Too Sick to Commute?

Recently, in Been Robbed (June 2022), I noted some avenues of dissatisfaction with the strictures of the common workday. Although labor has lobbied and pressured for various accommodations in the past, such as the eight-hour work day, breaks, and a lunch period, there is a new generation on the scene and some of them at least are expressing frustration with some aspects of the modern workday.

That is all well and good, as debate itself is good. See Free Speech and Due Process (June 2022). We perhaps might all do well with more debate and discussion about the manner in which our world works (or doesn't). This is nowhere more newsworthy than the perspective of remote work. The challenges and benefits of this have been in the news persistently through the Great Pandemic. And, have been featured here in posts such as Loss and Change (May 2020) and Presenteeism and the Coming Divide (June 2021).

Many feel as if they are more productive working at home. Business News reported on findings that substantiate that. However, much of the evidence is based upon surveys of people who express personal and subjective perceptions of their effectiveness and productivity. Management may be more of a challenge, according to the Harvard Business Review. Thus, others have been more definitely in the "it depends" mindset, as noted by the Chicago Booth Review. The debate rages on, and most I talk to in the workers' compensation community have both positive and negative things to say about both office and virtual. Perhaps the "it depends" is the best answer?

Elon Musk got the world of work discussing it again recently. According to Geekwire, he sent emails to employees suggesting

"he wants them working at least 40 hours a week in the company’s offices. Those who seek an exception to that policy will need approval from Musk himself."

Nothing like needing permission from the CEO to test sincerity and chutzpah (what employee sends a request for something to the CEO?). Davero?!? (sorry for lapsing into Italian, "Really?!?") Later, he announced that he planned a 10% reduction in workforce due to fears of the direction our hyperinflated economy is heading (many predict a recession in 2023 is probable as a result of the massive borrowing and spending through the pandemic).

Some who have "returned to the office" have noted that there is expense associated with it. They have labored at home for two years, avoiding expenses like gasoline, eating out, and more. The British Broadcasting Corporation (BBC) published an article focused on The Sky High Cost of Returning. There is certainly some element of inflation at work. CNBC recently noted gas prices at an all-time high. This inflation situation is clearly unprecedented in the lifetimes of all but the oldest of us. Most of the workforce is of the millennial generation (1981) and after, so they were spared the economic policies of President Jimmy Carter.  And, in June 2022 we set yet another record for the last 40 years; there appears no end in sight. The longer-term impacts of recent inflation has as yet not really manifested in medical costs, and other segments, which may be the next shoes to drop. 

So, there is some love for remote work. There are management challenges. There is a new generation taking the helm of the world of work. There are questions raised as to why we do it "this way," in various contexts. Will the world of remote work remain or expand? Will the basket of legal labor protections? Will the hard-fought benefits of breaks and a lunch break?

In another article, the BBC recently reported that "Before the pandemic, ill workers quite often showed up in the office, coughing and spluttering away as they tackled their workloads." Their choice was to work wounded (to everyone's risk and potential detriment) or to take their leave. For some reason, people are reluctant to take their leave. Some might suggest that the leave is there for precisely the purpose of personal care in the event of illness. By working ill, the employee may render others at risk, including the obvious co-workers and also those encountered on the commute. 

Why not take the sick leave? I had one corporate VP explain to me that her company pays the unused sick leave in a lump sum each December. So, a worker that does not take their leave gets a nice year-end bonus check. While that may be an incentive, so might the challenge of presenteeism, see Presenteeism and the Coming Divide (June 2021). There may be a real benefit to being in the office and being seen, chatting with the boss, being on the team.

The BBC suggests that the sick day is no longer needed for a great many employees. It says that "fortunately, sick employees can often work remotely, keeping their germs to themselves" (and their leave days in the bank). This may be coincidentally true in education for old saws like snow and hurricane days. The BBC suggests that in a world of presenteeism concerns and managers that may see the point of Mr. Musk, there may be questions as to how ill one should be before taking the virtual alternative. That is an interesting perspective, and consistency even within a company may become challenging. 

The article also questions whether the employee "working away" from the couch at home are appropriately resting in a manner that will facilitate recovery. Regardless, the perceptions of workers seem to support that in the new virtual probability (not all jobs can be done remotely) there is a pressure to telecommute instead of taking the sick day. The statistics noted by BBC are notable, among them "two-thirds of workers feel remote work adds pressure to work while sick."

Will employers lean toward allowing the remote/virtual sick day in the new world of work? Will the employee feel pressured to be in the office ("at least 40 hours a week")? Will the next generation find the strictures of sick days as annoying as some have recently found the lunch break? Will there be complaining and even restructuring to eliminate the "sick day model" and as a vestige of antiquity related to the in-person office space? Will there be any paradigm that "fits all" in the event of illness or injury?

And, while we are at it, perhaps we could all agree on what the office temperature will be? That appears to be yet another matter of dispute and disagreement in the working world. I have seen more arguments over the thermostat than any other office accouterment, including the contributions for the coffee service. Is consistency in any regard even possible in the workplace of today?

In short, there is much to work out in the world of work. A new generation is taking over and we all need to learn to work with them and their ideas. It is a new world post-Grand Pandemic, and we all have much to consider and contemplate.

My Brain is Shrinking?

Do we believe in evolution? Are we products of the environment that surrounds us? Darwin believed. The British Broadcasting Corporation (BBC) recently reported that anthropologists have concluded that "around 100 generations ago, our ancestors had brains that were larger than our own." The human brain is shrinking. The volume is not some inconsequential millimeter here or there either, but "the lost volume, on average, would be roughly equivalent to that of four ping pong balls." according to on anthropologist. 

This loss has occurred beginning "just 3,000 years ago." In 2022, that might seem a bit scary. The anthropologists noted that we evolved to "agriculture . . . (as a societal norm) between 10,000 and 5,000 years ago," in a significant sense, "although there is some evidence that plant cultivation may have started as early as 23,000 years ago." We have long been farmers, despite which I can never seem to keep a plant alive and thriving. 

Notably, "the first writing appeared" somewhat coincidentally, around 3,400 BC. Note that, with writing came the beginning of brain shrinkage. There has also been shrinkage in our body size, "but not enough to account for our reduction in brain volume." The scientists cited by the BBC concede that the direct cause and effect are not known. However, through study of "the humble ant," they are propounding a suggestion.

Of course, ants are not something to which we might all look for explanation or inspiration. Ant brains are very rudimentary, very small and orders of magnitude simpler than ours in terms of neurons and function. But, there is the suggestion that living in a complex society, in which there is specialization and "division of labor," might lead to organisms needing less brain capacity and thus shrinkage. In short, "cognitive capabilities get divided up and distributed among many members of the group, who have various roles to play." We don's all have to remember how to shoe a horse or fix a machine, or balance a ledger. So, we don't need the brain capacity for all, but merely for our own focus.

The anthropologists question whether we might reach "a threshold of population size, a threshold in which individuals were sharing information and externalizing information in the brains of others?" Or, perhaps, externalizing information in written references like books, and the Internet, and even this lowly blog. With the advent of external memorialization, might we be affording our brains some opportunity to atrophy? With the world at our fingertips, a computer in every pocket, and knowledge (or the opposite) increasingly accessible, might our brains be responding?

