Always on My Mind?

In 1982 Willie Nelson released "Always on My Mind" to critical and popular acclaim. The refrain is repeated "You were always on my mind." We all periodically experience the inability to forget. I have always marveled that there are some bits rattling around in my memory that I just cannot seem to jettison, and yet other things that I simply cannot force myself to remember. The mind, it seems, is a complex and curious tool.

Is SARS-CoV-2/COVID-19 on your mind? It’s perhaps somewhat difficult in today’s business environment to get this pandemic off your mind. There are constraints, restrictions, and persistent changes in regulatory and medical methodology. But then we find that COVID is not just on your mind, but it is potentially in your mind? We are learning more about this virus, and it seems sometimes as if each day brings new news, explanations, and perhaps resulting anxiety.

Intertwined in this immediate threat of infection, and array of potential symptoms, is the threat or fear that symptoms may persist. The concept of “long-Covid is not new to this blog. In COVID-19 Regressive Impact (May 2020), I suggested that disease impacts might be characterized in short and long-term categories. Later, in COVID-19 in Comp - An October Update, the term "long COVID" debuted. Since then, I have tried to remain abreast of the long-term impacts, see COVID Update November 2020.

National Public Radio (NPR) reported in early January that scientists have been focused for months on the COVID-19 symptoms involving loss of taste and smell. It is an odd impact of infection and occurs somewhat sporadically among patients. I have personally spoken with COVID victims who complain extensively of this symptom, and others who relate never suffering this particular impact. Despite this lack of consistency, this symptom was primary in the involvement of neurologists with the SARS-CoV-2 infection. However, this symptom is not the end of neurological involvement, according to NPR.

It notes that "many patients who are hospitalized for COVID-19 are discharged with symptoms such as those associated with a brain injury." There is documentation of complaints of "forgetfulness" and "trouble with organizing their tasks." There are also some who further suffer from "seizures" and "psychosis." More recently, there is even a suggestion that COVID-19 could potentially "increase a person's risk of developing Alzheimer's disease." The implication is that lasting neurological effects and risks are being investigated.

Dr. Francis Collins, writing for the National Institute of Health (NIH) Director's Blog, recently expounded on the potential for neurological impacts of this virus, based upon an NIH investigation recently published in the New England Journal of Medicine. The doctor notes the same "taste and smell" connection, but adds potential for "headaches, debilitating fatigue, and trouble thinking clearly." That last one, the article notes, is also referred to as "brain fog," which sounds like a very generalized challenge with both thinking and reasoning with which one might identify having been around family members or friends battling the onset of dementia or Alzheimer's.

These neurological symptoms have driven the investigation of causation using various tools, including extremely powerful magnetic resonance (MRI) examination and autopsy. The focus of these scientists has been on the portion of the brain "that controls our ability to smell ("olfactory bulb") and the brainstem, which regulates breathing and heart rate." The preliminary conclusion is that "both areas" may "be highly susceptible to COVID-19." The cautionary note is the "may," and the concession that perhaps significant ongoing research lies ahead in this regard. 

What did the NIH team see and report in its recent article? These MRI images demonstrated "signs of inflammation" and changes in the "tiny blood vessels," some of which even appeared to have "leaked blood proteins into the brain" itself. But, they found "no evidence in the brain tissue samples that SARS-CoV-2 had invaded the brain tissue." The outcome of this research and study has led to the supposition that the COVID-19 "neurological symptoms are likely explained by the body’s widespread inflammatory response to infection and associated blood vessel injury—not by (COVID) infection of the brain tissue itself."

There is also some suggestion that this complex of neurological symptoms may help to explain the increased COVID-19 susceptibility of those who suffer from "pre-existing conditions, such as diabetes, obesity, and cardiovascular disease." It appears possible that such conditions themselves may result in various implications for the circulatory system. Thus, whether through actual pre-existing damage or predisposition to injury, these conditions thereby predispose a COVID-19 victim to exacerbated challenges to blood vessels and inflammation.

Katarina Zimmer, writing in The Scientist, recently noted that these implications should perhaps not be as surprising as they seem. She notes similarly that "scholars have linked the 1918 flu pandemic to" neurological complaints. Furthermore, there is "some evidence that COVID's close relatives, MERS-CoV and SARS-CoV-1 (the COVID virus is named SARS-CoV-2), have been associated with neurological symptoms." Ms. Zimmer suggests that therefore neurological symptoms themselves should perhaps not surprise scientists. She notes, however, that the frequency of such complaints with COVID-19 might nonetheless be noteworthy and even worrisome. The implication is that these impacts are of greater concern in the current pandemic either due to frequency or severity. 

The Scientist article notes that some of the autopsy results have demonstrated the presence of COVID-19 in the brain itself. She concludes that both these periodic positive findings and the seemingly absolute absence of such findings in other patients are driving scientific interest in and investigation of these neurological symptoms. Her conclusions are consistent with the NIH hypotheses regarding such symptoms being consistent with inflammation of the brain typically seen with other infections.

Thus, perhaps all of us have COVID on our minds, as Willie Nelson's refrain. Certainly, it is inaccurate or at least unartful to conclude that "it is all in your head." There are, after all a variety of other implications and impacts this disease has on the body. But, there is evidence that to some extent COVID is actually in some people's brains. And, even in those instances where it is not found in the brain, there is mounting evidence of damage to the brain related to the infection (SARS-CoV-2) and disease (COVID-19).

The implications are noteworthy. First, consider the NIH conclusions regarding findings of neurological implications on autopsy. The most serious impact of COVID is obviously loss of life. The study finds the inflammation and blood vessel changes in those who have succumbed to the disease, which is important. Whether the changes are more prevalent in those with the most severe outcomes is not necessarily clear. However, the presence of that finding in victims may be suggestive of the importance of neurological complaints and symptoms in those who seek care. Neurological involvement might assist doctors in assessing risks and challenges for a particular patient. 

Second, these neurological symptoms are notably of a longer duration than other symptoms in some cases. The MIT COVID-19 website notes that "absent or diminished senses of taste and/or smell persisting long after other symptoms had resolved" in some patients. There is citation there to one study supporting that "most people appear to regain these senses eventually," but some suggestion that a month may not be an unreasonable expectation in this regard. I have spoken to some who complain of the longevity and intensity of this neurological symptom. 

Finally, the jury is out on whether the more serious neurological impacts and signs might remain long after the senses of smell and taste return. Might neurological injury, dementia, confusion, and "brain fog" remain more persistently? Will there be limitations on activity and work that persist in some population of patients? Might this be a valid component for inclusion in consideration of the "long-COVID" more generally speaking?

I’m reminded of a conversation that I had last summer with a young, healthy person, reacting to all of the lockdown and precautions. In this person‘s words: “just let me get it already and get it over with.“ That logic may have certain implications in the short term. Some may see benefit in having the infection and hopefully developing some defensive response or immunity. It may have a different set of concerns for the young compared to the old, with some expectation of less pervasive impacts and implications for the young. But, it may be that concerns about the "long-COVID" are valid in terms of health, well-being, and function of young and old alike. Until it has been two years, five years, or ten years, the impacts of infection as of such anniversaries will remain projected, perhaps anticipated, but uncertain. The impact remains to be seen. 

While it might be that COVID is "always on my mind" in these days, perhaps Willie Nelson's lyric is not the point. Perhaps, instead, the focus should be on Avril Levigne's entreaty instead to "Get outta my head." It may be that this disease process actually does enter the brain and eradicating it from that tissue will be critical. Or, the inflammation itself may be the neurological challenge. And, that therefore one of the primary challenges of the "long-COVID" will be in finding methods that successfully limit inflammation, encephalopathy, and brain changes of which symptoms like taste and smell loss are merely precursors or warnings.

