Counting Days Again

Sometimes the law becomes a challenge due to the mere presence and meaning of words. The focus of the judge, and courts, should be to give words their plain meaning. That seems easy enough, but there are times when the parties to a case disagree regarding such an interpretation. An interesting example of that occurred recently in Zenith Insurance Co. v. Barrisonte, Case No. 1D19-1141 (Fla. 1st DCA February 12, 2020). It is largely a discussion of what the word "day" means. 

In the Florida workers' compensation law, there are various time parameters that may affect the rights and responsibilities of those involved in claims and litigation. See Can "Jake" Authorize a Change in Physician. This Barrisonte example involved the liability for attorney fees under section 440.34(3)(b), and the Florida First District Court provides a helpful explanation of its interpretation of the "statute and the Rules of Procedure for Workers’ Compensation Adjudications." 

The statute provides an entitlement to attorney fees. Those might be the responsibility of an injured worker, or in certain specified instances might be the responsibility of the worker's employer. A major point in the distinction between the two comes down to timing. The Court noted that "a claimant is responsible for the payment of her or his own attorney’s fees" as a general rule. But, can "recover an attorney’s fee" if she/he is successful in "prosecuting a petition" "thirty days after an e/c receives the petition."

In this instance, the worker filed a petition for benefits (PFB) electronically "after five o’clock p.m. on August 22, 2018." Receipt was acknowledged "after six that night," and therefore "the parties agreed that the petition was filed the next day, on August 23rd." Therefore, under the rules, "the thirtieth day after that was September 22, 2018 (a Saturday)." At first glance, it is perhaps a simple matter to begin with a particular date and then count the days to a deadline such as 30 days. 

In this case, initially, the "E/C filed a response on August 29th denying the entire claim." The thirtieth day came and went, but on "Monday, September 24th, the E/C filed another response in which they rescinded their denial, agreed to provide all requested benefits, and denied fee entitlement." That Monday, "a check for indemnity benefits" claimed was also issued. In large part, a favorable outcome for the injured worker. 

When the worker sought attorney's fees from the E/C, those were denied. The E/C contended that it provided the claimed benefits within 30 days, and thus was not responsible for attorney fees regarding these benefits. 

The Court in Barrisonte noted that the procedural rules deem a document filed after 5:00 p.m. to be "filed the next day." And, a document that is "served," sent to the opposing party, is "deemed received when served." When that occurs "after 5 p.m. (it) is deemed to have been made on the next business day."

From this combination, the employer contended that it "received" the petition on August 23, 2018, and that the thirtieth day thereafter was September 22, 2018 (Saturday). Following the provision of Rule 60Q-6.109, "which provides that if any act required or allowed to be done falls on a holiday or weekend day, the performance of the act is required to be done on the next regular working day," the employer contended its acceptance of responsibility and payment on September 24, 2018, was thus within 30 days, and that it was not liable for attorney fees. 

The trial judge ruled in favor of the worker, concluding that the procedural rule cannot change the statute, effectively enlarging the actual time period beyond the stated 30 days. The Employer sought rehearing, and reiterated that the rule merely "explains what 30 days means . . . for purposes of computation of time.” The trial judge then ruled in the worker's favor again, concluding that "the response time provided in the statute at issue there was not altered by rule 60Q-6.109." The statutory meaning, she held, from "section 440.34(3)(b) meant consecutive or calendar days."

Furthermore, the trial judge "effectively rejected the parties’ agreement" as to receipt of the petition on August 23, 2018, "and instead took judicial notice of the OJCC’s docket," concluding that receipt was acknowledged "on August 22nd, making the thirtieth day September 21, 2018—a Friday." The Employer/Carrier's appeal contended that this sua sponte rejection of the parties' stipulation and acceptance of "extra-record" data violated its right to due process. The appellate court concluded that it "need not address the due process issue" thus raised regarding the stipulation.

The Court concluded that "the petition here was deemed filed on August 23, 2018 (Rule 60Q-6.108(1)(e)), and both served and received that same day (Rule 60Q-6.108(2)(e) and (3))." In so doing, the Court rejected the trial judge's judicial notice and stipulation rejection. Thus, the due process argument was mooted. The Court explained that these rules are appropriate and "comply with the legislative mandate in section 440.45 to enact rules." However, their operation is limited "to establish the date an E/C receives a petition for benefits."

It explained that with that receipt, "the thirty-day countdown that must expire before entitlement to attorney’s fees attaches," under the 2002 statute. It is the receipt, not the filing which begins the time period. The Court reminded that “[r]ules ‘cannot alter, amend or eliminate’ a substantive right." The context of the statute, using "days" without any modifier such as "business days" or similar, leads to the conclusion that “'days' as used in the statute be read to mean calendar days." The Court noted this conclusion is "compelling," and supported by prior Court decisions regarding the word "day."

Thus, the outcome is both controlled by one aspect of the procedural rules and not others. When the thirty-day period begins must be determined. Therefore, "the relevant procedural rules concerning filing and receipt of petitions for benefits are clearly applicable." That rule clarification does "not infringe on the statutory right" to attorney fees. Conversely, the application of 60Q-6.109 to extend that thirty-day period until the next Monday afterward would alter substantive rights in "expanding the time for an E/C who previously denied the claim to change its mind." The effect of the rule in this case would make the period thirty-two days. 

The analysis is thus complete. But the Court continued with further discussion. It intimated that the calculation of the thirty-day period was not complicated. It stressed that the Employer/Carrier, upon receipt, was on "notice of the deadline and the need to act accordingly." Furthermore, it reminded us, there was no requirement for a formal "filing" to avoid fee entitlement. 

Certainly, the E/C elected to file a "rescission of their earlier denial." However, the Court stressed that the E/C could have simply "sent an email directly to Claimant’s counsel agreeing to accept responsibility for the requested medical benefits, and put the indemnity check in the mail that Friday (or perhaps even that Saturday)." The Court's focus in this regard is upon the fact that such actions were not "impossible to do before thirty days expired."

The point of this further discussion by the Court perhaps is to stress the substance of making payment over the form of a formal written rescission filing. With the payment, the "earlier denial" would be actually rescinded. The filing of a document expressing either rescission or an intent to rescind, it seems, may not be necessary when the payment is simply made. 

But, some will note that payment was not made within the 30 days in this case. Those may wonder if the Court's conclusions in that regard are dicta and suggestion. They may advocate that the best course in such a situation would be to both file a rescission and make the payment within that 30-day period. Their advocacy was for the best course to avoid any disagreement or dissent?