The good news is that brain shrinkage does not represent us becoming "stupider." Some believe that it might lead to "subtle differences across a large population," but not a generalized intellectual shrinkage in individuals. Studies have indicated "that having a bigger brain was, on average, associated with doing slightly better on IQ tests," but there is no generalized proof of cause and effect. In fact some studies regarding gender and brain size absolutely deny and defeat correlation of size and function.

The world is changing. I recently noted the evidence that I am getting cooler (we all are, just a bit). See Changes, Getting Cooler (November 2020). We are evolving. And, this evidence suggests that our specialization of tasks and processes, added to our ability to externalize data may be affecting us and our posterity. However, in just one generation (not the 30 that are discussed by the BBC), I have witnessed a great deal of externalization. When I was a kid and even a young adult, we used to remember things like phone numbers. I knew the office numbers of dozens of lawyers, doctors, adjusters, and more back in the day. We remembered them because we used them, used them because we needed to, and when we didn't we looked them up in books, large and small.  

That kind of data is now externalized completely. My old friend Horace Middlemier, III recently conveyed a story in which he was stranded with a broken-down car and had to spend an extra day at a lake rental. I asked why he did not call me for help and he said simply "I don't know your phone number," and "my phone was dead." Though that sounds like a convenient excuse for another day in the sun, I reflected and realized I do not even know my parents' or children's phone numbers. If I lost my phone, I would be without a clue on how to contact anyone. And, to be honest, that does not sound so bad perhaps, particularly if I could find myself thus stranded in some quiet and scenic locale. 

There is much convenience from our tools and technology, but in the process of reliance perhaps we lose knowledge. And with that evolution, perhaps our future and progeny do also. 

 

The Next Thing?

Last year, I noted that the Metaverse is Coming (October 2021). There was a follow up in November when one of the social media companies actually changed its name to reflect its belief in the coming of a new interactive computer world of the future: The Metaverse (November 2021).

We are told that there will be greater convenience. With our headsets on, we will experience the entire world from the comfort of our own homes. The potential is to game, socialize, work, and more without ever leaving home (or whatever secure location you choose). The signals are perhaps there of ever-increasing network and data access. If you have an iPhone, try using the map program to search for some exotic destination like Rome (no, not Georgia, the other one), Tokyo, or Sydney (easier, there is not one of either of those in Georgia), and hit the "flyover" button for an amazing virtual reality aerial tour. And this is available right now. 

You can reflect back on the Hollywood preparations for our foray into the next virtual world. Many remember Ready Player One (Warner Brothers 2018), a Spielberg expose on a dystopian brave new world. Fewer may remember Surrogates (Walt Disney Pictures 2009), a strange combination of virtuality and robotics. And for those who long to self-isolate in their home environ, who can forget The Net (Columbia Pictures 1995). That last one was about a woman who worked from home and effectively lost her identity to thieves in the process. When she eventually ventured out in person, claiming to be Angela Bennet, she was hobbled by the fact that none of her coworkers had ever seen her in person. 

Each of those films showcases some vision of the future and exposes perhaps some potential flaw in our reliance on technology. But, with or without our individual consent, technology is persistent in changing our world. Whether it brings us to utopia or dystopia is a fair question perhaps, but the answer may depend as much on personal perspective as anything. 

As the Great Pandemic broke on American shores, many were challenged to remain functional. Other state's workers' compensation systems "figured out" how to accept electronic documents as evidence. Lawyers in other states "learned" how to try a case by video. I recently read an article in which a workers' compensation judge explained a state's decision to eschew video as it presented too many challenges; Florida, on the contrary, switched to video with nary a hitch. And, in that time, a great many professionals everywhere struggled with merging their work lives into other daily commitments such as child care, teaching, elderly care, technology, and more. For many, the now ubiquitous Zoom was a shock and adaptation; for others, it was a natural progression.

Will we need such video technology as the Metaverse dawns? Or, will we evolve from Little Black Boxes (December 2021) to full-on avatars walking, talking, meeting, and more in a virtual reality? Will hearings become yet another quasi-virtual experience? How will the facial expressions of the witnesses or counsel be interpreted if we only see each other's avatars?

Courtesy Wii, and PasteMagazine.com

Maybe the computers will do that for us, as mentioned in Chatbot Wins (June 2016). The world is evolving and it seems technology has proposed answers for every question, even before we ask them perhaps. People seem to be inventing things just because they find them interesting, and perhaps they hope some need for them might evolve or develop. 

But, outside of Hollywood's imagination, in the real world, there may be significant challenges with the Metaverse of tomorrow, or perhaps even the metaverse(s) of today. The British Broadcasting Corporation (BBC) reports on "a researcher posing as a 13-year-old girl" who ventured into the present-day technology of a metaverse and "witnessed grooming, sexual material, racist insults and a rape threat." There were also "avatars . . . simulating sex," and more. In short, the experience was beyond real, and ventured into real scary.

The National Society for the Prevention of Cruelty to Children (NSPCC) in Britain is quoted there, alleging that "some apps in the virtual-reality metaverse are 'dangerous by design.'" It concluded that the investigation it conducted demonstrated "a toxic combination of risks." for children in the metaverse of today.

It is notable that there are multiple platforms currently offering virtual reality (VR), and those platforms are each perhaps not necessarily involved in the facilitation or distribution of troublesome content. These might each be termed "a metaverse," and as yet perhaps there is not yet "The Metaverse" (though when there is one, it is possible Al Gore will claim he invented it. Sorry Al, just kidding). The current vendors perhaps are, much like social media and the Internet itself, better described as pathways to content. Content that is good, not-so-good, horrible, and even despicable. As platforms affording access to content, how much responsibility will be placed upon them, or accepted, regarding the quality and content of the experiences offered there?

Will the platforms be liable for the content? In The Internet, Evidence and Defamation (April 2015), I highlighted 47 U.S.C. section 230 and its shield for social media platforms. There was a time when government strove there to protect platforms, and thus perhaps diminished their motivations to keep their platforms tidy and clear. The news is persistent with allegations of various individuals and groups claiming censorship and throttling in that environment. They allege that social media does in fact control content, but are critical of the methodology or consistency.

And, there are conversely critics of social media being protected. Harvard Business Review (HBR) notes that the protections were "written a quarter century ago," in "a long-gone age of naïve technological optimism and primitive technological capabilities." The time has come, it says, "to update section 230." These criticisms are seemingly on a spectrum between allowing government to regulate content and merely allowing civil liability to be imposed against the platforms. 

The most troubling aspect of that BBC story is that the researcher needed only a Facebook account to download one such pathway (an application or program) that she then used to traverse the described content of the (a?) metaverse. Notably, her age was not verified, and "her real identity was not checked" in that process. In short, it appears in some aspects the underworld of virtual reality (VR) is available to anyone, and there are perhaps little or no standards for admission, submission of content, or communications. Should the platforms be held accountable for affording our children access, in the same way a venue like a shopping mall might be held responsible for what occurs within its premises?  

In another article, the BBC focused on a particular "children's game," that has some general susceptibility for poor behavior, and potential damage to children. The focus there is on a platform described as "a huge sprawling world of games which is sometimes described as a kind of primitive metaverse." In short, it may be a precursor of what is coming with the current trend of billion-dollar metaverse investments. 

How huge and sprawling? The company has reported in the past "that two-thirds of all US children between the ages of nine and 12, use the game" in some manner. In this particular children's gaming platform, the BBC found user-created and controlled spaces (called "condos") in which people virtually gather. Sounds a bit like the bulletin boards and chatrooms of the Internet in the old days. Those were full of the words of contributors, and the platforms were shielded from complaints about content by section 230. In this children's game platform, apparently easily accessible to children, the BBC found:

"A naked man, wearing just a dog collar and a lead, is led across the floor by a woman in a bondage outfit. Two strippers dance next to a bar."

