Estes Explains Florida Limitations

The Florida First District Court of Appeal rendered Estes v. Palm Beach County School District on March 23, 2026 (1D2025-0079). The decision may bring rest to the questions that have surrounded section 440.19, Fla. Stat. since the original panel decision in Ortiz v. Winn-Dixie, Inc., 361 So. 3d 889 (Fla. 1st DCA 2023), opinion superseded on reh'g, 402 So. 3d 301 (Fla. 1st DCA 2024). Some have found the last three years challenging; others have said confusing.

Some perceived the 2024 withdrawal of that decision as a harbinger for further litigation. The issue was dubbed by some as the "two clocks," and some discussed the existence of contrary authority not mentioned by the original panel decision. The fundamental issue in dispute was the 1993 statutory amendment that first inserted the word "toll" into section 440.19, and the interpretation to be afforded that word.

There are multiple critical points in Estes worth noting.

First, the use of the word "toll" in section 440.19 is afforded specific meaning by the court consistent with the dictionary definition. The March 23, 2026, decision provides significant explanation of both definition and import. 

There is also significant discussion of previous holdings in which the statute of limitations was "extended," as well as explanation of the distinctions between "tolling" and "extension," and the way those words were historically used by various court panels. The majority opinion in Estes also references a similar Florida Supreme Court interpretation of the word "toll" in Hankey v. Yarian, 755 So. 2d 93, 95 n.3 (Fla. 2000), though that was not a workers' compensation case.

Second, the court patently acknowledges that prior decisions have yielded a contrary interpretation of this version of the statute:

"This appeal has been decided en banc because, as discussed below, it corrects our interpretation of § 440.19(2) in a way that directly conflicts with how several previous panels of this court applied the tolling provision in cases such as: Orange Cnty. Sch. Bd. v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999); Claims Mgmt., Inc. v. Philip, 746 So. 2d 1180, 1181 (Fla. 1st DCA 1999); Medpartners/Diagnostic Clinic Med. Grp. v. Zenith Ins. Co., 23 So. 3d 202, 204, 206 (Fla. 1st DCA 2009); Varitimidis v. Walgreen Co./Sedgwick Claims Mgmt. Services, Inc., 58 So. 3d 406, 407–08 (Fla. 1st DCA 2011); Sanchez v. Am. Airlines, 169 So. 3d 1197, 1198 (Fla. 1st DCA 2015). See Fla. R. App. P. 9.331(a) (allowing for en banc hearings if “necessary to maintain uniformity in the court’s decisions”)."

This both reminds the reader of the import of en banc proceedings and illuminates for all that those prior interpretations are impacted by the Estes decision. Clarity is likely appreciated by any reader and is a benefit to those who make daily decisions in this self-executing system of benefits, section 440.015, Fla. Stat. The dissent notably expresses appreciation for that clarity:

"While I respectfully disagree with the majority’s decision to recede from our precedent, I do appreciate the majority opinion acknowledging the precedent and addressing it directly. En banc consideration “is designed to help the district courts avoid conflict, assure harmonious decisions within the courts’ geographic boundaries, and develop predictability of the law within their jurisdiction. Consistency of decisions within each district is essential to the credibility of the district courts.” Chase Fed. Sav. & Loan Ass’n v. Schreiber, 479 So. 2d 90, 93 (Fla. 1985)."

Finally, the court notes that it had little knowledge of the breadth of Estes claims. It noted that the parties had stipulated to defer a variety of issues and to proceed to trial on the statute of limitations issue alone ("The only issue teed up by the parties’ stipulation was the E/C’s statute of limitations defense and how § 440.19(2)’s tolling provision applied"). 

This process is called "bifurcation" and simply means some issue(s) will be decided while some other(s) will be postponed for a future trial. The Court noted:

"the scope of this claim hasn’t been fleshed out in the record because the JCC didn’t take evidence or address any substantive claims."

This is not a criticism of the trial judge or parties. It is a recognition that the parties stipulated to defer most of the issues, and thus at least some of the details. This has a cost-saving impact for the parties, as they expend resources only on a specific subset of the overall evidence. They ask the trial judge a narrow question and thus need only invest in that narrow evidence. 

Nonetheless, the Estes court reminded that this leaves the broader dispute(s) for later determination and prevents the court in the bifurcated record from having access to the breadth of issues, claims, and defenses that might be raised as such a claim proceeds in the future. 

Thus, in any dispute, there is perhaps illustration of the benefits of brevity, simplicity, and focus on some singular, critical point, and yet perhaps also some inkling suggested of potential benefits of a fully "fleshed out" record upon which all pending issues were addressed and could be reviewed in context. 

One dissent contends that the bifurcation of issues process "will no longer be available for litigation of (statute of limitations) defenses, among others." This is largely based on the issue of "compensability" as pleaded by Estes and its implications on the finality of trial decisions and appellate jurisdiction. 

This dissent also describes the distinctions between the provisions of section 440.19(5) and the other statutory subsections that use "toll" regarding the workers' compensation statute of limitations. There are interesting distinctions discussed by both the majority and the dissent. 

In the end, the Estes decision is important reading for the workers' compensation community. As an en banc decision, it will bring stability to the subject of the statute of limitations for some time. 

But see the potential for changing interpretations in the almost twenty years encompassed by City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2012), and Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013), decision quashed sub nom. Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016). 

Meta Citations

A great deal of workers' compensation disputes turn on expert testimony, generally medical in nature. The legislative shift from the Frye standard to the Daubert standard, therefore, is important to those who litigate workers' compensation disputes.

Daubert is not new to these pages; see To D or not to D? that it appears, is the Question (January 2016); Daubert better Explained (May 2016); Daubert, We Hardly Knew Ye, Or do We? (February 2017); Dissing Daubert? (January 2019); Daubert's New Day (May 2019); Daubert in the Courtroom (August 2019).