We Will Get Through This

Back in 2014, I wrote Can We Help Each Other. In it, I quoted an anonymous letter-writer: "We don’t know who is fighting what battle." That was an entreaty about the pressures of the day-to-day in a normal world. We all have struggles, pressures, and challenges. But those have likely changed in the COVID world of 2020. One of the greatest challenges as humans is change. We tend to avoid it, and often it affects us profoundly. But, it is relentless. 

I was thinking of both stress and people during a recent phone conference. Details were recounted of various encounters that are being related to our various offices. The common denominator of all of those is that we just do not know what people are going through. 

Imagine someone is the one "lucky" to be telecommuting. Co-workers may envy that, the freedom from traffic, dress codes, etc. But in reality, telecommuting can be lonely, isolated, and stressful. Some who are telecommuting are simultaneously babysitting, parenting, cheffing, providing medical care or attendance, and more. 

Contrarily, someone is the "lucky" one that is still going to the office. But the office is not presently the cheerful place it was. There is no chit-chat, doughnut Friday, or camaraderie. The office has become very disconcertingly quiet, lonely, and isolated. Perhaps with only one or two people present; has it become eerie and somewhat creepy?

Imagine one is the "lucky" one who has no family to care for, and no responsibilities. They can go home after work and "actually relax." But, contrarily, imagine one is the "lucky one" who is not alone, isolated, and scared. Family is a great comfort in such times, but perhaps relationships can be momentary challenges as well?

Imagine one is the "lucky" one who got some government relief in the form of a stimulus check recently. They can pay bills or perhaps indulge. But, imagine someone else is the "lucky one" that earns too much to qualify, or has the continued shelter of a family structure that precludes their eligibility.

Imagine a lawyer, doctor, or other professional who is seen as "lucky" for their success. But, consider that professionals may be consumed right now with worry over whether they can make payroll next month, pay the electrical bill, rent, or various other commitments. That professional or business owner may be literally losing sleep over all of this. 

There is the potential for jealousy, misunderstanding, and animosity in this time. It is easy to see the grass elsewhere as greener. In some ways, it is our human nature to do so. It is easy to focus on where we see ourselves and to imagine that someone else has it better.

Through it all we may reach a point of frustration. We may make errors that, while purely honest human nature, we would not have made a month ago. We may reach out for instruction more often, misunderstand instructions more often, and misinterpret situations (or the tone of emails or calls) more often. This is a part of the reality to which stress contributes. We, at the end of it all, are merely human. 

Thomas Paine wrote in 1776 that "these are the times that try men's souls." That is an apt quote for this time in which we live. As professionals in the law, the insurance industry, medicine, and more, we are weeks into a situation the likes of which none of us have ever confronted. We are uncertain, doubtful, and frankly scared. If we had some end-point, perhaps it would help us to focus. A goal might bring comfort. But, no one knows when this will end, or how. 

Instead, there is uncertainty. Will the economy reopen this date or that? Will I be able to _________? How will this affect my ____________ (vacation plans, graduation, family commitments, etc., etc,). We sit and we wonder. As we do, we have to remain cognizant of the fact that we may not be handling the stress as well as we think. We have to focus daily on sustaining ourselves. I cautioned of this in Stress in the Time of COVID. It is astounding to realize that was only a month ago, it seems longer. 

Are you eating regularly and nutritiously? Are you getting outside every day for a walk, some sun, some air? Are you connecting with others for a conversation? Are you making time for sleep? Are you being honest with yourself about your COVID response? Are you finding some avenue to open up and vent your frustrations and feelings? In short, are you taking care of you? Remember the flight attendant says to put your mask on first so that you can help those around you. 

You should be taking care of you. You should be reminding yourself of a few things. First, you will not be perfect in this time (hint: you were not perfect before). Second, you will be stressed and that can both exacerbate your performance and affect your health. Third, whether you see it or acknowledge it, everyone you know is also going through something; ignore the hue of the grass and your perceptions as to whether theirs is better/worse than yours. 

Finally, remind yourself daily that we are all in this together. Before you reach for blame, succumb to anger, or engage in righteous indignation, try to remember we are all in this together. Be slow to fault and quick to forgive. Strive to find a way to facilitate others in a quest for achievement and success. Now is an empowerment opportunity. Remember that what you do, and how you do it, matters to people who depend upon you. 

We will get through this. There will be uncertainty, stress, and pain. But, we will get through this. Let's be proud on the other side that we did so together. And, if you just want to chat, email me anytime: david.langham@doah.state.fl.us. 

Your Constitution, Your Rights

The Coronavirus is driving a fair amount of public legal analysis. This is seemingly driven by the amazing variety of governmental reaction to the pandemic, national, state, and local. It has been intriguing to hear the various interest groups and experts opine on the limits of governmental power and authority in the midst of this pandemic. 

Before Statler and Waldorf get too wound up, this post is about the law and the U.S. Constitution. Workers' compensation is a statutory construct built upon the foundation of both American's fundamental rights and our grant of authority to our governments. Some may that as too tenuous a connection ("What does this have to do with comp?"), but if so click the back button, or click here for pictures of cats. 

News stories abound on the topic of individual rights. One of the first to catch my attention was the Rhode Island police and National Guard pulling over vehicles with New York license plates. This story broke in late March and described the police presence regarding "highways, bridges, and bus stops." There were even reports of these state officials going door-to-door attempting to locate New Yorkers fleeing the viral invasion. 

Perhaps to reassure New Yorkers, the police in Rhode Island also made the national news for arresting three golfers from Massachusetts. They had apparently driven to a local Rhode Island McDonalds where they switched to a car with Rhode Island plates in order to appear local when visiting a golf course. Unfortunately for them, "employees at the McDonalds McDonald’s ratted them out." ("would have got away with it too if it wasn't for these blasted kids and their dog?") 

In a similar maneuver, police in Dare County, North Carolina blocked the bridges providing access to the Outer Banks. The island community is said to have no cases of the Coronavirus and seeks to keep it that way. Only "full-time residents" may "come and go." That has caused some dissension among people who own homes there, and pay property taxes there, but are not "full-time." They have been denied access to their second homes and allege this violates their rights to travel and their privileges and immunities. Some of them have filed federal lawsuits regarding the deprivation of access to their property. 

A Mississippi mayor (Greenville, MS, the seat of Washington County) has allegedly issued an executive order "that orders all church buildings closed for in-person and drive-in church services." If you drive to a church in that town and sit in the car with your family (with the windows up), the news claims you will face a fine. Perhaps it is the size of the parking lot, the number of vehicles, or more? Concluding that the city there "appears to have singled out churches," the United States Attorney General reportedly filed a court notice to support the churches challenging the ban. Some point out that cars are similarly gathering at the local Sonic with windows open, yet not facing a similar threat of fines.

