Predictability and Certainty

An intriguing decision of the Minnesota Supreme Court caught my attention recently. In November 2019, the Court decided Block v. Exterior Remodelers, Inc., A19-0584. The Court was asked to interpret a statute, not an unusual occurrence in workers' compensation. But, the nature of the statute made the interpretation interesting.

The injury occurred in 1988, resulting in two back surgeries. The worker then settled with the Employer in "a full, final, and complete settlement agreement." This was approved by the Workers' Compensation Court of Appeals (WCCA) in 1992 and the settlement proceeds ($40,000) were paid. 

About 17 years later, "in 2009, Block experienced new symptoms related to the 1988 injury. He had two more back surgeries." Then, "in 2016 (24 years later), Block filed a Petition to Vacate the Award (settlement)." He argued this was appropriate because the parties had made a "mutual mistake of fact" in making the settlement, and that he had suffered "a substantial change in his medical condition that could not have been anticipated at the time of the Award (settlement)." 

The WCCA "vacated the Award based on the substantial change in (Mr.) Block’s medical condition," but disagreed there had been a "mutual mistake of fact." The matter would seem concluded when "neither party appealed the WCCA decision." But, Mr. Block then sought "additional benefits." The Employer sought "a credit for the $40,000 already paid under the vacated Award (settlement)." The parties submitted this question to the trial "judge on stipulated facts." The judge concluded the Employer was entitled to this credit for funds it paid associated with the retroactively eliminated settlement. 

Mr. Block brought the appeal, claiming that the trial judge erred in not applying Minn. Stat. § 176.179. The Court reminded that “[i]t is . . . a basic tenet of workers’ compensation law that the substantive rights of employer and employee are fixed, not by their agreement, but rather by the law in effect on the date of the controlling event (accident).” Therefore, the law as it existed in 1988 applies to the parties' disagreement. 

The Court explained that Minnesota law allows the settlement of workers' compensation claims, "subject to approval by a compensation judge." However, the Minnesota statute also allows the settlement to "be set aside later if the WCCA determines that there is cause to vacate it." 

The "mutual mistake of fact" argument is worthy of note. Mr. Block contended "When the parties settled Block’s claim, they believed that Block’s back injury was cured and, thus, payment of an award that is later vacated must be a mistake." Therefore, he contended that the Employer cannot be entitled to a credit for money it paid by "mistake." He cited "the version of section 176.179 in effect at the time of Block’s injury in 1988," which provides: "no lump sum or weekly payment, or settlement, which is voluntarily paid to an injured employee . . . shall be refunded" if it is later determined to have paid by mistake of fact or law. 

The Court explained that when benefits were "mistakenly overpaid" in other cases, that has been deemed "a mistake in fact that made the overpayment 'mistaken compensation.'” Mr. Block's argument was that the settlement proceeds paid ($40,000) under his agreement and judicial approval, was likewise a "mistake" and therefore this is "mistaken compensation," which should be a windfall to him and not recoverable by the Employer following vacation of the settlement agreement twenty-seven years later. 

The Court distinguished the instances of such "mistaken compensation" cited by Mr. Brock. It concluded that the $40,000 "was not paid mistakenly." It noted that the record did not support any evidence of a "mutual mistake" in 1992. Instead, the record indicated that "the parties negotiated the settlement at arms-length and based on all of the information available at the time." And, notably, the "settlement was approved by the compensation judge."

The Court conceded that "neither settling party in 1992 could have foreseen or predicted medical developments," as demonstrated here. That the parties cannot accurately predict the future does not equal a "mistake of fact or law." Therefore, the Court affirmed the trial judge's denial of Mr. Block's objection to the Employer's credit for the $40,000 already paid. 

The case is intriguing for several reasons. First, the law allowing a "full, final, and complete settlement agreement" to be set aside is curious. The setting aside, by definition, means that the settlement was neither "full, final, nor complete." Settlement comes with risks. It is possible that a patient may deteriorate or improve following a settlement. If a patient thereafter improves unexpectedly, through happenstance or the advancement of medical science, would it be appropriate to order the worker to return the settlement proceeds based upon "a substantial change in his medical condition?" Or, should the parties, in an arms-length transaction, each be permitted to assess and value their respective risks and make a forever-binding "full, final, and complete settlement agreement?" 

The second matter of interest, comparing Minnesota to Florida, is that this settlement was approved by the workers' compensation judge. In that setting, some might argue that the judicial approval militates in favor of permanency and the unassailable nature of the settlement. In Florida, the vast majority of settlements are not approved by judges of compensation claims. The Florida Legislature removed the requirement of judicial approval for settlements of cases in which the injured worker is represented. Section 440.20(11). Despite that, there is no similar avenue for revisiting a decades-old settlement in Florida. If a settlement can be undone by either party, some would argue that the expense of settlement might be hard(er) to justify. 

The final matter of interest in this litigation is the court's reminder regarding the substantive rights of the parties. It is difficult for many in the workers' compensation community to accept that statutory rights and obligations are controlled by the statute in effect when an accident or injury occurs. The subsequent amendment of the statute may change procedural processes, but no substantive rights and obligations. It therefore remains pertinent for everyone involved in any claim to return to that applicable statute, even decades later. Workers' compensation claims may indeed have significantly long lives as Mr. Block's 1988 injury has.

Progress or Folly

A major debate rages in workers' compensation today. It is centered on who must be covered by the program, and the practice of hiring "independent contractors" rather than employees. There are a variety of issues intermingled in that debate including taxes, overtime pay, minimum wage, unemployment, and workers' compensation. California is in the midst of striving to implement the "ABC test" legislated by its supreme court (yes, "legislated"), and then adopted by the state legislature in statute. The Governor there has recently reportedly asked for $17.5 million and over 100 new state employees to implement the change. Classification of workers is a challenge. 

The Kentucky Court of Appeals recently provided an analysis of independent contractors and homeowners who hire them in Dexter v. Hanks, No. 2018-CA-000362-MR. The case was filed in tort for premises liability after the plaintiff fell from the roof of the defendant's home while performing repairs. The trial court dismissed the lawsuit, concluding that the homeowner breached no duty of care and that the plaintiff was an independent contractor. As an independent contractor, the Court concluded, the homeowner had no duty to supervise Plaintiff or to provide him with safety equipment. 

