What did I just Say?

How many times must someone be told something? 

A recent decision of the Pennsylvania Commonwealth Court perhaps has a few asking themselves that question. In Commonwealth of Pennsylvania v. McCauley, No. 613 WDA 2017 (November 28, 2018), a criminal defendant appealed his sentence. This was the second time the Superior Court (appellate) had reviewed this case. The Court was direct in its decision and its criticism of the trial judge. It is not necessarily uncommon for a case to be reviewed more than once by an appellate court. But in this instance, it is interesting reading. 

It reminded me, frankly, of a movie scene. A classic line was uttered by the Captain (Strother Martin) in Cool Hand Luke (1967): "What we've got here is... failure to communicate." That seems applicable. Clearly, there is a distinction between hearing and listening. There is a similar distinction between reading and comprehending. And, sometimes, there is a trial judge who just cannot seem to grasp the guidance an appellate court is giving. 

The defendant in this Pennsylvania case was convicted of raping a child, among other things. Thus, we start from the perspective of a very serious case. After judgment was entered, the defendant appealed to the Superior Court in 2016. He challenged "the sufficiency of the evidence to support his convictions and the legality of his sentence." The court on that first appeal affirmed the convictions, "but vacated . . . and remanded for further proceedings. A specific discrepancy was identified as to whether the trial court had actually imposed a mandatory minimum sentence."

That reversal is a lesson. I talk to judges from time to time and they often express their emotions at an appellate court reversal. I often remind them, particularly newer judges, that an appellate court disagreeing with them is precisely that, a disagreement. That there is disagreement does not make either judge "right" or "wrong" in a holistic sense.

Understand that trial judges often must make difficult decisions "in the moment," while on the bench. There may be little time for research, reflection, or introspection. Often, lawyers in the trial do a woefully inadequate job of stating either their objections or responses. The level of preparedness, the preciseness of argument, and the thoroughness of explanation are each a challenge from time to time. But, an appellate court is not "in the moment" It is blessed with months to contemplate, research, and review. It is staffed with multiple law clerks, and the appellate judges usually get to work in a team setting, collaborating, to make their decision.

And despite those advantages, appellate courts periodically are reversed by some other appellate courts. One of the most intriguing cases over which I ever presided was Flamily v. City of Orlando, 924 So. 2d 78 (Fla. 1st DCA 2006). The Florida First District Court disagreed with my interpretation of the law and reversed part of my trial order (which was well over 100 pages in length). In Sanders v. City of Orlando, 997 So. 2d 1089 (2008) (the name of the case was changed due to the passing of the claimant), the Florida Supreme Court disagreed with the District Court and agreed with my analysis. There was a dissent (the Supreme Court justices did not all agree) that said the Supreme Court should not have heard the case. It explained the Court lacked jurisdiction. I agreed with that dissent. Thus, an illustration of interpretations, differences, and the analysis of judges and courts. In short, it is imperfect. 

Back to Pennsylvania. The Court in 2016 instructed the trial court to "clarify whether it had imposed a mandatory minimum sentence." Specifically, the instruction was: 

"(1) if the trial court imposed a mandatory minimum sentence pursuant to Section 9718, the trial court must “resentence Appellant without imposition of a mandatory minimum term[;]” or
(2) if the trial court did not apply Section 9718, the trial court “shall reimpose Appellant’s original sentence.” 

This is a reasonably simple "either/or" mandate. 

On remand, the trial judge elected to ignore the Superior Court and instead held a hearing, a "brief and inadequate re-sentencing hearing." The trial judge clarified that "it did not apply the mandatory minimum sentence," (that is, not (1)). But, instead of proceeding to (2), the trial court "instead imposed a new sentence." 

The Superior Court explained last December:

“it is well-settled that following remand, the trial court below must comply strictly with this Court’s mandate and has no power to modify, alter, amend, set aside, or in any measure disturb or depart from this Court’s decision as to any matter decided on appeal.” 

This is perhaps the judicial equivalent of your mother's admonition to "do as I say." 

The trial court did not, so the matter was appealed again. While it is not uncommon for a particular case to be reviewed by an appellate court more than once, it is somewhat rare that it happens in this setting. Where it is less surprising is the type of case that proceeds serially, such as a workers' compensation case or a family law matter involving children, etc., and those serial appeals regard different issues or analyses. It is admittedly somewhat rare in the circumstances presented here. 

In addition, the defendant moved to disqualify the trial judge. That motion was "summarily denied" by the trial judge. The appellate court explained the concerns of "due process,” and how that is intertwined with an impartial judge. It explained that both "actual bias” and "the appearance of bias or prejudice" are problematic. It reminded, however, that “simply because a judge rules against a defendant does not establish any bias on the part of the judge against that defendant.” Ruling for or against various parties is what a judge must do. A ruling for you or against you, alone, does not mean the judge is biased for or against you. 

In this instance, however, the Court considered the "cumulative effect of a judge’s remarks and conduct in multiple cases." It concluded, "that there is substantial evidence that the trial court judge demonstrated bias and personal animus against Appellant’s counsel and the Public Defender’s Office." The cumulative effect was seen to “raise a substantial doubt as to the jurist’s ability to preside impartially.” 

The Court noted that the trial judge failed to follow the law and procedure in various cases, and "repeatedly relied on . . . unreliable facts and misinformation.” The Court noted other instances in which reviewing courts had been "troubled with the trial court judge’s biased decision-making." In one instance, the "Superior Court suggested that the Public Defender’s Office file a Motion for Recusal on remand because Superior Court could not sua sponte order recusal." That may be a powerful message, nestled in an appellate decision, that "by the way, party "x" should move to disqualify this judge." 

The appellate Court noted its pressing concern was "the animus against Appellant’s counsel and the Public Defender’s Office that the trial court revealed in its Opinion." The trial court order was found to be "filled with gratuitous comments denigrating Appellant’s counsel and the Public Defender’s Office." The trial court departed from ruling upon the facts (findings) and the law (holdings). Instead, it "disparaged defense counsel." The appellate Court included specific examples which "imputed unprofessional (and unfounded) motives to Appellant’s counsel." 

In one instance, the trial court essentially accused counsel of pursuing an "agenda over the best interests of her client.” In another, the trial court "made a veiled threat that challenges" voiced by the attorney might lead the court to doubt "the credibility of Appellant’s counsel and the Public Defender’s Office." That included an admonition of potentially harming "other criminal defendants" appearing before the court. 

The appellate Court noted that the prosecutor referred to the relationship between trial court and Public Defender as "a feud." In appellate filings, the prosecutor referred to "acrimony," "gyrations," and "obvious inconsistencies and missteps" leading to the potential for "an appearance of bias.” (Thus, both sides recognized the potential for perception of bias regarding this judge). The Court was similarly concerned with its perception of "the trial court's sarcasm" in the sentence it imposed when it elected to ignore the Court's remand instruction, (2) above. That sarcasm, the Court concluded, "is disrespectful to Appellant, counsel, and the seriousness of the sentencing process."

Another consideration of the court was setting and timing. The Court seemed understanding of the pressure upon a trial judge in the course of a hearing or other proceeding. But, in this instance, it found:

"the trial court did not make these gratuitous statements during an emotional and stressful courtroom hearing where the trial judge is attempting to control the courtroom and momentarily loses her temper." 