A similar "ban on all (religious) services" was issued in Kentucky according to ABCNews. This applied to those who would remain "in their cars to worship." A judge there quickly entered a "temporary restraining order" preventing Louisville, Kentucky from enforcing the ban on drive-in churches. There is perhaps some explanation for these efforts against drive-in church services, but I have yet to hear such an explanation. 

In Pennsylvania, a teenager sought relief from the "stay at home" order issued by its Governor. She recently took "a drive just to get out of the house for a while on Sunday evening." She was stopped by not one, but two, Pennsylvania State Police cars. They allegedly first accused her of the time-honored "your taillight is broken," but that turned out to be untrue. As an aside, I will never forget being pulled over on the Pennsylvania Turnpike years ago for driving 58 miles an hour in a 55 zone. That brings back memories of Sammy Hagar ("I can't drive 55"), and memories of a different time. This young lady has reportedly pled "not guilty and intends to" explain her defense to a judge. 

In New Jersey, "A group of gun rights advocates" has filed suit over the state omitting gun stores from the list of "essential retail businesses." Coincidentally, the plaintiffs noted, the government's "online background check portal" has allegedly been offline since that decision. Without the portal, the sale of a gun in that state seems improbable at best. The lawsuit alleges that the closure of this category of stores "violates the Second and 14th Amendments."

In Michigan, an executive order limiting people's activity has striven to limit shopping to "necessities." The drafting of that has led to some strained interpretations regarding what can and cannot be sold during this time. One store reportedly interpreted the Governor's order as precluding things like child car seats, concluding they were not "essential." WXYZ Detroit reported that this has been cleared up, perhaps, but the implications are intriguing. We already know the government can force you to buy what you do not want, National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Of course, it can often tell you what you cannot buy (think Heroin, machine guns, etc.). Consider the government haphazardously regulating or impairing when you can or cannot buy simple consumer goods. 

A former state police officer was arrested and handcuffed in front of his child in Brighton recently. His crime? He was on a nearly deserted softball field, throwing a ball with his six-year-old daughter. The video shows that it took three Brighton police officers to effectuate the arrest. The whole Coronavirus threat has led some police forces to make public announcements that they will not enforce the law, but will only respond to "essential calls for service. It is difficult to imagine a father-daughter game of catch equating to such a threat. ABCNews reports that the police department later apologized for the arrest, and began an internal investigation. The intelligence quotient (IQ) of all three Brighton officers involved in this example may merit investigation. 

These are interesting examples of government imposition of restraints in the time of COVID-19. We live in an amazingly free society, though arguably not as free as it once was. There are those in our society that lament almost any government regulation. Others are unfazed by the government limits we face. Does the United States Constitution protect our "unalienable" rights even in times of pandemic or other urgency? You see, some would remind us that the Declaration of Independence (a list of grievances with the King's rule) notes: 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights." 

Unalienable means "indispensable," "natural," and "fundamental." These rights are strong, and we possess them because of our very existence. We believe that no government gave them to us, and therefore no government can take them away. We, from the exercise of our rights, empowered our governments; those governments did not grant or loan us these rights. It is the people, in our American paradigm, from which all power and authority flows. 

That does not, or at least has not, mean that government cannot impair such rights. In fact, the government has done so on numerous occasions. To do so effectively, the government faces a significant burden of proof, however. We refer to this as "strict scrutiny," a tool used by the Supreme Court of the United States to measure the appropriateness of government action. It is one of the "standards of review" (the other two primary standards are "rational basis" and "intermediate scrutiny") that the Court relies upon as a road map through difficult analyses and challenges. 

This is the standard employed when fundamental rights are threatened by government action. Under "strict scrutiny," the courts will presume that government action is unconstitutional. From that premise, the government will have the burden of making two demonstrations in order to justify its action of impairing fundamental rights. The government will have to show that there is a "compelling governmental interest" being furthered by the impairment and that "no less restrictive alternative is available." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978). This is a significant burden and rightly makes the government prove that it is compelled to constrain our fundamental rights. 

One need read no further than Korematsu v. United States, 323 U.S. 214 (1944)(internment of Japanese Americans) to understand that government may legally impair fundamental rights. That is not the question. There is no doubt that Americans have fundamental rights; we were born with them and owe them to no government grace or grant. That is not the question. The question in the coming days will be to what extent the rights and powers conflict and how courts will resolve those points of friction. Government seeking to protect one or many, and individuals seeking to prevent government interference. 

There will be arguments regarding potential harms and concerns. There may be arguments of legitimate government objectives, trivial individual impacts (one 19-year-old on a Sunday drive), and the specter of resulting "substantial effect" from an aggregation (feared or real) of activity. The Courts have already concluded that the threat of many acting in trivial personal ways presents a possible aggregate of activity that justifies penalizing even that singular trivial violation. See Wickard v. Fillburn, 317 U.S. 111 (1942).

If we can agree a single 19-year-old taking a Sunday drive may have no effect, some will argue, essentially, "What if everyone took a Sunday drive?" If we can agree that a family in their car listening to a radio is not a threat, what if everyone drove in to listen? One national commentator has opined that through these COVID-19 governmental restraints, we are "seeing (the) slow death of civil liberties in the name of public safety." And, he questions whether "we will get it back when this is over." Americans are periodically willing to trade their rights for promises of safety. Perhaps this will be one of those times?

What is likely in all of this is that COVID-19 will not fade immediately from our consciousness following the "reopening" that we anticipate. The disease will fade from the headlines in time. Instances like those cited above will thereafter, in part, continue the longer road that is litigation. In years to come, we may or may not hear news reports outlining how various courts have addressed these conflicts between individual rights and governmental powers. But, how they answer the questions raised by these conflicts between power and rights will be fundamental to understanding our path forward as Americans. Will we find that we can be told that buying a banana is essential, but buying a child car seat is not?

A Mistaken Motion

A recent situation in Athens, Alabama made the news in St. Louis, Missouri. Through the wonder of the Internet, the story appeared on one of my news feeds, and it struck my interest. 

There has been ample discussion of the COVID-19 Corona Virus. The news is covered up with various aspects of the developing situation, and I know a few folks living on the edge of their seat, awaiting the next announcement or mention. A great deal of angst is involved in the "what if" questions. 

On March 10, 2020 I made some reminder announcements about the situation. That provided some suggestions on how to deal with the unexpected or complicated in workers' compensation litigation. Essentially:

"identify issues or complications, file a motion to accommodate or alleviate them."

I have had lawyers inquire about whether the OJCC will "change the rules" regarding telephonic appearances at hearings and mediations. The rule-making process is to broadly define the procedure. The rules leave room for discretion in both the mediator's and judge's hands. Therefore, there is no need to change the rules when a situation arises, there is merely the need to present the details, and invoke the exercise of that discretion. 