In the larger sense, perhaps COVID-19 might be accurately discussed as the computer villain in "War Games" (1983) described nuclear war: "the only winning move is not to play." Perhaps those who are ready to "get it already" might instead consider caution in hopes of not experiencing the short term symptoms or risking the "long-COVID" changes or damage that appear now to be possible. Until more is known, caution and avoidance seem an advisable course as science continues to compile, reconcile, and document findings and conclusions regarding the impacts, immediate and future. 

Magic Words

In 2014 a divided Florida First District Court panel decided Trejo-Perez v. Arry's Roofing, 141 So. 3d 220 (Fla. 1st DCA 2014). It addresses what courts have come to refer to as "magic words," what some might refer to as "form over substance." It is the merits of a case that should drive its outcome, rather than whether someone parses specific words from the statute in support of a conclusion. This is seen perhaps more often in the testimony of experts, as was the case in Trejo-Perez, but thorough lawyers will formulate questions from specific statutes for a variety of reasons including specific exceptions to hearsay rules, foundations for authentication, and more. 

 

Time and again, I am asked to explain the process of determining credibility. It is a difficult topic as much of the process is subjective and known only to the person making such a finding or conclusion. There is the potential in such determinations for significant distinction between various judges. That is important because we are each some combination of who we are and what we have experienced (Nature v. Nurture, 12.11.18). So, much like beauty, I suggest that credibility is often "in the eye of the beholder." Thus, knowing the listener may be as critical an element in credibility as any other. 

Presented then with the generalized question of credibility, I have focused many an audience upon Aristotle's three foundations of credibility, "pathos," "logos," and "ethos." The point is likely not in choosing one of these paths or perspectives, but in recognizing any of the three may be critical to any particular potential listener. Beyond that recognition is the suggestion that the better one explains the "why" of any such analysis, the path leading to a conclusion, the more credibility will likely be perceived by a particular listener or reader. Anyone can express an opinion ("based upon my education, training, and experience, silver cars are the best"), but if you can explain how you reached that (testing, surveys, etc.) the more persuasive it may be. 

In Trejo-Perez, there was a claim for a "Spanish-speaking psychologist," which specific recommendation had been made by the treating physician. Notably, this testimony was "unrebutted," and supported by the physician's opinion that such an evaluation, specifically, was  "medically necessary." The employer responded by authorizing a psychiatrist, who did not speak Spanish, and additionally provided a translator. Litigation ensued. The medical necessity of the physician's language capability was the central issue. 

The Claimant prosecuted the petition to effectuate the specific recommendation, and the trial judge denied the claim for a "Spanish-speaking psychologist"; this was essentially a conclusion that the employer-provided care (English-speaking psychiatrist with translator) was sufficient. She concluded that the chance for misinterpretation was not "medical necessity." The claimant therefore sought review by the Court. 

The Court affirmed the Judge's denial, but not unanimously. It noted that the doctor's testimony quoted the statutory requirement, that is that a Spanish-speaking psychiatrist is "medically necessary." Further, the doctor's conclusions were opined to "a reasonable degree of medical certainty." However, the Court explained that

“the [JCC's] determination of reasonable medical certainty depends on the substance of the evidence, rather than the use of the ‘reasonable medical certainty’ terminology, or any other so-called ‘magic words,’ by a medical witness.”

Even the fact that the physician's testimony was unrebutted did not change the outcome. The absence of contradictory evidence, an opposing opinion, did not alter the Judge's conclusions regarding "medical necessity." What might change that outcome is likely not which medical school, fellowship, or certification is demonstrated by the doctor's curriculum vitae (Ethos). Of course, that would come down to the thought process of the particular judge. 

What might more likely change the outcome would be more focus on the process of, the support for, the opinion being expressed (Logos). If the opinion is supported by a thorough explanation of why, that may alternatively be more persuasive than the expert's education and background (Ethos). Many believe it is the journey or process that is likely to bring credibility, not the parroting of statutory words. Why did the physician perceive a Spanish speaker as more likely to bring value to the worker's treatment than an English (or French, Chinese, Russian, Hindi, etc.) speaker aided by a translator?

It is imperative that the trial judge is afforded great responsibility in the determination of credibility. That deference was described in Ullman v. City of Tampa Parks Dep't, 625 So.2d 868, 873 (Fla. 1st DCA 1993), and has been cited many times since. That foundational responsibility itself may be direct (the experts' credibility) and can be far broader (the credibility of other evidence upon which the expert relied. Prather v. Process Sys., 867 So. 2d 479, 480 (Fla. 1st DCA 2004)).

That is not to say that "reasonable medical certainty" and "medically necessary" conclusions should be avoided or forgotten when eliciting testimony. Similar conclusory statements gleaned from other statutes and rules may likewise be important and persuasive. Thus, there is no harm in eliciting such support for expert opinions or other testimony. However, that is to say, that the statutory quotes alone may simply not be enough in the absence of substance to support those ultimate conclusions. The careful attorney will focus on both the conclusion and the path that led to it. The better the path or process is understood by the judge, the more likely the conclusion or opinion will be persuasive. 

The 5 Monkey Parable

There is a parable told regarding organizational knowledge and curiosity. It is referred to as "the five monkeys." I have heard it various ways over the years, and have incorporated its lessons into many presentations delivered in my travels. Scott Adams vaguely pulled the idea into a Dilbert strip once; vaguely because making the parable sensical in full, in three frames, would be tough. Despite that, in his classic manner, the strip does a great job communicating the spirit.

The essential element of the story is that everyone is prone to becoming used to the way things are. We all have some degree of affinity for sameness and habit. We fall into them throughout our lives, from the direction we walk while mowing the grass to the restaurants we visit (well, used to visit perhaps, thanks to COVID), and more. We are creatures of habit. HealthLine reports that for most of us, it takes about ten weeks to form a habit. In that vein, we would require the same time to "break" a habit (thus forming a new habit). That is the challenge of the New Year resolutions, getting through those ten weeks. 

We would do well to periodically challenge our habits. See New Year Resolutions 2021 (January 2021). But, that is not easy, comfortable, or fun. So, we retreat time and again to the comfort of our old habits and routines. This is true in our physicality also. We might not move the way we should persistently. Then one day we are tasked to do so and we "feel it" the next day. That activity has gotten us out of our habit, our "comfort zone." But, that activity helps us by hurting us. We tear some tissue, our body responds, and we build some new muscle, new capability. We stretch, we grow, and it is good for us. 

An upshot of the "Five Monkeys" is the old saying we encounter time and again in business: "We've always done it that way." For the sake of argument, let's assume that there could be a grain of value in that justification (there isn't, but let's assume there is). Even if you conclude that there is some justification, that does not mean that there is no value in challenging the status quo. Perhaps the point of the challenge is not some drive to change. Maybe the value is in striving to explain the habit. That is, "why have you done it that way?" If you cannot explain it, that might mean something. 

Back in college, I learned that interactions with other people can be difficult. This was particularly noticeable when the other people were new acquaintances, and even more so if the setting involved someone new of the opposite gender. We all learned in such interactions that people are usually more adept at discussing things with which they are comfortable. Thus, conversations in those settings may trend to the familiar: "What's your favorite _________," "Where did you grow up," "What's your favorite class," etc. Getting the other person to carry the conversation is perhaps not really so difficult. If you want to put someone at ease, engage them with general, not-too-personal, questions about themselves. This works. The best salespeople I know are natural at this (natural through lots of hard work and practice, trust me). 

Also back in college, I learned that getting someone sharing and espousing is only half the battle. For the conversation to be meaningful there has to also be an active listener. That is a critical skill. It has been said that "just because you are hearing does not mean you are listening." Thus, step one is to get someone sharing and step two is to focus on attentive listening. This means more than paying attention. It means (examples only) also "appearing" attentive, being responsive, jotting notes if appropriate, and engaging in follow-up questions to provide clarity and feedback. Your engagement should demonstrate comprehension, commitment, and investment.

