call me upon receipt, having scanned only the ultimate recommendations, and ask "why should we do that?" Because he was the client, and the customer is always right, I never suggested to him that reading the whole letter would help him understand. Instead, I just verbalized the situation and facts set forth in the initial pages of the letter, to explain (again) those recommendations. 

Does the client's propensity to read and ask questions have any effect on the lawyer's desire to draft concisely, completely, and effectively? Or, is the art of writing merely fading into the distant past, soon to join such anachronistic and dated skills as cursive writing, and mix-tape editing? Perhaps there is no value perceived in effective writing. 

I find myself at this stage thinking of Ron Popiel who used to tag his infomercials with "but wait, there's more." And that is because there is more. Whether the lawyers or clients find the written word alluring, it has become the standard of progress in litigation. Of course, the written brief has long been the heart of appellate practice. An effective brief, well-written, concise, and clear is the only path to appellate success. This is because oral argument can be requested, but is not a right. The ability to effectively and efficiently explain one's contention in a brief is critical to appellate practice. 

That paradigm began to seep into trial work years ago. The federal courts led the way by eschewing live hearings on motions. The trend led to detailed and specific motions that either included or were accompanied by legal arguments written to persuade a decision in one's favor. In the twenty-first century, the Florida OJCC adopted that paradigm and hearings on motions are infrequent (in most districts that follow the procedural rules). 

The Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications are clear on motion hearings:

"The judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response."

I have written on that repeatedly, to little consequence. If a party wishes a hearing, they have to (1) ask for it, and (2) justify it. But, there is some population of attorneys that choose to do neither. They sometimes complain after an order is then entered according to the rule; some call the judge's staff to argue about why they are not allowed to simply schedule a hearing. Possibly such habits abound from the "good old days," and possibly some attorneys simply cannot abide this hearing-less paradigm. A verbal argument, after all, is easier than effective drafting. 

The point is, that the ability to accurately, clearly, concisely, and effectively draft a motion is simply critical to success in litigation. Possibly lawyers have been deprived of an educational environment that fostered and developed the use of the written word. Perhaps they have been lulled into complacency by the employment of paraprofessionals. Or, there is the chance that they have simply "crossed a line" of not caring about their pleadings "enough times (that) it disappears forever." Maybe they just no longer care whether their writing is professional, complete, and persuasive? The volume and pace of litigation perhaps require compromise and it is the drafting that suffers?

The path to success as a lawyer is likely in words. An old idiom holds:

"If a thing is worth doing, it's worth doing well."

In that vein, if a motion is worth opposing (when counsel calls to ask if you object) then it is worth filing a response to, Rule 60Q6.115(4). If it is not worth filing a response, then why are you opposing it? And. put yourself in the judge's position of being informed by the motion that you "object," but having absolutely no idea why you do so. Judges are smart people, but how would a lawyer expect to prevail when their response to a well-drafted motion is merely "no?" How does a judge find the argument "no" persuasive?

And yet, this is a trend. Lawyers file motions, and opposing parties object. They object without explanation at all, or sometimes with single-word legalities that epitomize vagueness and ambiguity ("irrelevant," "duplicative," "prejudicial"). It is difficult to conceive how they hope to prevail upon their brevity and ambivalence. But, some of them are quick to invest their time after the order is issued. 

They then file a detailed motion for rehearing, raising new and substantive objections, essentially saying: "I doubted the need to respond, to explain my position, to cite the law, but now that I failed through inaction I would like to restart the process in hopes of erasing the effect of my indolence." Even in that setting, it is rare to receive either explanation for the failure to initially actively engage in the process and file that motion response. But, rehearing under Rule 60Q6.122 is not to raise new arguments, it is limited in scope and effect. Thus, the sounder practice is to raise those arguments initially, in the motion or response or risk losing the chance to raise them at all. 

Rudy Baylor might ask: "do you even remember when you first -"

• "started allowing staff to do your drafting?"
• "quit proofreading pleadings you sign?"
• "became complacent instead of zealous?"
• "forgot that holding a client's life in your hands matters?"

At the end of the day, the ability to effectively communicate in writing is critical. The willingness to do so by motion or response (brief, memorandum, you name it) remains fundamental to this practice. The need to be diligent and focused is critical to your client, and thus to you. It bears your consideration and attention. 

Cybersecurity Forum 2020

I have focused significantly in recent months on the threats that we face in an increasingly complex cyber world. See Hardwired Hacking (11/18) Cybersecurity 2020 (11/19), Cybersecurity 2020's Hot Topic (01/20)  Cybersecurity 2020 Again (04/20), and Cyber Threats 2020 (07/20). Technology is increasingly changing our world. That technology and therefore we, are dependent upon data, processes, and programs. These seek our data input, collect our data interests, and mathematically target us with resulting marketing. As scary as these somewhat innocuous impacts are, that collected data is also of great value to miscreants and other malapropos actors. 