The complained of "derogatory comments" were written in an opinion of the trial court. The order drafting process is certainly less stressful. The drafting of a decision is a contemplative time, a reflective time, to weigh and consider legal arguments, facts, and circumstances. That the trial court was intemperate in that process was seen as important by the appellate Court. 

The appellate Court memorialized remands to this particular trial court in multiple other instances. It described failure to follow legal requirements and procedures. It characterized the result of various instances cumulatively as "an extensive deployment of judicial resources to review, analyze, and rectify the court’s deficient sentencing hearings." Essentially, the Court is describing a trial judge who either cannot understand or chooses not to. 

In light of this cumulative effect, the Court reversed the second sentencing and disqualified the trial judge. It concluded that the trial judge's cumulative actions constituted "an abuse of discretion" in the face of "substantial doubt as to her ability to preside impartially and provide a fair tribunal for Appellant." Thus, in the absence of "fair" and "impartial" lies an absence of due process. It is imperative for all judges to remember that the real value each delivers to the parties is due process. It is the fundamental service we offer, and it is what every party wants: to be listened to, to be heard, and to be understood.

That does not mean the judge is obligated to agree with you. In fact, the fundamental of judicial independence is you have the absolute right for the judge to disagree with you. But, that disagreement should be without bias or prejudice and should be based upon the law. And, when an appellate court issues a clear instruction, it is the trial judge's job to follow it. That instruction is the law and is to be respected until some higher court intervenes. That does not mean any judge involved is necessarily "right" or "wrong," it means that there may be disagreement, but the law is what the higher, appellate, court concludes it is.

An interesting Pennsylvania analysis, which holds reminders and lessons for us all.

Hallucinating Technology

The age of machines is upon us. This has been discussed before in Ross, AI and the New Paradigm Coming (March 2016), Artificial Intelligence in Our World (January 2017), Chatbot Wins 160,000 Legal Cases (June 2016), and The Coming Automation (November 2017). The changes that are coming our way are systemic and fundamental. The very fabric of our existence is going to change dramatically in decades to come, through the arrival and evolution of technological dominance. The power of robots and computers already amazes us, and there is significant development still to come. 

Futurism notes "Artificial intelligence is rapidly developing and is already starting to change the world, at a pace that is worrying to some experts." Furthermore Elon Musk, Stephen Hawking and others now "often lament the dangers of unfettered development of AI systems." AI is being studied in regards to efficacy and application, but more recently also as regards its impact. A recent Fortune survey supports that a significant number of "tech experts" currently "are concerned that artificial intelligence will leave humanity worse off in 2030 than they are now." 

The changes are coming. Label them "progress" or "threat," and they will come nonetheless. The Hollywood depictions are numerous. I Robot, released in 2004, portends a future where all of our needs are met by robots and AI. A veritable army of robots, governed by intractable rules, assists mankind in virtually every regard. But one, Sonny, has evolved. In a voice-over, the viewer is warned "There have always been ghosts in the machine. Random segments of code, that have grouped together to form unexpected protocols." The humanization is suggested further in an exchange between Sonny, and the detective investigating Sonny's creator; in it, Sonny notes that "I have even had dreams." Well, we all have, but we are not in the strictest sense robots (yet). 

In the 1989 classic Ghost Busters II, the New York Mayor is contemplating how best to deal with the apparent proliferation of earthbound spirits and extraordinary circumstances. The Mayor is consulting staff regarding the state of affairs, and they are discouraging his inclination to call the Ghost Busters. The Mayor concludes: 

"I spent an hour in my room last night talking to Fiorella LaGuardia, and he's been dead for forty years. Now where are the the Ghost Busters?" 

The audience is left to wonder whether the conversation actually occurred through paranormal forces or whether the Mayor was mistaken, and perhaps hallucinating? In the years since, I have heard similar lines about "talking to Fiorella LaGuardia" a few times in the context of hallucination ("Yeah, and I suppose you discussed it with Fiorella LaGuardia?). It has become a pop-culture reference familiar to many. 

These perhaps seemingly random thoughts coalesced recently as I contemplated an article from the British Broadcasting Company (BBC), titled The Weird Events that Make Machines Hallucinate. Yes, you read that right. At the outset, the potential of a machine hallucinating may be no more disturbing than the New York Mayor doing so. But the lengthy BBC article is worthy of consideration. 

The BBC claims that: 

"Over the past few years, there have been mounting examples of machines that can be made to see or hear things that aren’t there."

There is an effect produced by "noise," in which automated device's "recognition systems" become disoriented, and "these machines can be made to hallucinate." As machines continue to evolve and gain control of our lives, their "mental" health is a viable topic of discussion. 

The examples regarding "visual recognition systems." are notable. In one example placing stickers on a stop sign rendered it unrecognizable to a computer. In another, an "an image of a cat" was "tampered with." This left it appearing "normal to our eyes," but it was "misinterpreted as guacamole by so-called called neural networks – the machine-learning algorithms that are driving much of modern AI technology." 

These programs, so thoroughly fooled, are currently at the root of software for photo recognition, but have applications for things like driverless, autonomous vehicles. While a computer misidentifying your feline as an appetizer is perhaps harmless and even humorous, a system failing to recognize a stop sign is more disturbing. 

The visual recognition has been fooled by slight changes in "the texture and coloring of" things. A baseball "was miss-classified as an espresso." and "a 3D-printed turtle was mistaken for a rifle," among "some 200 other examples" that were similar. Particularly if Robo-cop becomes a reality, I would like that "rifle" error fixed! 

As technology evolves, the BBC posits that these "deep learning neural networks" will become increasingly integrated into machine performance. These networks will tell machines how to function, and it suggests that having them "tricked into misreading ‘Stop’ signs" has serious implications. The news has already reported the first fatal mis-reliance on self-driving, a Florida collision involving a Tesla. Wired provided a discussion of whether the car (software and sensors) was to blame, or driver error. If such a situation led to your injury would you blame the car, the driver, or both?

Though there may be an inclination to see these examples as neither imperative or personal today, the implications affect more than just visual recognition. In fact, a Google official says "On every domain I've seen . . . neural networks can be attacked to mis-classify inputs." That is, intentional interference, beyond the examples of simple mistakes. 

In some respects, the fallibility of neural networks may be comforting. Recently workers' compensation observer Bob Wilson noted technology challenges in The LoweBot Robot. He concludes that machines are not perfect, but they are getting better. There is humor in their failings, which reassure us of our (current) supremacy. And the BBC's exposition on potential flaws may similarly bolster our esteem. 

Why do these machines make these errors? The BBC notes that our understanding of human "neural recognition" is not as deep as we might hope. And, the models that are programmed for machine recognition of objects are based upon that incomplete understanding of how the human brain functions. We humans build experiential databases in our brains. We see enough cats over time to differentiate them from dogs. Similarly, computers "process numerous examples" and when it can "achieve a good performance ‘on average,’” there is a tendency to accept that level of performance. But, "good" leaves room for errors. Stated otherwise, "average" may leave lots of room for improvement. 