The Daubert considerations include "reliable foundation," relevance, judgment, and evidence-based medical evidence. One method to demonstrate reliability is the publication of processes, hypotheses, findings, and conclusions in "peer-reviewed journals," which is seen as an indicator of acceptance. This is because we count on the peers who review, and we suspect that there will be critical contrary articles published if the foundations are not solid or if the results are not reproducible.

Some reports suggest there has been a trend toward easing peer review standards and evaluation. This is a review that involves evaluation, but there is no resulting judgment about "the importance or novelty of the research." This is seen as not impacting the Daubert analysis, according to Science and Technology Law Review (February 2018).

However, more recently, there is a process underway called "sneaked references" that bears careful consideration. The Conversation (July 2024) notes the challenges of being a researcher, the importance of publishing, and the emphasis there on citing "the work of peers to provide context," and more. The citation process, particularly a "positive citation by other researchers," enhances visibility and credibility.

Credibility is important. The impact of articles in legal proceedings is important. Publication is noteworthy, but the fact is that in one recent year, "more than 10,000 scientific articles were retracted." This could easily have included articles used by experts in workers' compensation proceedings to support opinions on topics from diagnosis to appropriate care to residual function or disability.

More subtle than the withdrawal problem is that there are methods to manipulate this citation system to "artificially inflate citation counts." Authors do this by "add(ing) extra references" to the paper, but not in the visible text. These extras are added as metadata hidden in the article. Thus, there is the impression created that these meta-citations are real, and the "citation counts" for those articles "have skyrocketed."

This lends undue credit to the expositions, findings, and conclusions of those authors. Though they appear to be garnering reviews and acceptance, they are merely gathering hits from readers who cannot see their work, let alone review it, comment, or critique.

The fact is that this may be meaningless or irrelevant in a given case. Nonetheless, counsel would be well advised to remain curious about the provenance of journal articles that are cited in support of scientific conclusions. Additional questions regarding currency (not withdrawn) and selection or reliance criteria may be warranted. 

In the end, the credibility of an expert's opinions could be questioned. In any credibility dispute, the "what" (opinion) is only half of the necessity. The credible expert can also describe the "how"; as we all learned in grade school, the answer is one thing but showing your work is crucial. 

The Cost of Clothes

It was reported last year that the employees of a company are suing over the company's dress code. I look back over a long working life (I started about 50 years ago), and I have had multiple jobs that required uniforms. I was never given or gifted more than one item (usually a shirt or hat) at any of those jobs, and I worked in several that had dress codes I had to meet out of my own pocket.

This story is likely newsworthy because the employer is well-known: Starbucks. The company has reportedly retreated from a laissez-faire requirement of green aprons with essentially anything else to a more uniform, well, uniform. Employees are upset by the change, and they want the courts to arbitrate their differing perspectives.

The employees are now required to wear a "solid black shirt," collar optional, with "midriff and armpits" covered. Not a huge imposition (one hopes). Each employee was given "two shirts at no cost” but was responsible for their own trousers or an alternative.

A six-pack of reasonable quality black t-shirts runs less than $25.00 (small to double X). If two shirts are a laundry-cycle burden, additional shirts are a reasonably cheap solution.

The trouser requirement is "khaki, black, or blue denim bottoms without patterns or frayed hems or solid black dresses that are not more than 4 inches above the knee." Note that the dress option takes care of the shirt and trousers.

Trousers for women are available for less than $20.00 per pair, and men's for less than $10.00. Some will see this as a reasonably inexpensive requirement. There is likely someone, somewhere, who has no jeans already, but perhaps not many of them? At work or not, people tend to wear pants.

The footwear requirement is no more arduous. The employee can wear "black, gray, dark blue, brown, tan, or white shoes made from a waterproof material."

The article notes an employee who was told she could not wear "Crocs" and "had to go to three stores to find a compliant pair (of shoes) that cost her $60.09." A quick Amazon search found 48 options under $40.00. A Walmart search returned multiple similar options, some as low as $26.00. The Crocs website suggests those comfy slip-ons are similarly priced between $25.00 and $60.00. They are easily cleaned but not waterproof (they have holes in the tops).

The company also will not allow "face tattoos or more than one facial piercing. Tongue piercings and 'theatrical makeup' are also prohibited." Believe it or not, there is a portion of the population (about 66%) that does not find face tattoos appealing. Some people do not care for facial piercings either. I recall a time when any publicly visible tattoos would likely sink an interview in any event.

I ran into a law firm hiring partner several years ago. She expressed shock at the accoutrements one of her attorneys had presented with at work. She noted bluntly that "lawyers don't wear bull rings in their noses" and was otherwise not very complimentary. She wondered aloud why the attorney had not presented that way for the interview.

I similarly once heard a lawyer comment about a restaurant in which many employees are very tattooed. The impression shared was not favorable, to the point of not eating there. Some will see such piercings and decoration as a personal expression; others will view them as representing the business. Whether either is right or wrong, the reality is that perspectives will differ. 

Undoubtedly, there will be those who are attracted to or repulsed by a variety of things. Cracker Barrel recently learned that consumers can react to the decor of a building or even a logo. Why should the decor of the team be immune to such a reaction? I am not a big fan of ties and jackets, but I wear them for proceedings. No employer ever bought me either, but all expected I wear them. 

The Starbucks litigation is interesting. There are broad allegations that the dress code used to be more casual. One case asserts that the old dress code "was also loosely enforced." That is an intriguing proposition in itself. That some prior loose enforcement would matter in a rebranding effort suggests some belief that employees have a property right of some kind in not only the job but the job as they have become accustomed to it; in the rules, but also in the degree of enforcement?

The litigants find the company's dress code "extremely tone deaf," and a requirement that employees "completely redesign their wardrobe." They lament not being allowed "to express (themselves) with colorful shirts and (multiple) facial piercings." One lamented that the workplace "looks sad now that everyone is wearing black." Sad is a matter of perspective; likely, it is much akin to beauty and is in the eye of the beholder?