Note that the Florida Courts have entered a posture of "watch and prepare," as reported by the National Center for State Courts (in a recent, but undated post). Florida is not alone, that article outlines a variety of efforts underway in judicial branch settings across the country. This notes that America has "more than 22 million U.S. residents (who) have contracted influenza" this season. The effects of viruses can be significant, and preparedness is worthwhile in the broadest contexts. Details for Florida are being aggregated by The Florida Bar, to keep the public informed. 

File a motion, present the details, and seek relief. That is coincidentally where the St. Louis coverage of this Alabama case begins. ABCStLouis.com reports that a "longtime Alabama sheriff" stands accused of theft. His trial was scheduled to begin Monday, March 9, 2020. Just before, his attorneys allegedly "told a judge in a court document filed Friday he was hospitalized and being tested for COVID-19." Make no mistake, a viral infection is by definition "circumstance beyond the control of the parties." See section 440.25(4)(b). The severity of such a viral infection might or might not justify the continuance of a trial in the Florida workers' compensation system. However, the process of filing a motion and seeking relief is seemingly an appropriate starting place. 

The filing led to "a rare Saturday hearing." There, a physician was called to testify. She testified the defendant "was tested for several things, including influenza and walking pneumonia, but the results came back negative." Her testimony did not support that there was even suspicion of, or testing for, the COVID-19 virus. The "doctor testified there was no indication it was COVID-19 and such testing wasn't needed." 

This testimony left the defense attorney explaining the Friday filing. That it was inaccurate in its reference to COVID-19 seems clear to some. The conclusion of Circuit Judge Judge Pride Tompkins was criticism of "the defense for making claims that could cause a public panic." The Judge was quoted by "The News Courier of Athens": 

"'I don't know what your tactic is, but it's condemned by the court,' Tompkins said. 'And the court won't tolerate it.'” 

From at least that Judge's perspective, the representations of COVID-19 involvement were questioned and at least somewhat doubted. The end result may be a lasting impression of the attorney involved. 

The story notes that the lawyer who filed that motion explained that "he was simply mistaken about the sheriff's health problem." He denied that he was “trying to pull a fast one.” He stressed that in drafting the Friday filing, he had less-than-perfect information. He proceeded with "what we knew at that moment." Following the Saturday hearing, there are questions as to when the trial will proceed, according to ABC13, WAAY. At this time, all trials in that area have been postponed, similarly to other constitutional court systems in the country. 

This motion illustrates a peril in the practice of law. On the one hand, lawyers seek to be prompt and proactive. Presented with a situation, through words or interpretations, it is perfectly possible for an attorney or staff to be provided with less than the whole story. This becomes a particular risk, in my experience, when communication is passed from person to person verbally. The message may become confused as it is passed. Each person may imprint the situation with interpretations, assumptions, or conclusions (warranted or not). Along the way, some details or facts may be omitted in the restatement. 

Lawyers may need to be quick to act regarding information provided by a client, family member, or friend. But, even after acting in good faith, the attorney must continue to follow up to assure the accuracy of representations. Any time a mistake is identified, the attorney should proactively seek to remedy any miscommunication or mistake. It is preferable to correct such a mistake early, and certainly before being confronted with the mistake in a hearing. The COVID-19 situation brings us a chance to revisit appropriate conduct and professionalism in the practice.

It is a cautionary tale worthy of consideration in daily interactions. Litigation is stressful enough without such complications of incomplete or incorrect information. Lawyers are well advised to verify information and make appropriate corrections when mistakes are identified. 

The Gambler's Fallacy

It is called the Gambler's Fallacy, and was recently explained in the British Broadcasting Corporation's (BBC) The Simple Maths Error that can lead to Bankruptcy. There is an inherent tendency to ignore the reality of probability mathematics and to allow emotion to intervene in decisions. The math is more reliable.

The fallacy has been illustrated in various situations. In Italy, there was documentation of the phenomenon in the "mass hysteria known as '53 fever.'” In the national lottery, the number 53 was noted as not appearing in any draws for an extended period. Gamblers concluded that the absence of this number from the draws meant that it was increasingly likely that the number would appear. They "place(d) increasingly big bets on the number in the certainty that it must soon make a reappearance."

This faith did not lead to wins and fortune, but instead "apparently led thousands to their financial ruin." The BBC reports that some blame the hysteria for "a spate of suicides," and about "four billion euros worth of bets." The thought process that led to those bets, to the belief in an eventuality, or increased probability, of 53 coming up, illustrates the fallacy. 

There is risk in this mindset. There are obviously implications for the gambler. However, there are implications in the professional world as well. Unfortunately, there is research supporting "that people with higher IQs are more susceptible to the gambler’s fallacy." There is speculation that their intellect leads them to believe in some superior prediction ability. In other words, there is a potential to overthink the odds and those who think a lot are more likely to succumb. 

The fact is that probability in any particular discrete instance is likely not influenced by outcomes in any previous iteration. That is, the odds of a coin flip resulting in "heads" or "tails" is a 50/50 proposition. The probability of a "heads" remains the same 50/50 regardless of how many "tails" results occur. If 100 coin flips each (as unlikely as we might deem it) results in "tails," the odds of a "heads on the 101st flip is still 50/50. 

But, the BBC explains, our brains are likely to struggle with that reality and to find it "inevitable that a heads will come next." However, the odds remain the same despite our intellectual detour into feelings of inevitability. Whether we believe or not is irrelevant to the outcome. 

The fallacy has been demonstrated to implicate loan approvals at banks. The decision-makers who grant or deny loans have been shown to have a higher propensity for rejecting a particular application when their decisions regarding immediate prior applications have been negative. In effect, the brain concludes subconsciously that not all applications should be rejected, and thus the rejection of several must mean it is time for an approval. The same subconscious thought process as it must be time for a "heads," interfering with the static probability of a case-by-case evaluation on the merits. 

The implications have appeared in studies of the stock market. There, short-term random stock price fluctuations may influence shareholder decisions. The traders are encouraged by the "even out" fallacy to see a streak (successive increases or decreases) and then to ignore the facts of some stock's performance and instead "trade against a streak." This is not an intellectual determination of where a share value should be, or the quality of an investment, but an emotional reaction to the improbability of the streak. 

The BBC cites research into the role of umpires in baseball. In calling balls and strikes, the same "streak" influence was documented. The umpires are less likely to see a second strike in a row. There is a perceived predilection to avoid the streak in the first instance. 