"A group has gathered around a couple openly having sex, watching and occasionally commenting."

"One man is wearing a Nazi uniform."

And, it is a children's gaming platform.

This is not to say that "The Metaverse" that is now under development will be a bad place per se. It is to question whether society, government, and regulators are ready for the risks and challenges that this brave new world might bring. Forget Al Gore, perhaps we need Tipper back for this effort instead? For those who have forgotten, She was Al's wife, and was once alleged to be the inspiration for the novel Love Story. Back in the day, she lobbied very strenuously for controls or warnings on music lyrics to protect the children. She was attacked by those who saw her efforts as an affront to the First Amendment. Perhaps, those lyrics were not as troublesome as our current challenges?

Thus, there are these warning signs in the news, and a billion-dollar industry progressing toward the dream of widespread and unfettered virtual reality. There are existing legal protections and those who criticize them. There are freedoms of expression, and the challenges of a truly world wide web upon which some operators or "condo" owners may be in countries that take a far different view than others regarding what is or is not right, legal, or sanctionable. Who will regulate or legislate? Who will enforce it? Where will there be boundaries or warnings? How will the children and other unwary users be protected in that new world? How can they be? Is section 230 the place to start as HBR and others advocate?

Perhaps that environment be the wild, wild west, or will the platform owners, the application developers, and government to act in some manner now? If there is action, will it be in some concerted manner, or will each potential actor begin a process of protections in isolation? Can there be safeguards developed and deployed now, before the virtual becomes reality, or has that ship sailed? 

The idea of virtual reality is intriguing. The views of Hollywood as to our future are interesting. But, the future, it seems, is here now and perhaps "getting bigger every day from Hawaii to the shores of Peru" (Surfin' Safari, Beach Boys, 1962). How will it, how will we, evolve in the days to come?

Sign Language and Curiosities

Recently, in Another Judge Makes the News (May 2022), I reviewed the allegations that led to a Kentucky judge being removed from office. It is rare you see a judge removed from office, even when the circumstances appear quite serious. 

Just a few years ago, I wrote about three judges in Indiana who went out celebrating in an "injudicious manner" that led to criminality and gunshot wounds. One of the judges there allegedly used some sign language ("Judge [Sabrina] Bell extended her middle finger"). See Conferences and Consequences (November 2019). Though that behavior "discredited the entire Indiana Judiciary," and led to some criminal charges, these judges were suspended from the bench, not removed from office. The Court's order is here. That perhaps seemed more serious. Read on, and we can return shortly to this sign language judge that was only suspended. 

Later, I penned Another Judge Makes the News (May 2022). That Kentucky judge had allegedly held court at some interesting times of day, and was accused of "engagement in profoundly unwise action . . . on and off the bench . . .  that continued for years." She was removed from the bench, suggesting perhaps that her behavior was more disturbing than the Indiana judges' late-night, alcohol involved, trip to a strip joint and burger restaurant that ended in sign language, shooting, and injuries. Maybe the distinction is the "for years" modifier that distinguished it?

I was surprised to hear that the Kentucky judge in Another Judge, who was removed from office on April 22, 2022, was nonetheless running for election to judicial office in "the May primary." The Louisville Courier-Journal reported on May 2, 2022, that Kentucky law prevents a "judge who was removed from running in a special election that would have let him (her) serve the rest of his (her) term." That is, that when the judge is removed, she/he cannot then run in the special election to immediately succeed her or himself. That makes sense. 

But, as yet, the Journal reported, "the (Kentucky) court has never addressed whether an ousted judge can seek a new term." Legal ethics experts quoted in that article had various views on the topic. But, the most interesting perhaps came from "a former chair of the Judicial Conduct Commission" who said "'if the good people of Davies County want her back,' despite her removal 'let them have her.'" In fairness, the removed judge is also appealing the removal decision and may yet be reinstated by the Kentucky Supreme Court. 

The primary election did not apparently pan out as a remedy, however. On May 19, 2022, the Courier-Journal reported that the judge did not prevail in the primary election. That report notes that she received "only 3.237 votes" and will not be in the general election. The article did not provide the math, but approximately 14,900 votes were reportedly cast, and thus the former judge received "only" (about) 22% of the votes. Some might say that is a reasonable showing considering all the circumstances. 

It is noteworthy, perhaps, that the very serious remedy of removal might nonetheless be less than permanent. Some might recall Judge Alcee Hastings in this regard, who was impeached, convicted, and removed from the federal bench. He nonetheless was thereafter elected to congress for almost 30 years. Ultimately, public confidence is of some import. 

More recently, in Revisiting Judicial Discipline, a discussion of a Tallahassee, Florida judge, I noted the Florida Supreme Court's caution that 

"removal is the most severe form of discipline a judge may face, and it is typically reserved for when a judge intentionally commits serious and grievous wrongs of a clearly unredeeming nature."

As I read about the Kentucky situation and reflected on the Indiana sign language situation, the coincidence of that "removal" quote was intriguing to me. One might wonder at the behavior that does not lead to removal, and the curiosity that a "removed" judge might run for office nonetheless. 

In the end, anyone can make a mistake, and perhaps society asks too much with its demand on judges? The recent Florida Supreme Court opinion in Revisiting Judicial Discipline reminds us that this can be a quite trying occupation or profession, as "[A] ‘judge is a judge 7 days a week, 24 hours a day.’” That is sometimes troubling and certainly stressful. All eyes are focused each and every day, whether one is on the bench, in the town square, or elsewhere. And, perhaps there will be those challenging moments in which sign language seems the best or only reaction, yet we night view those moments differently in the cold aftermath?

Coincidentally, Judge Bell (as in "Judge [Sabrina] Bell extended her middle finger") was also in the news again recently. Conferences and Consequences (November 2019). Fox59.com reported that Judge Bell was arrested in May 2022 for a "felony charge of domestic battery in the presence of a child." When they arrived at that altercation, "Deputies advised marks were still visible on the man’s face at the time of the report." The report also notes that "the Indiana Supreme Court (again) suspended Bell with pay" while the matter is being dealt with. A Facebook post later apparently announced Judge Bell's decision to suspend her campaign for reelection in the 2022 primary. A judge can elect departure from the bench. 

If any of these are not intriguing enough, there is also a recent report from Loving County, Texas of a county judge having been arrested for (essentially) cattle rustling. News West 9 reports that Judge is "accused of livestock theft and organized criminal activity." The county allegedly has only 64 residents. Dayton Duncan, author of Miles from Nowhere: Tales from America's Contemporary Frontier, describes Loving as "the most socially claustrophobic and factious place I encountered." He says the county "is inhabited by friendly folks who just happen not to like each other very much." As John Cougar once intoned, "ain't that America . . . "

In Loving, an ironic name perhaps, the judge "and three others . . . are accused of picking up estray cattle" and selling them. Four individuals may not seem like much of a conspiracy, but that is roughly 6% of the county population out in Loving. That is not a typo, "estray" actually means one that has strayed. Might we therefore refer to this post overall as a discussion of estray judges perhaps? 

