Adjectives and Appearances

Judges are bound by the Code of Judicial Conduct. That is a document proposed by the American Bar Association (a voluntary group to which some lawyers belong), and adopted in various forms by the states. Each state's code may differ in various ways from the ABA "model" and thus from each other. That said, most have included the Model Canon 1:

"A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

I have introduced the reader to various judges over the years. There are many ways for judges to be at odds with the Code of Judicial Conduct. See Fund Raising and Politics by Judges (October 2018) and the various posts linked there. And there have been a few that graced these pages for actions and behavior that were more troublesome.

The New Miranda Warning (April 2020) described some alcohol use. So did Conferences and Consequences (November 2019). That was a real classic. It referenced heavy drinking, strip clubs, White Castle hamburgers, and the use of sign language. Some of the "do" and "don't" of being a judge are simply not that difficult to sort out. And, though we are governed by onerous rules that do not apply to most of society, those societal rules apply to us also.

Most recently there was She Must Go (May 2024). A critical point there was that judges are judges no matter the time. Judges are judges no matter the place. You are subject to this Code of Judicial Conduct even when the robe is off, or if you don't even own a robe or little wooden hammer in the first place. In She Must Go, a disciplinary proceeding of the Georgia Judicial Qualifications Committee is recounted. It centered on "40 allegations of alleged judicial misconduct."

Adjectives were used to describe the situation included:

"Snarky"

"confused"

"hasty"

"sickeningly disproportionate"

In her defense, her attorney refuted the allegations. Though there were several allegations, counsel concluded “This is not a judge, that, in my view, even comes close to somebody that you would remove from the bench.” I noted that allegations are simply that and "there is not fire whenever there is smoke, but as the volume of smoke rises the search for fire will likely intensify."

The Commission concluded its efforts with findings of

"systemic incompetence"

"abuse"

"inappropriate" and

"failure to perform."

The Commission recommended that she be removed from the bench. Days passed, but not so many. The Atlanta Journal Constitution (AJC.com) reported the next week that Judge Peterson was "ousted by voters" in a primary election. Both the Commission report and Losing an election are undoubtedly stressful.  

May turned into June, and one recent Thursday morning an off-duty police officer in a nightclub "saw a woman who was crying." Many have seen that over the years, crying is unfortunate but not so surprising. The officer allegedly tried to speak to the woman. And, the officer says that Douglas County Judge Christina Peterson (yes, the same Judge Peterson) interceded in the police officer's conversation and the officer was "struck on the head."

One simple hint, never hit a police officer. That seems a simple rule, but a surprising number of people are arrested for that each year. WSB-TV Atlanta reports that the Judge did not identify herself and "appeared to be under the influence." Fox5 Atlanta reports that Judge "Peterson is facing felony obstruction of a police officer by using threats or violence and simple battery against a police officer."

Fox5 also reports that at the time, the judge "reportedly refused to tell officers her name." Newsweek reported on the arrest, and led with the headline "Infamous Georgia Judge Arrested in Nightclub Fight With Cop." It described Judge Peterson as "controversial" and somewhat "notorious."

Some reports refer to "judge" and others to "former judge."

The judge is quoted saying the arrest "was a setup." AJC News reports that the judge was "at the club with friends for a birthday party" and the "incident" occurred "shortly after 3 a.m." It says that the judge "approached a male police officer and struck him 'with a closed fist' and that the incident was captured on the officer's body camera." Other sources, such as 11Alive note that what happened is unclear from viewing the video, which has also been published.

What may be most clear in the circumstances is an appearance. The code addresses the difficult-to-define and sometimes challenging "appearance of impropriety" standard. Though difficult to define, there is fair warning in this situation for all judges. First, 3:00 a.m. is not a good time to be out and about. An age-old axiom holds that "Almost nothing good happens after midnight." 

That is likely not fair, and it is certainly overbroad. It is nonetheless difficult to remember the last time you heard of a mid-day brawl at a club or restaurant. Whether it is confirmation bias or happenstance, the news does seem to present us with many untoward examples of behaviour after midnight. 

Another clarity is that alcohol can have an impact on the manner in which we perceive the world and the way it perceives us. This is no reason that a judge cannot enjoy a cocktail. However, as Conferences and Consequences reminded us, the more cocktails consumed and the later the hour perhaps the more chance of difficulties.

Finally, there is an inherent ubiquity of cameras. I noted this in Assume Everyone is Watching (September 2015). If you have not noticed that the world is full of cameras, you need to read more (or watch some YouTube). There is a very high probability that you are on camera any time you leave home. For good or bad, the cameras are always rolling. While you might hope that is not true, it will almost always be true when interacting with the police.

Unfortunately, the challenges for Judge Peterson remain. She is undoubtedly under great stress. Nonetheless, the appearance in the news is not flattering, and the addition of adjectives like "infamous," "controversial," and "notorious" to one's repertoire may not be positive. 

Judges have to remain focused on the "appearance." The world is not fair in this regard. The standard is ambiguous and difficult. But, it is the standard that persists, which we accept when taking the job. That is not fair, but little in this world is. We can lament it privately, but we must remember it and live it. That's good advice at 03:00 in the morning. 

Tweens?

There has been significant discussion of generational change. This blog has focused on the next generation and how their perceptions and preferences may change the practice of law and the world of workers' compensation. See The Donut Hole (February 2023); The Time is Now (April 2022); Positioning Comp (April 2023); It's a Mystery (March 2024). The perception is that the next generation is different.

Differences are a natural consequence of time. This was discussed in Paradigm Shift (July 2016); The Value Exchange (October 2023); and Imaginative Engagement (February 2023). There are various examples I hear cited by lawyers, managers, and other employers. They lament differences in motivation, ambition, and work ethic. There is a perception, generally, that "these kids today" are not what we expected. Many strive not to be that old caricature on the porch screaming "Get off of my lawn!"

The British Broadcasting Corporation (BBC) recently approached the challenges of the next generation. And, it reminded us that there have persistently been perceptions of each "next generation," youth, and the perceptions of older folks. It reminds us that there have been "transformations in culture, work, education, and scientific insight." It proceeds to take issue with our terminology, and particularly with "teenager" and categorizations generally.

The analysis includes the recency of "adolescence" and the culture of the "teenager." the author reminds that not so long ago the work experience started much earlier in life, whether in the paradigm of a family plot or farm or later in the industrial reality. Certainly, the age of child labor is not so long distant (18th and 19th Centuries). What a change has come with protective laws, and mandated schooling, and it is realistic to expect such change to impact those who live it.

The expansion of education and a growing recognition of the "rights of young people" in Western society has led to a greater role for the young in society. The needs and wants of the young have increased in importance. This has been driven by their desires and their voices, whether expressed verbally in the manner of demonstration or protest or expressed economically in their expenditures and consumption.