The lawsuits are proceeding on the basis of "state laws that require companies to reimburse workers for expenses that primarily benefit the employer." One also includes claims under a state law that "prohibits employers from imposing expenses on workers without their written consent." Several have sought reimbursement, including one who "requested $10 for the cost of removing a nose piercing." Ouch. Who knew they could not just be taken off like an earring?

The outcome of the lawsuits will be interesting. There are issues here of corporate identity, uniformity, and customer perceptions. There are arguably issues of safety; footwear in many environments is critical to preventing slips, remaining dry, and stability. But it is, overall, a simple question of whether and when an employer has any modicum of premises or image control, and at what cost (any cost will become an element of your cup of coffee). 

Like workers' compensation, the answers to such questions may depend on state law requirements. California is reputed to be among the most protective, requiring that the employer reimburse "all necessary expenditures or losses incurred by the employee" that are directly related to the work. That is broad enough to perhaps include bus fare, laundering clothes, and more. 

And the outcome of such claims may be influenced by the reasonableness of the cost, the wage level of the jobs, and more. There may be a real distinction between requirements for $4.00 t-shirts and $80 designer jeans. There may be a distinction between those who work for $17.00 to $20.00 minimum wage, and those who earn more.

And, before it is over, the employer may be responsible for paying employees for the time it takes them to change into these clothes, and the expense of cleaning these clothes. 

The expense is an issue that more readily harkens to workers' compensation. The original intention of those laws was that the cost of injury caused by a business should be borne by that business. That pronouncement ignores that, in the end, that expense is borne by the customers of that business. In all, that is not such a bad policy, as it encourages safety and promotes the success of the employer and employee alike. Perhaps that is different from appearance, perhaps not. 

As the socialistic draw of workers' compensation expands, however, and the employer becomes responsible for injury "at work" that is not necessarily caused by or related to work, that expense is likewise borne by the consumer. Similarly, as the expense of uniforms, cleaning, or bus fare becomes the employer's, the logic may be as readily questioned. 

Surveillance Evolution

There is an evolution in America regarding cameras. See Is Privacy Gone? (January 2026) and the various examples cited there. But the so-called Meta Glasses are in the news again, and the evolution is worthy of discussion.

CBS News recently reported that the head of Meta, Mark Zuckerberg, attended a portion of the trial regarding allegations surrounding "the impact of social media on children." The case itself is drawing attention. But some of those who accompanied Mr. Zuckerberg wore "Ray Ban-Meta AI glasses."

There is little context provided, notably how the subject arose, but "The judge upbraided the Meta team." They were told that there could be no recording in the courtroom, and the judge ordered those with the glasses to delete anything that they had already recorded.

There is no First Amendment in courtrooms, according to the Free Speech Center. The American Bar Association (a voluntary trade group comprised of attorneys) purportedly led the ban on "broadcast coverage" of courtroom proceedings following the "circus-like" trial regarding the kidnapping of the Lindbergh child in 1935.

I am not advocating for circuses, though I am a big fan of clowns generally. There is the rational concern that "coverage of the trial" might be "so pervasive that it violates (a defendant's) right to due process." This is yet another example of rights colliding, the individual right to fair trial and the freedom of the press on which many rely for information.

All that said, is a person (or 100) wearing Meta glasses somehow disruptive of a trial? I have conducted hearings with multiple camera tripods in a crowded room. It is not the ideal of safety (hard to evacuate past all that hardware in an emergency), but in my experience, it is not really all that distracting.

What of cellular telephones? In January, Insurance Journal reported that the Workers' Compensation Commission had "banned all communication devices" from trial proceedings there. Notably, the restraint does not apply to "staff, lawyers, court reporters," and more. Furthermore, the presiding commissioner may allow the devices if asked. 

Are cell phones distracting in trial? That is a frequent concern. Many fail to set their devices to "silent." A few have had to be told to decrease volume or mute both in proceedings and in the waiting room before. There is some degree of cluelessness regarding manners and comportment. Might such phones also be used to take pictures or record participants without their knowlege?

What are the broader implications? The New York Times noted in February 2026 that Meta has considered including facial recognition capability in its Ray-Bans. The Verge covered this for those of us who don't subsidize the Times paradigm. The Verge author seemingly implies that no one should be concerned about such a move, basically because facial recognition and government cameras are already ubiquitous. But the counter that Meta, in particular, cannot be trusted is also voiced.

Today, there are people with brain-computer interfaces (BCI) that allow electronic devices to communicate directly with the brain without mouse clicks, keystrokes, or other actions. The Government Accountability Office says these have become more available in the 21st century, and various companies are involved with the technology. However, "fewer than 10 people worldwide have implanted BCI."

Nonetheless, the implications are seemingly clear. The technology is here for minuscule lenses, easily concealed. These can transmit to devices or our own brains. They can connect to the internet for data, and can use databases to access rapid and in-depth information. 

There will be those who fear the potentials and actualities. There will be those who will leverage them to the full extent of the law, and some undoubtedly beyond. Regardless of perspective, it is important to know the implications and possibilities that exist, and how they may affect our interpersonal relations and interactions. 

Cultural Relativism

Cultural relativism was in the news recently with a focus on a financial settlement in some litigation regarding workplace perception and reaction regarding employees who identified with a culture distinct from the one in which they were working. The term "cultural relativism" was familiar, but not one I had visited recently.

The concept is central to much of anthropological study. It has been " long a key concept in anthropology." An interesting article in the Chronicle of Higher Education notes this history, but some see a diminution in anthropological interest in recent decades. And the author in that contra suggests some relation or association between cultural relativism and moral relativism.

Cultural relativism is

"The view that attitudes, behaviors, values, concepts, and achievements must be understood in the light of their own cultural milieu and not judged according to the standards of a different culture."

Moral relativism is

"The belief that the morality or immorality of an action is determined by social custom rather than by universal or fixed standards of right and wrong."

The critical distinction is "cultural milieu" versus "social custom." The "relativism" is a constant. There is room there to consider the view of St. Augustine of Hippo (354-430 CE), "an unjust law is no law at all." 