The Court described that the homeowner had procured a variety of services for his home over the years. He typically had used Tim McQueary, for whom Mr. Dexter (plaintiff) had sometimes worked. When McQueary became too busy, he recommended Mr. Dexter to Mr. Hanks (defendant property owner). When a roof leak occurred, Mr. Hanks hired the Plaintiff to perform repairs. The plaintiff was to be paid $10 per hour for the work. Mr. Hanks purchased the roof sealer, and the plaintiff "used a combination of his own tools and tools supplied by Hanks." 

In the process of painting the roof in 2013, Plaintiff slipped and fell, then slid from the roof and "fell twenty feet to the ground, landing on his feet." He was diagnosed with a broken foot and broken ankle, "incurred medical expenses of $70,953.67, missed thirty-seven weeks of work, and lost approximately $27,000 of income." 

The lawsuit alleged that Mr. Hanks' property was in a "dangerous condition," which Mr. Hanks either "created," or of which he at least "knew, or should have known.” Plaintiff "characterized himself as an 'invitee' to Hanks’s property." Therefore, he contended that Mr. "Hanks had a duty to discover, warn, and/or protect Dexter from the dangerous condition of his property" (apparently water on the roof, which Plaintiff presumed, but could not prove, Mr. Hanks had sprayed there to "clean" the roof prior to the sealant application). 

The Court noted that Kentucky's Supreme Court had previously concluded that “a possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” However, while the Dexter case was pending this appeal, the Kentucky Supreme Court rendered another decision in which it further described "the nature of the duty owed to" contractors such as Dexter. The Court concluded that a property owner who hires an independent contractor is not responsible for supervision or providing safety equipment, noting an independent contractor should be "aware of the risks associated with" work and should have "provided his own safety equipment." 

The Court enunciated legal parameters defining the distinction between an employee and an independent contractor. It was persuaded by the fact that the work performed was "unrelated to the normal operations of the "business that had hired the contractor," which may have been the homeowner, but there is the suggestion that Mr. Hanks is in the real estate investment business. 

The Court explained that "a landowner is not liable to an independent contractor for injuries sustained from defects or dangers that the independent contractor knows or ought to know of." The property owner is liable only if “the defect or danger is hidden and known to the owner, and neither known to the contractor nor such as he ought to know.” In this, a landowner owes less of a duty to such a contractor than would be owed to a "business invitee" (a customer on the property for the purpose of doing business there). 

The Court reminded that Plaintiff admitted the defendant "was not overseeing or directing his work in any way." The property owner "was concerned only with the end result, a sealed roof that did not leak." The Court noted the presence of the homeowner's tools, but concluded "that was more out of convenience than a desire to control how the work was performed." This supported "that Dexter was an independent contractor." This, overall, illustrates the issues of control that are pervasive in various states' analyses of the contractor versus employee dichotomy. 

The Court noted, however, that the test it applied in making this decision as regards premises liability "is different than the broader and more lenient multi-factor test used to determine whether an individual is an employee or independent contractor under the Workers’ Compensation Act." Despite the test being different, the Court concluded that "most of those (workers' compensation) factors weigh toward Dexter being an independent contractor." As examples, the Court enunciated different factors such as who set work hours, whether particular skills were required for the work, whether Mr. Hanks trained the plaintiff or dictated how the work would be performed, and how the Plaintiff was paid. 

In this instance, a civil liability case, the critical issue of contractor status was subject to varied legal analyses. The Court concluded that the outcome in this case, "independent contractor," would be the same whether the analysis was the concise liability standard or the "broader and more lenient" workers' compensation test was engaged. Though the outcome was the same in this instance, it is worth considering that outcomes could be different. That danger exists when a jurisdiction has multiple definitions of any term, such as "independent contractor." The confusion that is created by multiple legal tests for such a decision is curious and may lead ordinary citizens to confusion. 

In an attempt to legislate consistency, and perhaps simplicity, the California Supreme Court recently made a new independent contractor law. There are those who have been critical of the court there "making law," arguing that courts should instead limit themselves to interpreting law. It is seen as an issue of "separation of powers" a constitutional construct worthy of consideration. But, the California Legislature, others would argue, certainly has the last word in such a scenario. The people's elected representatives could certainly correct such judicial legislation by passing a law to the contrary. California's Legislature did pass a law, but it essentially adopted the court-made law. 

That legislation became the law of California on January 1, 2020. WPXI (and others) reports that the new law defining independent contractors will simplify such legal analyses. Some also suggest that the change will force businesses to adjust their staffing practices. The seemingly obvious conclusion would be that such effects will only be for California businesses. However, there are also concerns that the law will affect businesses elsewhere, in the event that they require California staffing for any purpose. 

There is a benefit to simplicity. If clear and simple definitions render the nature of business relationships easier to classify, then there is a probability of less litigation over whether someone is or is not an independent contractor. There is value in simplicity. Similarly, there is a benefit in freedom of contract, flexibility, and creativity in the delivery of business services. Thus, there is a conflict between flexibility and predictability. There are advocates on either side. Across the country, many will watch the experiment upon which California has embarked. Time will tell if its ABC test is progress or folly.

Cybersecurity 2020's Hot Topic

In 2020, you should be thinking about cybersecurity.

What is the hot topic for 2020? There are many subjects on the minds of workers' compensation professionals. It can be hard to keep up without attending an awful lot of meetings. But, a general overview comes our way each January from the Kimberly and Mark team at Out Front Ideas. In the January 2020 edition, they gave us a lot to think about; everything from industry and individual engagement, to technology, to dope. They touched on cybersecurity, and frankly that is likely to be an overriding concern not just in 2020 but for years to come.

The workers' compensation community may be better at some things than others. But throughout our history, workers' compensation has been great at accumulating data. There have been many complaints and lamentations over the decades about how good we are at categorizing, analyzing, and digesting the data, but collecting it has been a strength. It is likely that these volumes of data incentivized the community embracing technology. In terms of data management, information storage, and now artificial intelligence, the workers' compensation community has been fully engaged in technology. Increasingly, all of that information may be at risk.