The author does not note that this is likely similarly expressed in a broader variety of proclivities, habits, perceptions, and desires. I suggest that the work habits and preferences being experienced as the next generation takes to the workforce fit also into this "expression" of their perceptions, beliefs, and preferences.

Business must be conscious of these changes because the young are both the next generation of producers/workers and of consumers. Business has to learn to thrive with their proclivities in both production and consumption.

The deference to youth seems to have bloomed in the post-World War II era. That is coincidentally an era of increased population, leading to the "boomer" description. The era was particularly noticeable for the efforts of business to cater and market to the young. Economic growth and focus shifted in large part to influencing and marketing to the young. They were less distracted by work, more focused on self, and represented a new marketplace for goods and services.

The author notes that the youth of that era was characterized by independence and even rebellion. There were the fast cars, the wardrobes, and the music. The BBC thoughts reminded me of the legend of a Jacksonville judge who counseled a young Elvis Presley not to swing his hips in his shows there. Yes, hip gyrations were once seen as overly suggestive and untoward. Imagine what that judge would think of the costumes and lyrics of today.

The point is that each generation has brought a modicum of rebellion and change. Experts have written books for the struggling parent. Trends have threatened youth with challenges like substance abuse, unsafe driving, drag racing, and more. Culture has addressed and struggled with growth, development, maturation, and the persistent perceptions of the older generations. And yet, the challenges persist with each new generation.

The authors note that the "teenager" experience of our youth has changed markedly in recent decades. One psychologist cited in the BBC notes that

“A 17-18-year-old in the US is now less likely have tried alcohol, have had sex, or acquired their driver's license, than teens 20 years ago."

The rebellion, I suggest, is in being different from your parents. And the suggestion of the psychologist is more simply that the next generation is simply "growing up more slowly" than some that come before them. There is less probability of dating by early teens or employment. In my generation, it was not uncommon to have a job as a teenager (I had my first at 12, and have been working since - I know "O.K. Boomer."

The authors point at the internet and technology. There are a multitude of potential comparisons regarding how others have changed our lives, but the main point is that there has been a shift in the type and path of challenges (think of the advent of cyberbullying). The hypothesis is that better living conditions, prosperity, and peace have allowed youth to mature and "transition to more adult behaviors" more patiently.

There is suggestion that the modern convenience, comfort, and progress have facilitated a delay in risk-taking, in independence. The psychologist suggests that "by many measures, adolescence now continues until around the age of 24 to 25." This is characterized as "a slower path to adulthood," and is among various "cultural perceptions of youth may need updating."

In recent years, science has also shown that adolescence doesn't finish at the end of the teenage years. By 20 years old, a young person is usually considered an adult: their body size is fully grown, they can vote, get married, and many have already entered the workplace. But the evidence suggests that, by many important measures, adolescence continues until around the age of 24 to 25. The suggestion is that the different nature of "twenty-somethings" may bear reconsideration.

While the focus of the BBC is not in this vein, perhaps that will be considered in the context of the business paradigm above. The approach to this group that is "tween" teenagers and their futures perhaps deserves focus and attention? In the world of recruiting, training, and leveraging talent, perhaps consideration of these perceptions can bring new approaches to the methods of onboarding, coordinating, and transitioning the next generation.

But, the experts say that "tween" has already been coined for the period between youth and the challenges (if any) of the teenage years. So, they propose that there be recognition of this group of twenty-somethings as "prolonged adolescence." I would suggest that no twenty-something will acquiesce in such labeling. Another suggestion is "adolthood," which some will find equally insulting (a "dolt" hood). In the end, recognition of differences is likely more important than labeling. In the end, recognition of challenge and evolution is the more meritorious point.

There is recognition in the article that some will always believe that the "next" generation is being "coddled" or that it fails to appreciate the challenges we faced and somehow overcame (Some of us look at those days of sharing a place and eating macaroni through rose-colored glasses that are blurred by the passage of years). Perhaps every generation thinks the next has it easy, is spoiled, or is unworthy. That is likely the legacy of all that come and eventually pass. What value does that judgment and criticism bring?

As I have mentioned before, the point is that it is the next generation's world in which we old folks must learn to live. We cannot force them to our worldview, but must instead learn to accept theirs. They will persist and thrive as we fade and pass. If that upsets you, just remember these know-it-alls will eventually face yet another "next generation" that will be no less their own Waterloo. 

 

Arrested for Water

Drugs and drug use are seemingly a constant in the news. There are efforts to further decriminalize pot on hand. See Dopey (May 2024). There is also a persistence in press mischaracterization of those efforts with focus on the word "legal." See Edibles and Illness (November 2023) and the posts cited there. It is intriguing to see people face workplace consequences, even job loss, as a result of using dope they erroneously think is "legal." There are legal complexities there that challenge analysis.

In one recent story, NBC News reports a woman was pulled over in Minnesota. That state has "decriminalized" drug paraphernalia. The legislature there apparently sees possession of such tools as a non-issue in the drug pandemic we face. The Centers for Disease Control noted recently that drug death seems to have leveled off for the final tally in 2022. That may come as some relief after years of increasing numbers. And there is some interesting shift between age groups described in that Centers post.

That said, over 107,000 people in this country died of overdose in 2022, according to the National Institute of Health. That is more deaths each year than the total of Americans killed in the Vietnam Conflict. In fact, our drug death rate is approaching an annual total that is double that of the entire decade spent in that debacle of the Kennedy, Johnson, and Nixon years.

Back in Minnesota, a visitor from North Dakota was arrested with a drug-use tool called a "bong." That device is among the paraphernalia that the state's legislature recently decriminalized. It is OK in Minnesota to have the tools. However, the water contained in that device "tested positive for methamphetamine." There was a residue, essentially, and that meth residue was sufficient for her arrest. In Minnesota, "bong water (is) a controlled substance."

This is intriguing from the standpoint of methamphetamine. The news is not clamoring with efforts to decriminalize that substance, not yet anyway. In time, there will be efforts mounted to decriminalize a variety of substances and meth is a likely candidate. The simple fact is that drugs are popular and therefore populist. People like drugs and the users are making great progress with their persistent efforts to facilitate easier and more ready access to drugs.

Nonetheless, the Minnesota visitor faces "up to 30 years in prison, a fine of no more than $1 million, or both" for that bong water. I can hear the advocates now: "but water is legal." Thirty years? I am no advocate for drug use, but that is a long time in jail for some dirty water. 

What does the story have to do with pot? The Minnesotans have largely decriminalized pot. The residue in the bong was not weed. And yet . . .. The Minnesota visitor was in a traffic stop. The police might never have found the bong or the water ("might") had they not detected the particular and distinctive aroma of dope during their traffic stop.