Either relativism is the conclusion that right and wrong are both flexible and self-centered. Whether it is someone's cultural posture or their personal customs, it is the person alone who defines right and wrong. In the St. Augustine spirit, is an undefined or undefinable law fatally flawed?

The recent news report originated with the British Broadcasting Corporation, which has had some credibility issues, and was republished by Yahoo News. The article explains how microwaving food led to friction, perceptions, and a lawsuit.

A staff member complained when an Indian dish was reheated, "because of the way it smelled." The employee heating the dish alleged that the complaint and the employer's response were effectively "discriminating against Indians for their 'Indianness.'" While this was not a major news story in America, it "received significant media coverage in India" and Britain. The BBC referred to this as "what many have described as 'food racism.'"

This is intriguing because Indians complain of such "racism" while in Western nations, but others allege "discrimination over food is rampant in India as well." The BBC contends that this is not country- or region-centric, with complaints of "food habit" "shaming" reported in various corners of the world.

After complaining about the criticism regarding his food, the employee alleged "a series of actions by the" employer, including loss of work status and position, responsibilities, and supervisory relationships. The employee alleged workplace discrimination in a lawsuit, and the employer settled. The BBC suggests such resolutions are not uncommon, in avoidance of expense and risk of litigation.

Interestingly, the employer was a university, and the situation arose in its Anthropology Department. The employee's significant other was also an instructor and invited the food-microwaver to speak to a class, focusing on "Cultural relativism," which the BBC defines as "the view that no culture is superior or inferior to another as cultural practices of all groups exist within their own cultural context."

This was translated into the plaintiff's allegation that despite skills and knowledge, "the system is constantly telling you that because of your skin colour or your nationality, you can be sent back any time." This is perceived by her as being employed in a precarious and uncertain posture.

There are various questions to unpack. First is whether relativism is the appropriate standard, whether cultural or moral. Should the workplace or society be governed by singular standards that apply universally, or should the cultural or moral perspectives of various people lead to various standards (or, in effect, no standards at all)?

Second, in the event there would be singular standards, who would define them, would exceptions be debated, and why? Is there any relevance in the advice of Saint Ambrose of Milan (c339-397): "When in Rome, do as the Romans do?" Or is it more logical for the Romans to adjust to accommodate the perceptions of their guests? 

In the balancing of rights, do the wishes of a person wanting to create a smell automatically outweigh the wishes of a person who does not wish to experience it? Which person's cultural or moral perspective should control the outcome of whether the smell creation is allowed and/or protected?

Does it matter in this analysis whether either the need or the objection is based on health, safety, or welfare, that is, something beyond preference of comfort? Can one passenger on a plane object to what others eat? Does it matter if the objector is concerned for their own reaction to their fellow passenger's peanuts or is concerned that someone the objector might later contact could have a reaction? How direct or tenuous is appropriate? Based on whose perspective, culture, or morals?

There is always challenges in balancing the rights of various people or groups. See Rights Collide (February 2016); Where do we go from here? (March 2016); What is Right with Comp? (June 2016); Free Speech and Due Process (June 2022). As we provide balance, there will be questions of perspective, society, individuals, and, it appears, relativism. This is intriguing.

The ultimate issue will be no different than other balancing questions. May I be as offended by someone's cannibalism as they are by my politely declining to partake?

Luke 14:5

I have no illusions of becoming the student of scripture that so many around me were in my youth. My grandmother could quote the Good Book with the best of them. Sometimes her references confused me, and at others, she nailed it.

I recall an intriguing exchange eons ago that involved a chest freezer, a rented trailer with a malfunctioning tongue jack, a less-than-capable hand truck, and a collapsing porch. The story would require days to recount in a meaningful way, but suffice it to say the supervisor on the job was Murphy, and his impactful law was decisive.

Through a series of challenges, I found myself still striving to load a trailer on Sunday morning, a task that should have easily concluded Saturday before supper ("dinner" is consumed at noon in the South, and the evening repast is known as "supper"). Nonetheless, I was lecturing the freezer and trailer in a colorful monologue that Sunday morning, late enough that the dinner hour approached.

A car pulled up the gravel drive; it was none other than the local Baptist minister. One of my great-grandfathers was a founder of the local Baptist church, two miles to the west, while another of my great-grandfathers was a founder of the local Methodist church, two miles to the East. 

Each was on the same road as the house at which I labored that morning. As a child, my father walked dutifully to one church each Sunday before supper and to the other each Sunday after dinner. That's a different story, but suffice it to say, stopping was convenient, and it is fair to say my grandmother got her love of scripture honestly.

Back to my three-hundred-pound freezer, rickety hand truck, hundred-year-old front porch and stairs, soft yard ... Yeah, "careful" never occurred to me. Thanks for mentioning it, Grandma.

It is amazing how much speed a three-hundred-pound load can accumulate over a very short distance. The hand truck ended up embedded in the yard, and upon excavation was significantly cattywompus from a bent axle. It was an adventure. 

Back to the minister. As he alighted from his truck (yes, 'tis the south), my grandmother greeted him with an excuse for her absence from the morning service with a reference to Luke 14:5: 

"my ox is in the pit." 

The Gospel itself says:

"Then He answered them, saying, 'Which of you, having a donkey or an ox that has fallen into a pit, will not immediately pull him out on the Sabbath day?'”

The connotation is that we must meet our obligations. There is a call to worship expressed in those teachings, but there are also sound excuses for not observing the Sabbath.

All that makes sense. But the minister's response has stuck with me for decades. He replied:

"That's no excuse if you pushed the ox into the ditch." ("pit" or "ditch" depends on which translation you are reading).

That struck me immediately. How would this late-arrival observer be in any position to decide how the ox got in the ditch? It seemed presumptuous and rude. Where did he get off jumping to the conclusion that the current moment was somehow a fault or failure of intent, plan, or process?

I do not recall sharing my thoughts with him, but my mind was awash with sarcasm and repudiation. Despite his assumption and accusatory tone, he sat in the yard and conversed with my grandmother for a long while; I had the trailer loaded by the time he elected to move on with his day. As I recall, he did not offer to help me with that freezer at any point.