Today, the opportunities for some of these conversations are impaired by the current state of travel bans/restrictions, barely interactive video meetings, and similar complications. But, as the world (the "community") of workers' compensation returns to travel there will be face-to-face opportunities again. These can be an ideal opportunity to avoid the "way we always have" habit. Engage new people, and ask them how they add value to the workers' compensation community. Strive to explain to them how you do the same. Ask and encourage questions, follow-up, and discussion. 

Look for value in the questions and curiosity of others. If they are not perceiving the value you purport, or are asking questions that you are struggling to answer, then perhaps that should drive you to internally and critically consider your process, product, or service. If they do not understand why you do things as you do, ask yourself whether you can justify your efforts in a critical and objective manner. If you cannot, and the only excuse is "that's the way we've always done it," then perhaps it is time for a rethink, a re-work, a new habit. Do not find fault with yourself in these reflections. You are normal, engaged in the human experience. The point is to have the reflections and to grow from them. 

The fact is, we are all capable of change. We are all subject to falling into a rut. It is up to us to strive against that, to improve, and to grow. 

The Future's so Bright

In 1985 Timbuk 3 released "The Future's So Bright." The song's perspective is of a student who "study(ies) nuclear science" and who "love(s) his classes." He explains that he has "a crazy teacher" who "wears dark glasses." And, he concludes, "The future's so bright, I gotta wear shades." I can feel that. Our future is certainly looking bright. 

There is an assortment of impacts to this world from COVID-19. We have seen impacts on micro and macro levels, ranging from our own personal convenience to those of our communities. Unfortunately, the virus that causes the disease, SARS-CoV-2 is difficult to avoid and apparently fairly simple to transmit. We are somewhat fortunate that the scientists rapidly learned how to test for it, and less than a year after it arrived here at least four notable vaccines are already approved and being administered. Bloomberg reports that the Russian vaccine is as promising, and is set for wide distribution, as are other names like "GlaxoSmithKline Plc and Sanofi." Statistica concludes that 12 vaccines have been launched" and that 78 more are in "phase three clinical" trials. 

That, in itself, is amazing. The leading American scientist regarding COVID-19, opined less than a year ago that a vaccine for this malady could not be produced in less than a year. On April 1, 2020, CNN reported "The timetable for a coronavirus vaccine is 18 months. Experts say that's risky." There, it quoted "the head of the National Institute of Allergy and Infectious Diseases (NIAID)," explaining that "it would be . . . a year to a year and a half." Other experts were quoted there with their own pessimism and doubts. One noted, "I think that's optimistic." That is, 365 days to 550 days is "optimistic." That is, "a" vaccine that rapidly is "optimistic."

Dinah Washington won a Grammy in 1959 for her rendition of "What a Difference a Day Makes." Perhaps it is time for someone to re-record that classic but change it to a few months. On December 14, 2020, The Washington Post reported that the first (other than trials and tests) COVID-19 vaccine injections had occurred in the United States. That is 257 days after the CNN report that 550 days would be "optimistic."

On December 11, 2020, the Pfizer vaccine received FDA Emergency Use Approval.

On December 18, 2020, the Moderna vaccine received FDA Emergency Use Approval.

On December 30, 2020, the Astrazeneca (Oxford) vaccine was approved for emergency us in the United Kingdom.

On January 15, 2021, The Astrazenca and Bharat Biotech vaccines were approved for use in India.

The first week of February 2021, Johnson and Johnson will apply for Emergency Use Approval from the FDA.

The New York Times has a vaccine tracker that provides overviews of various efforts and progress. 

Is it a failure of science that predictions were so wrong? There are various opportunities to doubt science. But science is the practice and process of forming hypotheses, putting them to rigorous testing and challenge, gathering facts and data regarding that testing, and determining whether a particular hypothesis does or does not hold. The predictions of the experts on April 1, 2020, were not science in this regard. 

People who practice science are called scientists. From their work, training, and experience, they form opinions ("a belief or judgment that rests on grounds insufficient to produce complete certainty"). Opinions are conclusions or beliefs. They may be based upon, referenced from, science. But, they are not themselves necessarily science (reproducible results in the form of data to support a hypothesis).

Opinions can be accurate, or not. They are undoubtedly often the conclusions of intelligent people. They are often conclusions that are influenced by experience, intelligence, or even science. They are sometimes wrong. Today, there are at least four (Pfizer, Moderna, Astrazeneca, Bharat Biotech) vaccines, not "a" vaccine, that has beaten the best, educated, guesses (opinions) of the experts. It is entirely likely that more will beat that "optimistic" 365 to 550 days professed by the "experts" last April. The experts were wrong. The first vaccine was injected (other than earlier clinical trials) 257 days after "they" said it would take 12 to 18 months.

I for one am glad they were wrong. I hear complaints about the current vaccine distribution process. There is criticism and dissatisfaction voiced. But, according to National Public Radio, "more than 27 million doses have been administered" as of January 30, 2021. That is "6.9% of the total U.S. population," and the most recent volume is about "1.3 million shots a day" in the United States. Other news outlets claim higher numbers. We are 45 days into the process, and despite the complaints, millions have been inoculated.

That is about 45 days (December 14, 2020), to achieve injection of 6.9% of the population. And, it may be noteworthy that 45 days included two major holidays and their impacts on lives and livelihoods. Certainly, the injection volume ("27 million doses") may include both the first and second injections. Let's all remember that both Pfizer and Moderna require two injections per person. The 328.2 million Americans, at 1.3 million per day, will require about 252 days to inoculate (if only with that first injection). And, it is possible that Johnson & Johnson and others will increase that pace with the addition of more alternatives and more production.

Undoubtedly, Johnson & Johnson is the news as February dawns. It is important to note, however, that "As of January 29, 2021, there were 1,043 drugs and vaccines in development," as reported by Statista. There are at least four being injected, one applying for FDA Emergency Use, and many more reportedly in the process. The future is indeed looking promising.

What if the "new" hopes do not arrive. Consider that if 252 days to inject the entire population using the current two (in the U.S. only Pfizer and Moderna) is added to the 257 the scientists needed to develop, test, and deploy, the total is 509 days. Add in the 45 days since December 14, 2020, and you are at 554 days. Notably the time frame, to potential completion of deployment in the U.S., is just over the 550-day "optimistic" period for the development of "a" vaccine opined by "the head of the National Institute of Allergy and Infectious Diseases" last April.

I have detailed the math for these conclusions. It is based upon assumptions (that the 1.3 million daily is sustainable from supply and logistic perspectives, etc.). It is based upon facts known and suppositions drawn. And, it might ultimately be right or wrong. It is an opinion in the form of a projection. If it is wrong, the reader may look back in another 252 days (10/11/21) and correct this math. The reader then will have the numbers known for tomorrow, which I must project and predict today. In hindsight, there will be clarity and certainty. Provided the data then, I might well explain where my assumptions, suppositions, and predictions went awry. I hope the reader will hold me to making such an explanation if I turn out to be wrong. 

Similarly, opinions were rendered on the vaccine development, by the experts, and they were wrong. The degree or extent of their error in judgment is open to discussion. But, they were wrong. There is surprisingly little discussion in the current news about their predictions for April 1, 2020. One November 2020 report from WRAL TechWire humorously reminded us of a Yogi Berra quote in this regard: "it’s tough to make predictions, especially about the future." That is absolutely true, predictions are tough. 

Certainly, people are wrong every day. But, where is the news coverage regarding how notably wrong the leading experts were in this instance? Where is the discussion of what facts were relied upon in rendering those April 1, 2020 opinions? Where is the analysis of how the science itself outpaced the doubters and delivered these vaccines to our local health departments and retailers beginning a mere 9 months after the experts said a year to eighteen months was "optimistic?" Where is the reassurance that we can nonetheless rely upon these experts as they continue to render opinions? 