The point is that there are serious constraints upon the judicial profession. There are periodically allegations that raise eyebrows, and make headlines. That is not to say that any of the allegations are accurate or true, and each judge deserves her or his chance to a fair process before guilt is determined. The ultimate outcome and its foundations in the law and facts can make for interesting reading, however. The lesson for all is that judges are no more perfect than anyone else and that we thankfully have processes in place to both investigate and remediate behavior. 

The Code of Judicial Conduct, in comments to Canon One (Uphold the integrity and independence of the judiciary), the authors note:

"Deference to the judgements and rulings of courts depends on public confidence in the integrity and independence of judges"

Despite how hard the job is, and how imperfect people admittedly are, eyes are on this profession. It is troubling when an example of poor judicial behavior or judicial discipline is in the news. 

Similarly, the judicial discipline processes are no more perfect than any of us, and the outcomes may periodically not be as one might predict. What seems serious such as an alcohol-involved shooting may not be serious enough for removal, but persistent behavior on the bench over time may in fact be so. That decisions are made in various states and are very dependent upon facts and circumstances. Those decisions and the press coverage may lead to perceptions of inconsistency and in the end, the public may struggle with perceptions of the judicial discipline processes and the outcomes produced. 

The public perceptions of and confidence in judges are perhaps worthy of consideration. However, on a given day, thousands labor honorably, carefully, and judiciously in striving to sort the differences and challenges of millions of people. Though there are these troubling examples of judicial behavior in the news, they neither capture this profession nor are even indicative of it. It is therefore unfortunate that such stories of outlier behavior are what makes the news.  

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Lessons from Connecticut

The Connecticut appellate court recently rendered its decision in Arrico v. Board of Education, AC 44409 and AC 44488, on appeal from the Workers' Compensation Review Board. Notably, the first line of appeal there is a specialized workers' compensation board, similarly to Kentucky, see Is there a Doctor in the House (June 2022). The trial judge there is referred to as a Commissioner. 

The issue at trial in Arrico was total disability benefits. The employer/carrier contended that the worker had reached maximum medical improvement and "had a work capacity." There were two work accidents, and after each, the parties entered into "two voluntary agreements" which "were approved." The trial judge (Commissioner) ruled in favor of the employer/carrier and the injured worker sought relief from the Board, claiming "the commissioner applied an improper standard in determining that his current disability was the result of preexisting, noncompensable injuries."

Notably, the Board "concluded that the" trial judge's (commissioner’s) ruling was not based on competent evidence, but upon ‘‘conjecture, speculation(,) or surmise.’’ (Internal quotation marks omitted.) It noted that the judge had accepted one doctor's opinion rendered in 2008 while rejecting another's rendered in 2017 on the basis that the 2008 opinion came from "a treating physician." While such a conclusion may have merit, if appropriately explained by the trial judge, the Board noted that such an acceptance is appropriate only if both opinions or examinations are "contemporaneous with the compensable injuries at issue." Furthermore, the credibility conclusions must be "explained in detail."

The Court noted that the Board's decision "cited decisions in which trial commissioners had resolved similar claims," and presumably resolved similar disagreements in testimony and other evidence. However, the Court noted that

‘‘[i]n all of those cases [the Board] could ascertain the manner in which the trial commissioners reached their conclusions, which was by weighing the probative value of conflicting contemporaneous opinions.’’

It is crucial that the trial judge's (commissioner's) order is clear as to the findings that are made and the logic path that explains what impacted credibility, as well as how the judge's (commissioner's) decisions were reached.

The Board "concluded that substantial evidence supported the commissioner’s decision," but took issue with the "manner in which the commissioner addressed" some of the evidence. It therefore vacated various "conclusions and remanded the matter for further proceedings." The Board also denied the worker's request for a new trial "before a different commissioner."

The appellate court was critical in its review. It noted that while the trial judge (Commissioner) had "noted that certain physicians had opined that the plaintiff had a work capacity, the commissioner neither indicated that she deemed those opinions to be credible nor made a finding that the plaintiff had a work capacity." In short, the order was perhaps descriptive but lacked the critical findings and conclusions necessary for the appellate court (or Board) to discern the path of the judge's analysis.

The Court also found fault with the trial judge's conclusions regarding ongoing medical care. It noted "that the parties did not receive notice and an opportunity to present argument and evidence on that issue." That is a critical due process issue in every trial: notice and the opportunity to be heard. The issues in a trial should be clearly identified at the outset.

In an aside, the Board rejected a contention of the employer/carrier regarding the medical care issue. The E/C argued that "the commissioner’s finding that the plaintiff had reached maximum medical improvement . . . necessitated a determination that further medical care was palliative." The Board's rejection of this support for the necessity of such a finding was noted to be particularly founded upon the conclusion that the defendants had cited no authority to support their argument. It is important to remember in litigation to bring and cite authority. 

The Board was particularly critical of the trial judge (Commissioner) as regards the evidence at trial. In describing its conclusions, it said that the "manner in which the commissioner addressed this evidence was sufficiently unorthodox as to impair" the workers' rights. This was focused on the conclusions regarding medical care that were not noticed nor litigated.

Thus, the trial judge's order was deemed insufficient. The matter was remanded back for further trial proceedings. 

The Court explained that the injured worker's request for a new trial before a different commissioner had no legal foundation. This returns to the theme of bringing or citing authority. 

The worker pled a Connecticut statue (§ 51-183c) which applies specifically to "judges." The Court explained that as that statute does not address commissioners, it "does not apply in the workers’ compensation forum." That is a notable point. The language of the statute was interpreted literally by the Court, again with similarity to the Kentucky discussion cited above.

And, the Court cited previous decisions in which it and the state's Supreme Court have held that the cited statute applies only to "trials" not administrative actions. Thus, the authority cited by the worker did not support the ordering of proceedings with a different Commissioner. Furthermore, the Court was supportive of the Board's denial of such reassignment based on judicial ("administrative") economy. It noted the volume of evidence already submitted and the "delay and redundancy" that would come from a de novo proceeding with a new Commissioner or judge.

Thus, the decision is of interest in three ways: the criticality of well-drafted orders, due process, and the applicability of law. In terms of the order, it is absolutely essential that the judge renders findings on the critical facts upon which the decision will rest. Those findings should be clear, concise, and readily apparent. The appellate body should not have to search for them. The order must be clear on conclusions of credibility, identifying conflicts, describing their inapposite nature or other shortcoming, and must clearly state which evidence is accepted and why. 

Due process is the only product (or service) a judge (commissioner) can deliver. The parties are charged with knowing their case and pleading their claims and defenses. The parties should put their positions on the table and present the necessary elements of proof to support each. The judge (commissioner) must be able to rely upon those pleadings and evidence. When the parties do not address a topic, the judge should refrain from ruling on it. If that means that there is an issue left unadjudicated, the fault of that lies with the party that failed to plead it. 

As to the law, a party should be aware of previous interpretations of the appellate bodies. Where the state's highest court has interpreted a statute (holding that it applies only to judges and trials), any allegation or argument for a different interpretation needs to be substantive, detailed, and focused. First, the challenge should acknowledge of the existing law and succinctly explain why it should be changed. A generalized request for relief that the state's highest court has already denied to others in similar circumstances is unlikely to succeed. And such a generalized, and seemingly uneducated, argument itself may impact the appellate bodies' impression of the overall tenor and persuasiveness of the appeal as a whole. 

 

An Evidence Constraint

On May 5, 2022, the Governor signed SB 542 (whose companion had been HB 411 until it was "laid on the table" in March after the House committee process). Laws in Florida typically begin with two bills that proceed in parallel or tandem and then coalesce at the end into one bill for final passage. 