Nonetheless, the story has lessons. 

There is merit in preparation. So often, in the world of litigation, we see those who have failed a deadline. Their trial is imminent, their deadline nigh, and they are not ready. In the context of this post, their ox is in the ditch. While they may struggle to pull it out, they may also seek excuse from the existing mandate, the trial. This is the motion for continuance, post-hearing discovery, and the like.

Much like the esteemed minister so long ago, the judge's job is to ask the simple question, "How did the ox get in the pit?" That it is will be part of the analysis; there is a need for relief. But the statute in Florida workers' compensation seeks an analysis of why, "the reason for requesting the continuance arises from circumstances beyond the party’s control." Section 440.25(1), Fla. Stat.

Did you push your own ox into the ditch? Were you inattentive to your flock and the ox was allowed to wander into the ditch? Can you explain how the ox being in the ditch is beyond your control? If you can, then you should be able to expect the judge to get up and help you with extracting it. 

If you cannot explain it, much as they may commisserate and sympathize, they are likely to partake of the conversation and then be on their way. Be direct, sincere, and frank. Tell the whole story, the unexpected weight, the impaired trailer, the malfunctioning hand cart, and the efforts you have endured striving to overcome them all. 

You don't have to be Hemingway, Faulkner, or Shakespeare, but you must be able to tell a story. Do it well, and your chances of relief increase markedly. 

Relatively Speaking

A news headline in early 2026 warned that "the Doomsday Clock" is the closest to midnight that it has ever been. Reading on, you learn momentarily that it is "now 4 seconds closer to midnight than it was in 2025." According to the Doomsday people, "It is now 85 seconds to midnight."

Who are the Doomsday people? Almost 100 years ago, Einstein, Oppenheimer, and others involved with the Manhattan Project created the metaphorical clock, which uses "the imagery of apocalypse (midnight) ... to convey threats to humanity and the planet." The clock illustration is to make a visual for the rest of us, or perhaps to placate us into not demanding to see the math.

In a strange riddle, young people today seemingly struggle with things like thinking and reading, see Screen Time Wins (February 2026); It's Your Kids! (February 2026). According to YouGov.com, "only 43% of adults under 30 ... say they can instantly tell the time from the hour and minute hands." This particular analogy may be wearing thin as we old folks cede the field.

Nonetheless, a Smart People's Club confabulates every year and group-thinks a prognostication of the "world's vulnerability to global catastrophe." One of the persistent challenges with experts is when they deliver an opinion, but do not show their work. That can affect credibility. For instance, in my personal, considered opinion, Schrödinger's cat is, in fact, dead (you disprove it if you wish). 

Nonetheless, they opine "catastrophe!" No, not necessarily from nuclear war. The Bulletin of the Atomic Scientists Security Board and Board of Sponsors is assessing the catastrophe threat more broadly, from "man-made technologies." The latest prognostication is founded on nation-states ignoring the scientist's prior warnings. Despite their suggestions and recommendations,

"Russia, China, the United States, and other major countries have instead become increasingly aggressive, adversarial, and nationalistic."

This is indeed a novelty. Young people today will not have studied it, but the planet has been largely conflict-free and utopian until just recently (see below). Nonetheless, the scientists presently see a "winner-takes-all great power competition," feeding their fears of

"nuclear war, climate change, the misuse of biotechnology, the potential threat of artificial intelligence, and other apocalyptic dangers."

At the outset, this avoids the broader "use of biotechnology," but I digress. To be fair, none of these perceived threats is going to get as much airtime as Hollywood's latest loss or Sydney Sweeney's most recent outfit. Nonetheless, the Smart Club sees threats in "three regional conflicts," nuclear ambitions, the "Golden Dome," and "a new space-based arms race." This was all before the present war on Iran. 

Why is it so hard to get people to focus on this? That is reasonably simple. It makes some sense that most readers would prefer something a little less intense with their morning coffee than "Global Thermonuclear War." (War Games, MGM 1983). Seeing headlines about former royal whatshisname or the latest "inappropriate relationship" is far less likely to cause indigestion or insomnia.

Historically, the Smart Club has been a bit pessimistic. In 1991, the clock was the furthest from midnight (17 minutes). In 1953 (nuclear testing) and 2018 (perceived leadership challenges on nuclear weapons), it was set to "two minutes to midnight," which is 120 seconds. 

Somehow their angst then was similar to the 100 seconds in 2021 when the world was awash in the economic catastrophe that was Wuhan SARS-CoV-2, whoever started it. Think on that. The entire world economy tanked as workforces were idled, and the Smart Club thinks things are worse today. 

For the sake of clarity, it was 89 seconds to midnight in 2025 and is now 85 seconds. And yet, most of America will be too busy with the kids' schedule, work, Faceplace, the Kardashians, the latest sports star arrest, and other distractions to spend much time thinking about the Smart Club Clock. I hear more complaining about traffic and gas prices than I do about the Smart Club. 

Even for those who can tell time on an analog clock, the clock is a bit erudite for the common man, or at least for this one. I harken back to comedian Ron White's plan for a system of only "two states of heightened awareness: (1) go find a helmet and (2) put on the helmet." Simple. Elegant. Self-explanatory. Maybe the Smart Club should adopt something this rudimentary? Or, in our diminishing collective Idiocracy (20th Century, 2006), perhaps too few will soon recognize a helmet?

What is the goal of the Smart Club clock? My thought is that our goal should be that the clock reflects 365 days to midnight. Note that the Smart Club says we've never been there, even back in the peace-loving times of Genghis Khan, Vlad the Impaler, Attila the Hun, Alexander, Philip, Hitler, Stalin, Mao, and the list goes on). 

Remember that time that we lost roughly 97% of the world's human population (the "Pleistocene bottleneck")? The volcanic winter of Toba? the "worst year to be alive" (536 CE)? The ice age? The Black Death? Ah, yes, the good old days (sarcasm, see above re utopia and today's present perceptions). 