The threats to "big" business are readily apparent in the news. Major retailers, famous websites, social media, and more have made the news related to data breaches. The famous in society see their most intimate details stolen, publicized, and even deprecated. The invasion of privacy damages mental health, finances, and privacy. But, the persistent good news it that it always happens to someone else. That is, until it hits home. I am confident that 20 years ago I knew no one whose identity had been stolen. Today, I know numerous. I know people whose personal and professional lives have been compromised and complicated by the acts of malcontents who thrive on causing people discomfort and pain. 

I know people who have related (1) their medical records being breached, (2) their identity being used to open credit accounts, (3) their hardware being stolen with sensitive data, (4) their email compromised and used to transmit impostor messages, (5) their social media accounts accessed and used by others, and (6) their networks locking them out of their own data and being held for ransom. 

I know people who maintain vast databases and documents filled with the confidential information of their own clients. Some have internet connections that allow them to access volumes of such information stored on servers owned by others, or share their data with others. The information age is dependent upon the flow of information on the "superhighway" that is the Internet. And, there is a seemingly endless supply of bad actors who are focused on misappropriating, stealing, and leveraging that data. 

Cybersecurity has never been more important or more challenging. I have been fascinated as the Florida Cybersecurity Task Force has refocused our attention on this topic. I have learned a great deal in the last year regarding the threats, the cures, and the pain that is involved. I was therefore excited to be peripherally involved in planning the cybersecurity conference that was to be a part of WCI2020. Unfortunately, when the WCI was postponed, the leadership decided an in-person cyber program was similarly not viable in the age of COVID-19. Fortunately, the critical programming will still be available, but in a remote format. 

WCI has teamed with organizations such as Associated Industries, The Florida Defense Support Task Force, The Florida Economic Development Council, and the Center for Cybersecurity at the University of West Florida to produce a stellar program on Cybersecurity. The program registration is only $49.00, and features speakers such as Senator Marco Rubio and Katherine “Katie” Arrington (Office of the Secretary of Defense). 

The program promises to deliver the kind of information that any small business needs. The key points include:

• How to protect your data – Individuals and Companies 
• Who are the “bad guys”? 
• How to recognize and respond to a cyber breach 
• Demonstration of a Simulated Cyber Breach 
• Preventative action steps for protection 
• The DOD Cybersecurity Maturity Model Certification (CMCC) Program 
• Compliance with CMMC standards

The major trend is toward data security requirements for businesses that interact with the federal government. The access to government markets will be dependent upon the satisfaction of multiple security standards and certifications. These businesses will have to be secure in order to interact with the government. But, recognizing that any chain is only as strong as the weakest link, those businesses' other customers and vendors will likewise have to be security-focused. The business linked to the government will have to ensure the security of those "others" with which it does business. 

Securing company "X" from the bad actors, in order to protect the government agencies with which it works, will be effective only if the others with which Company "X" interacts are similarly secured. The vendors who need access to company "X" data to provide medical care, claims adjusting, and legal representation must similarly be secure. Otherwise, each might be a weak link in a chain and thus a threat to the security of the integrated network and the exchange of data and information. In short, an unsecured vendor could lead to a breach. It happened in 2013 with Target stores, and the potential remains. 

There is a probability that cybersecurity will be a persistent challenge and expense in years to come. The driving force is of course the bad actors whose behavior is being challenged. But, that is leading to increased government regulation that will directly impact businesses, and that impact will expand through those businesses' interactions with far-reaching and significant implications and expense. The imposition of standards on federal contractors is likely to be mimicked by state governments, The trickle-down impact of such standards is apparent. 

Those with an interest in protecting their own data would be well advised to learn more. Those with an interest in doing business would be served by this expanded knowledge. The future will include regulation and certification for many. I plan to be in attendance September 16-17 because this addresses an important topic, helps us understand a significant threat, and provides us with professional growth and education at minimal cost. Will you take an interest now while this affects someone else, or wait until some hacker takes a direct interest in you? 

What is in a Name?

I was reminded of a very old movie recently, Don't Raise the Bridge, Lower the River (1968). The theme involves a con artist demonstrating the old adage "There is more than one way to skin a cat." In that vein, some have apparently finally found a way to address the growing issue of obesity in society. They have boldly . . . changed the definition of obesity.

The British Broadcasting Corporation (BBC) reports that Canada has overcome obesity by concluding Obesity should be defined by a person's health - not just their weight, says a new Canadian clinical guideline. This is inventive and novel, certainly. 

The Centers for Disease Control in the United States has a clear definition of obesity:

"Weight that is higher than what is considered as a healthy weight for a given height is described as overweight or obese. Body Mass Index, or BMI, is used as a screening tool for overweight or obesity."