Dope, like alcohol, remains a problem for drivers. The reasonable suspicion or "probable cause" that stems from smelling weed allowed the police to search the vehicle, find the bong, test for the residue, and seize that "bong water." It is an intriguing outcome. It might have been the same if they had smelled alcohol. That is interesting as our society and tech evolve. 

Technology may increasingly play a role in our safety. I noted Safety is Coming (March 2022) "like it, want it, or not." In the fog of the "other pandemic" (COVID-19), Congress decided that all cars sold in America will soon include passive impairment detectors. More law on the topic came in 2023, and there is a rush underway to put this technology on the streets. according to Motor Trend, Big brother (1984, Orwell, 1949) is coming to a vehicle near you very soon, perhaps in 2026.

These devices will disable the vehicle of any driver that Big Brother decides is impaired. Don't mistake that, I am no fan of impaired drivers. But, I am nonetheless not always a fan of the technology I find on various vehicles I rent either. There are many "features" that simply do not enhance my driving experience and they are difficult to avoid, disable, or manage. Tech is trendy and cool but can also be a real challenge.

When some driver's vehicle stops operating at the side (hopefully the side) of the road, there will be some who conclude that such vehicle status signals impairment. In the coming age of the Big Brother car, being on the roadside may itself become the probable cause for the authorities to search the vehicle for bong water or whatever else they find interesting.

In truth, the interaction a stranded motorist has with authorities today could lead to suspicions, testing, and conclusions of impairment. However, in the many miles I drive, it seems to be increasingly rare to see any officials stop to aid stranded motorists (there is no interaction). I have watched many a deputy, trooper, and officer cruise past people in trouble on the road. 

They are seemingly uninterested in people having trouble. Will they be more attentive in the coming age of smart cars and drug searches? Will residue and water continue to be worthy of arrest and prosecution in the increasingly drug-tollerant society of the U.S.? Does it make sense to criminalize water in a jurisdiction that looks the other way for actual drugs and tools to use them?

How will such devices become involved in the workplace? Certainly, a great many workers' compensation accidents each year involve vehicles. As this new technology becomes prevalent in passenger cars, it will almost certainly become common in larger commercial vehicles. Will there be privacy concerns? Will that be limited to drivers, or might commercial settings involve detectors for all vehicle occupants?

What data will be collected? Most drivers likely do not realize that many cars already have data recorders in them. Some claim as many as 96% of new cars have them. They record brief moments surrounding collisions but are not currently recording audio, visual, or other details throughout a trip (like the aircraft tool). But with the advent of new impairment monitoring, might that potential come to pass in commercial vehicles on the highway and in the warehouse?

How much data will be stored? If your car refuses to start due to a suspicion of impairment, might the car phone home and report it? Might insurance companies be interested in the data? Is there a potential for expansion of the current efforts of some insurance companies to entice sharing driving data in exchange for rate discounts? 

It is likely inevitable that artificial intelligence comes into the analysis of all of these potentials. That tool is a springboard for data collection and analysis. Robots may replace drivers in the workplace completely. If not, robots and AI may certainly impact and facilitate management of the employees who are not replaced by technology.

Things, as they say, get curiouser and curiouser. The world is changing. The workplace will be impacted. The work, workers, and management will have much to digest and understand. 

A Simple Step

The law of unintended consequences persists in various aspects of workers' compensation. There are various instances in which regulation or legislation with a specific purpose drives behavior in a manner that is unexpected and even surprising. Intertwined in every workers' compensation case are complex questions of medicine and care delivery.

An intriguing question of medical care delivery is being pushed to the fore by a group of veteran doctors whose experience in the area of trauma is significant. They are advocating for policy change directed at medical reimbursement and they say that simple changes could have a significant impact on saving lives.

The Centers for Disease Control and NIOSH report significant numbers of workplace injuries are related to trauma and many of those are serious traumas. Trauma is a major issue for workplace safety and these veteran physicians are convinced that a relatively minor change could work to the advantage of those workers and all trauma victims such as motor vehicle accident victims.

NBC News reports that this movement started in Somalia in 1993. Facing an influx of trauma victims, a physician improvised a "walking blood bank." Essentially, the caregivers working on trauma victims each donated a pint of their own blood and then returned to the tasks of patient care. The thought process was simple, to deliver whole blood replacement rapidly in the care process.

Physicians note that the key to trauma survival is in arriving at the hospital alive. The critical moments, according to them, occur in the hands of rescue personnel who are responsible for extracting, stabilizing, and transporting patients to care facilities. They note that in 99% of instances, those rescue teams are not equipped with blood to begin an immediate transfusion. So most communities have yet to embrace this.

But, there is improvement. They note

"In 2016, the number (of locations with blood in rescue vehicles) was zero. Now, it includes 152 emergency medical service agencies in 23 states."

That is significant progress but pales in comparison with the corresponding statistic that these locations account for about 1% of the U.S. Most of us face the significant probability that a rescue unit responding to a workplace accident will arrive without access to blood. Any transfusion will necessarily await arrival at a hospital in those instances, and that will require significant time. Time that might very well save the live and improve the recovery of the trauma victim.

The physicians are critical of the alternative. They explain that it is common for transfusions to be administered with saline. They opine that this is not a valid substitute for blood and that it may do more harm than good. It is blamed for various complications and challenges in the recovery process.

They are also critical of the minimal access to "whole blood" in various trauma hospitals. The NBC article notes that there has been a historical practice of separating the blood we donate into various components. A single pint of donated blood can become various blood products and impact the lives of a number of patients. That is a positive multiplier effect that benefits many in need. Nonetheless, the physicians assert that trauma victims would benefit instead from access to the whole blood, which is difficult to obtain in many communities.

Innovative programs are putting whole blood back in the treatment options in some communities. These physicians believe that their initial and perhaps superficial successes have saved the lives of thousands of patients. They claim that their emphasis on whole blood access is literally returning patients from death's door. The article notes that some of the communities that have made this seemingly simple shift are in Florida, and a success story of a young girl here is highlighted.

The "unintended consequence?" As is so often true, it is accounting rather than medicine. The article notes that most insurance companies will not reimburse for the use of blood in rescue vehicles. The ambulance cannot count on getting paid for administering blood during the rescue so they do not do so. The operators of these services, government or private, are working within budgets, maintaining vehicles, staffing efforts, and managing priorities.

There is a cost. The blood costs money. Refrigeration on the vehicles costs money. The blood is literally a lifesaver, and so there has to be some method of keeping the inventory moving so it does not expire unused in some vehicle. But, these are all issues that have been thought through and overcome in various communities. There are some places where trauma is more survivable than others. Would you choose to have the benefits in your own community, for the workers injured in your business?