The implications are possibly important in legal adjudications. The BBC reports on research in this regard that centered on judicial decisions regarding "asylum to refugees." The decisions on those applications should obviously be made on the merits of each individual case. The "ordering of the cases should not matter." However, the researchers concluded that judges who had "granted the two previous cases" were less likely to approve the third. This may or may not be conscious, but the author alleges this is simply another example of the "breaking the streak" reaction to the fallacy.  

The BBC author asserts that this reaction, intended or not, may influence which job applicants are interviewed, which proposals are afforded a second review, and more. The "Gambler's Fallacy" may be at play in the most mundane and rudimentary decisions of the normal workday. 

Just like the immigration decisions, all workers' compensation adjudications should be on the merits. It is worthwhile that all adjudicators recognize the potential for fallacy to subconsciously influence outcomes. But, the same is true of the adjuster who is making decisions regarding authorization or denial. Or, the decisions regarding acceptance or rejection of compensability. 

Similarly, an attorney evaluating potential claims might be well advised to remember the fallacy and its subconscious implications. This may be aptly engaged in evaluating the claims to be pleaded or defenses raised. The evaluation process should be on the merits of this situation, this case, and this petition. The struggle should be against the hope or belief that eventually "53" or "heads" is somehow more likely now than it was the last time it did not come up in the draw.

A New Miranda Warning

Lefty Gomez is credited with the quote "I'd rather be lucky than good." I have heard that stated a number of ways over the years, and it has a ring to it. This "new Miranda warning" is for judges, and is a reminder that luck is possible. But, despite luck being a possibility, the warning part is that one perhaps really should not count on it.

In this instance, Miranda is not a high-profile Supreme Court analysis regarding the delivery of warnings to people in police custody. The Hollywood influence has made that one so memorable for us all, repeated over and over again. This Miranda is "Shandaken Town Justice Michael Miranda." Shandaken is a town in New York, and Judge Miranda was lucky enough to take a break from New York and visit Florida back in 2018.

According to the Defense Maven, Judge Miranda spent March 18, 2018 in "a hard night of drinking in Orlando, Florida." He then went to the airport where he "downed at least eight vodka drinks between the time he arrived at the airport for his 11 a.m. flight" and his arrival in New York. While driving seventy miles from the airport to Shandaken, he apparently "pulled off at a rest area and downed some more vodka." We often discuss the attribute of judicial consistency; this is not what we are talking about. 

After successfully navigating the two airports and miles of driving, Judge Miranda's luck ran out somewhat when he eventually arrived in Shandaken around 5:30 p.m. According to the Defense Maven, upon arrival, he "promptly slammed his Subaru into two benches and a couple of stop signs," causing "nearly $7,000 in damage to his vehicle, but didn’t injure himself or anyone else." It is fortunate when a drunk driver avoids hurting or killing someone. 

Accidents tend to attract law enforcement, and that was where Judge Miranda's luck might seem to end. Apparently, when the police arrived, "the judge was exhibiting signs of intoxication" and the state police were called (in recognition of the potential for conflict of interest of the local police). One news source reported that Judge Miranda then lied to the police, claiming he had consumed only two beers earlier in the day. Contrary to that alleged assertion, the news stories seem consistent in describing his penchant for vodka. 

According to the Daily Freeman, Judge Miranda underwent "a chemical breath test that showed a blood-alcohol content of 0.17 percent." That alcohol presence is "more than twice the state's 0.8 percent threshold for drunken driving." The New York Post reported that the results were "three times the legal limit." Despite the evidence of impaired driving, "he pleaded guilty to the lesser charge of driving while ability impaired, a traffic infraction, and paid a $300 fine and a $260 surcharge." Some might say that while his luck seemed to end when he wrecked the car, it did not end completely. 

As an aside, one might wonder how many New York citizens who test at twice the presumptive impairment level are given the opportunity to plead instead to a "traffic infraction" and pay a fine. Some resources suggest driving under the influence in New York can come with significant penalties. There is support on that website and others with a blood alcohol result in excess of 0.16 may be labeled "aggravated DUI," for which penalties are said to be more significant still. It appears that some people might get in serious trouble for such behavior. 

Those are legal issues. In the instance of such infractions or charges, the judge is no different than any other driver, and hardly the subject of a blog post on workers' compensation (I hear you, "What does this have to do with workers' compensation?"). 

The relevance here comes from the accused's alleged statements as a judge. During the course of the state police investigation, it is alleged that Judge Miranda invoked his occupation as somehow relevant to his crash-scene situation. It is alleged that he confronted the police and "demanded to know whether or not the troopers realized who he was," according to one story. ("I'm a judge" is almost never an appropriate defense to anything). It is also alleged that he threatened the state police, vowing "to never handle arraignments for the NYSP again." 

The judge later found himself before the New York Commission on Judicial Conduct. In February 2020, the Commission concluded Judge Miranda should be "should be censured for the consequences of excessive drinking and driving." The Commission found relevant his drinking, the risk at which he had placed others, and his "false statements to the police." Judges that lie are an interesting problem. It also noted his "asserting his judicial office" ("I'm a judge"). The Commission concluded his actions were serious enough to come “very close to removal.” There is a statement in its decision that the Commission "would have suspended the judge from office without pay if that sanction were available, which under the law it is not." 

And, the Commission Administrator stressed that Judge Miranda did not "follow through on his threat" against the State Police (in some places, making a threat itself is sanctionable). The published decision does not provide details regarding New York law or its Code of Judicial Conduct. The distinction between making judicial threats and following through on them is not clear from the opinion. The Commissioner Administrator's comments suggest that in New York judicial threats regarding bias or dereliction are only actionable if carried out. There is similarly no further discussion of the law regarding the "asserting his judicial office" allegation. 

It is interesting that this judge was able to evade prosecution for driving under the influence. It is as interesting, or more, that the Commission on Judicial Conduct settled on censure ("an official reprimand," see Merriam Webster online). The conduct described, "asserting his judicial office" was serious. The act of making "false statements to the police" was significant. The act of threatening the state police with his position as a judge is critical. Some would say it remains serious as a threat even if not acted upon later. 

It is possible that mitigation might be discerned in such a situation. The news reported his testimony included an admission "that he has struggled with alcohol abuse for over 10 years." Furthermore, that he voluntarily "entered a two-week inpatient treatment program after his arrest," followed by periodic sessions with a counselor. The Commission found relevance in their conclusion that he was a first-time offender and a veteran. 

The New York Post refers to the censure as "a slap-on-the-wrist penalty that allows him to stay on the bench." Thus, the integrity of the entire judicial system is impugned in the press. The perceptions of the public regarding the judicial system there are perhaps therefore also not positive. The inappropriate actions of one judge, condoned by a system, and paraded in the press affect the perceptions of the public. 