I am reminded in that context of a variety of Internet "clickbait" involving people mistakenly rescuing animals. The underlying theme is a human interpretation of some animal being a stray domestic, ending with the realization that a rescued "dog" is a raccoon, or "dog" is a wolf/coyote, etc. Whether those are frequent, or just frequent clickbait, there is some support our human "neural recognition" is not infallible. The challenge may emanate from the depth of our personal experiential database. Or, it may emanate from the unique qualities of that particular thing we are presently observing. If it is missing something our brain uses as an identifier, then we may make erroneous conclusions. 

Another expert commenting in the BBC story suggests that our human recognition is not based entirely upon "recognizing visual features such as edges or objects," which is essentially the process being used by computers. In addition, human "brains also encode the relationships between those features." Thus, our neural process is about data points and the interrelationship between data points. We perceive patterns and context, and that enhances our ability to differentiate and interpret. The neural networks in AI are not necessarily to that level of sophistication (yet). 

There is ongoing research. A deeper understanding of how our human brains perceive things may be critical to the further development of AI. But also, there may be relevance in the pathways through which our brains process. One scientist is applying analysis to the order in which our brains process inputs and that is showing promise. This sequencing or direction of thought, occurring in our personal neural recognition, may be contributing to our current superiority over technology. But as we better understand those points, the technology will also be improved with each successive iteration becoming closer to our capabilities, until they exceed it. 

And all of this is inextricably tied to the ethics of decisions. In the world of autonomous vehicles and machine learning, there are difficult decisions beyond what the machine sees. A recent New York Times article Tech's Ethical Dark Side considers some. When an autonomous car can correctly identify humans, dogs, and stop signs without fail, how will they make decisions in a conflict? When presented a choice of hitting a dog or a person, what should the car "choose?" (here, maybe the narrator voices in and asks "What would you do if it happened to you," like in The Cat in the Hat?). 

For some, the decision between humans and animals might be seen as a simple choice. Perhaps a harder decision would be between a toddler and an octogenarian (Fiorella LaGuardia)? But for now, the hardest part will be whether that dog or toddler or Fiorella is even real, or just in the machine's imagination (or "dreams"). And as those machines hallucinate, how much can we trust them?

We may have multiple challenges in our future regarding these technologies. However, The Verge reported last month that an autonomous vehicle purportedly recently drove itself coast-to-coast without human intervention. Some would perhaps conclude that "the future is now." 

Evolution and Recognition

October 2018 brought some important amendments to various Florida Rules of Court. On October 25, 2018, the Supreme Court of Florida issued In Re: Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure, Case SC 17-882. This broad decision affected change in four sets of Florida Court rules. 

The focus of this post is on the evolution of technology and the recognition of reality. Our world will inevitably evolve and change around us. We cannot control that, but we may be able to decide how we will perceive that change and make our own adjustments. 

Long ago, the Pony Express evolved into the U.S. Postal Service. That was the standard method of transmitting documents. What had taken perhaps weeks for delivery evolved to take days. When the Florida Office of Judges of Compensation Claims promulgated procedural rules, those rules recognized the existing U.S. Mail paradigm (but did not cling to the past reality of the Pony Express delays) and the delays inherent in moving a package of paper around the state by truck from one physical location to the next. The original Rule 60Q6.108(6) said:

(6) When service of any pleading other than a petition is made by mail, 5 days shall be added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. 

That five days was to allow the document to make its way to the addressee before the time began to elapse for response or action. Whether mailing across the state or across the street, 5 additional days were afforded. That was in 2004 and electronic document transmission had long existed. Facsimiles were commonplace. Thus, the rule was specific as to "mail." That language remained in the 2006 rule revisions. However, when the rule was amended in 2010, it read: 

(6) When service of any pleading other than a petition is made by U.S. mail, five days shall be added after the period allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. When service is made by any electronic delivery method or by hand delivery, no additional time shall be added. (Emphasis added). 

The addition of "U.S." distinguishes documents sent in physical form from documents attached to an electronic mail in the form of an image or Portable Document Format (PDF). At the time, there was resistance. Many lawyers pointed out that this made the Rules of Procedure for Workers' Compensation Adjudication ("R.Pro.Work.Comp.Adj."; the "60Q rules") different from various Florida Court Rules. A fair number of lawyers wanted the rule to provide explicitly for that "5 days" even when documents were e-"mail" and delivered instantaneously. This was seen as consistent, as logical as affording 5 additional days when mailing across the street (and purportedly knowing that delivery would not take that long). 

At that time (2010), the Florida Rules of Civil Procedure ("Fla.R.Civ.P.") acknowledged the existence of facsimile, but seemed skeptical of its efficacy. Rule 1.080(b), for example, stated that "when service is made by facsimile, a copy shall also be served by any other method permitted by this rule." In other words, embrace the technology and its benefits, but cling simultaneously to the vestiges of the past. The sender had to use U.S. Mail or hand-delivery even after sending by facsimile. 

At that time, various Florida Court rules either did not distinguish e-mail from mail generally (just said "mail" as the prior R.Pro.Work.Comp.Adj.), or affirmatively stated that when served by "mail or e-mail" that additional time was afforded. See Rules 1.351(b); 1.510(c) Fla.R.Civ.P. The Florida Rules of Judicial Administrations specifically equated e-mail with U.S. Mail in Rule 2.516(D)(iii): "E-mail service, including e-Service, is treated as service by mail for the computation of time." Thus, the OJCC broke with the pack in 2010 distinguishing e-mail and recognizing its instantaneous delivery. 

However, in October 2018, the Supreme Court of Florida noted that "E-mail, unlike postal mail, is now nearly instantaneous and no additional time should be permitted for responses to documents served by e-mail." Certainly, there will be little argument with the "instantaneous," though some may quibble about the modifier "now." What happened recently to make e-mail "now" "instantaneous" in 2018? My email seems as efficient today as it has been for the last 20 years. When was e-mail less than instantaneous? However, in recognition of the "now nearly instantaneous" nature of email, the Court has now amended these rules to remove the distinction previously created for email. 

Thus, the Court has evolved regarding email. Gone are the complaints, a la 2010, that the Florida Rules of Civil Procedure are different from the Rules of Procedure for Workers' Compensation Adjudication as regards email and computation of time. I would suggest that perhaps "different" is not always a bad thing, and that "different" may sometimes make us all think. And, thinking, considering, and analyzing are perhaps positive tools for us all?

The critics of 2010 suggested that the best path to uniformity was to amend the 60Q rules to include an illogical and artificial "consistency" that defied logic, that defied recognition of the very nature of e-mail. in 2018, they got their consistency, not from the repeal of that 60Q logic, but from the Florida Court's recognition and adoption of the same logic. Perhaps being different does not make anyone "wrong," but merely affords us all an opportunity to think and grow together?

As technology changes our world, we will be challenged. Those will be personal and professional. It will be critical for us each to be conscious of our inclination to cling to "the way its always been," and to invest our effort in understanding, accepting, and embracing technology. It will not be easy. Perhaps it will not be as rapid as some like and too fast for others. But, in the end, change is coming at us every day. It will require adjustments. Things may not really change (become "instantaneous"), but it may take some of us a little more time to accept and to change to keep up.