In 2019, Florida recognized the cyber risk to our livelihoods. The Legislature passed House Bill (HB) 5301, which created and enabled a Cybersecurity Task Force. The bill has multiple other implications that exceed my space here. The task force includes The Lieutenant Governor (who serves as chair), a "computer crime" specialist from the Department of Law Enforcement (FDLE), another representative of FDLE, the state chief information officer, the state chief information security officer, a representative of the Division of Emergency Management, a representative of the Office of the Chief Inspector General, an individual appointed by the President of the Senate, an individual appointed by the Speaker of the House of Representatives, and members of the private sector appointed by the Governor. 

In December, the Taskforce met in Miami. The New Year (and decade) brought it to Pensacola on January 17, 2020, for an informative and compelling agenda. This included an intriguing cyber-industry panel discussion regarding cybersecurity resilience in Florida, a presentation by Dr. Eman El-Sheikh of the University of West Florida on Workforce Education, and a presentation on "Cyber Florida" by Dr. Sri Sridharan, of the Florida Center for Cybersecurity. Florida is pro-acting on this subject, and a keyword is collaboration. The interaction and cooperation between academics and industry were apparent throughout.  

Dr. El-Shiekh noted some disturbing facts. First, the United States is the #1 target for cyber-attacks. The average cost of a data breach is more than $8 million dollars. The government currently spends about $15 billion annually on this threat, and there is an obvious and increasing need for cybersecurity professionals in the marketplace. She cited statistics that 50,069 cybersecurity jobs are currently staffed in Florida, but there are about 24,618 current job openings here. There is a lot of opportunity apparent in this field and a great deal of unfilled demand.

Unfortunately, those hiring cybersecurity professionals nationally are not fully satisfied with their foundations or training. Dr. El-Sheikh noted an ISCA (Intl. Symposium on Computer Architecture) study that concluded a third of survey respondents felt that less than 25% of job applicants were qualified for cybersecurity jobs. Almost 40% said that "university graduates are not prepared for the challenges they will face." That may be a factor of the constant evolution brought upon us by the bad actors, but it is refreshing to see educators focused on improving the preparation of the students. 

There are educational standards in place for training undergraduates in preparation for the array of opportunities. There is also an impressive list of state institutions that are focused on the academic preparation of the next generation of security experts. Florida's universities seem acutely aware of the challenge we face. There appears to be room for greater compliance with those educational standards. It is positive to both have such goals and to periodically evaluate how well our efforts are addressing them. The meeting also included a discussion of the impact of this problem effected by an NSA structure of a select few Regional Resource Centers such as the University of West Florida here in Pensacola.

It was inspiring to hear the progress that is being made in educating those who will protect our networks, data, and livelihoods. More impressive was the description of how the educational curricula are involving students in hands-on training conducted in virtual environments in which there are emulations of the World Wide Web infrastructure, websites, and social media. The training and education is coming off the whiteboard and being performed in real-world environment simulations to prepare students for their challenges. Students are academically experiencing first-hand the situations they will face upon graduation.  

Where will the employees come from to fill these opportunities? Efforts are underway to identify, attract, and even recruit the next generation of experts. Programs are underway to partner with high schools for the increase of awareness about these careers. The cybersecurity educators are also seeking to inform and attract far younger students. The need for cybersecurity is seen as a long-term situation, with a major growth potential still unmet. The effort is to both recruit for the immediate college class and to inspire the young to pursue a future steeped in computer and technology professions. 

The discussion turned also to the diversity of perspectives in the field. Multiple speakers noted the tendency to presume that cybersecurity requires people with backgrounds and skills in coding. There has been a focus on the STEM (science, technology, engineering, and math) curriculum in recruiting security students. The speakers stressed, however, that cybersecurity requires multi-discipline contribution. There was a discussion of understanding what motivates bad actors (hackers, etc.), and the need in response for collaboration of coders, programmers, communicators, and others. The underlying characteristic most sought is dedication and commitment to the goal of protection. It was stressed that cybersecurity is not a 9 to 5 job. 

The main takeaways from this short introduction to cybersecurity were: (1) Florida is exceptionally postured to address this need; the institutions here are already partnered with industry and aggressively pursuing cyber threats; (2) the need for producing effective, trained, and enthusiastic people is immediate; (3) the interests of academia and industry are notably intertwined, and public/private partnerships and cooperation are already the preferred paradigm for research, preparation, and remediation. Florida's foresight in forming this Task Force is impressive.

I found the program engaging, though I have not programmed a computer in decades. This will be a subject that concerns every business in the workers' compensation community for years to come. While there is much on our collective plate, it is without question that cybersecurity is a significant and serious subject that is fundamental to every business' effective function in this community. How will we expand our understanding and address our communities need?

Opioids and Credibility

The subject of narcotics was addressed by the New Jersey Superior Court, Appellate Division in Martin v. Newark Public Schools, No. 2011-17344 (October 2019). It is another of those cases that was not published by the court when decided in October. However, on December 13, 2019 the Court "approved for publication." 

The injured worker in this case sought temporary indemnity benefits and "reimbursement for continued prescription opioid medication to treat a lower back injury." The motor vehicle accident was nearly a decade ago, in May 2011. It resulted in an orthopedic low back injury. In 2017, the Employer/Carrier denied reimbursement for Percocet, and the subject claim was filed. 

The treating physician began treating Mr. Martin in June 2011, which included prescriptions for pain medication. These prescriptions were "monthly" "from 2016 through 2017."  In September 2017, he released the patient from care, placing him at maximum medical improvement. As a "courtesy," the doctor wrote one last Percocet prescription at that time. 

The doctor testified that he had recommended alternative care such as "surgery or epidural injections," which were declined. Other physicians also unsuccessfully recommended surgery as well.  He noted, "that Percocet was poorly controlling Martin's pain." He also concluded that "prolonged narcotic use [would] not manage his radicular complaints." And, the treating doctor testified that "Martin would never heal through continued use of pain medication," though that course had been pursued for six years. 

It is notable that the treating physician was focused on remedial care, the kind of care that is intended to improve a condition or diagnosis. The physician was not foreclosing palliative care, intended to alleviate symptoms or complaints associated with an injury. In fact, the physician advised the worker that continued complaints might lead him to "pursue something from a palliative care point." 