The Judge's decisions and actions do not "uphold the integrity and independence of the judiciary," Code of Judicial Conduct, Canon 1 ("A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved."). Lying to police, threatening police, and asserting the judicial office does not seemingly comport with this Canon. I quote the Florida Code for illustration as it is most familiar to me. The American Bar Association Model Code is similar (a recommendation of a private industry group). 

The Judge's decisions and actions do not "avoid impropriety and the appearance of impropriety in all of the judge's activities," Code of Judicial Conduct, Canon 2 ("A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"). Driving significantly under the influence, lying to police, threatening police, and asserting the judicial office also do not seemingly comport with this Canon. 

The Judge's decisions and actions do not facilitate the performance of "the duties of judicial office impartially and diligently," Code of Judicial Conduct, Canon 3 ("A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity"). The actions described in the news and the Commission report seemingly do not indicate dignity, courtesy, or professional demeanor as regards the police with whom he interacted. 

The new Miranda warning is for all judges. However, this judge was fortunate to only come “very close to removal.” This judge was lucky, apparently, to deal with a forgiving and lackadaisical justice system and an equally forgiving state commission. From the outside looking in, it seems practical for judges to ponder that the outcome from such behavior might well be otherwise in various other jurisdictions. While New York condones such behavior, it is practical to hope that other jurisdictions might not.

Cybersecurity 2020 Again

You do not have to work very hard to discover the subject of cybersecurity. It is around us, part of a new normal in our daily lives. It is persistently evolving, just as our data systems are. Some of us are old enough to remember personal computers in the days before Al Gore invented the Internet. We had memory on cassette tapes, modest monochrome monitors, and sharing data was a frustration. 

The concept of linking computers began with proprietary networks. These opportunities allowed you to connect your computer to a remote "host" computer by "dialing" a telephone number. Some will remember the days when you physically pushed buttons on a telephone to make that call, and when you heard the static and squealing on the answering end you put that phone handset into a special cradle to allow the two computers to communicate over the auditory link. 

As we evolved, floppy drives became the norm. The industry brought us 8 inch discs. As inconvenient as that size may sound, we were so enthralled with this innovation. It made moving data so much easier. Those evolved to 5.25 inches and then 3.5 inches (no longer "floppy," but in a hard plastic case with a metal or plastic door that opened to afford disc reading). With each iteration, convenience increased. Back then, we never even dreamed of the now ubiquitous flash drive. 

Through the 1980s, the concept of interconnecting hardware continued to evolve. Networked systems became the norm. We continued to connect our computers to hosts using phone lines, but we evolved from those special cradles to specialized integrated modems. In time, they became integrated into the computers themselves. By the early 1990s we were slowly introduced to the Internet, email, and social media. We were enthralled and amazed. The convenience and functionality brought us productivity and efficiency. 

We were all somewhat shocked when we learned that there were mean people on the Internet. This brave new world of sharing and communicating had its share of bad actors. They would attempt to steal your information or identity. They would infect your computer with viruses to assist their malfeasance. Some merely sought to damage us, with no real corresponding gain for themselves. We were all introduced to "antivirus" software, an expense for both businesses and consumers. Those who would do us harm, however, seemingly had limitless imagination as to how we might be tricked or enticed into having our data breached. 

Through the 1990s we continued to evolve from using those modems to dial up proprietary hosts into a paradigm where we would dial up to a connection to the Internet. We called them Internet Service Providers. There were many of them, and their utility and convenience drove us to demand more from our computers. The networking of data became ubiquitous and we were persistently thirsty for ever more of that Internet nectar. 

And the limitless imaginations of the bad actors also continued. There were worms, Trojans, and viruses. We did our best to avoid them. We purchased increasingly sophisticated defenses, and the bad actors developed increasingly sophisticated attacks. We would see our email hijacked, our data compromised, and sometimes would simply lose our entire computer to these assaults. And, they continue today with us worrying in 2020 about phishing, smishing, vishing, spoofing, and more. The simple fact is that I cannot keep up with these imaginative criminals and their malfeasance buffet. 

In the last decade, there have been big stories of data breaches. Target stores' breach affected 41 million customers according to some sources, 110 million according to others. That was not the biggest, not even close. A Yahoo breach is thought to have affected billions of user accounts. The last decade seemed to be a parade of data breaches and the potential for stolen identity, loss of data, and expense. The companies attacked were often well-known to consumers. They included retail (both stores and online), video games, social media, and government. 

More recently, the trend turned to ransom. This is a method of depriving an owner of access to compute data. It is not a recent innovation, but it certainly became newsworthy in 2019. CRN reports that almost 1,000 government agencies were the target of such attacks in 2019. The cost is estimated at almost $200 million related to 

"investigating the attack, rebuilding networks and restoring backups to paying the hackers ransom and putting preventative measures in place to avoid future incidents." 

Another source, Health IT Security says that the volume of ransomware roughly doubled the volume in 2018. To say that it is a growing trend is an understatement. 

Certainly, a lot of those attacks were on high-profile, large, targets. But others hit less-known municipalities. Riviera Beach paid hackers a $600,000 ransom. Lake City paid $460,000. There were also attacks in St. Lucie and Pensacola. The Pensacola attack resulted in constraints on telephone systems, email, and accounting programs. And, those four were just the high-profile attacks in Florida. There were more attacks elsewhere, an increasingly common occurrence. 

And phishing continued in 2019. According to the Naples Daily News, seven Florida jurisdictions fell victim to phishing (Collier County, Tallahassee, Stuart, Riviera Beach, Naples, Lake City, and Key Biscayne). Some employee in each of those jurisdictions clicked on an errant email link and facilitated an infection. Effects included loss of computer systems, theft of funds, and in some cases payment of ransom. In some instances the attack was direct, but in others, these jurisdictions suffered because of an attack on some vendor with which it did business. 

I have known people whose businesses were forced into bankruptcy by data breaches. A few attorneys have seen their practices crippled as they lost control of their data, calendars, and even bookkeeping. Small firms leveraging the technology to their benefit have periodically become risks to large firms with which they do business. The network, you see, is only as strong as its weakest link. The convenience we build for ourselves can sometimes be co-opted and used against us with equal convenience for the attackers. 

What all these phishing and ransom attacks have in common is the threat to business. In effect, the hacker is holding the business hostage and demanding payment in exchange for releasing the data, the systems, or the function. 

But, in 2020 a new twist made the news in Florida. A physician's office was hacked and data was pulled from the business' server. This is not that novel, but rather like the examples above. However, instead of demanding a ransom from the doctor to return the data, this hacker(s) contacted the patients whose records had been breached. This hacker(s) essentially threatened patients with 

"the public release of their photos and personal information unless unspecified ransom demands are negotiated and met.” 