In a world where trauma surrounds us, there are opportunities for this simple innovation to improve patient survivability and recovery. The inhibition to better care is partially logistical, but the economic impediments exacerbate resistance to change. A simple step, in accounting, would perhaps enhance everyone's chances of surviving a motor vehicle accident or other workplace trauma. 

If a patient needs this blood, the cost will occur regardless. In today's primary paradigm, that occurs at the hospital after suffering and physical tissue deterioration. In the paramedic-blood paradigm, the same blood would be administered, the same cost incurred, but the timing would change. While logistics would cause some increased storage costs, the incremental expense of this change seems minimal. The potential benefit in patient care seems marked. 

Tough Love?

It is intriguing watching from afar the challenges and tribulations of the Californians. No, this does not reference the state's significant budget deficit. California is experiencing a realization that "2022-23 revenue will be $26 billion below budget act estimates." Somehow the realization in 2024 is that revenue last year was low. Some may struggle with how it takes a year to realize you are missing $26 billion. The Legislative Analysts project that the actual deficit faced this year is $68 billion. Dirkson, huh?

What is the purpose of government? Some would say to provide security. Others might say to regulate behavior. Some might say that it is public safety. This is not new, I questioned the purpose of government in Purpose (October 2023). I wrote about the plans there to deploy law enforcement robots with the capacity of lethal force. See These are the Good Old Days (December 2022). I have written about California often and noted the seeming exodus of people from there to other jurisdictions. See Harmless (January 2024).

The news recently noted that there is a plan in California to strive to address its investment in individuals. USNews reported that those receiving state money will perhaps face some hurdles regarding their use of controlled substances. San Francisco says it will start "screening" people who receive "cash benefits." They are looking for those using "illegal drugs." The press, again, stresses erroneously that "legal" marijuana is included in this. Dope, Marijuana, Weed, and Grass have been mentioned here before, search those words in the box above.

The proposal and plan is to screen the cash recipients. But, there is rapid reassurance that "No one will be forced to undergo substance abuse treatment, nor will anyone be subject to drug testing." No, San Francisco will simply begin asking a 10-question drug abuse test." If that questionnaire indicates Addiction, then the person "will be referred to treatment." If they fail to attend, they

"forfeit the $109 a month that the city grants to homeless adults who qualify for city shelters or supportive housing, or the $712 a month it grants to adults with home addresses."

The purported foundation for the plan is to prevent public "money from being used to buy illegal drugs." The secondary reason is "to dissuade drug seekers from moving to San Francisco." The city denies any punitive intent and explains instead it is trying to save lives. It turns out that drugs can kill people. See A Vaccine Against Getting High (January 2023) and some of the posts referenced there. Yes, it turns out that drug use can be dangerous.

The city is getting criticism. Drug treatment providers are critical that the plan affects a "coercive, punitive effect.” The thought is that cutting off someone's public assistance might be a detriment. They assert that instead those who enter treatment should be rewarded with more public money. It is a classic revival of the old "carrot" versus "stick" debate. However, in no case will anyone be denied their place in public shelters due to honesty on the questionnaire.

That is a critical point. There will be no drug testing. Is it possible that someone might be less than forthcoming in the screening process? If you say you are using, and refuse to get rehabilitation, you lose $109 to $712 per month. If you lie and say you are not using, the city will continue to pay you. As the narrator asked in Cat in the Hat (Universal Pictures 2003) "What would you do if your mother asked you?"

The fact is that some perceive the situation in San Francisco to be grim. They describe people "splayed" on sidewalks. They complain of aromas of human waste. There are concerns of fentanyl, homelessness, sanitation, and more. As to sanitation, they recently bought a single, solitary $1.7 Million Toilet (April 2024). 

The land of milk and honey has seemingly devolved into one of feces, used needles, and tragedy. See Purpose (October 2023). There is untidiness, avoidance, and even overdose. There are even allegedly "drug tourists" who come to enjoy the wretched excess enabled and encouraged by what used to be a tourist city of sights, sounds, and tastes. Yes, there was a time when this city was beautiful and tourists flocked here. 

The public spectacle of today is sufficient to inspire volunteer efforts. The Associated Press reported in May that volunteers in special vests literally walk the sidewalks of the Tenderloin District each day warning the sidewalkers “School time. Kids will be coming soon.” They traverse the "50-block neighborhood that’s well-known for its crime, squalor, and reckless abandon." Then, the same volunteers escort children through this Third-World spectacle to and from school and other activities.

What is the purpose of government? The AP story refers to this as a "rich neighborhood" and a "vibrant community." Despite that praise, it notes that the area is "Long known for its brazen open-air drug markets, chronic addiction, mental illness, and homelessness." Long known? So the challenge is apparent? Children dwell there? So the impact is apparent? The solution is to warn the sidewalkers that children can see them?

Perhaps those with drug problems will be frank on the city's new screening. Maybe they will go quietly into rehabilitation in exchange for the public money. Perhaps they will continue to splay on the sidewalks while the next generation is escorted past the filth and spectacle. It is intriguing. Despite those who criticize the city's action, others may wonder if it will produce any change at all. 

Responsibility and Professionalism

Increasingly, parties to workers' compensation proceedings are not taking their responsibility for documentation seriously. The mediation process has been a part of workers' compensation in Florida since 1989. It was a "soft-open" and certainly started slowly. Acceptance was anything but unanimous and rapid. But, by 1991, it was known and growing. In 1994, it became mandatory. Thirty years hence, there is not a lawyer in the practice that has not mediated.

Every petition that enters the OJCC system is scheduled for a mediation. That is the "mandatory" part. If the case is scheduled for a mediation when the petition arrives, the new filing will be part of that mediation. If none is currently scheduled, one will be set.

No, the OJCC computer system will not check to see if a particular date and time is convenient for all parties. Yes, there will be potentials for any lawyer to be double booked on a particular date and time (or triple). Why? Because it would be challenging to check and there are many, many cases in which two or more lawyers have filed notices of appearance for a party.

Multiple lawyers in a case for one party is good lawyering. It is redundancy and team dynamic. But, the system cannot discern which of the three lawyers might be intending to cover a mediation. Would we check for conflicts for all three lawyers for a particular party? There are also some firms that file every pleading under the firm owner's name. The lawyer who appears for mediation in those instances has sometimes not even filed a notice of appearance. Checking would be difficult, and because of these challenges it would be less than fruitful in many instances.

When a petition arrives, however, there is a brief window before the notice issues (about 40 days). In that period, the parties can see the mediation on the case scheduled in eJCC. That is the time, while the mediator's schedule remains somewhat fluid, for the parties to coordinate a date and time that does work for them. That is the solution to calendar conflict. It is not automated, but it is so very easy.