The implications of this legislation have been discussed here before, when the bills were introduced in 2021. See Who is the Employer? (March 2021). The bill is of interest in the workers' compensation community because we have a fair number of opportunities to examine the "employer/employee relationship" in the context of various statutory sections. The application of workers' compensation in Florida is dependent upon that employment relationship. See section 440.09, Coverage.

One area in which this presents challenges is misclassification. See Did Dirkson have it Right (September 2014); Misclassification, What Is It (January 2015); Misclassification and Regulation (November 2015). There are multiple ways to strive to avoid the implications and costs of participating in the workers' compensation system. Characterizing workers as independent contractors has persistently been one of these. More recently, the challenges of the "gig" economy have brought debate, questions, and even legislation regarding the relationship. 

Classification is of import with the so-called "gig" workers. They may each periodically find her/himself in comp, out of comp, or in "it depends." See The Gig Economy (March 2018); Giggin Again (April 2021). Various states have taken this on in various ways, but questions abound. See The Gig of Participatory Democracy (December 2020). The challenges in California and the interplay between its legislative and judicial branches has been interesting to many and troubling to some.

The passage of SB542 is not an amendment of the Florida workers' compensation law, and may have largely escaped the attention of the workers' compensation community. It creates a new section in Chapter 448.111. Chapter 448 is "General Labor Regulations." And, one may wonder aloud regarding the impact of this statute in workers' compensation litigation. However, there is clarity in 448.111(2) stating that this new law applies to the evidence in any "cause of action brought under s. 440.10, s. 440.192, s. 440.38, s. 440.381." Those are clearly portions of the workers' compensation law. The specificity of the new law removes doubt of applicability and should focus litigators upon this new law. 

The law impacts determinations of employee status based upon "actions of a business" during either a "public health emergency" (one might here reflect upon our recent COVID, but it seems applicable to emergencies of less systemic effect than a pandemic), or "a state of emergency declared by the Governor." The statute provides that various "actions of a business . . . may not be used as evidence" when a worker is seeking "to recover lost wages, salary, employment benefits, or other compensation." What actions?

The specific "actions" that are not worthy of evidentiary consideration or weight include

(a) Providing financial assistance to previously engaged individuals who are unable to work because of health and safety concerns.

(b) Directly providing benefits that are related to the health and safety of engaged individuals, including medical or cleaning supplies, personal protective equipment, health checks, or medical testing.

(c) Providing training or information related to the health and safety of engaged individuals or the public.

(d) Taking any action, including action required or suggested by any federal, state, or local law, ordinance, order, or directive which is intended to protect public health and safety.

Thus, essentially, if a business treats those "engaged individuals" (note that it avoids the used of conclusory labels like "employee") with dignity and respect as regards amelioration or avoidance of some urgency such as the SARS-CoV-2 pandemic, that treatment cannot be used as evidence that the employer must have considered the "individuals" to be "employees." Thus including such "individuals" in some provision of compensation or training or health care does not support that the persons were "employees."

Seemingly, the converse might have been raised in litigation (if the "individuals" were employees, then why were they not offered such benefit like other "individuals?"). Thus, not including someone in the various listed instances of training or care or compensation does not alter or implicate that the person is nonetheless an employee.

In short, the law encourages good behavior and equal access to emergency response such as education, training, safety devices or precautions. It should alleviate angst and questions in the setting of emergencies of various descriptions. The law will perhaps encourage and facilitate the actions of employers in responding to the challenges of health and other emergencies without raising questions of how their emergency response might be used as evidence in regards to later analysis of employer/employee relationships and the Florida workers' compensation law. 

Independence Day

I have not been one much for focus upon holidays in this venue, though Memorial Day (each of them) were noted recently. See Happy Memorial Day (April 2022) and A Day to Reflect (May 2022). In keeping with the spirit, today I focus momentarily on the Fourth of July.

The momentous July 4th reminded me of the discussion of America's independence. According to the National Archives, A committee was formed June 10 "to draft a statement of independence for the colonies." It was drafted sometime "between June 11 and 28." and the Lee Resolution was adopted July 2, 1776. On the afternoon of July 4, 1776 "the Declaration was adopted." But, it was not printed until July 5, and entered into the "rough journal of the Continental Congress for July 4th." Only two delegates (John Hancock, President, and Charles Thomson, secretary) signed on July 5.

Only on "July 19th (did) Congress order() that the Declaration be engrossed on parchment" (meaning copied "in a large hand."). It took until August 2, 1776 before John Hancock signed the engrossed copy, followed by others. There were "late signers," and "some delegates . . . never signed the Declaration."

Thus, was the Declaration might be deemed to have occurred June 10, July 5, August 2, or otherwise. But, it is notable it was not signed July 4th, the date we will celebrate soon. It is the day we all associate with independence from Great Britain. We call it "Independence Day." However, that was essentially a day of a verbal conclusion, or decision, or endorsement. Does it matter what day it is signed? Does it matter what day it was engrossed? 

This historical curiosity came to mind recently when I read a decision from the Florida First District Court in Barnes v. State of Florida, 1D22-1663 (June 6, 2022). The case involved a petition for writ of certiorari, one of the "extraordinary writs" that finds its way into use when one is seeking relief from an appellate court in an instance not yet ripe for appeal. See Writ Protection as Opposed to Appeal (July 2017) and Reweighing Evidence (November 2017), and A Law Student (May 2018).

The petitioner (Barnes) asked the appellate court to "to quash an oral ruling" made by the trial judge. This ruling concluded he is "competent to proceed" to trial. It sounds like an interesting legal issue, but the Court dispatched the case succinctly. It "dismiss(ed) the petition because . . . (it) cannot review an oral ruling by certiorari." Perhaps like a voice vote on July 4, 1776, that required thereafter a writing and signature?

The Court pointed the parties to the Florida Rules of Appellate Procedure, and reminded that "a petition for a writ of certiorari must be filed within thirty days of 'rendition of the order to be reviewed.” In addition, another rule provides that “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal." Thus, the action of voicing a conclusion is not "rendered" in this context.

The Court noted other deficiency, which it said would lead it to dismiss the petition even if there had been a signed order. However, the real point seems to be that the absence of a written order is fatal to review by petition for this extraordinary writ.

The totality of the decision reminds of another discussion in My Fish Would not Start (June 2022) and more recently in Is there a Doctor in the House (June 2022). Legislatures can define words specifically. Similarly, courts can draft rules and rely on the definitions therein for subjects such as "rendition." Having done so, courts can follow such a definition in determining whether relief is or is not appropriate in a particular case. The decision in Barnes reminds us of that, and of the importance of knowing not only the law but the rules as well. 

Finally, whatever day you deem "Independence Day," I hope you have (had) a safe and prosperous holiday. As I reflect on the turmoil that exists throughout so much of this planet, I am grateful for this imperfect, sometimes tumultuous, and yet so far better than the rest country, in which I am blessed to live.  

Infection Dilemma

Malaria infected 227 million people worldwide in 2019, and killed 558,000 people. This, according to the World Malaria Report published by the World Health Organization. With COVID-19 garnering much attention, the WHO reports that in 2020 Malaria infected 241 million people, and killed 627,000. And, it is a "preventable and curable" disease. 