Yes, today is indeed the worst of times, according to the Smart Club of Clockkeepers. That said, is there a real difference between 120 seconds and 85? What does the lost 25 seconds mean? Einstein would tell you it is all relative. Some claim time is merely an illusion. Time is no answer and a poor reference. Can today's conflicts and threats be rationally compared to the past atrocities and catastrophes? 

For that matter, some might argue there is not a great deal of difference between two minutes and 17 minutes? In the grand scheme of a life, 17 minutes is not even a Big Mac meal on the highway. It is not even the 2112 Overture (Rush); it is barely Voodoo Chile (Hendrix). But it is significantly more than Suffer (1.3 seconds total, Napalm Death, 1985). How long 17 minutes is will be relative to whether you are staring at a beautiful beach or mountain scene or some odious bag of excrement. 

Though you might find fault in the clock, the Club, and the warnings, there is value in analysis and contemplation. Perhaps there is even room for fear. 

We work in an environment (workers' compensation) that is large and intricately intertwined with even larger systems: economics generally, employment, technology, inflation, trade policy, health care, and more. These are each monumentally important and pervasive intellectual pursuits that have real-world impacts on the day-to-day of injury prevention, remediation, recovery, and recompense. Much like the warlords or worse, we are individually at their whim. 

There are a great many minds in the realm of workers' compensation. Notably, many of them are as busy professionally as we all are and have as little time for the big picture as anyone, anywhere, has time for the Smart Club Clock. The day-to-day consumes our intellect, attention, and investment. There is only time for the next patient, calculation, payment, claim, or response. 

Who will step back and ponder the big picture? Who will consider whether workers' compensation in America is vibrant, healthy, and thriving? Who will suggest the map towards a better workers' compensation tomorrow? Will it depend on an illustrative Clock or Calculator to provide some Global Assessment of Functioning? In any such assessment, will there be unanimity or acrimony?

The end of the analysis is that much we encounter in the world is up to each of us to assess subjectively. We can make judgments, form opinions, and make predictions. When we do so collectively, we may fall into the perils of groupthink or worse. This will remain true whether we are in the Smart Club or not.

And, in all, we will be subject to a vast array of personal predispositions clouding our way. See Unseen Influence: Unconscious Predisposition in Dispute Resolution (2025), available on my website www.dwlangham.com.

Privity of Contract or Buyer's Remorse

A pronouncement from the American Bar Association (ABA) is in the news. With the advent of AI, there are many seeking solace regarding the potential impacts on the practice of law. 

There is a persistent myth in the American legal world. A great many people assume that the ABA is some manner of regulatory agency with jurisdiction over lawyers. It is not. I am a lawyer, and the ABA does not speak for me any more than any other organization to which I do not belong or contribute. It is fair to say it speaks for many members, but it neither regulates nor represents all lawyers.

The ABA is a voluntary trade association that elects to study issues and make pronouncements and recommendations. Granted, there are a great many intelligent people who are members. They are human, each with flaws, predispositions, and perhaps agendas. That said, some of their pronouncements and recommendations have received warm receptions, but they are not in any manner binding unless adopted by some regulatory authority.

A Recent Thompson Reuters article questioned the impact of an ABA pronouncement: Is ABA Formal Opinion 512 off the Mark? And if so, what can law firms and GCs do about it? This focuses on the "thorny ethical issues" AI presents for "competence, confidentiality, communications, candor toward the tribunal, and supervisory responsibility." I would suggest that it is perhaps not so thorny nor really novel. 

A critical point is hourly attorney fees. There are those who foresee AI large language models (LLM) making lawyers more efficient, thus leading to similar or even enhanced output in exchange for far less input (more lawyering for less invested time).

As I wrote that, I was drawn inexorably back to Sammy Hagar and his hit I can't drive 55, a rebellious reaction to the 1970s absurd political solution to increased gasoline costs and fuel shortages. President Carter pushed for 55-mile-per-hour speed limits, and they were as frustrating as they were absurd. Sammy intoned:

"What used to take two hours now takes all day."

I hear your confusion. How could AI have that impact? No, reverse it. With AI, it may soon be that

"What used to take all day now takes two hours."

So far, we have not seen this impact among the professionals. I have read many who say that the LLM is fast, but fact-checking the output is as time-consuming as doing the work in the old manner. Granted, not all those who practice law are professionals, but that is a different concern altogether ("but that is a different concern"). 

So, if Lawyer ONE can do a task in an hour, but it takes Lawyer TWO two hours, what should Lawyer ONE bill for the task? That may seem like a trick question, but it's not. Lawyer ONE can bill one hour. See, the simplicity is in the honesty of charging the time it required. Perhaps Lawyer ONE is therefore worth more per hour, but that is a matter of negotiation and contract.

Back in the dark ages (1993), the ABA addressed that essential question and concluded:

"‘the lawyer who has agreed to bill on the basis of hours expended does not fulfill her ethical duty if she bills the client for more time than she has actually expended on the client’s behalf.’”

In the agreement with the client, there is reliance and constraint. The lawyer has made a contract. They have consented to a set of terms in which value will be exchanged, services for money. It is a concept as old as time itself (Og and Grok likely entered the first such value exchange in which some fresh meat was exchanged for a warm pelt in about -20,000 BCE). Commerce is older even than taxes. 

This ABA opinion may seem to end the discussion. But what if the money is sought from someone with whom there is no such contract, no such agreement? Ah, the apparently fatal rub in the prevailing party fee. Perhaps less fatal, but as intriguing in the contingency fee that contains no such "basis of hours?"

The article on ABA Formal Opinion 512 describes building on the 1993 conclusions and formalizes that if 

"a lawyer using GenAI only spends 15 minutes to draft a pleading, that lawyer may only charge for that 15-minute period, plus whatever time the lawyer spends reviewing the draft."

That is back to the current state of AI and the incredible time required to verify output before the trust of filing. Formal Opinion 512, however, specifically reminds that

"such a billing practice must be followed, 'if a lawyer has agreed to charge the client on [an hourly] basis[.]'"