My 2019 New Year's prediction? A fair few will finally abandon the facsimile machine this year. The realization will dawn that facsimile machines do nothing that a scanner and email cannot. The redundancy will finally dawn, and efficient people will elect to save the expense of that phone line, the space, and the separate inventory of facsimile supplies (toner or ink). And, there will be those who will wonder aloud "Why did we hold on to that antique so long." The answer is that it was familiar and comforting, and we are all resistant to change. Will you look back in 2028 and finally abandon your fax because "email has become reliable?" 

New Year 2019

It is an apt time to both reflect on 2018 and focus attention on the coming 2019. It is going to be an interesting year. I profess no prescient ability to predict why, but in my experience every year is interesting, sometimes you just have to look a little harder. Where will 2019 take us? Are we willing to look for the interesting, the important, the compelling?

Should we make resolutions, knowing perhaps we have a propensity to not follow through very consistently? Oscar Wilde was somewhat critical of resolutions, noting: "Good resolutions are simply checks that men draw on a bank where they have no account." Eric Zorn was a bit more encouraging when he said:

"Making resolutions is a cleansing ritual of self-assessment and repentance that demands personal honesty and, ultimately, reinforces humility. Breaking them is part of the cycle."

So perhaps there is value in making them, even knowing we are not necessarily likely to follow through persistently or consistently? In a recent Twitter exchange, a Tweep (someone that tweets) waxed eloquent on the ubiquitous "better shape" goal: "all I know is the gym is full on 1/2, not as much on 2/2, and back to the regulars on 3/2." Well, what does that tell you if you are there on 3/2 to notice that?

Resolutions and our annual New Year focus is about our future. Maybe we should resolve to save more for our retirement? The future is for the young. A few minutes with some actual young people sure does a lot to reassure us that the future may indeed be bright. We need these kids to be focused, and successful, and we need their social security contributions even more. In 2014 and 2015 I wrote about the impending failure of our long-promised retirement. It is in the news yet again. Might lots of really successful young people paying lots of taxes perhaps yet support me in my golden years? But I digress.

A key message I try to emphasize with young folks is the challenge of a changing world. The world will continue to change around us. We cannot prevent that, but we can control how we individually react to the change. A large part of reaction, if it is to be positive, lies in understanding the change, our world, and the effects each have in either anchoring us or carrying us forward. Are we to cling to our past or embrace our future?

In appreciating where we are and focusing on our future, we are all aided by knowing our skills, and our strengths. I am reminded of an interesting line from The Bourne Identity. In it, amnesia has the lead struggling with not remembering his past, and wondering about his present. Our protagonist struggles with his identity. Finally confronting the evil CIA official, Conklin (Chris Cooper), who has plotted against him, Jason Bourne states his understanding of his purpose: "You sent me to kill Wombosi." Conklin corrects his misperception: "Kill Wombosi? We can do that any time we want. I can send Nikki to do that." Nikki (Julia Stiles) is an office worker in the Paris safe house from which Bourne has worked. I have always found the offhand Conklin denigration of Nikki in that line troubling. She should have told him he was a misogynist tool.

In this exchange, the struggling Bourne accepts that killing is not actually the skill that he brings to the table. The skill upon which he had placed primacy turned out not to be that for which others valued him. Is it possible that we each may similarly hold views of ourselves and our value that others do not share? Might our contribution to the communities in which we find ourselves (geographically and theoretically) be more than what we individually perceive?

The professional world involves exchanges, an economic force in which some task or knowledge that one possesses is of value to someone else. There is an exchange of some monetary reward for that corresponding value. It is perpetually an imperfect market in which determining value is a struggle both for appreciating our own skills and for determining what is appropriate for us to pay for the skills of others. We may strive to maximize our reward, but key to that is understanding what value we bring to the exchange. How it is valued, and monetized (years ago, Forbes published an overview of how to ask for a raise. It is enlightening), is another factor, but first, what is that value we bring?

How do we demonstrate worth, and achieve our best, if we do not understand what skill(s) it is we bring to the equation. For example, perhaps anyone could be a judge (even Nikki? I feel sorry for Nikki), but a particular judge "performs the job with _________." The same sentence could be repeated substituting your occupation for "judge." The point is not the title, the task, or the vocation, but how do you deliver that? What do you do, in the performance of the day-to-day that brings real value, value that makes you special?

I think that bit of retrospection is worthwhile as we focus on the next year. How will you deliver value? But, as important is that you are not just a supplier of services, but just as persistently a consumer. Do you suppose that those with whom you work understand and appreciate what value they bring to the economic and professional relationship with you? Here is an easier question, have you taken the time to tell them: "_________ (insert name), have I ever told you that I respect and appreciate the way you _________?" If it is "patience" you find valuable, why not say so, and compliment it? The same might be true for any number of thoughts: persistence, promptness, professionalism, practicality (oh, there are so many adjectives).

For my 2019 New Year, I am going to strive to be conscious of what I bring to my interactions this year. I will try to appreciate what value I bring and how. But, I am also going to be more descriptive in my praise of others. I am going to strive to tell people more than "thank you" or "you are valued," and to add thereto what I perceive as their strengths, contributions, and value. I am hopeful that this will help them better understand their value in the exchange. Perhaps other's better understanding of that value, that skill, that attribute will encourage and motivate them. At a minimum, perhaps it will help them know they are really valued and appreciated.

Perhaps that resolution (and others) may be minimally valuable if you believe the Wilde approach. But, even if it is as Zorn suggests, there is potential for my growth even if this resolution ends in failure. In the end, I will have tried. And, best case, perhaps I grow and encourage others to grow around me. Happy New Year 2019. I hope that the year is all that you wish it to be.

Proving Appellate Jurisdiction

Recently, the discussion of timeliness was addressed in Time is Critical (November 2018). For some reason, decisions regarding timeliness continue to make the news. In November, The Court of Appeals of North Carolina published Bradley v. Cumberland County and Key Risk, Case COA18-334 (2018). The outcome, described in detail in this 11-page decision, is the dismissal of the appeal. 

Essentially, there was a dispute regarding workers' compensation benefits. A trial was held by a Deputy Commissioner, which is similar to the Florida Judge of Compensation Claims. A key difference is that the orders of a Deputy Commissioner are typically appealed to a state's "commission" or "commissioners" or "board." It is an administrative review process before reaching a constitutional court. North Carolina is in that model, and the trial judge's decision awarded the injured worker benefits. 

The employer appealed that decision, which was reviewed by the "Full Commission." The Commission reversed part of the trial judge's order and affirmed part. Dissatisfied with that outcome, the injured worker sought review by The Court of Appeals. To this point, there is nothing exceptional about the case. That is, trial decisions and Commission reviews occur daily around the country (in Florida, appeals to the First District are the first appellate review for JCC decisions; In 2017 the First District handled 206 appellate filings regarding workers' compensation, about 4 per week). 

The process engaged in North Carolina raised an issue though. The injured worker's attorney "printed the notice of appeal on his firm’s letterhead and addressed the notice to Commissioner Phillip A. Baddour, III of the Industrial Commission," and requested acknowledgment. The Court noted that "the notice indicated that it was filed with the Industrial Commission 'via Electronic Filing Portal.'” However, there was no indicia that the "Industrial Commission received Plaintiff’s notice of appeal," and if received when. This is a "filing" issue. The notice also "failed to state the court to which appeal was being taken." This is also a second "filing" issue. 