A pain management physician was consulted before hearing, in "a one-time evaluation in support of the motion," which is seemingly similar to an independent medical examination in Florida. The pain management physician noted multiple spine findings, and recited that the patient "self-reported that Percocet abated his pain symptoms by approximately sixty percent, and he was more active on the medication." The extent reported was, however, "small pain relief." The pain management physician concluded that "it was reasonable that [Martin] be on opioid medication on a long-term basis for his pain."

The trial judge denied the claim seeking "reimbursement for prescription Percocet." He concluded that Mr. Martin "failed to prove continued treatment with opioid medication would reduce . . . pain or permit him to function better." In so concluding, the trial judge accepted the treating physician's opinion as "more credible than the testimony of the one-time evaluating physician." The logic of the trial judge is pertinent in understanding determinations of credibility. Credibility is a difficult subject, and much can contribute to the analysis. 

In this case, the trial judge found it pertinent that the pain management physician did not "expressly find continued opioid medication would relieve Martin's pain." And, the judge noted that the physician "simply opined long-term opioid medication was 'reasonable' without explaining why." Credibility may be a matter of which doctor has the most experience, relevant training, or credentials. But, there is value in providing a logical and careful explanation of "why" recommendations are made or conclusions are reached. 

Having not convinced the trial judge to order ongoing Percocet, Mr. Martin sought review by the appellate court. He complained that the judge accepted the testimony of the treating physician and alleged the "judge misapplied the standard governing an application for palliative care." The appellate court first addressed the acceptance of testimony. It concluded, "that [the judge] gave more weight to the opinion of one physician as opposed to the other provides no reason to reverse the judgment." The Court noted the trial judge's explanation of his finding of credibility, and found it appropriate to "defer to the compensation judge's factual findings under the circumstances."

The Court explained that the Employer/Carrier is obligated to provide both "curative or palliative care" following a work injury. Each is required if shown to be "reasonably necessary to cure or relieve the effects of the injury." As such, in New Jersey, an injured worker must "show the treatment would 'probably relieve petitioner's symptoms and thereby improve his ability to function.'" The Court reminded that in making such decisions, "the touchstone is not the injured worker's desires or what he thinks to be most beneficial."

Instead, the Court explained, there must be "competent evidence to be reasonable and necessary to cure and relieve him." In that, it is not sufficient to merely show "that the injured worker would benefit from the added treatment." Citing a prior decision, the Court reminded that "there may be a point at which 'the pain or disability experienced by the worker is insufficient to warrant the expense of active treatment.'" Relying upon the treating physician's testimony, the Court found sufficient evidence that "continued prescribing of pain medication did not, and would never, heal petitioner or relieve his condition."

The Court provided a detailed comparison of the testimony and conclusions of both physicians. It reiterated the pain management physician's conclusion that Percocet was "reasonable," but returned again to the criticism of the physician's explanation for, foundation for, that conclusion. The Court concluded that there was credible evidence to support "that further treatment with opioid medication would not cure or relieve Martin's injury." 

There are many who would find fault in such an outcome. They would argue that ongoing medication in such a situation may be the only potential for relief from symptoms. Others would note that narcotics are often dangerous and that increasingly strong doses over time are a risk to health. There is no doubt that pain exists and that patients need some method to deal with symptoms. There is an ongoing debate in this country about these difficult questions. The New Jersey decision supports the proposition that some patients may be denied opioid medications for pain. That potential suggests some patients may need to find and attempt alternatives. 

Offer First then Act

A great many years ago, a lawyer named Louis Brandeis wrote:

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone’"

He was an advocate of privacy and individual rights. He later joined the Supreme Court of the United States, authoring further thoughts on privacy. The underlying theme, in some estimations, is this "right to be left alone." The focus was often criminal in nature, and involved the Fifth Amendment.

As an aside, there was a recent decision by the Florida First District Court of Appeal regarding compelled access to a person's cellular phone. That is Pollard v. State, a discussion of both the Fourth and Fifth Amendments. There are worthy points of discussion there, which may be discussed in a future post. But, for today, the case is interesting in the context of Justice Brandies at least in assurance that privacy remains an unresolved topic under the law. 

The "right to be left alone" is thus admittedly an issue under the law. But this post is actually about the broader, human interaction, right to be left alone. It came to my attention in a British Broadcasting Corporation (BBC) article Spikes - and other ways disabled people combat unwanted touching. It seems that there are people who perceive others as needing assistance. As good Samaritans, they are extending them a hand-up. However, the intended recipients do not necessarily want that assistance and are offended that it would be foisted upon them without even the courtesy of a verbal offer or inquiry. As a result, some are taking exceptional methods to discourage the Samaritans. 

The first example cited by the BBC is a person who uses a wheelchair. She describes going about her daily tasks when people will unannounced and uninvited grab her wheelchair by the handles and propel her "down the street." She notes that this creates a sense of losing "control over where you're going." She describes the sensation as "really terrifying." And, despite her resulting cries for help no other Samaritan stepped in to suggest to her assailant that they leave her alone. She says that since this incident the mere sound of footsteps behind her wheelchair brings feelings of anxiety. 

Most of us can likely empathize with her feeling of helplessness. She illustrates it with an analogy. Essentially, how would any of us react if some pedestrian picked us up on the sidewalk and began walking away with us? As a result of her anxiety, and the helpless feeling of that incident, she has since "added metal spikes to the handles of her chair to make it harder for people to take control."

Another example cited by the BBC is a sight-impaired person using a cane to walk. Since she began using the cane, she noted "a significant change in attitude towards her." While she reveled in the independence that the cane brought, she laments that "she was being touched almost every day." People apparently thought nothing of reaching out to physically touch her, likely with the very best of intentions to aid and guide. But, she objected to it, and argues against it. 

There is a social media discussion of these well-intentioned interventions. They have coined the "hashtag #JustAskDontGrab." Their contention is that before one touches or helps someone, they should first announce themselves and verbally offer assistance. One source cited by the BBC contends that the urge to reach out is human nature, a "natural instinct to use their hands and not their words." A natural instinct that we must recognize and resist consciously.

Thus, there is a recognition that the unannounced touching is not "malicious or creepy, just dehumanizing." There is a perception that the manner of interaction does not match the intention. While someone means only to help, the perception and reaction may be unintended fear, anxiety, or demeaning. Another quoted source notes that there is also the potential for causing injury or damaging assistive devices such as wheelchairs. These may be expensive and specialized tools.