Can we depend upon the late January opinion of "the (same) head of the National Institute of Allergy and Infectious Diseases" that "things will get worse?" Would, or could, our path to faith in these opinions be eased if someone explained how the experts so miscalculated, or misstated, or mistook their 12 to 18 month "optimistic" opinions last April Fools Day? 

In all, from my perspective Timbuk 3's lyrics apply to February 2021: as to vaccination, "things are going great, and they're only getting better."

Now, we look toward other concerns. Are there potentials for liability related to the injection of a vaccine? Some news articles have memorialized the legal opinions of doctors on these potentials. Some media have reported their legal opinions, without questioning their expertise in the law. 

Liability can be complex. There are potential liability questions as to manufacturer or dispensing parties. However, the release required to obtain these vaccines are broad. The Moderna release form includes:

"I understand that this product has not been approved or licensed by FDA."

"I understand that it is not possible to predict all possible side effects or complications."

"I hereby release and hold harmless the State of Florida, the Florida Department of Health (DOH), and their staff, agents, successors . . .."

The Pfizer form is similar. Will there be side-effects or complications? Will liability follow? Some prognosticate that in the world of workers' compensation there may be issues of employer liability. To some extent this may be notably dependent upon whether an employee was required to undergo the vaccination. The broad issues and implications will be the subject of a HotSeat webinar on February 11, 2021. That program will include medical and legal leaders with opinions and thoughts regarding this inoculation effort. 

There is room for misgivings and uncertainty. Undoubtedly, this pandemic has included many predictions and challenges. Uncertainty has perhaps been one of its more persistent features. But, the vaccines are being injected at a fantastic pace and the logistics seem to be improving. From where I sit, the "Future's so Bright." Hand me my shades Timbuk 3. And, join us February 11 for the HotSeat as we discuss the ongoing inoculation effort and whether it is "Risky Business."

The Consolidation Caution

A recent case from Kentucky reminded me of the intricacies of case consolidation. On October 30, 2020, the Board rendered Nordmeyer v. Rosa Mosaic & Tile, Claim 201801085. It is a reminder that it remains imperative for counsel to be persistently cognizant of a case status. Secondarily, it reminds us of the importance of details. And, there is a demonstration of some effort by the appellate authority (In Kentucky the first appellate opportunity is the Board, an executive-branch review) to provide a broader edification or illumination than is perhaps inherently required for its decision. 

When providing analysis, such an appellate body may provide the explanation that the parties to a particular need, but may also provide some broader analysis in which the greater community may find guidance and assistance for future cases. Reading appellate decisions is therefore a useful tool for those involved in litigation within a community such as workers' compensation.  

In this Kentucky instance, the injured worker had two cases, claim number 2018-01085 filed July 24, 2018 (knees) and 2019-01095 filed July 26, 2018 (shoulder). For the purpose of litigation (trial), the two were "consolidated." That "consolidation" effectively merged the two cases. For the duration of the "consolidation," the two cases became one. Thus, a filing in either during that time was in fact a filing impacting or affecting each. This posture continued through the discovery phase and preparation, and even through trial. A trial order was entered to decide the issues. With the purpose of consolidation past (efficiency of process and for trial), the two cases were then "unconsolidated." Picture the two cases were married, lived together for a time, and then were divorced. 

Or, imagine a closet full of clothing, which includes two hangers; on one a pair of pants and on another a jacket. But, after a while the two are draped upon a single hanger, what one might colloquially refer to then as a “suit.“ Obviously, each part of the suit has its distinct purpose. And, each may complement the other. So long as they are hung together, and referred to as “suit,“ then they can be discussed collectively ("please take that suit to the cleaners"). 

However, if we elect to thereafter again remove the jacket and drape it instead upon a separate hanger, we again now have merely “pants,“ on one and a “jacket“ on the other. Though the material and style might lead one through examination to conclude the two elements could go together, their physical separation might nonetheless frustrate any effort to refer to the (now) two items as some collective label ("a suit").

That distinction may hold little or even no difference in some circumstances. However, in this instance of consolidation, it most certainly may. While the two are hanging together (“consolidated“), an instruction or request as regards that combined unit will be effective as to each (e.g. "please take that suit to the cleaners"). However, once you have placed the two items on separate hangers (unconsolidated), or if someone else has (the trial Judge), then the instruction ("take that to the cleaners“) may result in the appropriate action as to only one (the trousers perhaps), and in fact no action as regards the other (the jacket).

In the clothes example, the resulting harm is perhaps elusive. Upon discovery of that error, simply take the jacket to the cleaners and the issue is likely solved. Having expected a cleaned suit, it may be accomplished despite requiring two trips and perhaps some delay. But, in the realm of litigation, the implications may be more complicated and more lasting. 

That is essentially what occurred in Nordmeyer. Whether through inadvertence, or intent, counsel filed an appeal as regards half of the then unconsolidated litigation - one of the two cases. After these two cases were unconsolidated, counsel filed an appeal in one of those cases (the trousers). Counsel did not address the proverbial jacket - no notice of appeal was filed in that second case. Proceeding through the appellate process, counsel did make arguments as regards that second, unappealed case. That effort evidenced some intent to have appealed both outcomes. However, the Board explained that it had no authority to address those issues and assertions of error regarding the second case. 

The Board lacked authority, what the law refers to as having "jurisdiction," because no notice of appeal applicable to that second case had been filed. In the law, jurisdiction is created in the appellate court by the filing of that notice of appeal. The appellate body or court has no overall or automatic authority to oversee or be responsible for any and all litigation ongoing within its geographic area of responsibility. It is the act of one or all of the parties to a particular case, in timely seeking the appellate body's review, that creates the authority of the appellate body to act. And, that request is usually required within some set time period. 

If no timely notice of appeal is filed, then the appellate body lacks authority. This is true also in Florida, where the Supreme Court has held that the notice of appeal is "jurisdictional." Williams v. State, 324 So. 2d 74 (Fla. 1975). Furthermore, a notice filed after the time allowed for requesting that review, 30 days here, is not effective - does not create jurisdiction. Nelson v. State, 181 So. 2d 192 (Fla. 1st DCA 1965). Timing and process are critical in the seeking of appellate review. 

So, failure to deliver the jacket to the cleaners will result in the cleaners having no authority (or ability) to clean that jacket. Similarly, failure to appeal a decision in a timely manner will deprive an appellate board or court of the ability to consider those issues. 

The Kentucky Board explained this and that the error in this instance was likely harmless ("If that claim was properly before this Board, the ALJ’s decision would have been affirmed"). In that regard, it essentially analyzed issues over which it had no authority and explained why it would likely have not found errors had it been given the authority to decide them. 

It describes a review of that second case (unconsolidated), and explains that a timely appeal there would not have worked a different outcome - reversal of the trial judge's decision. This explanation perhaps is some balm for the attorney who did not file the second appeal. It is helpful to the parties in the case, but more so perhaps to the community of workers' compensation. Those who litigate would do well to learn from examples such as this, which illustrate the benefits of reviewing appellate decisions when they are rendered. 

The lesson is reasonably clear: verify twice what you are addressing in a pleading (whether motion, notice of appeal, or otherwise), and take the time to double-check that what you are doing will accomplish what you have set out to do. When important steps or actions are missed, there may be significant impacts on the clients that you represent. And, those may not be as easily remedied as taking half a suit to the cleaners. 