Thus, "ransomware" has evolved into "extortionware." Though this is seemingly novel, it is perhaps not that different from a string of stories we have heard about celebrity photographs and the supposed "cloud" (hint, there is no "cloud," just other people's computers). Those celebrity instances have been going on for years involving such names as Jennifer Lawrence, Kate Upton, and others. The Washington Post warned us then of "concerns about security." 

The opportunities for hackers to both obtain and leverage our data seem endless. Their imagination seems boundless. And, from the dollar figures discussed above, it seems that their criminal enterprise is persistently lucrative. Thus, governments, businesses large and small, and even individuals are increasingly focused on cybersecurity as 2020 began. 

Presently, we are distracted by another kind of virus. The world has slowed, in some places nearly stopped, due to COVID-19. That has driven more of us to telecommuting than ever. More and more of us accessing and manipulating data remotely. Some would argue that computer networks are at risk more than ever before. And, the potential for malfeasance continues. 

Starting from the government, there is a new day of network security dawning. The federal government will require network awareness and security from those with whom it does business. And, that will be a "chain" requirement. Thus, the government vendor will be required to secure its network and to assure that all of the companies with which it does business likewise secure theirs. Security certification is a new reality that will affect large and small businesses alike. Everyone in business must come to understand and appreciate the cyber threat. Each business will be compelled to protect against it. Survival and the ability to do business will depend upon such knowledge and sophistication. 

Those who will be part of commerce will be increasingly required to assure network integrity as a component of the business interactions that generate revenue. Interestingly, a major component of that will not be either software or hardware. Those with network expertise often lament that the "weakest link" in network security is the very humans who use it. We are the most likely to click on some link, to fail to log off some terminal or to otherwise fall prey to hackers. It is likely in educating ourselves that we stand the best chance of both protecting networks and thereby livelihoods. 

Just as humans can be the weakest link lamented so often, we can also be trained to be effective in the defense of our data, networks, and businesses.

Bankruptcy and Workers' Compensation

A news story published by Daily Mail last winter caused me to reflect on American workers' compensation. The headline refers to a "horror moment," that led to a flight attendant Breaking Her Leg in Seven Places. There is much to consider in the story.

The 27 year old employee worked for Thomas Cooke as a flight attendant ("air hostess"). On a flight from Cuba in August 2019 a hail storm was encountered. She was asked to sit, but she had to first stow some equipment. She was thus still standing when the plane hit "severe turbulence and terrifyingly rose in altitude by 500 ft." The attendant was "thrown to the ground under the crushing force of the plane's sudden rise," and suffered a significant leg injury. 

Thomas Cooke was a tour operator that later failed in September 2019, stranding travelers, according to the New York Times. The company had been in financial difficulties for some months; Its decision to liquidate in September was apparently not a surprise to everyone. 

However, the flight attendant with a broken "tibia, cracked . . . ankle bone and fractured . . . foot." was recovering from significant injuries at that time. After the flight landed, she had been "rushed to Wythenshawe Hospital," and underwent "surgery to insert screws and metal plates inside her leg, as well as a huge external metal brace." She was unable to "walk for two months." The Daily Mail reports that a third surgery may yet be necessary. 

It also reports that the employer paid her "in full whilst she was off." However, when the company ceased operations, she was no longer paid. The Mail reports that the "receiver in charge of Thomas Cook's insolvency said: 'Former employees who may have had insurance-related claims against Thomas Cook before liquidation will now be treated as unsecured creditors."

As an aside, a "secured creditor" is one with some particular claim to particular assets. For example, if someone loaned Cook money to purchase a truck, the lender might well secure that loan by holding the title to that truck. An unsecured creditor is in a far more precarious position. An unsecured creditor lines up with all the other creditors in hopes of being paid something on her/his/its debt. In some cases, unsecured creditors recover something less than the full amount due.

It is fair to say that England was one of the leaders toward the socialization of workplace injuries. The modern workers' compensation concept began in Germany in the 1880s, driven by the Industrial Revolution and Otto Von Bismark, according to Business Insurance. The British followed about a decade behind Germany, and the United States followed suit in the early twentieth century. Because of Britain's historical leadership, the status of this air hostess was curious to me. However, British workers' compensation has evolved over the decades, according to The Geneva Papers on Risk and Insurance. The linked paper is a fascinating read.

Some will react with a "glad it cannot happen here." But, they will be overstating things perhaps. What happens in various American jurisdictions when an employer becomes insolvent? It is noteworthy, that the social contract that is workers' compensation is primarily a construct between employers and employees. It is these two who enjoy various benefits and suffer corresponding detriments from the workers' compensation construct. Many will include insurance in that construct, labeling with "employer/carrier." But, the involvement of the insurance company is contractual in most regards, and can be complicated.

In many jurisdictions, an employer is compelled to purchase workers' compensation insurance. In others, that purchase is an option that employers may or may not elect. And, even for those who do elect such a purchase, the details of such a purchase contract may be important in determining the effect of an employer bankruptcy or default. The fact is that an employer bankruptcy perhaps can interfere with the delivery of workers' compensation benefits right here in the U.S. In other instances, the alternate problem of the bankruptcy of an insurance carrier may be as likely to effect such an impact.

Many states have implemented "safety nets" to accomplish the ongoing provision of benefits in the event of such a failure. The parameters of such programs and their responsibility to step in on a particular claim will be statutory and regulatory; they may be complex. Furthermore, even when there is no complexity or complication, such a substitution of responsibility may require time simply due to the function of someone new taking over a claim(s). The transition may be time-consuming and that alone could present challenges for the injured worker. For the most part, however, it is unlikely that such injured workers in American workers' compensation would come to share status with an unsecured creditor of the employer in most settings.

But, right here in the U.S. companies cease to do business. A big story late in 2019 was the bankruptcy of Celadon, an Indiana trucking company. WKRN reported that an employee of that company had a serious injury, much like the British air hostess. He was airlifted for care and workers' compensation indemnity benefits began to arrive. But, after three checks, the payments ceased. A case worker who was involved called to tell the patient she had been instructed "to put my case on hold" and to proceed no further pending instructions.

The Chair of the Indiana Workers' Compensation Board explained to WKRN that Celadon was "self-insured." That means that the company was responsible for making those health care and wage-replacement payments. With the declaration of bankruptcy, the federal court becomes the decision-maker, and generally "puts a stay on any money going out." The Chair explained that in that event the Board generally takes over making such payments, but that there is discussion over whether it will in this instance or whether there is another contract that may call upon a different company (a bond contract) to make those payments.

In many states, there are requirements for employers to have specific and ready financial resources on hand for injured worker payments. These may be commercial insurance, bonds, letters of credit, or other assets that can be somehow dedicated to such needs outside of the bankruptcy proceedings. However, the bankruptcy proceedings can be unpredictable, like any litigation.