Horace Middlemier* always notes that in all the law there is persistently an "if" or "but" and he can usually use both to drive a Mack truck-sized hole through any statute or regulation. 

The "if" caveat in Formal Opinion 512 is critical. Certainly, the thoughts on contingency fees and prevailing party fees remain (anyone who does work on a contingency basis, who might nonetheless charge an opposing party if they prevail, may seem free to leverage the 15 minutes into the 15 hours it would have taken without AI?). There are some who believe that some contingency billing is padded already and that paralegals, law clerks, and others are leveraged similarly to how AI will be. 

However, the broader point is that the day of the billable hour may be over. The limitation imposed by the necessity of good faith and fair dealing, so fundamental to contract law writ large, may deter reliance on technology. As the legal profession is sucked into the vortex of AI, LLMs, chatbots, and more, the "billable hour" contract may have to yield the field. 

To what paradigm? The proposal most often voiced is legal services delivered on the foundation of success. The number of inputs is irrelevant, and the outcome is the deciding factor. If the dispute is resolved by a deadline, submitted to a mediation process, effectively presented to an adjudicator, or otherwise concluded within the contract terms, then a sum certain is due. Delay means less remuneration. The engagement of anything that drives speed or performance is the lawyer's burden, but it drives the remuneration described.

The Thompson Reuters story suggests that the escape from hourly paradigms is a "potentially massive loophole." There is a prediction that alternative fee paradigms will come, and some will be potentially regrettable. All experimentation results in some untoward or unsuccessful outcomes. That is why it is called "experimentation" instead of merely "change." 

And, as is often the case with regret, the value exchange may be viewed in retrospect with remorse ("buyer's remorse," but either party might experience the emotion). That it is different should not be the test for success. Instead, the question will be whether it is better, ethical, and professional. Each lawyer will have to make such determinations, though some may rely on the groupthink that is the ABA. 

*Horace Middlemier is not a real person. He is a figment of the author's imagination, a foil, an "everyman," used purely as an illustration and to protect the identity of many who provide fodder for these pages. Any similarity to any real person, living or dead, is pure coincidence and not intended.

Assumption of the Risk

The conversation rages on regarding whether college athletes are or are not employees, and whether they should be eligible for workers' compensation in either event. There are multiple perspectives, and a great deal has been said and written. The recent Olympic Games made me consider some points that may or may not be salient.

Some history may be relevant. One driver of workers' compensation adoption in the U.S. was a perception that the "common law defenses" were defeating tort claims filed by workers. The cacophony of "common law" defenses will usually include references to Contributory Negligence and Assumption of the Risk.

When most think of "common law," they are ascribing some veneration as if we are discussing an ancient construct, a long tradition, or an inherent part of our past. My students are often surprised to learn that Assumption of the Risk was introduced in the U.S. long after our parting of ways with King George and company, in 1859 (see Moore, below). Contributory Negligence is not that much older in the U.S. (1824)(see Moran, below), and not really that much older period; see Butterfield v. Foster,103 E.R. 926 (1809)

When the American workers' compensation movement began in the early 20th century, Contributory Negligence had been the law for about 75 years, and Assumption of the Risk for just over 40 years. These were (1) not venerated ancient historical references and (2) not inherited from England. These were certainly related to English law, copied here, but were adopted here well after independence.

Cornell's Legal Information Institute explains that Assumption of the Risk has largely been subsumed into Comparative or Contributory Negligence schemes. It persists, however, in "the thrilling world of sports," according to the Cardozo Arts & Entertainment Law Journal. That notes that participants "acknowledge and accept the inherent risks associated with" competitive sports.

The Olympics have made me think of Assumption of the Risk with headlines like Chinese snowboarder Liu Jiayu stretchered off after fall, and Lindsey Vonn airlifted to hospital after serious crash during Olympic downhill. There are likely many other examples of injury that do not make the news coverage. These are serious athletes and they are banging into things, places, and each other. Thus, in the tort world, an athlete might have challenges.

What of the workers' compensation world?

In Florida, we have a definition of accident:

“Accident” means only an unexpected or unusual event or result that happens suddenly."

When two people run at each other and collide, is the result (pain or breakage) unexpected or unusual? Is the result different if they throw themselves off a mountain and strive to achieve Mach I on a set of boards or blades? The Florida definition might be more amenable to a training event, a fall, or similar ancilary to the actual football game or boxing event, etc.

There are always challenges when an accident occurs out of state, see section 440.09(1)(d). Other potential challenges could include failure to wear a safety device or follow a safety rule, section 440.09(5); use of alcohol or drugs, section 440.09(7); or intent to injure self "or another," section 440.09(3); or if the injury included horseplay or other significant deviation from employment.

The most basic hurdle, however, would be the exclusion from the Florida "employment" definition of "professional athletes. That definition provides examples ("such as"), which is not inclusive of all intercollegiate sports (e.g., golf, field hockey, volleyball). Nonetheless, the language of "such as" might be interpreted to not limit the definition of "professional athlete." Section 440.02(20)(c)(3). If college students are paid to perform in sports, are they not definitionally "professionals?"

What if they are not paid to perform at college, but the great nation of China hires them to perform for them in the Olympics, or if they are paid for winning a medal? Do they remain "amateurs" in the spirit of the games, or is their status professional? What if they are paid athletes as college students, and are injured in a training exercise (like amateur appearance in the Olympics)?

If they are relieved of the "professional" description, there remain reciprocity issues under section 440.094 (2011) that was adopted specifically because of concerns with athletes suffering injuries while out of state. It is likely that Italy counts, but even Los Angeles would be significant for most.

In the end, there would need to be a great deal of thought invested in any expansion of workers' compensation to cover athletes in such settings. Is there precedent? Yes, many professional athletes have specifically opted into workers' compensation and alternative statutory programs. 

There are templates available and precedents to follow. The issue will be whether the need is compelling, and the current atmosphere seems ambivalent at best. 