According to the Centers for Disease Control, "An estimated 690,000 people died from AIDS-related illnesses in 2019." These are sobering statistics certainly. Of course, in today's world, these figures are dwarfed by the volume of tragic deaths linked at least in part to SARS-CoV-2 and COVID-19. Worldometer notes that COVID deaths are well over 6 million as we enter the third year of our reaction to that challenge. America alone has exceeded one million deaths.

These are staggering numbers. And, they represent only a small portion of worldwide deaths from all causes. The WHO notes that they are nonetheless dwarfed by diseases like heart disease (8.9 million) and stroke (over 6 million). In short, there are a variety of health challenges that we face, systemically, and globally. Gautama Buddha is credited with saying "We begin to die from the moment we are born, for birth is the cause of death." I find little comfort there.

Over the years, medicine has delivered some miraculous advances. In 2019, NBC reported, "It's been almost a century since the discovery of penicillin kicked off the era of antibiotics." That discovery was actually in 1928, according to the National Institute of Health, so we continue to advance toward the centennial of antibiotics. Penicillin is still used, but a raft of antibiotics have joined the ranks over the last 94 years.

Despite that tremendous progress, infections continue to kill with great efficiency. The British Broadcasting Corporation reported in January 2022 that over "1.2 million people died worldwide in 2019 from infections caused by bacteria resistant to antibiotics." Note that is not the total of bacterial deaths, only a subset. The article notes that this exceeds the total from either "malaria or Aids (HIV), whose figures are discussed above. That figure exceeds the American deaths to date from COVID-19. The more basic issue of infection continues to be a challenge. 

The allegation is that some portion of the resistant bacteria deaths are attributable to our own hubris in the deployment and use of antibiotics. The author explains that death "from common, previously treatable infections" is largely caused by the evolution of bacteria "becom(ing) resistant to treatment." The bacterial evolves to survive. 

There are accusations there regarding over-use, and advocacy for "using current (antibiotics) more wisely." There is also a call for "urgent investment in new drugs" that would perhaps bring a "different approach to combatting these resistant infections." The accusations assert that antibiotic "overuse . . . for trivial infections" has diminished their "effective(ness) against serious infections." And, with that decrease in efficacy, perhaps there are otherwise preventable deaths?

This infection and resistance situation is notable now because of the relationship between COVID-19 and other maladies. The CDC contends that there is interrelationship between COVID and resistance to antibiotics. Many patients suffer from pneumonia in the midst of a SARS-CoV-2 infection, a "COVID pneumonia," which the National Heart Lung and Blood Institute has stated lasts longer than "traditional forms of pneumonia." And, those pneumonia are being treated with antibiotics. This causes "challenges in antibiotic decision-making" according to a February 2022 paper Antibiotic Therapy in the Treatment of COVID-19 Pneumonia: Who and When?

Thus, the BBC raises concerns about the state of our antibiotic arsenal, and "antimicrobial resistance" as a health threat. It contends some officials believe it to be a "'hidden pandemic' that could emerge in the wake of Covid-19 unless antibiotics were prescribed responsibly." Thus, in addition to the threats of Long-COVID, see Long COVID Seminar (April 2022), the SARS-CoV-2 and our reactions to it portend the potential for other long-term medical issues we may face as a society generally. 

While one would wish for doctors to use whatever is available if we were personally hospitalized, this is suggestion that discretion and care are perhaps the best course. 

Is there a Doctor in the House?

The news brings us another example of the power of words. Defining them and deploying them are of significant effect at times. 

In The League of Extraordinary Gentleman (20th Century, 2003, Sean Connery headlines an extraordinary cast that includes various fine actors. One whose performance has stuck with me, however, is Stuart Townsend playing Dorian Grey (originally an Oscar Wilde character). Dorian's is "an archetypal tale of a young man who purchases eternal youth at the expense of his soul." In short, he is personally invincible and timeless as a picture of him ages instead. In The League, a shootout scene portrays Dorian being repeatedly hit, without effect. This leads a marksman to ask "what are you?" Dorian replies simply "I'm complicated." That rejoinder always resonated with me; when I first screened the film, I recall thinking in response "isn't everybody?"

I thought of that complicated response while reading the recent analysis by the Kentucky Supreme Court in Toler v. Oldham County Fiscal Court, 2021-SC-0356-WC (June 16, 2022). I wondered how one might respond to being informed that they are not, per se, whom they thought, or perhaps more aptly what they thought. And, somehow in the course of drafting the paragraph above, the theme song from a very old television sitcom came to mind: "A horse is a horse, of course, of course," (Filmways 1961-1966). And, as I hummed the tune, I wondered in a similar vein how the same is not true for a doctor, of course, of course? For a humorous take on posing as a doctor, see Spies Like Us (Warner Bros. 1985). But, in this instance, no one was posing as anything. 

But, in Kentucky, the Court has reminded us that words are subject to interpretation, and to statutory definition. That was recently in the news regarding Bees in California, see My Fish Would not Start (June 2022). When the legislature does not define a word, then interpretation may well involve reference to a dictionary, see Grievous Bodily Harm (November 2018) and Regulatory Necessity, Got Milk? (October 2018). And in Kentucky, "doctor" does not mean what many thought it might. The decision is an instructive reminder in statutory interpretation and a worthy read.

For some reason, I picture that classic Hollywood saw in which there is some malady or injury and a bystanders calls passionately "is there a doctor in the house." The reply in Kentucky, perhaps, might be "it depends." Or, back to Dorian Grey, picture someone standing over a patient, gowned and masked, holding a scalpel, and hearing the question "what are you?" to which the response in Kentucky would perhaps appropriately be "I'm complicated." When 16 pages are required to explain that a doctor is not always a doctor, it seems to suggest complicated. And, the opinion will perhaps have some Floridians remembering the ancient history of our own workers' compensation litigation.

Essentially, in this case, Toler filed for workers' compensation benefits and litigation ensued. The employer engaged the services of a physician, to review the case and provide expert testimony. This physician did not examine Toler, and following a records review disagreed in part with the permanent impairment rating assigned by another physician. The court opinion omits that the physician was a primary author of the book to which the testimony referred, the AMA Guides to Permanent Impairment, Sixth Edition. That physician's conclusions were not favorable to Toler's claims and were objected to. 

The Claimant argued that this physician "is not a 'physician' as defined by KRS Chapter 342." This was based upon the fact the doctor "is not licensed in the Commonwealth of Kentucky," and the physician's "report was (thus)inadmissible." This argument was underscored by the requirement that the Kentucky "Rules of Evidence . . . shall apply in all proceedings before the ALJ except as varied by specific statute and this administrative regulation.” And, the only such statutory exception applicable to this situation is one that allows "medical reports by physicians." 803 KAR 25:010, §11 [and] KRS 342.033.

Thus, the definition of the word "physician" becomes most apropos. The Court noted that KRS 342.0011 § (32), defines “Physician” as “physicians and surgeons, psychologists, optometrists, dentists, podiatrists, and osteopathic and chiropractic practitioners acting within the scope of their license issued by the Commonwealth.” The Court noted that the individual who reviewed the records and rendered a report is "licensed to practice medicine in Hawaii, Maine, and California," but not Kentucky.

The ALJ that heard the case admitted the report. The ALJ concluded that the context of the statute suggested that such a report would be admissible. The judge concluded that "the intent of this particular provision is not to limit the ability of otherwise qualified physicians to render opinions that may be used in Workers’ Compensation jurisprudence." And, in addition, the doctor here "possesses a Kentucky Physician Index Number on file with the Department of Workers’ Claims."