Furthermore, the notice included a statement saying a copy was provided to the employer's attorney: “cc via email: Dayle Flammia, Counsel for Defendants." However, the notice did not " include a certificate of service in the record on appeal demonstrating how and when Plaintiff served opposing counsel with a copy of the notice of appeal." That is a "service" issue, apparently an absence of the "when" and to what particular address. 

The Court of Appeals explained that a court must have "jurisdiction," that is authority, in order to hear a case. And that authority is dependent upon jurisdiction being “properly invoked by an interested party.” That invoking, it noted, is described in "both statute and our Rules of Appellate Procedure." Compliance with those procedures "is the linchpin that connects the appellate division with the trial division and confers upon the appellate court the authority to act in a particular case.” And when that procedure is not followed, the Court does not have authority and "cannot review the case on the merits." The failure to follow the rules, and document that process, is fatal to the review. 

The Court explained the North Carolina Workers’ Compensation Act provides a right to appeal Industrial Commission cases and specifically references the "rules of appellate procedure." Those rules require the party filing the appeal to "demonstrate timely filing of a notice of appeal by including in the appellate record some form of acknowledgment from the Industrial Commission stating when the Commission received the notice of appeal." Asking for acknowledgment is not sufficient, the party seeking review must obtain and provide that acknowledgment. 

The case was noteworthy because it addresses email service. The Court noted that "generally, service by email is not allowed." But, "parties can serve papers by email in one limited instance: for documents filed electronically to the North Carolina Appellate Courts’ electronic-filing site." And, as with workers' compensation appeals in Florida ("Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days of the date the lower tribunal sends to the parties the order to be reviewed"), the notice of appeal in North Carolina is filed with the "the court that entered judgment," not with the Court of Appeals.

Unlike Florida, North Carolina has not authorized electronic service of documents except when filing with the appellate court. The document in this case was not filed with the appellate court but with the Commission. Therefore, the use of electronic mail for the service of a notice of appeal is not appropriate in North Carolina. The use of email in that setting "is a technical violation of Rule 26 of the Appellate Rules." However, that "technical error" might be overlooked if "all parties clearly received notice and the error did not materially impede review." In this instance, there was no argument that the employer did not receive "actual notice" and therefore the use of email did not warrant dismissal of the appeal. 

The Court was able to similarly overlook the certificate issue. It noted that the procedural rules "require proof of service in the form of a certificate of service." The failure to include one "violates Appellate Rule 3," and that is "jurisdictional." However, as the failure in this case did not "constitute a 'substantial or gross violation of the Appellate Rules,' it does not necessitate dismissal." These two conclusions illustrate an oft-cited maxim that cases, generally, should be decided on their merits. Technical requirements of the law are frequently overlooked when the result is not demonstrably prejudicial to another party. 

In a third example, the Court noted that the injured worker "neglected to designate in the notice of appeal the court to which the case was being appealed." That was noted as another technical error, but the Court noted that "a violation of this sort does not necessarily warrant dismissal of the appeal." While such an error could be fatal, the Court concluded that an appeal from the North Carolina Workers' Compensation Commission can only be in the Court of Appeals. As that is the only appellate path, the failure to so state in the notice did not result in the employer in this case being misled. 

Therefore, of the four errors discussed, three (service by email, omission of the certificate of service, and failure "to designate the court to which appeal was being taken") were deemed not fatal to the appeal. However, the fourth error was. The Court noted, "there is no indication that Plaintiff’s notice of appeal was timely filed." The Court explained the "notice of appeal does not bear a time stamp, file stamp, or any other designation that the Industrial Commission received the notice of appeal." Though the attorney requested an acknowledgment when the notice was filed, the injured worker did not prove receipt. 

The Court stated it would not "assume the notice of appeal was timely filed." Unlike the other errors, which could result in dismissal only if they had caused prejudice, the Court concluded that the timeliness issue was more absolute. As there was no proof of the timely filing, the Court concluded that the injured worker had not satisfied his burden of demonstrating The Court of Appeals jurisdiction. It was incumbent on the party seeking review to both follow rules and to demonstrate or prove having done so. 

Similarly, the Florida First District has concluded that its jurisdiction may be invoked only by filing a notice of appeal within "30 days of the date the Judge of Compensation Claims mailed the final order to the parties." If the notice is not timely filed, then the "Court lacks jurisdiction and must dismiss the appeal." Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007). There, the Court rejected an argument that this time (30 days) should begin to run when "counsel received the order," because that would be unworkable because the "courts would have no way of confirming when a party received an order." Thus, Troche reinforces the similarity of jurisdiction. But, it also illustrates the logic behind the North Carolina Court dismissal. That is, knowing when an act occurred. 

In Florida, the notice of appeal would be filed with the "lower tribunal" ("Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days"; Rule 9.180(b)(3)). And, unlike the North Carolina Rules, the Rules of Procedure for Workers' Compensation Adjudication require all filings (except by unrepresented parties) to be electronically filed. Rule 60Q6.108(1). When documents are electronically filed in the Florida OJCC, they are imprinted with a date and time stamp such as:

And, if documents are delivered by hand or the U.S. Mail, they are date-stamped before they are uploaded to the case docket in the clerk's office, such as:

Thus, the timeliness may be determined to some extent (when the document was uploaded in example one, but only when someone actually date stamps it in example two). However, in the event one (unrepresented) would send a notice of appeal in hard copy, instead of electronically, there may be value in using Certified Mail or some other method that affords tracking of delivery (such as a parcel company).

There is value in being able to prove when a notice of appeal was filed. The Court will look to that party to demonstrate the Court's jurisdiction (or "authority"), which is dependent upon that timely-filed notice. In the Florida system, anyone filing a paper document in such circumstances should monitor the case docket to discern when the document was uploaded and more importantly what the date stamp reflects. And, in the event some error appears to occur, the party should thereafter promptly file any evidence to the contrary (certified mail or parcel company indication of OJCC receipt on some date prior to the date stamped on the uploaded document).

The Bradley analysis is a cautionary tale. Multiple errors are illustrated, and despite several of them, the Court was able to be forgiving and lenient. Those technical errors might nonetheless have been fatal in different circumstances (actual prejudice to the employer). But, the appellant was lucky regarding three errors. The cautionary tale is that rules should be followed, and thoroughness should be paramount. A party seeking review of a decision should rely on competence and completeness rather than luck and lack of prejudice. The rules are a critical path to success, which the appellant learned the hard way in Bradley.  

Stress and the Workplace

The Law Prof Blog recently provided a review of a law review article published by Lewis & Clark Law Review: Compensating Injury and Disease Caused by the "Sedentary Workplace." The authors advocate an expansion of workers' compensation to provide coverage for a variety of medical issues that are not "injury by accident" (the original intent of workers' compensation), nor even "occupational diseases" (one of the worker benefits added to various systems which some allege altered the "grand bargain" with no corresponding benefit for employers). 

The advocates encourage employer intervention in the general wellness of employees upon the premise that workplaces' sedentary nature is notably more prevalent today. Reading that post reminded me of a recent article published by the British Broadcasting Company (BBC): How your Workplace is Killing You.

The BBC recites a variety of instances in which workers died. Each death, in some degree, was attributed to "workplace stress," overwork, or shock resulting from some notable change in the workplace. In addition, it cites a European study concluding that 275 "million working days lost annually from absenteeism 'are stress related.'” Stress, it seems, is a pernicious process. 