There are complaints at times that a judge issues a notice for a hearing or a "status conference" on a date/time when something is already scheduled for an attorney. No, the judge is not intentionally complicating the lawyer's schedule. The judge and staff cannot search the database to see when you are or are not available for a hearing. For that matter, no one can explain the purpose of a "status conference."

That will remain a mystery forever. Parties seek relief and judges consider relief. When parties are confused as to how they should proceed in a matter, they should consult each other. They should file motions when they need relief, and judges should adjudicate them. The process is exceedingly simple. Motions, hearings, orders. The hand-holding of "status conferences" might be appropriate in an exceedingly small number of situations and always because the judge instigates the process.

In any event, the judge is not able to tell when parties are available for a hearing. Certainly, the judge's staff should coordinate hearing times (not trial or pretrial times) when possible. But, it is on the parties, when a notice of mediation or hearing is received, to check for calendar conflicts. In the event of a conflict, it is on the party facing such a challenge to either arrange coverage by another lawyer or (1) contact opposing counsel, (2) jointly conference with the judge's staff, and (3) coordinate some accommodation for the conflict.

Hint: often when the judge schedules a hearing there is a patent reason. One might consider "why is the judge scheduling this hearing?" Review of the pending motion, stipulation, or your response might be instructive. Possibly, you and opposing counsel might sort the issue, file a new document, and avoid the hearing altogether. Or, you can wait, attend the hearing, and say "Judge, I don't know why we are here." We hear that often. It is not such a good look. It rarely means the lawyers cannot see the issue, and more often means they have not looked for the issue. 

There are examples of lawyers missing mediations, hearings, and the curious "status conference." That generally results in an order to show cause (which is merely the judge's tool to ask "why"). The lawyer then files a response that says "I was not competent to notice the conflict in advance" or "I was not diligent in managing my calendar" or "I simply do not care."

No, no one ever says those things. Instead, it is a two-page dissertation that strives to avoid the implications or consequences of missing the event. It is dressed up in fine language and apology. But, make no mistake, the meaning is often essentially one of those numbered above. Missing the event, failing to notice in advance, and failing to communicate and coordinate, are all unprofessional, regrettable, and inappropriate. Such actions may contribute to your reputation and perceptions of your ability.

If the scheduled mediation will not occur, then cancellation will occur through filing of a written document. This is in Rule 60Q6.110 (4):

"If the parties resolve all issues, or all issues except for attorney’s fees, prior to the scheduled mediation conference, the attorney or unrepresented claimant who has filed a petition for benefits shall file a pleading in order to cancel the corresponding mediation. The pleading must be filed prior to the scheduled mediation and shall indicate the manner in which each issue was resolved. The preparation and filing of this pleading are not the responsibility of the mediator." (Emphasis added).

This is specific to mediation: "prior to the scheduled mediation." If the mediation is not to occur, file a notice of resolution. That is reasonably simple. The responsibility is on the petition filer. The petitioner asked for relief, instigated the process, and is now saying it is not needed. That is the party who shall (1) file a pleading, (2) prior to the mediation, and (3) indicate the manner in which each issue was resolved.

Alternatively, the person filing the petition may dismiss the petition. In many instances, that action would be more rapid and easier. However, the decision in that regard belongs to the filer of the petition.

But what if mediation does occur? Then the Rule to follow is 60Q6.110(5)(b):

"Any person attending mediation virtually shall provide an e-mail address for use in exchanging documents during the mediation. Any mediation, except when the outcome is an impasse, is not concluded until the signed agreement report is returned to the mediator. The signed agreement report shall be returned within 72 hours unless excused by the mediator." (Emphasis added).

This rule is specific and deceptively simple. The old saying is "it ain't over til its over" (Yogi Berra). The mediation is not over until the mediation report is (1) signed, and (2) returned to the mediator. This is exceedingly simple. No, there is no provision for ignoring the mediator or failing to return the report. No, filing a "notice of resolution" does not change that (1) mediation is ongoing, and (2) is not over.

Yes, it is absolutely unprofessional and rude to fail to return the mediation report to the mediator. Yes, the mediator has better things to do that repeatedly follow-up with the parties to get the agreement. Yes, making the mediator or staff or opposing counsel call you a dozen times over thirty days is irresponsible, unprofessional, and inappropriate. Yes, we will all make mistakes and have shortcomings. But, correcting that on the first follow-up call or email is the solution (OK, on the second call in exceedingly exceptional and rare instances).

No, there is no provision for filing a "notice of resolution" after the mediation. That "notice" provision is for "prior to the scheduled mediation conference." Once the mediation has occurred, the process is not about some "notice," it is about signing and returning the mediation report. The mediator has worked hard to conduct and document the mediation. The rule requires you to sign and return the report. The deadline is 72 hours (which is three days, and which is extended if the 72'd hour falls on a weekend or holiday). These are neither onerous or mysterious requirements. 

In the end, all of this comes down to some simple points. First, professional lawyers are expected to be responsible, to pay attention, and to notice problems with scheduling. They are expected to communicate and seek relief when there are conflicts. They are expected to follow the rules, both "prior to the scheduled mediation" and after a mediation actually occurs.

It is troubling to see lawyers failing to appear at scheduled events. It is disappointing to hear some of the convoluted expositions that take pages to say "I was not paying attention." It is inappropriate for mediators to spend days (weeks) repetitively contacting parties for the signed mediation agreement. It is not enough, after mediation, to file a notice of resolution. Doing so abandons responsibility and leaves the mediator waiting, wondering, and frustrated.

Fortunately, this post is not written for most lawyers. It is my hope, however, that mediators, judges, and lawyers will have this post at their fingertips to forward to other attorneys. Perhaps, if you are reading this, you have frustrated someone somehow?

Obesity Death

There are famous people in this world and they attract attention, for better or worse. The events in their lives can serve as ready examples because the press will spread the word of their achievements and failures. They draw attention, for whatever reason. 

A 47-year-old singer passed away recently. The headline caught my eye because she died of obesity. I have struggled with the seemingly growing tendency to refer to fat as a disease. It seems more congruent that fat is a result or a choice. If you take in more calories than you use in a day, you will gain weight. If you burn more than you take in, you will lose weight. I struggle with this being calculus. I am striving to understand the recent trend of labeling it a disease. 

The actual language used in the report is that she "died of complications from class III obesity." That is somewhat complex. Obesity comes in classes. That itself is not news, but the manner in which this story proclaims it is not common. It is simply novel for a headline to proclaim that fat caused death. More frequently, the conclusion is that weight causes or aggravates health conditions that cause death. 