The Bridge that Isn't

Chevy Chase played Ty Webb in the 1980 classic "Caddyshack." A memorable conversation with the movie's protagonist, Danny Noonan, included a somewhat off-point quote. The point of it is that it is off-point, an element of the eclecticism that comprised the Ty Webb character (and perhaps Chevy Chase generally). He said: 

"The Zen philosopher, Basho, once wrote, 'A flute with no holes, is not a flute. A donut with no hole, is a Danish.' He was a funny guy."

I thought of that recently as I observed from a great distance the Pensacola Bay Bridge (which locals refer to as the "3-mile bridge," as it is precisely that long; or, was that long before it stopped being a bridge). My recent observations in January 2021 reveal gaping holes in the span, clearly visible from the shore in Pensacola. Standing and pondering, I wondered what Basho would say of a bridge with holes? Well, in the spirit of his observations regarding donuts, in the inverse, perhaps a bridge with holes is no bridge, but something else entirely? Hint, the hole alone does not qualify it as either a donut or Danish.

More than 120 days post-Sally, I look back now on the landfall. That storm became a potential risk to Pensacola on Monday, September 14, 2020, and a hurricane warning was posted. The courthouse announced closures for Tuesday and Wednesday. Following the OJCC disaster policy, the Pensacola district office likewise announced parallel closure. 

Tuesday dawned windy and wet, with periodic bands passing over the area. Deciding that Sally might pose a significant threat, I went to the office Tuesday morning to reassure of preparations, and to obtain some digital documents upon which to work in the coming hours. That trip for me was a short seven miles; on a bad day, it might require 20 minutes in traffic, but closer to 10 was normal. 

As I drove north across the 3-mile bridge that morning, I encountered an FDOT Road Ranger truck with its yellow light flashing in the center emergency lane of the bridge. This is not an uncommon site. These individuals are on call for a variety of issues including accidents, breakdowns, and even the simple debris on the bridge. 

However, this Road Ranger was outside of the truck, had crossed the lanes of traffic to the east, and was leaning over the bridge rail looking downward. My first reaction was curiosity. Within less than a quarter of a mile, I happened upon a Pensacola Police Department cruiser likewise situated in the center lane of the bridge. Just as I passed, that vehicle's emergency lights came on and the officer likewise exited the vehicle, crossed to the rail behind me, and peered over. 

At the time, my immediate concern was that the authorities would close the bridge. Whenever the winds become sufficiently strong, they close the bridge. It has been a manual process but has evolved like so much else to rely upon technology. The FDOT decision is founded upon the conclusion that wind beyond certain parameters is unsafe for vehicle traffic. I have seen this occur similarly based upon wind in St. Petersburg, Jacksonville, and other Florida communities.

Having passed the commotion, I spent the next 3 miles to my office contemplating the probability that officials were either closing or beginning to contemplate closing this bridge. Knowing that my alternative route home was much longer, my time at the office Tuesday morning was very abbreviated. Within an hour, I was back in the car and headed for home. Unfortunately, I found the bridge indeed closed. 

As I sat moments later at a traffic signal, I received a text from a friend telling me a rumor that the bridge had closed because it had been struck by a construction barge. That seemed a rather incredulous potential, but the Road Ranger had been leaning over the rail looking at something. Why not a barge? Coincidently, the news later reported, and drone footage substantiated, that a significant portion of the 3-mile bridge had been damaged during the course of Sally by multiple barge collisions.

It is possible that the various barges in question began their escape conspiracy (by the storm's end 22 had made a break for it) about 24 hours before the storm made landfall. The result has been interesting. That fifteen-minute commute has become a minimum of 45 minutes, and 90-minute commutes are not unheard of. The 7 miles each way has become 35 miles daily. 

This all came back to me one morning last week because the sound of pile-driving to which the community had once become so accustomed during the years of construction had returned, at 3:00 a.m. After 120 days, it sounds like there was serious repair work underway on this span. 

See, this "new bridge" has been under construction for years now. There has been pile-driving and noise. There have been barges, and tug boats, and much to watch. In fact, what will eventually be the southbound span was opened to the public less than a year before Hurricane Sally. All traffic was diverted onto this span, in both directions, while the old "deficient" bridge was disassembled and the second (eventually the northbound span) was begun. Just over six months after the new span opened, Sally came and the structure was decimated. Going with "structure" now in the spirit of Basho (It is not a Danish - holes or not, but it is also not presently a "bridge").

There are perhaps lessons in the story. First, that nature may not necessarily be predictable. Certainly, Sally was anticipated in various Gulf Coast communities based upon the best efforts of the National Oceanic and Atmospheric Administration (NOAA). The storm could have made landfall anywhere on the Gulf Coast. That is a reminder to pay attention when storms form. There is heated debate now as to what could/should have been done when to secure the construction equipment and protect the bridge. But, recriminations and hindsight are not uncommon following untoward outcomes. Safety experts always perform analyses after accidents and strive to better prevent the next one. 

Second, though, it is a reminder that there is a benefit to workplace safety in planning before; foreseeing the future is impractical perhaps, but preparing for the potential is a workplace obligation. The safety and accessibility of communities was at stake in this instance. But, in many instances, in many businesses, every day there is the need for both individual and collective safety. While we might admit that it is impractical to predict and prevent every accident, safety experts nevertheless strive to do so and workers' compensation is a significant part of employee safety. 

Third, there are a great many people who rely upon structures like bridges. When you hear that a particular bridge has a traffic count of 50,000 vehicles daily that may seem abstract. That is the estimate that was quoted in 2010 when the news reported a new bridge must be implemented within 6 years, which did not come to pass. While 50,000 may seem like a lot of cars on a four-lane bridge, it seems like a great many more when diverted onto a two-lane road through the countryside, the only current alternative. Similarly, a business may rely as distinctly on various equipment or structures. And, as likely, on its workers. Safety is critical in maintaining productivity, and it is indeed "everyone's business." 

And, there may not be any real difference between a bridge (or whatever you might call a former bridge with holes) and any business. The fact is, customers, employees, and even communities rely upon businesses. Management that recognizes that and commits to the prevention of accidents, restoration of function for those who suffer accidents, and the return to work of employees are positive for those who depend upon it. In a general sense, that is the foundation of workers' compensation. 

In the end, perhaps a structure (formerly known as "bridge," sorry Prince) is actually a metaphor. Perhaps if we consider how it might be fostered, protected, and restored upon damage it might teach us all a bit about symbiosis, synergism, and community? Perhaps in observing the impact of planning, accident prevention, and the restoration process of this structure, there is an analogy to what a worker experiences in the event of an accident? Primarily, we want to prevent accidents. When they happen, there is much to do and restoration may take time, effort, patience, and more. The time element may surprise us (120 days later and still no bridge). 

While the injury may preclude being a worker thereafter for some period (total disability), there is hope that time and effort will bring restoration or even recovery, and a return to function and productivity. A concerted effort will make that structure a bridge again. The process may involve motivation, management of resources, and support of a community. That bridge is not that different from any one of us. 

Knowing "How Things Really Are"

I overheard a recent conversation involving our old friend Horace Middlemier. He was preparing a case for trial and was concerned about proving the elements of this case. He was curious about the judicial mindset, and asked a group of other lawyers "straight-up" whether they thought he could "count on" the trial judge knowing “how things really are.“

You see, Horace had been preparing this case for a fair few months. He is an experienced practitioner, well-versed in his specialty of the law. He well knows the elements which he will have to prove in order to both prevail (have the decision go in his client's direction), and succeed (have it do so in a significant manner sufficient to remunerate his client sufficiently). I was, admittedly, confused by his question. I was apparently not alone as one of the other layers asked: “what do you mean 'the way things are?'”

He explained that one item to be proven was the quantity of damages. His case would require the judge as a “finder of fact“ to place a monetary value on the damages. He explained that he had considered bringing witnesses to testify about the nature and extent of damage, and the cost which would be required to restore his client's structure to pre-storm status.