The ALJ relied upon this physician's conclusions and opinion and  therefore denied some measure of benefits. On plenary appeal, the "Board unanimously disagreed" with Toler in his appeal and "affirmed the ALJ." Note that in Kentucky the first level of review is by an administrative Board. This affirmance was in large part based upon the "wide discretion afforded to Administrative Law Judges in the workers’ compensation arena by both statutory and case law." The Court then reviewed the Board decision. It disagreed with the Board, and concluded instead that the statute was clear and the intent of the legislature was plain in the words it chose.

The Court was not wholly dismissive of the "Physician Index Number" that the physician was issued. However, it noted that the issuance of that number was not "dispositive." It explained that process requires that a physician "fil(e) . . . the physician’s qualifications." However, "it does not, on its face, provide for validation of those qualifications." Thus, the issuance of such number for identification does not equate to licensure to practice medicine in Kentucky. The Court concluded that the doctor in this instance "does not meet the statutory definition of 'physician.'" and the report was inadmissible. Imagine that bystander saw again, but instead "is there a Kentucky licensed doctor in the house?" If one is injured and needs help, would such an inquiry ever arise?

And thus, similarly to the fish, ne insect, drafting in California, in Kentucky, a physician might be a physician, and yet not be a physician unless the doctor is licensed by that state.

Notably, the outcome is not dissimilar to the effect rendered by the Florida First District in City of Riviera Beach v. Napier, 791 So. 2d 1160 (Fla. 1st DCA 2001). The Court there interpreted section 440.13(5)(e) Florida Statutes (1997), which limited the population of who can opine in Florida workers' compensation cases.

"No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims."

Thus, under that statute, only the opinions of authorized physicians, independent medical examiners, and expert medical advisors were admissible. Notice Florida constricts the population of physicians who may testify, but does so through a limitation a bit different than the definition path chosen by Kentucky. The Napier Court reasoned that since a provider in that case was paid roughly double the permissible rate for an IME, that provider was thus not an IME and his opinions were inadmissible. There was a fair bit of dissension and discussion of that back in the day. However, in the end, the workers' compensation community found statutory restrictions on testimony in a similar fashion to that recently concluded in Kentucky.

That definitional argument fell out of vogue in Florida as reimbursement limits changed. In time, the Court returned very recently to the topic and characterized the Napier decision as resting upon "the not-too-remarkable proposition that JCCs possess 'jurisdiction to determine the admissibility of evidence.'” Palm Beach Cnty. Sch. Dist. v. Smith, 337 So. 3d 383 (Fla. 1st DCA 2022), reh'g denied (Mar. 28, 2022). In short, the "Napier objection" is rarely raised regarding payment disqualifying the provider.

While Toler may seem a bit pedestrian, it is yet another apt reminder that statutory definition will control outcomes. Not as newsworthy as fish being bees or bees being fish, but noteworthy. Legislatures are empowered to provide context and definition and they often do. 

Dobbs and Workers' Compensation

There will be no readers this morning who have not heard about Dobbs v. Jackson, ___ U.S. ___; No. 19-1392 (June 24, 2022). In a word, the decision is broad. One might struggle with the implications for workers' compensation; I periodically get inquiries, essentially "what does this have to do with workers' comp." In a nutshell, the law has everything to do with workers' compensation, and this community is touched in many ways by the U.S. Constitution, and various aspects of state law. One must remember that these administrative systems have fundamentally altered a variety of rights, supplanted tort recovery and liability, and that the constitutionality of these systems has been often questioned and periodically litigated. 

In Florida, we need look no further for constitutional analysis than Westphal, discussed in Constitutional Law in Florida 2016 (December 2016). There is also Another Look at Castellanos (July 2017), and Waiving Statutory Rights in Florida (September 2017). In terms of the Grand Bargain, The Quid Pro Quo (March 2019) provides some overview of the U.S. Supreme Court conclusion in 1917 that the taking of property from employers, with no demonstration of their fault, is constitutional. Yes, the analysis of constitutional rights is bedrock to workers' compensation. 

Integral in workers' compensation is also the Supremacy Clause. That has been a seemingly frequent workers' compensation topic recently. An interesting example can be found in Kansas Cannot Prosecute Identity Theft (September 2017); this is about an instance of federal law preempting state law. The market has similarly seen challenges with the FDA, and its processes in the age of Opioids and overdose. See Zohydro or Pot, a Study in Federalism (April 2014), and Zohydro Update a Year Later (October 2010). There are challenges from another perspective with federal policy regarding pot, state laws, and the Supremacy Clause. See Federal Law Matters in Colorado (June 2015) and Federal Law Matters in Maine Also (June 2018) and Mischaracterizing Pot Again (February 2020). With less fanfare, perhaps, the Court just recently declined to review the implications of pot reimbursement in workers' compensation. Yes, the Court and constitution have implications in this community. 

The potentials for pharmacy policy and the FDA to play a further role in the subject of abortion also has some intriguing aspects. Those may be explored in a future post. 

These are merely examples of challenges in the environment of federalism, and our constitutional republic (there is a great deal of debate as to our status as a democracy or a republic, see The Atlantic in which a critic of the republic characterizations shares perspective). Some arguments are more persuasive than others perhaps in that regard, but I note that it is "to the republic for which it stands" that most all rose too in grade school.  And, as the Atlantic has also published, some reasonably respected figures have agreed with the "republic" characterization. Despite personal differences the phraseology engaged to describe it, our government authority is shared between federal and state authorities. Some will argue that Dobbs merely clarifies that relationship: "the people of the various States may evaluate those interests differently"; "The Court . . . returns that authority to the people and their elected representatives."

We have seen the discussions of potential federal influence in workers' compensation. See Medical Mileage and Legislative Lessons (March 2021), State Line Disputes (May 2016), and Federalization in the Wind (October 2021). We have heard much of the Grand Bargain, and the compromise that underpins much of this administrative remedy that supplants common law rights to damages and Constitutional Rights to trial by jury and more. There are implications in that for both the employee and the employer, with workers' compensation struggling to provide balance between the rights of each. See Professor Burton as a Witness (June 2015). Are benefits to workers increasing or decreasing? Is the immunity for employers of greater of less value today compared to when the U.S. Supreme Court found constitutionality of this exchange back in 1917?

Workers' compensation, in short, reminds me mostly of Truckin' by the Grateful Dead. That song notes "lately it occurs to me what a long, strange trip its been." And, indeed, the last century has been that in this community. As we look back across its depth and breadth, some see that "race to the bottom," a cycle of benefit diminution impairing the injured worker. Others see an erosion of the exclusive remedy and accretion of responsibility. From the perspective of both employees and employers, I have heard lamentations of the Grand Bargain and conclusions regarding the fairness, equity, and balance of the whole system (notably, there are at least 60 systems, and indicting them all collectively as if they were one is perhaps a very broad brush stroke). 

But, but, but, what does abortion have to do with workers' compensation? That is a fair question, and I must admit that the topic that led to Dobbs, abortion, perhaps has no real connection to this community. But the Court's analysis of June 2022 has some interesting points that this community might nonetheless consider studying. 

Not the least of these is stare decisis which has graced these pages before as regards Florida and other jurisdictions. See Stare Decisis, Goodgame, Livingood, and Westphal (October 2015). There is also A Kentucky Constitutional Decision (April 2017), and more. There are times when courts may necessarily retreat from prior decisions. The real point, as discussed in Stare Decisis, Death Penalty, and Workers' Comp (January 2020) is whether there is a reason why a court might retreat from a prior ruling. The Dobbs decision provides extensive explanation of that topic. 