This story draws back to Body Mass Index (BMI), and the questions it raises. See How Can They Both Increase (February 2019), Monetary Costs of Obesity (December 2021); The BMI Conundrum (February 2022); Flying Disappointment and a Lawsuit (December 2022), and most recently Obesity- a Better Definition (June 2024). BMI is ubiquitous, imperfect, and criticized. 

Nonetheless, it is the predominant standard that we use, despite its many critics. The main reason is likely its simplicity. With a scale and a tape measure, anyone with the internet or a calculator can determine if someone is obese. 

Through definition, you can also determine how obese someone is. The recent article provides the following definitions from the Cleveland Clinic. 

Class I obesity: BMI of 30–34.9 

Class II obesity: BMI of 35–39.9 

Class III obesity: BMI of 40 kg/m² or higher

Those are definitions, but they could be more helpful. The National Institute of Health has some handy charts for putting that in context. It depends on height and weight. For example, someone 6 feet tall (140 to 184 is "normal") would have to be over 294 pounds to be "Class III," which used to be labeled "morbidly obese." If the person is 5 feet 4 inches, then that threshold is 232 pounds (110-145 is "normal"). The crux here is that fat kills. The article strives to insinuate that many die of being fat.

That is not really supportable from the points made. The data supplied more readily supports that "cardiometabolic diseases like hypertension, stroke, and diabetes" kill many people. More simply, heart disease and cardiovascular issues kill many people. The chances of developing these health issues increase with increased fat in the body. This is true regardless of the source of fat, and the article strives to emphasize its theme of fat as a disease. 

This vernacular and perspective change is for emphasis on treating fat and more critically on insurance treating fat. It is a characterization effort, a propaganda, to free the individual of responsibility. It excuses the overindulgence in calories and under-engagement in activity and labels their result "disease." It is an effort to normalize treatment and drugs as a solution to overconsumption of calories and under-exertion of activity. The authors want to convey that there is no fault for fat, that it simply happens. That is an unfortunate characterization. 

Is cigarette smoking a disease? Is drug use a disease? Certainly, some arguments can be made that either could result from addiction, which is accepted as a disease. Addiction is a diagnosis, and possible it can be treated. But the (over) use of a substance does render the result a disease; drunk is not a disease; high is not a disease; speeding is not a disease. Like fat, they are each results of consumption. That is not to say that the compulsion to consume could not be an emotional challenge that could be treated. But drunk is still not a disease, it is an effect of overconsumption. 

The math is not complex. To attack fat, consume fewer calories and increase activity. Either will help. Both together will work more rapidly. It is not easy, our worlds are full of temptation and antagonists. People not fighting the battle will bring doughnuts to the office. Restaurant workers will ply us with dessert options and other temptations. Too many of us will grab a corn-syrup-laden soft drink, energy drink, or worse. 

But, in the end, it is a personal choice to consume or not consume. Whether you buy into the definitions of obese, the categories of obese, the criticisms of BMI, or the "disease" label that facilitates, enables, and normalizes drug use, the math remains the same. Consume less, move more. It is math, but it is not calculus. 

And, it can be a journey. The singer who recently passed touted weight loss efforts. She enjoyed weight loss successes. She decried diets and advocated for life change. She recognized the threat of fat and she campaigned against it. Nonetheless, she died at 47.

Certainly, the singer's passing is tragic. But she did not die of obesity. Whatever caused her death was likely accelerated, aggravated, or exacerbated by body mass. There are a multitude of things that can go wrong with the body. While obesity is not easy to address, it is one of the few symptoms, factors, or aggravations that we can actually attack ourselves, that we can attack holistically. Drugs are necessary for a variety of medical conditions, but not needed to address fat. 

That said, there is room for reform. Where can efforts rationally start? In a world of increasing obesity, the time has come for any program that supports, enhances, or provides food to exclude the challenges. Simply stated, if the government is paying for someone's food, that should never include sugary drinks, candy, cookies, chips, and other such irritants. Food subsidy programs should be limited to the necessities of life - proteins, vegetables, and fruit.

In allowing poor food purchases, government money is wasted. Tax dollars are wasted. Fat results. A great many of those people will then consult doctors or visit hospitals for the predictable complications and ailments to which fat contributes such as diabetes, heart disease, and more. Tax dollars (that is taxpayer's money) is buying the cause (chips, candy, soda) and then having to treat the result. 

In that vein, the government has long been complicit in the failings of many. And, it is getting worse.  In April 2024, rather than moving such programs toward health, there was a pronouncement that EBT cards (formerly food stamps) can now be used at restaurants. There are those who do not see a connection between prepared food and obesity, but those caloric encounters are not helpful to fitness. Do doughnuts enhance health? Does it make any more sense for EBT to be spent on french fries and milkshakes than on candy and chips?

Obesity is not a disease. It is an aggravating factor in many maladies and can be a predisposing factor as well. It can be changed by any person who chooses to change the math on either calorie intake or calorie burn. Programs that provide sustenance should be constrained and designed to prevent consumption of the high-calorie, minimal-nutrition, fat-causing products. It is anachronistic to do otherwise, and the results are troubling. 

Mourn the singer. Know that the day she died of "complications" thousands more just like her did as well. They did not make the national news for their weight loss efforts or their passing. They were not famous, rich, or Internet-famous. But they were every bit as important as the singer, and everyone is capable of preventing such deaths.

Memorializing

What do we remember?

The recent long weekend marked the beginning of summer. So many see Memorial Day in that limited context. I, for one, see it as the end of Respite Season and the beginning of the long and monotonous hurricane watch that is our tropical Florida reality. I once complained to an audience that there should be a holiday to commemorate the end of hurricane season. A smart-aleck shouted out "There is - Christmas." Funny?

What is Memorial Day? At the outset, it is not Veteran's day. In the days leading up to Memorial Day, I often hear praise for veterans, recognition of veterans, and oblique references to veterans. Do not take that wrong, I will be the first to stand up for and honor veterans. But we have a holiday for that in November (wouldn't it be nice if that signaled the end of hurricane season?). Memorial Day is not Veteran's Day.

Memorial Day is about service, but it is a solemn opportunity to specifically reference and pay respects to a category, those who paid the ultimate price. The Memorial Day movement began after the Civil War, and began as a diverse spectrum of "springtime tributes to these countless fallen soldiers." Graves were decorated for Decoration Day as it became known. Municipalities and states adopted specific observances. And about 50 years ago the U.S. Government adopted this recognition, "memorial" in their honor.

Many serve. I have been privileged to know a great many service members. Some performed mundane yet necessary tasks in the heartland while others plunged headlong into terrors and trials on foreign shores that I will never comprehend. Their motivation, dedication, and devotion are worthy of recognition. I lament that each November 11, when Veterans Day is ignored by so many.