However, he explained, it’s somewhat of a hassle to arrange witnesses, prepare arguments, and submit evidence of such a detailed nature. He was therefore inclined, instead, to simply count upon the judge to “know how things are.” He mentioned how "long that judge has been on the bench" and that the judge "has lived around here a long time." He prognosticated then that: “After all, any fool knows it costs a lot of money to repair a storm-damaged house.”

My response (that I bit my tongue and kept to myself) would have been: “are you saying you hope the judge goes outside of the record evidence and makes decisions in your case based upon his or her own experiences, perceptions, or conclusions from unknown sources, predisposition‘s, or biases?“ I can just imagine old Horace replying with a chuckle “well only if they’re in my favor.“ Horace is the first to admit that he persistently eyes behavior in an "outcome-oriented" manner. The "right" and "wrong" in his perspective often depends on whether the action/words benefit or burden old Horace. 

Why do lawyers bring the evidence that they do? From a strategic perspective, how much evidence is appropriate? Or, for that matter, what are the risks that each element of proof may bring to accompany its benefits? That is one that young lawyers (and those who fail to learn from mistakes) often fail to appreciate - any witness can be grand or dismal, it depends on them, the questions they are asked, and their answers. Any witness might support an element of a case, bolster other evidence, or utterly undermine the theme or foundation of the case. It’s entirely possible for a witness to make a case, and just as possible for them to break it.

Lawyers decide what questions to ask, what witnesses to select, what order to present their evidence, and what arguments to make. It’s a foundational, elemental, part of our adversary system that the job of the lawyer or advocate is to present the case as they deem appropriate. It is not the role of the adjudicator to interject into that process and to provide, somehow, proof that was not presented. 

Can a lawyer count on the judge to “know how things really are?“ The answer to the question, from my perspective, is simple. Lawyers should be able to count on judges to decide cases based on the law and the record evidence. Lawyers should be able to count on judges to leave their biases, predispositions, and prejudice at home. Lawyers should be able to count on an impartial, consistent, and persistent bench. No, a lawyer cannot count on judges to go looking for facts and evidence that have been omitted by the lawyer (see Sleuthing Addressed Again). 

Judges should likewise be able to count on lawyers to bring their best case. They should be able to count on lawyers to be prepared, informed, articulate, and concise. Judges should stay in between the lines ("stay in your lane") and let the lawyers try their case. If the lawyers fail to bring the evidence their side needs, that may work to the detriment of their client, but is simply not the judge's (the impartial arbiter) role to fix such shortcomings. There is no way for a judge to know why some evidence was not brought, it may not exist, it may be perceived as too risky, and the strategy may not be clear. 

The judge and the lawyers each have a unique and important role in the litigation process. Each should be able and willing to perform their role, while confidently trusting in the other to do the same. No, Mr. Middlemier, you cannot count on the judge to make assumptions, go in search of fact, or make your case or defense based on what she/he "knows," has heard in other cases, or might assume. It’s not the judge's role, and it demonstrates nothing but a decision on the lawyer's part to perform their role.

Booms and Busts

There have been times in the course of human events when economies contracted. Certainly, it has happened on a national level, but many more times on a local example. Nationally, most will remember the "great recession" in 2007-09. Investopedia instructs that there is no standardized definition for "depression" versus "recession." Interestingly, it notes that the "recession" label for this particular downturn results from "a near consensus among economists." For more on the implications of consensus, see Consensus in the Absence of Proof. In a nutshell, we are prone to find some persuasion in the collective agreement of the purported experts. 

Merriam-Webster online defines "recession" as a "period of reduced economic activity," and "depression" as "a period of low general economic activity marked especially by rising levels of unemployment." So, perhaps unemployment is critical to a distinction. However, unemployment exceeded 10% during the "recession," according to Pew Research. 

President Harry Truman had a little different definition for the two terms. He proffered:

"It's a recession when your neighbor loses his job; it's a depression when you lose yours."

I have heard similar sentiments in various contexts, such as it is a shame when your neighbor's house is hurricane damaged, and it is a tragedy when your own house is. These examples suggest that there is some potential element of direct effect, or impact, that contributes to our own personal perception of both recession and depression.

There is a history in the world of various "booms" and "busts." When some resource or enterprise develops, that attracts people. Enterprise can find its niche and will then require a variety of skills, talents, and efforts to persevere, grow, and succeed. Businesses and industries grow, fueled by the propensity of consumers to demand particular goods or services. 

Many are comfortable from high school history with their understanding of the 1848 California Gold Rush. According to Britannica, about 300,000 people poured in from around the world to seek their fortune. Towns were born, grew, and prospered in the support of such efforts. But, as the returns diminished, the rush largely subsided. Towns declined, and some even failed. On a local basis, communities devolved through recession and into depression.

The gold rush is not the only example: another notable instance is the copper rush in Michigan beginning in 1840. According to the Detroit Free Press, mills were built and towns sprung up around them. People built houses, started various businesses, and economies of the small-town America flourished. However, some of those towns have now diminished. The article cites one example where the town is now "just a brief interruption in a corridor of trees along a narrow highway."

There are a variety of examples that can be cited. Travel.com cites various examples that are in the throes of demise. In some instances, some event or depletion can be identified and blamed. But, as I have traversed this continent, I have happened upon a great many crossroads and wide spots that piqued my curiosity. Along some byways in the countryside, I have happened upon large, boarded, and posted, facilities. They raise my curiosity. What was manufactured here? Who was employed here? What happened to change these circumstances? Where did everyone go?

Does it have to be a town? Absolutely not. Brands have similarly evolved. in 1886 a fellow started a mail-order watch company (for the younger generation, this was a device worn on the wrist or kept in the pocket that assisted with knowing the time of day before the cell phone was invented). That little shop evolved into one of the largest retailers in the world, Sears Roebuck and Co. It was America's largest retailer until the 1980s. Stores were built, catalogs were printed (an ancient form of web page that was printed on paper and mailed to people), customers were developed, and yet times changed. New paradigms and developments evolved, and somehow someone else built what the market found to be a "better mousetrap." 

More recently, some will remember the unheard-of innovation of watching what you wanted when you wanted in your home. Yes, in the 1980s we saw the birth of recorded programming, and stores popped up in every community. One, founded in 1985, was called Blockbuster Video. These stores were lined with shelves; each covered in VHS tapes (magnetic, upon which programming was recorded). Imagine a Redbox that was not automatic, and which you could walk inside of. We went, we browsed, we rented, and we watched. We often failed to return them timely, and we paid late fees. Then came Digital Video Discs (DVD). Then came on-demand movies and glacially slow downloads. Then came broadband, and streaming, and low and behold the demise of Blockbuster. Well, almost, there remains one store out there. 

Is it interesting that these examples have come, prospered, and gone? Note that the vast majority of them have not enjoyed some intervention of the government. Certainly, there have been examples of local governments striving to support some enterprises in hopes of retaining jobs and related economic activity. But did the federal government step in to save Brewster, Florida? No. Did it step in to save Sears or Blockbuster? No. The national government in no way stepped into those municipalities or businesses as their protector. Booms and expansions in those micro-instances slowed and eventually ground to a halt through exhaustion of resources (natural or human or imagination). 

Is any of this really different from the Industrial Revolution, the advent of steam power, and the rapid diminishment of agriculture-related labor needs? As the industrialized, and later corporate, farmers gained sophistication and leverage, there was a displacement of the family farm, and its umbrella sustenance. Farmers' children and other young people departed the farm labor life for urban venues; families consolidated land, and often split with some portion of the family moving outward in search of larger land holdings – or some other opportunity for sustenance and a chance to compete.

Today, we similarly see booms. Amazon only began in 1994. Google started in 1995. Tesla started in 2003 and then became the most valuable car company in the world. The market-influencing leaders of today barely existed 25 years ago. As they have experienced a boom, other businesses have declined. 