This Celadon accident occurred in Tennessee, and the truck driver is a Louisiana resident, working for an Indiana company that is now bankrupt. The geography involved may suggest the potential for complications. The whole payment situation illustrates the intervention of "safety net" programs such as surety bonds and state agencies. But, it also illustrates that delay and doubts that may come in such instances of bankruptcy. Though there is a significant likelihood of benefits continuing after a bankruptcy, there is a similar probability that some delay or disruption will occur in the near term. As noted in the Celadon story, there is peace of mind in knowing that payments will resume, but as of the story date, neither the injured worker nor the Indiana Board "knows when that will happen."

There is thus, potential for delay and confusion for an injured worker from bankruptcy. But, to reiterate, these seem better than finding oneself in the "unsecured creditor" position being experienced by the British air hostess. Some will argue that the air hostess may be a better situation in Britain's socialized medical care system. They may argue that the truck driver described herein, though perhaps better off in the long term due to the "safety nets," may be more frustrated in the short term with obtaining ongoing remedial medical care. The merits of those arguments is likewise interesting. Any discussion of that would likely include criticisms such as those published in Forbes regarding the delay of care some experience in socialized medicine settings like Britain.

There are, thus, a multitude of considerations and concerns about worker injuries and the programs in place for the covered employee. Meanwhile, there is discussion of the challenges of even being a covered employee. In the end, there can be much to the recovery and compensation following a work injury. Notably, the regulations and thus perhaps complications depend in large part on which state(s) laws govern the implications of a work injury and what those laws do to address issues like bankruptcy or other financial struggle. It is an enlightening discussion to be sure.

As legislative bodies and regulators seek funding in the COVID-19 era, there is some inclination for people and groups to seek expansion of workers' compensation liability. There is a mindset that making employers or their insurance carriers liable for more than they were before COVID is only fair. But, if entities are legally forced to pay for injury/illness for which they did not contract coverage or collect a premium, there is the potential that some will eventually seek bankruptcy protection. Some predict that the situation generally could result in greater bankruptcy risks for businesses. Whether employers or carriers, such bankruptcies could affect injured workers.

There will be challenges ahead, intellectual and beyond. Employers, bond issuers, insurance carriers, regulators, legislators, and beyond will be faced with complex conflicts and decisions. Guarantee funds will be watching the evolution of the business environment, and others would do well to pay attention as well.

Six Degrees of COVID-19

Six Degrees of COVID-19. The virus continues to affect individuals and American society. It is impacting the workplace, social life, spiritual gatherings, and more. Pew Research concludes that almost "nine-in-ten U.S. adults say their life has changed at least a little as a result of the COVID-19." That is a marked figure, but note the "at least a little" threshold. It is a fairly low hurdle. 

But, for most, the COVID has slowly seeped into our consciousness. The news began to mention the events in Wuhan, China in January. It was challenging to find anyone even interested in discussing the virus then. February did little to change our collective focus. Really, March is when it began to impact us. The OJCC suggested COVID consciousness internally in February, and then in an email to our customers on March 3, 2020. On Saturday, March 14, 2020, we mandated telephonic mediations. While it seems this virus situation has been with us so long, the reality is far shorter. It just seems like forever. 

The virus did not profoundly burst into our consciousness or world. However, it has slowly evolved into affecting our lives. The facts of it are simple: it is easily transmitted by close human contact; it can spread fairly rapidly; its effects run a spectrum from mild symptoms to death; different people react and respond differently to an infection, there is some potential for recurrence; and according to the World Health Organization, "for most people in most locations the risk of catching COVID-19 is still low."

That seems to be harder for us to believe as it becomes more local to each of us. In the beginning of our consciousness regarding COVID-19, it was a problem somewhere else, affecting someone else, and through the winter was really not of much personal interest to most. None of us had the infection (we believe, but some now suggest some of us did and mistook it for influenza). But in a relatively short time, that has changed. It brought to mind our interconnected social circles. 

It reminds me of Kevin Bacon. No seriously. ExploringYourMind.com explains the theory of Six Degrees of Separation, and asks 

"Have you ever consider how easy it would be meet your favorite writer. Or, perhaps, the members of the band that you’ve been a fan of for years?" 

This is the portended result of the theory that all people on the planet are distanced from each other through six other people at most. That is, essentially, that "the number of people known grows exponentially with the number of relationships in the chain." The more people you know, the more people each of those people know, and so on. It reportedly finds its roots in an article written in the 1930s. 

The idea became somewhat mainstream with an American movie actor Kevin Bacon. In the 1990s, according to CNN, a "parlor game" became an "unlikely grass-roots phenomenon." It was focused upon an analysis of your individual connections that would eventually lead to Mr. Bacon, and was actually called "Six Degrees of Kevin Bacon." The thought was not novel as regards Mr. Bacon, and the analysis could be applied to anyone. But, it grew in popular culture, even resulting in an app for your cell phone. 

Essentially, the theory holds that you (1) know someone, (2) that knows someone, (3) that knows someone, (4) that knows someone, (5) that knows someone, (6) that knows someone in particular (Kevin Bacon). Within that six connections, you are theorized to be connected to the whole world. Just think of how you might begin to reach out and tap your personal network to arrange a meeting with virtually anyone in accordance with this theory. 

This occurred to me when I recalled an early conversation regarding the virus that I overheard in February. The tenor of it was essentially that the virus was not here, and it was not therefore something about which we should worry. It was a world away. That someone was even talking about it in February is notable.

And now, it has come to our doorstep. In less than a month, within March, I skipped six degrees and found that I already knew someone infected with COVID-19. In short order, each of us will find ourselves connected to someone who is affected. Unfortunately, some of us will know and perhaps love someone who it kills. If we are lucky enough not to know someone, well, see above the (1), (2), (3), (4), (5), and (6). We will be connected somehow to someone who dies. 

This may be within the proverbial "six degrees" or it may well be more personal. Statistically, the odds of each of us being infected remain small. Most people tested are negative. Most of those who are positive are not hospitalized. Most people do not die as a result. But, people are dying every day from COVID-19. The personal and societal impacts are deep, pervasive, and extended.

At one time, on a personal level, I found myself wondering sometimes about whether I would know someone so profoundly affected. I realize now that in some way, we are each profoundly affected. Today, we go back to work and try to keep our small part of the world functioning. We are thankful for the opportunity, but perhaps more for the distraction. Let's remember we have no way of knowing who has been profoundly affected, who fears such impact is imminent, or whose angst and anxiety are significant. Let's try to treat each other well and remember that we will get through this.