This perhaps merges with the hypothesis of the Lewis & Clark article: If Sitting is the New Smoking, What Does this Mean for Employers? A Look at Potential Workers’ Compensation Claims in the Sedentary Workplace, 22 Lewis & Clark Law Review 965 (2018), equating lack of activity with smoking. The BBC illustrates the threat of stress, noting "an analysis of almost 300 studies found that harmful workplace practices were as bad for mortality and as likely to lead to a physician-diagnosed illness, as second-hand smoke." Thus, to the extent sitting is the new smoking, one might wonder if simultaneously stress is the new cancer? 

From whence does the stress come? The BBC cites a litany of "long working hours, work-family conflict, economic insecurity arising from job losses, not having regular or predictable work hours, an absence of job control and, in the US, not having health insurance." As an aside, that last one makes you wonder. There was a time when everyone in the US was mandated to have health insurance. Obamacare Facts says this was true from 2014 through 2018. According to the Kaiser Family Foundation, some 28 million remained uninsured in the midst of that mandate. 

Returning to the BBC and stress, some contend that "the workplace has become an important public health problem." It notes that "chronic disease" kills people, and that "chronic disease comes from stress and the unhealthy behaviors such as smoking, drinking, taking drugs, and overeating that stress induces." From there it summarizes that "numerous surveys show that the workplace is a leading cause of stress, and it is thus one important cause of the health care crisis." 

The BBC author contends that "workplace stress costs the American economy some $300bn" annually, that "harmful management practices" lead to 120,000 "deaths annually in the US," and that stress causes "extra health-care costs" of $190bn annually. From these contentions, it concludes that the "workplace" is the "fifth leading cause of death, worse than kidney disease or Alzheimer’s." 

The good news, according to the BBC, is that this can all be fixed reasonably easily. It contends that, quite simply, "work practices that are bad for people don’t even help the company." Thus, stress is not necessary. The easy answer is simply "giving people more control over how and when they do their jobs." This will purportedly decrease stress, and lead to happier and therefore healthier employees. These employees will purportedly be more proficient, more productive, and less likely to quit. 

The BBC author also advocates that employers should not cut jobs. Decreasing or downsizing creates stress. Furthermore, the economy should not encourage the “gig economy.” These gigs lead similarly to "economic insecurity." Furthermore, employers scheduling employees to work only when they "will be needed means that workers often face fluctuating incomes and don’t have much ability to arrange for coping with family responsibilities." It is more logical, in the author's perspective, for companies to schedule employees with the focus on employee expectations and needs, and ignore whether those employees are actually needed for work. If sales or demand decreases, the employers should nonetheless keep all staff working in this perspective. 

The BBC encourages businesses, that is workplaces, should balance the needs of "shareholders, customers, employees and the community." This, the author refers to as “stakeholder capitalism.” The author laments that "stakeholder capitalism," once prevalent, has evolved (or devolved) to a focus in which "shareholder interests dominate." The focus of the business it seems has become singularly about the purpose of starting a business, to make money for the owner(s). Instead, the author advocates for a return to a spirit of "stewardship" in employer leadership. The author cites a variety, though a seeming minority, of businesses in which this broader "stewardship" is exhibited. 

How do these implement diminished stress? Some examples are:

People get paid time off and are expected to use it.
Managers don’t send e-mails or texts at all hours.
People work, go home and have time to relax and refresh.
Organizations offer accommodations so that people can have both a job and a family life.
People are treated like adults and have control over what they do and how they do it
(People are) not micromanaged. 

The World Health Organization (WHO) has also addressed stress in the workplace. It provides an analysis of what is work stress. It proceeds to define a healthy workplace conscious of the impact of stress. The BBC, it seems, is not alone in its call for Utopian environs.  

The BBC author contends that employers, and industry generally, are financially incentivized to decrease stress (figures above); and that there is value in assuring "employees are as healthy as possible." He admires companies that provide health insurance and promote lifestyle balance. The author advocates that "people need to choose their employer not just for salary and promotion opportunities, but on the basis of whether the job will be good for their psychological and physical health." That is, essentially, that employees should seek employment that minimizes their stress, balances their lives, and affords them the benefits they seek. This emphasis on the individual and making choices seems at odds with the article's theme. 

He concludes that profit should not be the only goal of business. Instead, business' success should be measured in the "health of their workforce." In a holistic and socialist (or even communistic) spirit, business should be about the workers in his perspective. And, since he perceives that businesses are not able to see the obvious benefits he recognizes and espouses, "governments . . . need to focus on the workplace." The workplace causes stress, and "workplace stress is clearly making people sick" unnecessarily. Therefore, he advocates it is time for government to step in and remove the stress. 

This blog recently focused momentarily upon the monumental task of making American workplaces safe, a task upon which the government focused with the passage of the Occupational Safety and Health Act in 1970. The mandate handed to the Occupational Safety and Health Administration (OSHA) is responsible for a vast volume of workplace definitions, rules, and regulations. According to its own data, OSHA inspects 39,000 workplaces annually. The United States Census Bureau reports that there are 6,795,201 workplaces (in 2015). OSHA is inspecting about 6/10ths of one percent (.573%) of workplaces annually. Represented another way, it would take OSHA about 174 years to inspect all of the workplaces in America. In short OSHA has not come close to fulfilling its present mandate. 

And, by what standard would it define and enforce stress standards? OSHA has established limits on "safe exposure limits" regarding a variety of chemicals in the workplace, as discussed in a Princeton post on January 2017. These may be "permissible exposure limits" (PEL), "recommended exposure limits" (REL), or "threshold limit values" (TLV). The PEL is a "safe level of exposure." REL are more "guidelines," than rules, and focus on exposure for "workers over the course of their working life." TLV are similarly guidelines, used as supplemental information "not as a freestanding exposure limit." What would be the PEL for stress? Would testing be sporadic and anecdotal (like blood pressure or blood sugar that can fluctuate throughout the day)?

In Florida, the effects of those federal standards have been discussed in various appellate decisions. For example whether “failure to provide a safe workplace or to follow OSHA guidelines does not constitute an intentional tort.” Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986). The definitions promulgated by OSHA have been relied upon by Courts. Fossett v. Southeast Toyota Distributors, LLC, 60 So. 3d 1155 (Fla. 1st DCA 2011). Those definition's relevance has also been questioned. Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Fla. 4th DCA 1988)("What possible relevance could the OSHA definition of employer have?"). 

The safety regulations promulgated by OSHA have been applied to reduce benefits due to an injured worker. McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177 (Fla. 1st DCA 1982). Would the fact that a worker was exposed only to some "safe" or "recommended" level of some substance preclude the award of state workers' compensation benefits for resulting injury? That seems unlikely. OSHA compliance is not mentioned in the cases often cited as controlling occupational disease, see Lake v. Irwin Yacht & Marine Corp., 398 So. 2d 902, 904 (Fla. 1st DCA 1981). 

The defining and enforcement of stress standards might well be a morass, and potentially of limited efficacy and enforcement. 