But Memorial Day is for the fallen. Many of whom were never repatriated. Many of the dead will never come home. Their remains will lie for eternity under foreign soil. another small group came home unidentified or unidentifiable. They will be remembered by those who lost them and reminisced by those who follow.

Many more were buried in American cemeteries around the world. I have been privileged to visit some of those. The impressions have been incredibly moving and humbling. I stood once on the beaches of Normandy and listened to the waves. I then went up and stood in the Normandy archway and looked upon a sea of markers that testify to American sacrifice and resolve.

Years later, I walked, nearly alone, through a fine cemetery in Luxembourg. The parking lot was huge, the crowds were not. There was some "same" and yet the feel was markedly different. I have struggled with why those two cemeteries each felt so unique. I would not trade a minute of that time for any two-week respite in the finest accommodations in Europe.

There rage around us today various conflicts. These will continue, remain, and persist. The world is a place of limited resources, competition, anger, envy, and brutality. We are blessed to live in a place that has been largely spared violence in recent decades, but we are part of a larger world. Each day, American men and women don uniforms, stand posts, and prepare. Here, there, you name it. Do not forget them, nor the veterans that preceded them.

But today, remember those thousands that stormed a quiet beach in France. All of them bear Veteran's Day remembrance. Many of them bear Memorial Day remembrance. And those who came home are passing with every day. They changed the world through vigor and commitment. Some deflect and claim they were merely doing a job, they decry the "hero" label. They saved the world and demur our praise.

Though it is no longer Memorial Day, and not yet Veteran's Day, we would do well to remember that so many have died in defense of our freedoms, safety, and prosperity. D-Day is an opportune moment for that. It is an opportunity for reflection on what war does, costs, and requires.

In that, I was touched this week to see so many World War II veterans depart these shores for a flight to Normandie. Flights left from Texas, Atlanta, and more. Their stories are real, touching, and inspiring. They go to Normandie this week to remember the fallen. There has been effort to include in their coterie veterans of other conflicts and students. There is, in that, camaraderie and respect as well as a chance to inform a better future.

As we pause in this regard, we cannot forget those non-combatants who were impacted. Millions of innocent people died at the hands of the National Socialists from Germany. Their towns and villages were occupied and harassed by the Nazi occupiers/defenders. Many of those people were killed by Nazis, and many were killed by the liberators.

In a touching reminiscence, a Frenchman explained to NBC recently why he nonetheless flies the U.S. Flag. That article is poignant, troubling, and inspiring. It reminds us, ultimately, of the simple truth that war is indeed hell. People die, usually for reasons and causes that they do not understand, reasons that belong to others.

Pause a moment today. Think of the veterans, the dead, and the enormity of it all. Ponder what it took for the world to devolve into a world war, and remember all those who suffered for the failings.

                                                   Courtesy Veteran.com

Note: The author acknowledges that this post is not about workers' compensation and begs your indulgence.

Pick Something

What do you care about? I find myself asking that question from the podium in classrooms often. I encounter a broad spectrum of students from an amazingly diverse world. We live in communities that are rich, different, and frequently unique. In my experience, Florida is particularly blessed with a variety of students. 

I am blessed to have great students who are focused on personal goals. They come with plans for degrees, management roles, and business ownership. Many are forced to take classes ("it's for my major"). Nonetheless, each is in school for a reason, but some of them struggle to find the voice to describe their purpose. I ask them, simply, "What do you care about?"

Life will throw a curve ball or two. Anyone you know who has never seen a crazy pitch is either amnesiac or untruthful. The world is adept and persistent with the unexpected. But if you have an open eye, there can come great things also. A couple of years ago, I penned Starfish (February 2022). It was in the days of still striving to recover post-COVID normalcy, adjusting to change, and wondering about the future. Three events coincided around that post, and I was driven to note them.

What do you care about? Speaking of blog posts, I had a fellow traveler ask me "how many hits do you get?" I don't know. That is not something I care about. In the end, I write these posts for myself as much as anyone else. I am reminiscing, celebrating, and analyzing. I get some grief for that. Too many people see themselves in these notes, which somehow reminds me of Carly Simon. For what it's worth, this ain't no yacht.

In Starfish, I recounted three events. And recently, I was struck by another three. 

At the end of the Spring 2024 Semester, a current student dropped me an email. The student waited until the final grades were published, and I am sometimes a bit surprised to hear from someone after all that hoopla is concluded. This note was touching. The student wrote:

"I have a bachelor's and master's degree already"

"I really enjoyed your class." 

"The only thing that disappointed me was that I was never able to figure out your politics, which is the way it should be with all instructors so well done."

First, that reminded me all who are studying are not seeking degrees. But, the major impact was that huge compliment. I always have students who hold deeply committed views and perspectives. They are often convinced and unyielding. It is very rewarding to see them consider a different perspective. 

I therefore enjoy putting a variety of views in front of these students. They gain from considering different viewpoints and hearing their peers freely express theirs. It is possible to both express ideas and to listen to others respectfully and completely. I am pleased that this semester a student found my approach balanced, informative, and facilitating. I find myself celebratory that this semester, I helped another one.

I had put that behind me and began to bear down on the close of the fiscal year (and all that entails) when I got a social media connection request from a businessperson. The connection message noted that this person was in my business law class in the Fall of 2020. IT brought back memories. In that time, my colleagues were reticent (at best), and I found myself in a small minority that was live in the classroom. 

They put me in a ballroom that semester. I had almost 100 students sitting one at each table, spread out for distancing. I will never forget that semester. These students had the option of remote learning, there were multiple sections conducted virtually. But they wanted to be in person. I adjusted to a microphone and lectured while strolling that huge room, and we made it through. To hear from a success story over two years later, to hear of the student's progress and success, that is touching in a way that is difficult to describe.

I had no sooner accepted that request and sent a note back in reply than the U.S. Mail arrived. Yes, these folks still ply the highways and byways carrying messages on dried wood pulp. It burns a lot of time and fossil fuel, but receiving a real note is special. The mail brought me a note that was not only on "paper," but handwritten, heartfelt, and mood-lightening. 

It was not sent because of a birthday or other event. It was not sent for any request, need, or reason. It was a simple note to catch up after many months. It was tangible (held it in my hand), engaging (you may find yourself just scanning emails, there are so many), and appreciated. A real letter. The timing, content, and method were appreciated, uplifting, and motivating. 

Three avenues of communication. An email, social media, and a letter. Each was positive in reinforcing who and what I am. Each made a particular day better. And each made me reflect on how long it has been since I sent a similar message, a message of reflection, reinforcement, or gratitude.  

So, pick something. I could really care less how broad the impact is. But, make it deep. Find a way to deliver on the promise and potential that you possess. Are you making the world a better place? Are you helping one person to achieve more today? Are you delivering more because of someone else?