But, repeatedly, the sources in this article stress their approval of someone offering help. The verbalized recognition that someone might require assistance, and a simple offer are welcome by at least some. The spirit of the article suggests that even among those who would prefer to simply be left alone, these people would far prefer an unwanted verbal offer to an unwanted and unexpected physical touching. 

What should we see when we perceive someone who is differently abled than ourselves? It is appropriate to recognize that people may be different from ourselves. That does not mean that we can appropriately make assumptions that they are in any way less abled than ourselves. Different does not equate to less or more. It is merely different. 

As human beings, we are absolutely compelled to offer help to others. That may include people using assistive devices, but as readily can apply to anyone that we perceive could use a hand. Against this inclination, we must remember that conversely, every one of us has that "right to be left alone." From the conflict between these two, the best path forward seems to be an unassuming and genuine verbal offer of assistance. The decision then rests entirely with the offeree, to accept or decline your generosity. 

And, finally, the process and result is personal, and as such private. If someone does not want assistance, that is her/his business. If our offer is rebuffed, that says nothing about us personally or about the offeree. It merely means that we did the right thing in offering, and the offerree did the right thing for her/himself either in accepting or declining. In that, we preserve our humanity, obey our natural tendency, and yet respect the "right to be left alone."

Hearsay within Hearsay

Hearsay is a legal maxim that challenges even the best trial attorneys from time to time. The general prohibition on, and definition of, hearsay are in Better Understanding the Hearsay Rule (March 2016). When attorneys object to hearsay, there is a tendency for the initial response to involve some exception to the evidentiary exclusion of hearsay. The law recognizes that hearsay should be avoided. Sections 90.801 and 90.802, Florida Statutes. But it proceeds to provide many instances in which hearsay is acceptable. Sections 90.803 and 90.804, Florida Statutes. 

The basic premise is that the law requires perceptions or conclusions to be stated within the trial setting (either in the hearing or courtroom itself or under oath in a deposition). The hearsay prohibition is to prevent people from repeating in that setting what she or he has heard somewhere outside. For example, if there is to be testimony that a traffic signal was red or green, the law generally prefers that the person who saw the traffic signal testifies about it, rather than someone else testifying that they heard someone who saw it say that it was red or green. Hearsay can be a challenging subject. 

Imagine that the person who saw the traffic signal spoke to a police officer afterward. And, the officer then wrote a report, memorializing what was said. The witness' statement about the traffic light color was potentially hearsay (an out-of-court statement). The report written by the police officer is likewise potentially hearsay. Thus, If the police officer was asked at trial "What did the witness see," there is a potentially valid hearsay objection to prevent the officer from repeating what she/he heard. And, if there is an effort to place the report in evidence, then there is hearsay (the statement) within hearsay (the report). For this complication, the law has a specific rule, section 90.805, Florida Statutes. 

Of course, this analysis depends upon the statement or the report being "hearsay" to begin with. Too often, even the best trial attorneys jump from the hearsay objection to the hearsay exceptions. The first analysis should instead always be: "is this hearsay?" That is, first is it an out-of-court statement? Second, which is so often overlooked, is it: "offered in evidence to prove the truth of the matter asserted?" If the statement is offered for some other purpose, then it is not hearsay, it is not precluded, and there is no need for the "exception" analysis. Imagine the issue is whether this police office was at the accident scene, that she/he took a statement from a witness might help prove that point. What was said may not be as important as that the officer was there to hear it.

The Florida First District Court of Appeal recently rendered its decision in Hauser v. Goodwill Industries, D19-1054 (Fla. 1st DCA December 20, 2019). The case is a sound reminder of the perils of hearsay. The injured worker in this litigation sought temporary partial disability benefits, which are generally payable when a worker has been released to return to work following an injury, but the worker is not yet at a full capacity either as to work intensity (e.g. limitations on activity, such as walking, lifting, bending, etc.) or duration (e.g. only some limited number of hours per day). A defense to a claim for such benefits is referred to as the "misconduct" defense.

This defense is founded on the allegation that a particular injured worker would be working post-accident, but is not because the employer discharged her/him due to employee misconduct. The defense is essentially that it is the misconduct that results in the loss of earnings, rather than the results of the work injury resulting in that loss. The defense is outlined in section 440.15(4)(e), Florida Statutes. In this particular instance, the worker was accused of misconduct, making "derogatory comments about persons of Mexican heritage to a co-employee that were overheard by a customer." Based on the allegation of insulting behavior, the injured worker was fired. 

The employer conducted an "exit interview," a process of conversation with employees who leave the employer. Many place great stock in such interviews as a methodology for evaluating employer processes. However, I have known various employees to be less than frank or forthcoming in such situations. The value of these processes is dependent upon the skills of the interviewer as well as the candor and forthcomingness of the departing employee. 

In the workers' compensation hearing regarding the benefits, the Employer/Carrier (E/C) presented the testimony of a regional director. She testified that she spoke with "the complaining customer" by telephone and typed the information provided into a form. There was no audio recording of the call, and the director could no longer recall or locate any contact information for the customer. Apparently, there was no place on the form for either this person's contact information or even the customer's name. The director had not been present for the alleged incident in which the derogatory statements were made. The director admitted that she did not interview the co-worker to whom the statements were allegedly made.

At trial, the injured worker denied making the statements that were recounted by the district director on this form. She objected to the admission of the investigation form, claiming that it was hearsay. The trial judge overruled the hearsay objection, concluding that the exit interview form was a business record, and therefore admissible under section 90.803(6)(a); There was also reference to this being an "admission" (90.803(18)) but the Court found that exception inapplicable because the injured worker denied making the derogatory statements. 

The District Court reminded that whether or not to admit evidence is a decision within the discretion of the trial judge. In that regard, the decisions are reviewed by the Court using an "abuse of discretion" standard. The Court reminded, however, that "whether a statement is hearsay is a matter of law." As such, the Court considers that question anew on appeal, what the courts refer to as "de novo review on appeal.” That standard is used on legal questions because the appellate court is as well situated, if not better (the appellate courts consider such questions with more time and with three judges; trial judges must make such calls during the hearing, and often with little or no explanation by the parties), than the trial judge in considering questions of law. 