Moran, Kenneth and Sylvester, Christopher U. (1954) "Negligence - Contributory Negligence - The Doctrine of Comparative Negligence," North Dakota Law Review: Vol. 30: No. 2, Article 3, https://commons.und.edu/cgi/viewcontent.cgi?article=3300&context=ndlr 

Dale L. Moore, Please Watch Your Language!: The Chronic Problem of Assumption of Risk, 61 Cath. U. L. Rev. 175 (2012), https://scholarship.law.edu/cgi/viewcontent.cgi?article=1005&context=lawreview

Reminders or Epiphanies on Aging

There are a few bits of advice that might be returned to persistently. I have recommended The Sunscreen Song in this regard, see Sarcasm - it's Irritation (July 2019); When I was Stronger (October 2019); Shrinkflation and SB 959 (October 2021); Hints and Thoughts (October 2022); Purpose (October 2023); Ever Get Old? (January 2025).

I have gotten good response from these quotations. It has always astounded me how many people have overlooked the advice of Baz Lurman and the Sunscreen Song. But some hear music, and others are inspired. There is no accounting for it.

In a similar vein, I was recently introduced to a video produced by a ninety-something (not sure how dated the video is). The purpose is retrospective, and the point is compelling. It is imperative to live life to the fullest. It is, after all, a one-way trip full of potential and opportunity. But, critically, it is one-way. See What are you waiting for? (November 2025).

The message of this nonagenarian is powerful and compelling. It begins with the simple message that time is precious, dispelling inaccuracies such as "60 is a new 40, or whatever nonsense they are selling now." It encourages us to seize the day, and to recognize there may be no tomorrow. It acknowledges the probability for loss and deterioration.

It will be a hard listen for some. There is opportunity to lament past decisions or imperfections. But there is motivation also. It is for us old folks, but every reader should view the whole 20 minutes. In it, this survivor lays out ten lessons she gained the hard way.

She dispels myths and dashes dreams. The style is conversational and inspirational, but also can be a bit depressing. She has seen much, remembers many, and laments their passing. She implores us to realize that tomorrow is coming at us with speed, indifference, and insatiability.

She suggests that your 60s are imperative as a "last real chance to prepare for everything that comes next." And, her thoughts ring with a power that I wish I had understood long before my 60s. She knows what she would tell a 60-year-old self, and I think of what I would tell me in my 40s. Here are her thoughts:

"Lesson number one. Your body is about to change in ways you cannot reverse, and you need to build strength now while you still can."

She recommends exercise, muscle building, practicing balance, and persistence. Actively fight against decline. or you "are going to spend your 80s and 90s trapped in a body that cannot do what your mind wants it to do."

"Lesson number 2. Your friends are going to start dying, and you need more of them than you think."

She recommends making friends and keeping friends. Some old enough to know your history, and new ones that are likely to be with you in 20 years.

"Lesson number 3. Have the conversations about death and money now, while everyone is still healthy enough to have" those conversations.

She laments not knowing how to care for her parents, because they could not communicate what they wanted. She was too late asking them. She sought clarity, but instead traversed the care path alone, guessing, and confused. She searched for documents, clues, and signs.

"Lesson number 4. Retirement will not save you. It will expose you."

She went from being a leader, a title, to just plain Lorraine. She had no deadlines, no goals. She accidentally discovered things she loved, like painting, the library, and simple connections. She warns, "If you are in your 60s, and your job is your whole identity, you are heading for a cliff."

"Lesson number 5. You have less time with your spouse than you think, and most of it will not be the healthy, active years you are imagining."

She describes the onset of illness, the loss of her spouse, and their collective failure to maximize their time with each other. She celebrates what they did, but laments their shortcomings. When they "slowed down" they did not accomplish as much together, in terms of travel, enjoyment, etc.

"Lesson number 6. Forgive everyone now, because later you will not have the chance."

She laments holding grudges. She missed opportunities to speak with and enjoy the good in people. Some passed without recognition or reconciliation. She sees grudges as a waste of time and opportunity. She wishes she could speak with those who passed before she recognized their worth outweighed their burden.

"Lesson number 7. Your adult children do not need your advice. They need your presence."

She describes letting go of the role of parent or advisor and merely living in the moments. She advocates for maximizing the connections and enjoying the opportunities. She sees that offering her children "unsolicited advice" was "telling them I did not trust them to figure it out themselves."

"Lesson number 8. Write things down, because you are going to forget everything."

She notes memory issues with the day-to-day. She knows that is normal, but laments it. She finds it terrifying. She knows that only she remembers certain events, people, and histories. She says to write it all down now while you do. She laments not beginning her journal ten years earlier.

"Lesson number 9. You are going to be scared, and courage is doing it anyway."

She recounts much loss and the challenge of aging. She describes fear and terror at loss and change. She is compelling and frank. She cautions that ignoring the inevitability of aging and loss is naive and that it will not forestall the change and evolution. This is prophetic.

"Lesson number 10, and this is the one I need you to hear. The last 30 years go faster than the first 60."

She says that decades passed in moments. She cannot remember where it went. She says seasons blur, years collapse into each other, days are wasted. She laments losing her husband, whom she still nonetheless talks to daily. She wishes she could grab her 60-year-old self by the shoulders and shake some sense of urgency into her.

That is scary as can be. Number 10 stopped me in my tracks. I have thought much of my approaching end, and striven to deliver some thoughts before that hits. I will be adjusting that soon, with some writings I have put off too long. 

I long ago recognized my mortality, and frankly, I am a little surprised to have lived this long. I have pushed limits, taken chances, and ignored needs. I have striven, and largely failed. 

I take Lorraine's video for what it is worth. I cannot learn everything from it. I cannot move forward from here any more perfectly than I traveled here. Perfection is a fallacy, misdirection, and distraction. But I can do better. I can focus more. I can be more, see more, and enjoy more. And I can wear sunscreen, thanks, Baz. I can go walk three miles right now. 

I will. Will you?