Is it practical to define and measure stress? If one accepts the BBC author's conclusion that conflicts between work and home commitments cause stress, is it demonstrable that work is more responsible for that conflict than is home? Is it rational to suggest that government "focus on the workplace" as regards stress, in some effort to ameliorate or eliminate stress from the workplace? If so, in light of the challenges OSHA has already illuminated, what volume of researchers and writers will be required to define and draft such regulation? How many additional OSHA inspectors will be required to enforce them? Will that pull resources from the existing OSHA mission that is, at least according to some, as yet unfulfilled regarding safety? 

Or, is this call for government intervention in the experience of stress unfounded? Perhaps it is not practical to have a Utopian and stress-free world, at work or otherwise? Is the interest of business focused on the owner/shareholder, or is "stakeholder capitalism," and an additional focus on the community preferable? Left to the marketplace, there seem many obstacles to employer recognition and alleviation of stress. Is it thus left to each of us, as the author suggests, to make choices for ourselves regarding what stress to tolerate and what to avoid? 

Is the premise sound? Is workplace stress killing us all? Or, is stress itself killing us all, regardless of whether that comes from work, home, family, or otherwise? Admitting that workers' compensation is a socialistic solution to the perils of work injury, is anyone ready to add the challenges of stress to that solution? Certainly, any malady might become workers' compensation in such a context (I would not have caught cold had I been better rested; I would have been better rested but for work; thus workers' compensation to cover my cold and missed work). To what extent would this advocated expansion stretch?

Shall the government step in and save us all from stress? Too many today do not recall the fall of communism and the spectacular historical failures of socialism. Is the "workers' paradise" less stressful? Are there lessons for younger generations to be learned today from Venezuela, and its embrace of a controlled economy for the benefit of the people (who have been fleeing for all of 2018)? Does the past success of government, government ownership, or government control inspire confidence that it is the solution? It is interesting to contemplate, and it stresses me out.

Is Pain Surmountable?

There has been plenty written about the dangers of Opioids. I have written repeatedly about the challenges Opioid use has affected. Florida, and much of America, is experiencing far too many Opioid overdoses and deaths. And, some of the patients are repeat customers. There have been reports of patients saved repeatedly from an overdose, some needing help more than once in a day (Boynton Beach, 2017), and another needing reviving twice in a 12-hour period (the first required hospitalization, Flagler County, 2018). 

Jacksonville News 4 reports that city is spending $15,000 a month ($180,000 annually) purchasing the Narcan it uses for such events. The population of Jacksonville is about 1.5 million, the population of Florida is about 22 million. In a non-scientific thumbnail, using Jacksonville's estimate and its 7% of the state's population, the Narcan expense might be as high as $2.6 million a year statewide. overdose is expensive in impacts on lives and finances. 

I was somewhat surprised recently to hear a radio host decry the efforts of state leadership to combat the problem. He criticized the recent limitation on prescriptions and excoriated the attorney general's lawsuit against opioid manufacturers. His polestar was essentially that any and all decisions about treatment should be between the doctor and patient. Limits on pain pills are anathema to him. One statement was essentially that the government should get out of the way of physicians. 

The radio host is not alone. There are various critics of constraining pain medication access. And, there are some tragic outcomes. A Vermont man committed suicide when denied pain medication. Some contend that "millions of patients who are dependent on painkillers are being abandoned by the medical system." Last spring the Washington Post labeled this Unintended Consequences. That article features a patient driving 367 miles monthly to obtain "an opioid prescription no doctor nearby would write." Is there room to discuss whether that patient experience is because that prescription is itself inappropriate, or whether regulations or prosecutorial fear are precluding an otherwise appropriate prescription?

Coincidentally, a psychiatrist recently penned an opinion piece published by Florida Politics that took a similar tone regarding drugs used to treat opioid addiction. He asserts that there is a process "systematically denying physicians the option of offering patients an FDA-approved and widely accepted opioid addiction medication." The article stresses that this limitation exists despite "several (alternative medications) that are currently in use and are considered effective." There is no criticism of the one that is approved, but the doctor stresses that "different patients react differently to different medications," suggesting that perhaps other medications might be better suited to a particular patient's needs.

Thus, some want the government out of the pain medication regulatory process. Others want the government out of the process of treating those who have become dependent on those medications. There are critics, it seems, in all directions. And in the midst, people continue to have pain, and too many are dying. 

In the midst of considering these recent pain stories, a WorkersCompensation.com story caught my attention: California Startup Wins FDA Pain Device Challenge. This documents a contest directed at the "FDA's ongoing commitment to address the opioid crisis." The Food and Drug Administration (FDA) effort: 

"was intended to spur the development of medical devices, including digital health technologies and diagnostic tests, that could provide new solutions to detecting, treating and preventing addiction, addressing diversion and treating pain" 

The contest attracted 250 entrants. Submitted solutions included medication dispensers to control dosage, virtual reality, magnetic stimulation, overdose detection, and more. Eight were selected for recognition. This is out-of-the-box thinking to address a clear issue. The fact is pain exists. If you doubt it, try it (most will not want to try it, empathy is better). There is support that pain can become chronic, and that our bodies can adjust to (adapt to) modalities like opioids, thus perhaps leading to increased dosages of pills. It is a conundrum to be sure. 

But solutions are somewhat elusive. A colleague recently sent me an article from the Associated Press (AP) regarding a South Carolina man seeking pain relief. He was prescribed a "medical device" that "wouldn’t fix the nerve damage in his mangled right arm," but "would cloak his pain, making him 'good as new.'” It is a story of alternatives, promises, and ultimately failure.

Instead of miraculous relief, this patient today says he is "a prisoner in his own bed, barely able to get to the bathroom by himself." The device was a "spinal cord stimulator," and the Associated Press claims "medical device companies and doctors have touted" them "for years" as "a panacea for millions of patients suffering from a wide range of pain disorders." It claims that they are "one of the fastest-growing products in the $400 billion medical device industry." 

The AP says that the FDA tracks patient complaints about "4,000 types of devices." Of those, these stimulators "account for the third-highest number of medical device injury reports," amounting to "80,000 incidents flagged since 2008" (the last ten years). That is a small percentage, however, as "some 60,000 are implanted annually." If that rate has been consistent since 2008, that is about 600,000 of the devices implanted, and the 80,000 complaints amount to about 13%. It is unlikely each of those is as serious as the example reported by the AP. Is that an acceptable rate of discontent?

The AP contends there are broader issues with the FDA complaint and regulatory processes, including: 

Devices are rarely pulled from the market, even when major problems emerge. 

(FDA pushes) devices through an abbreviated approval process, then responds slowly when it comes to forcing companies to correct sometimes life-threatening products. 

Proponents, however, claim that new devices are safe and that the approval process is appropriate. Critics complain about the volume of dissatisfied, and sometimes more profoundly affected, patients. It is clearly an area in which there is disagreement and various perspectives. Should that be a concern as various companies race to deliver new options to those fighting pain? 

Another idea is revising medication recipes to achieve pain relief without addiction. The news has been focused recently on one, "called AT-121." It "successfully relieved pain in rhesus monkeys without resulting in harmful side effects or causing the monkeys to become addicted." And it is not alone. Another touted by the news is NFEPP, which has been shown to have "dampened pain responses." And, there are more. Many show promise, but none yet "the" solution. Perhaps that thinking, that there is one be-all and end-all is fallacious? Maybe such a "the" solution mindset is an unattainable goal?