The Court explained that if the injured worker admitted to the statements, then the admission of the district director's form would not be problematic. However, the worker "adamantly denied making the derogatory comments." The Court also explained that the interview form might itself be admissible as a business record, subject to the "exception to the hearsay rule found in section 90.803(6)(a), Florida Statutes." This document is a business record, and the Court noted it "appears to satisfy this exception."

Thus, in a general sense, the form itself would be admissible over objection. However, the Court reminded, that does not mean that everything in the form is itself admissible. The Court concluded that "the portion of the form setting forth the alleged misconduct" is hearsay. As such, that information about misconduct is “hearsay within hearsay." The Court explained that "hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.” 

Thus, what was generated by the district manager herself, and placed on the form is admissible in evidence to prove the truth of the matter. For example, to prove that the form was completed on a particular date, the director's notation on it of a particular date would be admissible. However, the recitation of hearsay (what someone else told the director) remains hearsay even if it is restated into a form that is a business record. As a side note, if that were not the case almost any hearsay would be admissible; anyone wanting to admit hearsay would merely have it typed into a business record of some form for that purpose. 

The Court noted precedent excluding statements integrated into various business records, including police reports. It reminded that "if the person who prepared the record could not testify in court concerning the recorded information, the information does not become admissible as evidence merely because it has been recorded in the regular course of business.” The Court did not foreclose the potential that other hearsay exceptions might apply in such a situation. 

However, in this instance, the"E/C has not alleged any other hearsay exception that would apply" to those alleged statements. That is merely a reminder that it is up to the parties in a case to raise their issues and make their argument. It is not up to the adjudication process to examine each and every potential argument and then make that argument for the party affected. 

The Court thus reversed the denial of temporary indemnity, which had been based upon that form of memorializing the alleged derogatory comments. The effect will be the injured worker having a new trial on the claims for benefits. The benefit for the workers' compensation community is an apt and informative reminder of the perils of hearsay statements, the challenges of arguing evidence admission, and the hearsay within hearsay complication that may affect many written records. 

Sanctions and Statutes

The Florida Office of Judges of Compensation Claims has the authority to impose sanctions. References thereto are in sections 440.32, 440.33(1), (2), 440.45(1)(a), (4), Florida Statutes. The Process for imposing sanctions is in Rule 60Q6.125. The Rule addresses sanctions "generally," regarding "failure to comply with the provisions of these rules or any order of the judge," and provides a detailed process for initiating a motion for sanctions. That process includes a 21-day period after service during which a party might alleviate the alleged grounds for sanctions sought.

The First District Court of Appeal addressed this Rule, and a motion for sanctions under section 440.32(3), Florida Statutes, in Phillips v. Leon County Public Works, 277 So.3d 1076 (Fla. 1st DCA 2019). There, the trial judge had concluded that the party seeking sanctions had not complied with the process set forth in Rule 60Q6.125. Therefore, sanctions were denied. The Court reversed. It explained that "the sanction in 440.32(3) is a stand-alone statutory sanction." There is not any "safe harbor" in that statute (as there is in the rule, to allow the alleviation of grounds). 

The Court explained that when this statute section is implicated, it may result in a judge being compelled to impose sanctions under the statute. The Rule "cannot be viewed as a procedural amendment to the statute." The provisions of Rule 60Q-6.125(4)(a) do "not apply to the extent it precludes filing a motion for sanctions under the plain language of section 440.32(3)." That analysis is consistent with our hierarchy of law generally, statutes take precedence over rules.

This decision is seen by some as a broad negation of the Rule. However, the provisions of section 440.32(3) are specific and focused. It provides:

"The signature of an attorney [on a pleading, motion, or other paper] constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If a pleading, motion, or other paper is signed in violation of this section, the judge of compensation claims or any court having jurisdiction of proceedings, upon motion or upon its own initiative, shall impose upon the person who signed it an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." (Emphasis added). 

The "shall" makes the operation of the section mandatory, rather than discretionary. However, the "shall" follows the requirement in this statute that the signer is an attorney, and is certifying that the document signed "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry" is "well grounded" and not signed for "any improper purpose." Thus to be "signed in violation of this section," the judge must make particular findings of impropriety upon which the "shall" then proceeds. If something is signed by a party or witness who is not an attorney, then this section is not implicated at all. That may, however, remain within the parameters of Rule 60Q-6.125.

Another point noted by the Court in Phillips is that in addition to allegations of "an improper and unfounded discovery objection," there was also an allegation that despite raising a "work product privilege" objection, the objecting party did not "file a privilege log disclosing any documents withheld." The assigned judge in Phillips then ordered the preparation of a privilege log, but the objecting party still did not produce one. The purpose of the privilege log is to afford a party seeking documents to understand the nature (description) of what is not being produced and why. 

The Courts have held that “when a party asserts the work-product privilege, it should file a privilege log. See Gen. Motors Corp. v. McGee, 837 So.2d 1010, 1032 (Fla. 4th DCA 2002)(“The way that a party claims privilege under [rule 1.280(b)(5)23] is to file a privilege log.”). Rule 1.280(b)(5) as addressed in these decisions is now rule 1.280(b)(6). Waiver of the work-product privilege is “not favored in Florida.” However, the Rule regarding such a log is “mandatory and a waiver can be found by failure to file a privilege log.” Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006); Morton Plant Hosp. Ass'n, Inc. v. Shahbas ex rel. Shahbas, 960 So.2d 820 (Fla. 2nd DCA 2007). This is true if “the information is otherwise discoverable.” This is an important reminder for attorneys when they raise the privilege objection. 

Thus, Phillips provides a worthy reminder of the requirement for a privilege log when raising such an objection. It is also worth noting that when ordered to prepare such a log, the appropriate next step is to do so. Following orders of the judge is sound practice in any case or situation, with the only good alternatives being seeking rehearing or seeking appellate relief instead.

But, the main focus of the Court's decision is on the application of Rule 60Q-6.125(4)(a) to the sanctionable actions specifically included in section 440.32(3). Despite some earlier decisional law that suggested the Rule might affect the operation of this statute, the Court clarified "This rule does not apply to the extent its provisions contradict the plain language of the statute." Statutes control over rules. 