All around us, there are modern-day "booms" similarly evolving before our eyes. They are changing how we consume, what we consume, and even where we consume. As a society and individuals, we are shifting and growing in our acceptance of change. Producers and servicers seem persistently shifting to meet both our demands and the potential competition presented by other businesses intent on shifting some portion of the market in their favor instead. We see grocery delivery and even "meal kits," massive online catalogs of goods, and sophisticated marketing efforts directed at our consumption. 

What businesses will survive and thrive? Some scholars suggest that time is the real test. Gary Hoover recently wrote "The Three Greatest American Companies of All Time." Might we guess which he selected? Are they the companies mentioned above? No, they are: "Pennsylvania Railroad from about 1870 to 1920, General Motors from about 1925 to 1975, and IBM from about 1930 to 1980. He demurs regarding alternatives such as "Apple, Google, Microsoft, and" others; he notes as regards those that "a company can appear great and permanent one day and be gone, transformed, or acquired not long after." (See above re Sears, Blockbuster, etc.).

Note that it is the General Motors of the last century, not the General Motors of 2009 that drove into bankruptcy. The General Motors of the last century was many brands (Buick, Cadillac, Chevrolet, GMC, Oldsmobile, Pontiac, and after the 1975 date cited by Mr. Hoover there was Saturn and Hummer). There was a time when it was said "GM is too big to fail," and that "as GM goes, so goes the country." 

This enterprise, to some, defined us. When the Great Recession knocked, the country answered and bailed out the enterprise. Todd Zywicki wrote an intriguing piece about the interrelationship of business and government. Some will perhaps see that as "big business," but might find some interest in the Cares Act response of government during the last administration. The federal government, in various instances, was perceived as flooding a marketplace with funds. Is there room in modern America for the "rule of law" in any event?

The fact is that evolution and even revolution is continuous and persistent. As workers' compensation faces the future, it must be with recognition that the workplace and workforce may likewise evolve and change. Employment may not mean the same as it means today in 20, 50, or 100 years. Your descendants may look back with some degree of mirth at the "backward radio phones" with which we were so enamored. We may ourselves look back in shock at how enthralled we once were with self-service food kiosks, in the same way we currently laugh at the "automat" of the 1950s (If you remember automats, let me remind you it is likely time to take your medicine). 

The point is that labor is a livelihood. Regardless of what we do to earn a living, there must be value in what we do. That is not merely value to us (fulfillment, self-actualization), but value to someone else such that they will consume our labor. The same remains for companies that must similarly deliver value to their customers. When we (personal or enterprise) fail to deliver that value, it is probable that some competitor will entice away our customers. They will peddle some innovation, perspective, or pitch that promotes their value over what we are striving to deliver. In effect, any one of us (individually or collectively) could be the Google of today or the Blockbuster of tomorrow. 

The workers' compensation community ("industry" if you must) will have to continue to evolve and grow. This concept of counterbalancing benefits and burdens for both employer and employee will have to accept that markets change, businesses change, consumers change, and preferences change. It will have to remember that some changes may make big splashes, but subside rather rapidly while other changes may be more seemingly permanent. This community will similarly need to remain conscious of its value and how it can continue to be relevant, to deliver value, or those constituencies may similarly find some relevance in someone else's innovation, perspective, or pitch. There may be comfort to some in the legislative process, but the voters in California recently provided cautionary notes about the people getting what they want. (See The Gig of Participatory Democracy). 

Will the "gig" economy continue to thrive and expand? Will "sticks and bricks" retail ever return to primacy? Will we ever return to movie theaters when the "great pandemic of 2020 (or will it be 2019)" subsides? Will telecommuting persist post-COVID and offices shrink? Will technology bring us other evolutions and changes that we cannot even yet predict or perceive? Where will there be booms, busts, expansions, contractions, false starts, and whole new races?

In 2016, an ambitious effort was undertaken to focus this community on where it is and where it might go. This directed analysis to where workers' compensation started, how it has evolved, and what might be next. The discussions lamented the fallacy and irrelevance of the National Commission in the 1970s. We questioned where are the challenges, or the vestigial tails? As we embark on the second decade of the new millennium, the time has likely come to pursue this conversation again. Whether in some formalized setting, or over a coffee at the annual Workers' Compensation Conference, it is time for critical thought and open discussion about how this community can and should evolve to remain vital, relevant, and purposeful. 

Will the national government become involved in the world or workers' compensation? If so will that be in riding to its rescue like General Motors, or regulating it into submission? These questions were on seemingly every tongue in 2016, but a great many abandoned their interest thereafter. A select few realized and voiced, even then, that there is already federal involvement, look no further than the Medicare Secondary Payer Act. While it is not an explicit effort to impact workers' compensation, it is significant in that way nonetheless. Will government become further intertwined in this community, purposefully or not? 

What will we see in the world of employment? Will the seemingly growing infatuation with, the revival of, socialism and communistic governance render workers' compensation antiquated and redundant? Will the micro-capitalism of self-employment, gigging, and self-determination render workers' compensation irrelevant? Will any or all of these potentials be booms or busts? As a $40 billion per year industry (approximately), is workers' compensation "too big to fail," or will it become some footnote in history to be studied and examined? Will the federal government play a role, will state systems evolve or decline?

The conversation continues. What will you contribute to the discussion?

Consensus in the Absence of Proof

Can consensus be a substitute for science? In America, we are persistently encouraged to "follow the science." And, there is a great deal that we have academically accepted through science. To be clear, the scientific method is one of hypotheses, "a tentative assumption made in order to draw out and test its logical or empirical consequences," according to Merriam-Webster. The scientific method is also defined by Webster:

"principles and procedures for the systematic pursuit of knowledge involving the recognition and formulation of a problem, the collection of data through observation and experiment, and the formulation and testing of hypotheses."

In essence, the scientific method is founded upon assumptions or predictions. Those assumptions are then challenged through experiments or other analysis that generate and collect data. Data is "factual information (such as measurements or statistics) used as a basis for reasoning, discussion, or calculation." 

It is a relatively simple process in essence, though particular experiments may indeed be complex and challenging, as could be various hypotheses used as foundation. It is often so simple, however, that we encourage children to both accept and practice the process. Through this method, there is a requirement that facts and data support conclusions, that opinion is founded thereby or supported thereby through data. There is an inverse corollary that holds, however, that "the absence of evidence is not evidence of absence." So, when there is no evidence to conclusively support or discredit a particular hypothesis, some struggle with either adopting or decrying that initial assumption. Science, at times, may appear somewhat inconsistent in that regard. 

That many educated people believe the same thing does not make their conclusion science. In the absence of evidence, some might contend that science does not answer some question we may have. Some, in the absence of science, see their consensus or group agreement as supportive of their conclusion, but that does not make it science. In the absence of science, we are provided instead with consensus, that is the collective opinions of smart people, melded, combined, and restated until most of them can agree with some conclusion. 

Michael Crichton is an author and filmmaker by fame, with credits for The Andromeda Strain and Jurassic Park. He is also a medical doctor, lecturer, and teacher. It is fair to say that he has a scientific background. He is quoted addressing the challenge of groupthink, that is consensus. 

"the work of science has nothing whatever to do with consensus. Consensus is the business of politics. Science, on the contrary, requires only one investigator who happens to be right, which means that he or she has results that are verifiable by reference to the real world. In science consensus is irrelevant. What is relevant is reproducible results. The greatest scientists in history are great precisely because they broke with the consensus."