If not, shame on you. There is something special within every reader of this post. There is value to be delivered. There is benefit to be conveyed. Make a difference. Pick something, and get to work. You can be the answer for someone, and feel pretty good about it in the process. 

And, while you are at it, reach out today and communicate with someone who has helped, inspired, or motivated you. The media doesn't matter (though the Post Office route says a lot to us old folks). Even a ten word compliment on a social media post will mean the world to many. 

Obesity - a Better Definition?

There is a challenge with body mass. We have been seeing increased discussion about being "obese." The problem is growing. The British Broadcast Corporation (BBC) reported last year that Half of (the) world (is) on track to be overweight by 2035 Half of (the) world (is) on track to be overweight by 2035. 

2035 is closer than it sounds. Coincidentally, Florida's workers' compensation law celebrates its centennial in 2035, so I have been otherwise focused on that year. We are less than a dozen years from that mark.

The story says that this could impact about "four billion people," and the greatest risk is to children and the "low or middle-income countries in Africa and Asia." The focus is on a report from World Obesity, and the impacts are clearly on health and on the economic aspects of this "chronic, relapsing disease." Fat, they say, is a disease.

I have been advocating for better personal habits for years. One of my late-life realizations has been that fat kills. In 2020, I noted the BBC reporting on defining what "obese" means. See What is in a Name (August 2020). That also highlighted some of the spending we see on obesity.

But, further back, I started raising the topic of obesity and its definition. See Obesity Can Kill Me? What Could Be Worse!? (March 2015). What is obesity, how do we define it, is our trajectory in that regard appropriate and efficacious?

I have highlighted a variety of paths people have elected regarding weight reduction. There was Stool Transplant (October 2019). But the fact is that we spend billions on losing weight. A great many people are so bent on their physique that they take drugs. Some of those have the assistance and advice of a physician, others not so much.

The popular course today is a diabetes drug. Some people are taking it to lose weight, which may deprive a diabetic of the benefits it could bring. We can discuss whether obesity is a disease. I am doubtful, but I am no doctor. We cannot discuss whether diabetes is a disease. It is. It is a systemic failure of the body. Ozempic may help it. But, the supply is impacted by those using it to trim and slim.

Some worry that taking such drugs may become a lifetime commitment. There are those who warn that bodies will adjust to the drug, and that cessation of it will lead to body challenges. The New York Times reported last year that "going off these drugs can take a toll." They suggest that for ex-users, appetite may be a problem and some report being "hungry all the time" in the wake of using the drug.

Whether being fat is a disease remains a discussion. In today's world of "see it my way or face ostracism," perhaps some will throw hate for my having said that. But I think we can rationally discuss what causes fat. Certainly, I can accept that many diseases impact body mass, energy, and more that contribute to the problem. In other words, many disease processes can contribute to and cause obesity.

But, I struggle with obesity itself being a disease. Fat is fat. If a medical issue causes or contributes, then fat may be a symptom. But is it actually a disease? And it if is not, then "treating" it is of particular curiosity. See Disease or Choice (March 2023)

Yes, a disease may cause or contribute to fat. And, as prominently, fat may contribute to an array of other issues. We often see the Comorbidity of Obesity (October 2021). Being overweight can aggravate and complicate a raft of other medical conditions. Obesity puts strain on joints and other orthopedic structures. It can stress the heart, lungs, and more.

More recently, the BBC reported that obesity may already be a greater problem than we have thought. It claims that "millions of middle-aged people have been mistakenly led to believe they are not obese." A new Italian study has been looking beyond the constraints of the Body Mass Index (BMI) that has been our fat standard for decades.

I have been critical of BMI. See The BMI Conundrum (August 2022). I have also been curious about the trend to changing definitions as if that will change the facts of obesity. See Obesity yet Again (January 2023). If we change the parameters, and the definitions, will it make us healthier or not? I suggest that whether you call it this or that, the fact is that body fat and mass have an impact on health.

So, this most recent pronouncement is about Italian research that considers "body fat instead of weight related to height (which is BMI)." This research is said to focus on the presence of fat, and that deals with the conundrum that large, muscular people are often mislabeled as "obese" using the BMI. Their weight-to-height ratio labels them obese, but they are not fat. They are muscular and that muscle is heavy.

The Italians propose more expensive testing (scanning). They are critical of the BMI, a "quick and easy method, supported by the World Health Organization (WHO)," and their study supports that the BMI may reach an untoward diagnosis in some instances. Their research concluded that of their test subjects

"Just 38% of the men and 41% of the women had a BMI above 30 - but when their body fat percentage was calculated using scans, 71% and 64% were found to be obese."

That means that BMI is underreporting obesity. To make the BMI decision, you need a scale and a tape measure. The Italians suggest we should have more expensive tests. 

Nonetheless, a number of muscular people with little fat are being included in "obese" using the BMI and a seemingly much larger number of obese people are being told they are not obese because the BMI is too simple and underinclusive. The cynical among us might wonder if the new definition is a pursuit of more scans, more drugs, and more doctor visits.

The challenges are significant in both instances. Telling someone they are obese may result in various measures like diet, exercise, and even prescription medications. Some treat fat as if it is a medical condition. Special foods are prescribed for fat. Drugs are prescribed for fat. All drugs present a potential for side effects, and the Ozempic discussion suggests that some may contribute to long-term body changes even when one stops taking them.

The results of the Italian study are simple. They recommend that the BMI be dropped. Either quit using it, or lower the standard. That is, with our path projected to half the world being fat in 2035, the Italians suggest we lower the threshold for that label, and increase the obese. This is not an irrational guess or gesture. Their suggestion is based on the fat research and their amazing conclusions regarding obesity and the BMI.

At the end of the day, the decrease in the threshold would also perhaps justify more scans for more people, more drugs for more people. The fact is that doctors will not prescribe medication for weight loss for those who are not obese. The proposal to decrease the threshold and create a larger population of obese for treatment might thus be viewed cynically.

In the end, the bottom line, is that weight loss is a reasonably simple calculus of calories consumed versus calories burned. Your body will be different than others. Your metabolism will be faster or slower than others. In large part, this will be what you were born with, but your choices can have influence. In the same manner, as unfair as it is, some people can eat piles of food and never gain a pound while others of us get fat looking at cheesecake across the room.

The problem is not in definition. The debate should not be about thresholds, treatments, and drugs. The fact is that fresh foods, whole grains, and protein are both good for us and expensive. Cheaper foods, processed foods, and preservatives likely not so much. We can each choose more exercise, less calories, and better health. Or, we can resort to drugs and fads.

What we need is to focus on the real problems. More on that in a post to come.