The decision does not render section 440.32's application mandatory per se in every setting. Some lawyers appear to be over-reading that. It becomes mandatory if the judge or court determines that there was not good faith belief regarding what was signed, on the part of the signer; only if the judge determines that what was signed was not "well grounded in fact" and "warranted by existing law or "a good faith argument for the extension, modification, or reversal of existing law," and/or was "interposed for any improper purpose." Thus, there are arguments that the provision is not as broad as some may perceive it.

Collateral Estoppel

A vexing legal concept is the requirement for trials to be conclusions. Once a trial has occurred and the facts have been evaluated and adjudicated, re-litigating those facts is seen at worst as pure repetitiveness, and at best as less than productive. There are a great variety of laws, and a single factual situation might give rise to implicating a variety of those laws. For example, the facts surrounding an employee's cessation of employment at a particular business might be grounds for the employee to be entitled to unemployment compensation, workers' compensation, and perhaps civil damages.

It makes sense, in some settings, for the facts and circumstances of that event itself, the cessation of employment, to be heard once. In that singular proceeding, the process would determine the facts (who did what, when they did, how they did, why they did, etc.). Collateral estoppel is a legal principle that prevents the parties in the second (or any subsequent) suit from litigating those facts in question which were actually adjudicated in the first suit. See Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982).

It is worth noting that this legal maxim is not isolated to workers' compensation proceedings. The inclination against re-litigating is applied even when the various issues are being tried in different proceedings, jurisdictions, or systems. However, it is clear at least in Florida that workers' “compensation orders are governed by the same principles of res judicata, collateral estoppel, and law of the case as are applied to judgments in other courts, except to the extent section 440.28, Florida Statutes, permits modification." PLM Florida Hotels, Inc. v. DeMarseul, 611 So. 2d 1360, 1362 (Fla. 1st DCA 1993).

In workers' compensation, the application of these legal principles in the same proceeding also exists. A workers' compensation case might be litigated repeatedly regarding different benefits, treatments, etc. Workers' compensation cases are often serial as a result of the very nature of the statutory benefit construct. 

Thus, some factual issues such as how an accident or injury occurred may be part of some claim for specific medical testing or care; an order would follow such litigation. Thereafter, months or years could pass before another claim is filed for other care or perhaps some description of indemnity benefits. In that second trial, the same legal concept of "collateral estoppel" might be applied to preclude re-litigating the facts of how the accident or injury occurred. When applied in the same case or controversy, this legal maxim is more commonly referred to as "law of the case."

The essential elements of collateral estoppel are: 

(1) that the parties and issues be identical, 

(2) that the particular matter be fully litigated and determined in a contest, 

(3) which results in a final decision, 

(4) in a court of competent jurisdiction. 

U.S. Fidelity & Guar. Co. v. Odoms, 444 So.2d 78, 79-80 (Fla. 5th DCA 1984). These requirements are significant. The "issues" referred to may be factual issues; the factual determinations in one proceeding might therefore not be allowed to be relitigated in another. And, if the legal issues are identical, they may similarly be denied relitigation in a subsequent proceeding in this same case. 

Therefore, issues litigated before a judge of compensation claims and reduced to a final order, subject to the requirements noted above, likely may not be tried again before another judge of compensation claims. There is a potential, however, that those issues litigated before a judge of compensation claims might nonetheless be relitigated in a court. 

This is because judges of compensation claims, in Florida at least, are not a court. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). It is possible that a constitutional court could conclude that prior litigation in an administrative workers' compensation proceeding does not satisfy the requirements above. This may particularly be a concern if a party would be entitled to a jury in the subsequent proceeding, a procedure that is not afforded in workers' compensation. The potential nonetheless exists that a court could conclude that a party is precluded from relitigating some particular fact or facts. That decision is left to that court in which the later proceedings occur. 

Furthermore, the previous conclusions and findings, from that original proceeding, become irrelevant if an appellate court reverses the ultimate decision that was rendered in that first proceeding. Though this is a point of law that lacks a specific authority, this outcome is perhaps intuitive. In East Bay Union of Machinists, etc. v. Fibreboard Paper Products Corp., 285 F. Supp. 282, 286 (D. Cal. 1968), the Court held that “the reversal with directions for a new trial placed the parties in the same position as if the action had never been tried, except that the opinion of the District Court of Appeal must be followed in the State Trial Court as the law of the case." (Citations omitted). 

Thus, there are instances in which parties might re-litigate issues. However, all parties should be aware of the potential that their first attempt at litigating issues might be the only opportunity that they have. It is important to consider the presentation of all pertinent and relevant evidence in the initial trial. Certainly, there may be tactical reasons why one may decide to forgo certain evidence in any trial. However, such decisions should be knowing and carefully considered. The potential exists that parties will live with initial rulings in the first litigation; that should be caution regarding preparedness, thoughtfulness, and thoroughness.

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The Next OJCC Seminar in Tallahassee

For about a decade, the Florida Office of Judges of Compensation Claims has presented an annual educational seminar in Tallahassee. Most of these have been held at the First District Court of Appeal facility, which has a fantastic "Multipurpose Meeting Room," (2000 Drayton Drive, Tallahassee, Florida). 

The 2020 program is coming Friday, February 21, 2020, again at the First District Court. The program is titled "Workers’ Compensation in 2020: Ringing In The New Decade." It is co-sponsored by the Workers' Compensation Institute, which has been a partner in all of these Tallahassee programs. 

One might expect the program to include many Florida Judges, and that is valid (including JCCs from Daytona Beach, Fort Lauderdale, Gainesville, Jacksonville, Miami, Orlando, Panama City, Lakeland, Port St. Lucie, Tallahassee, Tampa, and West Palm Beach). It also includes some exceptional attorneys from around the state (confirmed speakers include R. Stephen Coonrod, George Helm, Mary Ingley, Paolo Longo, Randall T. Porcher, Todd Sanders, and Sarah Steele). 

The program topics will include "Filing a Proper Motion," "Knowing Proper Pretrial Procedure," "A New Standard for Expert Testimony? – Adoption of the Daubert Standard," "Attorney Fees Post-Miles and Other Considerations," "An Overview from the First District Court’s Workers’ Compensation Unit," and "A New Decade of Professionalism and Collegiality in Workers’ Compensation." Continuing education credit for attorneys and adjusters has been applied for.