These news reports suggest that many are working on some solution to ameliorate pain. Those solutions may include new chemical recipes or new devices. The consensus is clear, pain must be addressed, without causing harm in the process.

It is a major issue for the workers' compensation industry, where injuries and pain are fundamental, daily, and too often debilitating. But it is, of course, a broader issue. It is complicated by the simple fact that each of us perceives and reacts to pain in our own way. We have similarities certainly in our biology and neurology, but each of us is unique, at least somewhat. Thus, the astonishing spectrum of suggested tools to manage pain. Note for example the various forms that opioids are marketed under (20 main types, 40 name-brand combinations, and more generics according to RehabCenter.net). Even within a subset of treatment alternatives, opioids, there is great variety and diversity. 

The end of this discussion is troubling. First, there is a reality that people experience pain. Patients were led to opioids in the 1990s, doctors embraced opioids (some believe foolishly), and there was hope, belief, and unrequited trust. That approach ended in disappointment, overdose, and death for too many. The Cato Institute reported last month that deaths continue to rise despite the recent recognition and efforts. 70,000 Americans died from overdose in 2017. How many more were close, saved by some fortuitous delivery of Narcan, a similar miracle?

The medical community is awakened to the need for alternatives, and the news of those efforts is encouraging. But some of those remain hopes for the future while we are cautioned that others may be exchanging one problem or side effect for another, as illustrated by the stimulator news above. Doubtlessly, time will bring alternatives and progress. However, there are people who are in need of relief today. 

The sense of immediacy cannot be ignored. Patients, families, businesses, and communities need solutions. Solutions that provide a measure of pain relief and which do not present an untoward level of risk for malfunction, addiction, or other complications. That there is ongoing effort and even progress may be of little solace to those with chronic, debilitating, pain today. As we focus on the new start of 2019, it is time for a redoubled effort to find and implement relief that is compassionate, effective, and safe. This is not an insurmountable challenge unless we let ourselves believe it is. 

National Disasters and Planning Ahead

We near the end of 2018. It is time for you to consider resolutions for 2019, and this post is a suggestion. Recent months have brought cascading news regarding disasters. From eastern U.S. hurricanes to wildfires in the west. These events are devastating, and they share the commonality of preparedness. 

Hurricane Michael made landfall on October 10, 2018, as a strong category 4 hurricane. Michael has earned a place in history, one of the "four most-intense to hit the mainland United States since records began in 1851," according to the Washington Post. Ongoing analysis of the data collected during the storm may well result in it eventually being re-characterized as a Category 5. 

The Post notes that no one "would be surprised by such an upgrade." It recounts that some describe the Florida damage as similar "to the effect of a nuclear bomb." My personal observations there are similar. The Post paints a picture of changing building codes, and constrained development. It notes that some areas suffered extreme damage and others benefited from barrier islands and natural dune beaches. 

After a hurricane, it is common in this part of the world to hear "at least with a hurricane there is a warning." But, notably, Michael made landfall "just three days after it was considered Tropical Depression 14 down near the Yucatan." The storm strengthened considerably in the 24 hours just before landfall; there was minimal warning of Michael and almost no warning of a major hurricane. Despite the illusion of warning, the reality may provide little time. The Post also posits that " Michael should remind coastal residents that “you can always be hit by a Category 4 or 5 hurricane.” 

Michael is responsible for the deaths of 45 people, "at least 35 in Florida" according to one news source. Following the 2017 hurricane impact in Puerto Rico, there are those who advocate more inclusive calculations for measuring such impacts, but 45 is the figure currently being used in the press. There is no telling what number may be the ultimate conclusion by this time next year. 

Across the country, fires recently started in California. Wildfires have been in the news repeatedly there in recent years. Two major fires have been in the news recently, the "Camp Fire" and the "Woolsey Fire." There is conjecture that electrical equipment may have started the Camp fire, according to CBS News. By November 13, the Camp fire was responsible for 84 deaths making it "the deadliest in state history," according to ABC News. The total may yet increase.

There was not much warning for Michael, exacerbated by the way that the storm strengthened as it approached land. Many decided to ride out the storm, and many others evacuated at the last moment as the truth became too clear. Be that as it may, there was less warning still for the wildfire victims. 

Fortunately, there is a great deal of advice out there for making a disaster plan. California has a checklist of things to think about. For those who prefer watching advice, there are YouTube videos also. Consumer Reports provides advice on documenting your home and possessions. Think ahead about fuel, prescriptions, non-perishable foods (a great excuse to eat something not-so-adult, like SpaghettiOs; and what is more non-perishable than the Twinkie?), and pets. There is so much to think about; it clearly makes sense to think about your potential and your plans before that evacuation order, or even merely an evacuation suggestion, comes. 

After Michael, much of the news stories recounted the efforts of search and rescue (SAR). Similar stories came in later in the midst of the California fires. These intrepid folks trudged door-to-door, knocking, listening, and searching. Each approach to a structure or remnant was undoubtedly dreadful and each door marked "clear" was a relief. One of the best tips I discerned from the links above is that you should put a sign in your front window when you leave that says "evacuated." When the SAR get to your home, they can pass right by knowing that the house is clear. The time you save them could literally save someone else's life. 

Know what resources are there for you in advance. Floridadisaster.org has lots of resources and ideas for before, and phenomenal information and updates after. Preparation is not a "wildfire" or "hurricane" "thing," not a "California" or "Florida" "thing." Preparation makes sense wherever you are. Knowing the potential for disaster (storm, fire, earthquake, blizzard) makes sense. Planning your reaction and personal/family recovery makes sense. It also does not hurt that this country is full of people who will not hesitate a moment to lend you a hand. I described that in more detail years ago in Because We Need It, They Will Come. 

There is some comfort in their presence. There is relief in knowing that help will come. But, you have to remember that in the first instance, it is all on you. Many advise you to be prepared to take care of your needs for at least 48-72 hours post-event. Some will not be aided even that quickly; there are many to help and there is much to do post-event. You have to think it through, make your plan, get yourself out, and take care of you and yours. At the outset, you are in large part on your own and dependent upon your preparedness and judgment. I have heard many a Floridian lament their failure to listen to warnings and evacuate. 

When you get out take a moment to list yourself with the Red Cross. Did you know that they have a "Safe and Well" site? You can fill in a quick form and let people know you are safe somewhere. From miles away, those you may not think to reach will perhaps be relieved to find you listed as "Safe and Well."

And finally, watch for frauds whether you are recovering from disaster or seeking to help others. Unfortunately, there are a few bad apples out there who seek personal gain from the pain and tragedy of others. NBC affiliate KCRA3 recently reported on a woman scamming the community, claiming to be the wife of a California firefighter. If you are considering helping, know your beneficiary. If you do not know them personally, check their status through a tool like CharityCheck101. The aid and assistance are always needed, always welcome, and so very gracious. But, don't let a scammer divert resources from those in need. 

Have you made a disaster plan for your work and home? If you have not, it is past time. Think it through when things are calm. Then you will not have to when things turn unexpectedly frantic. Resolve now to have a plan for 2019. Make it, write it down, and be ready. Here's hoping you never need it, but make it anyway (You can occasionally eat the Twinkies anyway. You know, in the spirit of practicing and keeping supplies up to date?).