Nicolaus Copernicus struggled with the science of the world into which he was born. He struggled in an environment in which Aristotle, Ptolemy, and others simply and absolutely knew the earth was the center of the universe. Copernicus brought us the theory of a heliocentric system, and that was eventually published. His works formed a foundation for later study by  Galileo Galilei, whose study did not always sit well with the establishment or the consensus. There have been more than a few scientists over time who challenged the "groupthink" of consensus. 

Outside of the specifics of science, there are other warnings about consensus. Psychologists have defined a thought destination called "groupthink":

"Groupthink is a phenomenon that occurs when a group of well-intentioned people makes irrational or non-optimal decisions spurred by the urge to conform or the belief that dissent is impossible. The problematic or premature consensus that is characteristic of groupthink may be fueled by a particular agenda—or it may be due to group members valuing harmony and coherence above critical thought." 

Various business writings over the years have warned of the perils of groupthink on the management process. There is a danger perceived that the absence of critical thought and challenge can lead an entity into error or even destruction. The idea is not new. In 1837, Hans Christian Anderson penned the parable "The Emperor has no Clothes." It has become a children's tale. But, it is one that we might all perhaps be well advised to strive to return to periodically as a reminder of our own perils.

It is particularly interesting when people have discussions about differing opinions. Despite them being opinions, some people accept their own as facts. They will defend them as science, despite the absence or paucity of evidence. They will accept them as science, despite them being merely consensus. And, despite this, they are some of the most eager to urge others to "follow the science." A fair few will next (or instead) leap to invective, abuse, or insults as a method of winning friends and influencing people. Some are even surprised when their venom fails to persuade.

The fact is that we see the perils of groupthink outside of science; it persists outside of business, even in professions like the law. A good example is the long-held belief that Florida's Supreme Court had the authority to make rules for the administrative practice of workers' compensation. See Statutory, Inherent, or Delegated. For decades, the highest Court in Florida encroached on the Executive branch. Back in 1977 Justice England dissented and explained a different perspective, but it did not persuade. Not until 2004 did the Court end its involvement, recognizing "nor has this court ever had the constitutional authority . . .." Essentially, when smart lawyers believe a thing long enough, or if enough people believe something, there is a tendency for groupthink to permeate and influence the whole of some subject, like workers' compensation or even astronomy. Group think is demonstrable and in it, we might perceive danger. 

In our world, there remain determinations that elude science. There are questions that we are not yet up to answering. In the absence of science to address our curiosity, there is some potential or even probability for consensus to step into the resulting void. That is not necessarily inherently inappropriate. It is perhaps appropriate, when dealing with a challenge, to turn to some population whose experience, training, and education perhaps enhance appreciation for, or comprehension of, a topic. Those with such a foundation may be better postured to form opinions about issues. That said, what they provide us will remain "opinion," or even "consensus," and not necessarily "science," per se. In the absence of evidence, some might argue that a more appropriate entreaty would then be to "follow the consensus."

Consensus has, since the 20th century become a systemic pursuit. Among others think tank organizations such as the Rand Corporation have brought us "group think" consensus tools. Those have become accepted and adopted in pursuit of various questions. One of the more favored is the Delphi method, in which: 

"a group of experts . . . anonymously reply to questionnaires and subsequently receive feedback in the form of a statistical representation of the "group response," after which the process repeats itself." 

With no accountability for a particular opinion or foundation, anonymous contributors repeatedly pass around a belief until they refine it into a consensus. 

The potential failures of consensus process and groupthink are numerous. The Houston Chronicle cites examples such as America's "failure to anticipate Pearl Harbor." Entrepenuer.com cites a variety of examples including airlines, the American automobile industry, and more. These stories of groupthink, and its perils, return time and again to the concept of consensus and agreement. There is a tendency "to go along to get along." Anyone who remembers bell-bottom jeans, seances, streaking, and worse will recognize the potential for peril in group think. Remember when your explanation for some activity was all your friends were doing it, and your mom asked "If ________ jumped off a bridge would you . . . ."

We stand, as a community in workers' compensation, on the threshold of history. The first 100 years of this socialistic experiment lie in our wake, and the future is spread before us. We are confronted with a variety of supposed challenges. Industry experts warn us of perils, threats, and changes to work, the workforce, and the very concept of employment. Seemingly, these systems are persistently confronted with someone's perception that the challenges of today are somehow perceived as distinct or separate from what this system was designed to address, and has evolved to address. 

Certainly, innovation and evolution may bring new challenges. There may be distinctions, for example, between the 1918 influenza pandemic and COVID-19. Or, I suggest, there may be a great deal of similarity between them as well. As we reassess our world, community, and industry in 2021, I would suggest that we must all remain cognizant of the challenges of "group think," and the rallying cry to follow the consensus. 

Admittedly, consensus is not inherently a bad thing (collective thought may spur conversation and enhanced conclusions). But, let us not forget George Orwell and his warning "Some ideas are so stupid that only intellectuals believe them." Many years ago, I saw an advertisement in a national publication paid for by United Technologies: "When forty million people believe in a dumb idea, it’s still a dumb idea." Think on that one. Everyone in agreement is not necessarily confirmation that belief is sound or appropriate. Failure to encourage or support dissent is perhaps accommodating and peaceful, but is it productive? Consensus may result merely in all of us blithely thinking someone has new clothes, which are actually something else entirely. 

It is appropriate that we take stock on our past performance, which is common as the years end. We can make plans and goals for workers' compensation in the next year, decade, or millennium. However, let us not confuse consensus and science. Let us be honest with ourselves about the problems or distinctions, and whether our solutions are actually remedies or merely paths to substitute problems. Part of that may include questioning whether proponents of any particular solution have a personal interest in the "latest and greatest" innovation that it involves. Part of it will involve careful and respectful attention to those who would dissent and disagree. Regardless of one's (dis)agreement with the dissenter, listening will make us each think. 

And, if you are inclined to disagree with me on these points, please consider first that forty million people already agree with me. Does that influence or persuade you? Would it help if I told you that four out of five dentists recommend this post for their patients who read posts? Of course, doctors (scientists) once were perceived as similarly endorsing smoking also, not through or based upon science - consensus (likely not that either). Let's each ask ourselves periodically if the emperor has clothes. 

If we are told of some outcome proposal or process change, let us ask if there is proof (science, math) to support that, or whether it is merely consensus. Let's be skeptical of the consensus and challenge whatever foundations are purported. Before we turn to consensus, maybe we can find a methodology for gathering data, such as a trial or test of such proposals. If we see success from such experiments, should that make us more accepting of their premise? Let's ask ourselves whether the method of consensus is relevant to us in deciding whether we go along with those four dentists. 

In the meantime, if no one would be offended, I would like to hear from that fifth dentist. She/he might be the next Copernicus or Gallileo. Maybe it would do us all some good to hear from the so-called heretics and to give them an honest listen, regardless of whether their conclusions make us uncomfortable? Perhaps the next Louis Pasteur walks amongst us, ignored and unheralded. Groupthink and consensus may be diminishing her or his impact today. If we are truly concerned and interested, we will take the time to hear dissenting voices, consider their merits, and struggle against "we have always done it this way" arguments of great consensus. 

Will we look back one day and award her/him, that "next Louis Pasteur" we have ignored, some posthumous recognition? Or, shall we open our minds today and think for ourselves about the real science, that has proof and support of method and experiment beyond the group think? How we each choose to receive and consider information remains up to us. Whether we have the integrity to consider dissenting thoughts and new ideas is up to us. Our propensity to either run with the herd or consider being a maverick is our decision. 

Maybe remember Albert Einstein's suggestion: "The person who follows the crowd will usually go no further than the crowd." Where will you end up? Will you lead this industry to greater performance? Will you buy into the groupthink of lemmings (no, they do not commit group suicide), but they also do not "fall to the earth like rain" as consensus once suggested. No, they merely travel in herds assiduously sticking to the groupthink that I am suggesting we might perhaps validly question. What can we do better?