The program is free of charge for attorneys, legal staff, and adjusters. The program regularly draws a crowd, so you are encouraged to register early. With only about 6 weeks until the program, why not register today? Registration is accomplished by submitting a form to, or calling, the Workers' Compensation Institute. 

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Name First Name for Badge

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Agency Name (as you wish it to appear on name badge) Title

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Florida Bar or Insurance Adjuster Continuing Education License Number State/Association Registration: Available via phone and fax. Space is limited. Workers’ Compensation Institute P.O. Box 200 Tallahassee, Florida 32302-0200 Phone (850) 425-8156 (850) 425-8155 Fax (850) 521-0222 For more information, contact the Workers’ Compensation Institute at (850) 425-8156 or 425-8155.

Our Friends and Facebook

It is the season for us to focus upon resolutions. The nature and drive for that pattern in our behavior was the topic of The New Year Dawns and we Ponder Goals on WorkCompCentral on New Year's Eve. Since then, we have watched a lot of football, some of it better than the rest. And, we have welcomed both a new year and a decade. Now we find ourselves focusing on where 2020 can bring us, or perhaps "what?" I have made my 2020 resolutions, and set some goals. As the Irish are wont to wish, "the road rises up to meet" me in 2020. I start the year with high hopes. I hope similarly that "the road rises up to meet you."

But, it turns out that my own outlook may not be sufficient to ensure resolution success. There is the potential that obstacles will exist. There is the potential that all will not be easy. And, I have just recently learned, that there is every chance that those around me may exert influence upon both my choices and outcomes. Who knew? On January 1, 2020, the British Broadcasting Company (BBC) asked "Are Your Friends Bad for Your Health?" That is a catchy headline, and the article is a worthy read. 

The BBC author notes our compunction to make resolutions and cautions us that the road that meets us may be an easier path if it is not trod alone. It alleges that we find our resolutions "easier when friends and family are making the same changes." There is a part of us that intellectually finds solace in the company of others. Our connection(s) with them, the confluence of our goals, may allow us a collective motivation that is sustaining. 

On a completely different level, the BBC concludes that we are prone to imitation of our "friends, colleagues and family" in a broader context. We are thus similarly inclined to "imitate habits that are bad for our health" because of the behavior of those with whom we surround ourselves. And, it contends that thereby "non-contagious conditions like heart disease, strokes and cancer can appear to spread from person to person like an infection." Such a potential is indeed a somber note upon which we start our 2020. 

The conclusions are not conjecture. They come from recent research conducted on (allegedly unknowing) social media users. There is also a citation to a medical study in England that has been ongoing since the 1940s, a significant longitudinal study nearing a centennial. This Framingham Heart Study focused on the impacts of social networks, since long before our society substituted computer applications for actual human interaction networks. This study is seen as supporting that if we have someone obese within our "circle," our personal propensity for obesity also increases. Numerically, if the obese person is a friend we are "57% more likely," a sibling makes it 40%, and a spouse 37%! 

But, for the impact to occur, the obese person has to be someone about whom you care, or at least about whose opinions you care. The Framington study found no similarly increased likelihood of obesity if a person has an obese "neighbor they saw daily if they didn't have a close relationship." The inference is that valuing a relationship is critical to the presence of influence, encouragement, or discouragement. 

If this news about friends who facilitate or encourage us to be fat is not disconcerting enough, the research concluded there are similar influence effects on "divorce, smoking, and alcohol drinking." As a result of the behaviors in which we engage based upon these encouragements, we may suffer one of the many "non-infectious conditions" that are our leading causes of death: "heart disease, stroke, cancer, diabetes, and lung disease." 

That is half of the story. But, just as we thought that we fully appreciated the perils of social media, the BBC reports that Facebook has been involved in similarly studying the effects of personal interaction. We must admit that some of the people to whom we are connected on social media, while labeled "friends" are simply not. And yet, it is possible that they similarly have the ability to affect us, our moods, and our interactions. 

The BBC reports that these "circle" influences upon us have been studied with social media. It refers to "a controversial experiment secretly conducted on almost 700,000 Facebook users." Imagine a social media platform conducting secret experiments on its "members." That itself makes the BBC article worth a read. And, there may be a few who are wondering right now: (1) was I studied without my knowledge, and (2) what should/could I do about it? 

It has been alleged that these social media platforms use computer algorithms to determine what we as users see or do not see when we engage on the platform. There are those who feel that these formulas could be leveraged to influence how we think or feel. The opinions of some could be promoted and supported, while the opinions of others are either given less priority or perhaps even obscured entirely. The allegations have been made about search engines, social media, and our interactions with the Internet. It is troubling to think that mathematics could control what we see, and perhaps even what we think. Is it possible that they could influence or even program us? 

This "controversial" and "secret" Facebook user study was performed by controlling what users saw on their Facebook experience as the content was "selectively filtered." The subjects of the psychological testing were split into two groups (the "subjects," who remember were not informed, but who likely agreed to be test subjects in some drawn-out user agreement "terms and conditions"). 

One group was exposed to fewer "posts displaying positive emotion," and the other group was exposed to fewer posts "featuring negative emotion." The scientists (purportedly) at Facebook then studied the responses of these subjects in each group. Those who were exposed to "positive posts were more likely to post positively themselves." The same was true for those exposed to negativity. In effect, perhaps Facebook has proven not only that we can be manipulated, but that they have the power to do so. If the platform can influence our postings, could it influence our purchasing? Perhaps "controversial" is not the best adjective for this study? 

We are influenced by what we see. Social media has studied us and knows of our proclivities, strengths, and failures. The people around us that matter to us, for whatever reason(s). We find and associate with people that we admire, appreciate, or value. And, those in whom we invest our trust then have some power to influence us. Thus, they can either help us with our New Year's resolutions, improve our health, move us forward, or frustrate our best and highest hopes. 

There are numerous points worthy of discussion. First, perhaps a worthy consideration for a resolution would be just how much we want to engage with the manipulative social media conglomerates. Second, perhaps we should all give some consideration to the potential that those around us could influence our very health. Recognizing that, perhaps with a consciousness of that potential, perhaps we should strive against the potential for negative influence? Perhaps we can instead look to our friends and "circle" for the good they each bring, and strive to consciously ignore and reject any potential negativity in their influence?