Dobbs involves a state law that prohibits the performance of an act, except within certain parameters. The challenge presented is the manner in which that state statute is perceived as contradicting the rights of certain people who wish to either have that act performed, or to support or advise others who may wish to have that act performed. In effect, it is a challenge of Mississippi regulating despite the existence of a fundamental right of each individual to have that act performed. In fairness, that fundamental right has in fact been previously recognized by the Court. Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). 

There are those who perceive Dobbs as rendering abortion illegal or denying access to it. That may well be an ultimate outcome in certain places, but the ultimate outcome will not be reached in days to come, but will become apparent in years instead. 

What can this community learn from Dobbs?

First, consistency for consistency's sake is not sacred. In other words, the previous interpretations and rulings may find critics unwilling to sustain them. See Daubert's New Day (May 2019). That may be the most challenging aspect of the law for many to accept. The law may follow precedent, and it may not. In this instance, Dobbs, it did not. In adopting the Florida legislative shift to the Daubert standard in 2019, the Florida Supreme Court reversed its earlier decision eschewing that standard. 

Regarding stare decisis, the Dobbs Court noted that "It 'contributes to the actual and perceived integrity of the judicial process' . . . [a]nd it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past." In this, there is value, but it also noted that "stare decisis . . . is at its weakest when [the Court] interpret[s] the Constitution.” In support of departing from precedent, the Court reminded all of "the infamous decision in Plessy v. Ferguson," and says that similarly "Roe was also egregiously wrong." 

Plessy, of course, is the foundational decision of 1896, in which the U.S. Supreme Court created the concept of "separate but equal" that frustrated the promise of the Thirteenth and Fourteenth Amendments for decades until Brown v. Board of Education in 1954 began a new era in America. The Dobbs Court concludes "adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy would still be the law." 

Not cited, but also illustrative of the Court's potential for committing error is Dred Scott v. Sandford, 60 U.S. 393 (1857). In The Florida Court Declines Review of Padgett (December 2015), I reminded of observations regarding the finality of Supreme Court conclusions:

"in Brown v. Allen (1953), Justice Jackson observed that 'we are not final because we are infallible, but we are infallible only because we are final.' A paraphrase of this has been a favorite of Supreme Court scholars since: 'the Court is not last because it is always right, but it is always right because it is last.'"

And, in that, one might note from both Brown and Dobbs that perhaps even the Court is not necessarily final in that it may in time return to any decision and reexamine outcome and foundation. The caution, perhaps, is that when precedent is questioned or overruled, there should be detailed explanation of why. The Dobbs decision is extensive and detailed. 

Second, the foundation of our rights may not be as solid as we might periodically hope or wish. The Court noted in Dobbs that "the Constitution makes no express reference to a right to obtain an abortion." It noted that several rights have been cited as suggesting such a right, particularly the right to privacy (which is also not mentioned in the Constitution, but which the Court has concluded is implied by "the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." Citations omitted. Thus, that the Court recognizes a right at one point, from its then collective perspective, may not mean that such right is sacrosanct or permanent. In some future consideration or different perspective changes may come, as Billy Shakespeare once noted, that perhaps "must give us pause." Hamlet, 1602. 

Third, the Court in Dobbs is critical of the Roe decision and its stated perceptions of the state of the law regarding abortion when Roe was decided. This is an examination of the foundations of Roe. It concluded "that the right to abortion is not deeply rooted in the Nation’s history and tradition." The Court noted that substantive rights may or may not be in the Constitution itself (or the amendments). However, "the Court has been 'reluctant' to recognize rights that are not mentioned in the Constitution." In the analysis,

"the question is whether the right is 'deeply rooted in [our] history and tradition' and whether it is essential to this Nation’s “scheme of ordered liberty.”

Through this analysis, it reached the conclusion that there is no constitutional right to an abortion. The Court expounded that "Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much." The generality of such a statement "could license fundamental rights to illicit drug use, prostitution, and the like." Note that both illicit drug use and prostitution are allowed and accommodated by some state laws. See e.g. Heroin and LSD no Longer Illegal (November 2020). Notably, laws are different from state to state in various regards. 

There will be those who see serious differences with workers' compensation. They will be quick to point out, accurately, that many of the rights balanced in workers' compensation statutes are most certainly patent in the Constitution. They will argue that these rights are more demonstrably fundamental and therefore critical. But, in those discussions, will critics of workers' compensation acknowledge that fundamentality is present on both the employer and employee side of the Grand Bargain? 

The Dobbs Court noted that "[w]ithout any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules . . . much like those that one might expect to find in a statute or regulation." That is intriguing perhaps when one reflects on workers' compensation and the Florida Supreme Court's adoption of rules regarding attorney fees in 1968 in Lee Engineering v. Fellows. That is a precedent of longer application than Roe, is it more steadfast, or as easily questioned? 

The same question might be voiced regarding Castellanos v. Next Door Co., 192 431 (Fla. 2016) and the Court conclusion that attorney fees are "the linchpin to the constitutionality of workers' compensation. Notably the author of Castellanos is no longer a justice, but the author of a dissent contradicting the "linchpin" analysis remains. Might a future Florida court conclude that various court decisions have "imposed" in a legislative mode, disregarding separation of powers, and lacking foundation? There is Florida precedent for such a change of direction; the Court retreated from its decades-long assumption of rule-making authority for this Office. 

The Dobbs Court noted that Roe included "many paragraphs conducting the sort of factfinding that might be undertaken by a legislative committee," and then proceeded with explanation of its conclusion with "a constitutional 'right of personal privacy.'” Thus, there is some criticism of judicial creation of policy and appellate fact finding there. The Court continued "Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference." In that context too, there may be those who argue a similar conflation of the judicial and legislative roles in the evolution of workers' compensation, in Florida and elsewhere. 

The Roe Court, focused at least in part on  “the relative weights of the respective interests involved," which one might perceive similarly in the Grand Bargain. There is no doubt there is a balancing of interests in the workers' compensation world, and its various state systems. The Court in Dobbs concluded that such discussion of relative weight 

"are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests."

That, might sound a bit like workers' compensation, with lines, boundaries, compromises, and balance? Might a court in some jurisdiction return to the legislative language and provisions and question prior judicial interpretations and analyses? Might there be in Dobbs some harbinger of greater deference to legislative process and separation of powers?

In the analysis of Dobbs, perhaps there will be perceptions of the challenges of stare decisis. While a court's past decisions may in fact stand, that does not mean that is inexorable or inviolate. In the analysis of Dobbs, there may be some who perceive that decisions of legislatures will perhaps henceforth be afforded greater deference. 

However, in terms of constitutionality, perhaps the property rights elements in workers' compensation may militate against such in this particular (the property of the owner is taken without fault on one side, and the right to full recompense or loss is taken on the other). In other words, perhaps the property, due process, and First Amendment rights noted in workers' compensation are indeed more fundamental and thus challenging than the implied right to privacy and right to abortion that until Dobbs rested thereon?

What does abortion have to do with workers' compensation? The real question is what can the reader learn about stare decisis and precedent from the analysis in Dobbs, and perhaps from the regulatory and legislative process that may follow? In short, there are perhaps broader considerations on the impact of the Supreme Court's analysis, and much to think about in days to come.