That is fairly simple to comprehend and to communicate to others. If my weight is above the standard, that is seen as problematic. I first confronted that fact years ago when I entered the world of workers' compensation. My early practice was focused on employer reimbursement claims against Florida's Special Disability Trust Fund, see section 440.49, Fla. Stat. 

One of the criteria under that statute, constituting a "preexisting permanent physical impairment" is:

"Obesity if the employee is 30 percent or more over the average weight designated for her or his height and age in the Table of Average Weight"

That led me to those charts, which led me to calculate my own statistics, which led me to label myself "obese." The Government published an ideal weight range for my gender and height, and I was well above it. There were self-attempts at justification, at disbelief (in the standard, not the scales), at denial. But, the definition and the standard remained. I was obese.

We are an obese society. According to the American Cancer Society, many of us are obese, and the percentage is growing:

"between 2007-2008 and 2015-2016, the report says the rates of obesity rose significantly among adults, from 33.7% to 39.6%. Rates of severe obesity increased during this time from 5.7% to 7.7%."

Who can forget the tower scene from Airplane (1980) in which we learn "Leon is getting larger." In fact, recently it seems many of us are getting larger. 

There are implications and problems. The American Society for Metabolic and Bariatric Surgery says there are potential health impacts:

"Obesity can cause a lot of damage to your body. People with severe obesity are more likely to have other diseases. These include type 2 diabetes, high blood pressure, sleep apnea, and many more."

Note that they say "cause." There are others who note various potentials for obesity to aggravate various maladies and conditions. But, also to "cause." Over the years I have seen a great many of those government standard height/weight charts in doctor's offices. My impression has been that there is general consensus that overweight can increase health risks. 

Are we worried about obesity? (Alfred E. Neuman: "what, me worry?") Some conclude that we are, both individually and collectively. According to Thinkbynumbers.org, Americans alone spend vast sums on weight loss and fitness.

"Americans spend more than $60 billion annually to try to lose weight, on everything from paying for gym memberships and joining weight-loss programs to drinking diet soda."

The site claims that world hunger could be eradicated for half that amount. The news focuses on this topic. This year it noted the obesity rate is now over 40%, that weight may implicate COVID complications, and that obesity has implications for heart disease. Obesity is not a new topic or concern. 

Canada's solution is interesting. According to the BBC, it is not suggested that "diet and exercise" be forgone, but it is now advising "doctors to go beyond simply recommending diet and exercise." The plan is to "focus on the root causes of weight gain and take a holistic approach to health." That may or may not be consistent with merely changing the definition. Without an objective standard like the charts, how does one decide if they are or are not a healthy weight?

Well, the Canadian Medical Association has determined that there is a potential for "weight-related stigma against patients," and it cautions practitioners against that. There are cultural assumptions, it notes, regarding "personal irresponsibility and lack of willpower." The result is "blame and shame upon people living with obesity," The Canadian approach seeks to remove the stigma attached to obesity, by redefining it, and thus purportedly empower clinicians to treat it. 

The Canadian effort concluded that "many doctors discriminate against obese patients." There is a ""weight bias" that leads to practitioner behavior. The sense is that many have operated on a simple advice of less calories and more activity. The new guidelines continue to focus on a healthy and balanced diet as well as "regular physical activity" But, there is a significant focus on the mental aspects of both hunger and weight gain. 

The new Canadian guidelines will continue to utilize the body mass index (BMI) ensconced in that government height/weight chart. The waist size will also remain as a measure. But, the focus will shift from attaining "ideal weight" essentially to attaining some improvement. Size will not matter as much as making some progress. The authors of the standard point out that small weight reductions can affect improved health. 

The new guides specifically claim to not abandon the long-standing advice of "eat less, move more," but to shift focus to supporting the patient psychologically, medically (drugs), and even surgically (gastric bypass). Is it practical to conclude that surgery is the answer? Bypass surgery is nothing new. The Mayo ClinicMayo Clinic labels it a "major procedure" and notes it "can pose serious risks and side effects." And, it adds that "you must make permanent healthy changes to your diet and get regular exercise to help ensure the long-term success." In other words, surgery is not apparently an independent, risk-free, solution to the issue.

The issue seems to be both complex and vexing. Vast sums are invested annually in addressing it, and despite that rates of obesity are increasing. We like sugar, convenient processed foods, eating out, large portions, and more. We tend to like exercise, activity, and self-discipline less. We are engaged in a societal battle of the bulge, and many signs indicate we are losing. Changing definitions may help. The path of the Canadian effort will be interesting to watch. 

I for one hope they are proven correct and that weight loss can be more easily attained through their new redefinition and removal of stigmas. Clearly, something needs to change and obesity trends need to improve. Too much is riding on it for us personally and collectively. But, let's hope we are not just naively lowering the river. You think about it, I am going to get some breakfast.