Noisy Workplaces

Coworkers can be a challenge. Some time ago, I penned When it Stinks, addressing the workplace use of aromas. That train of thought returned to me when I read Why office noise bothers some people more than others. The office can be a noisy place. Years ago, I knew a lady who whistled softly on a near-constant basis. Whenever anyone mentioned it, she was surprised. It was a long-standing and near-unconscious habit. 

One of her coworkers hated the noise of that whistling. She responded by wearing a set of NASCAR headphones (the kind that fans use to block racing noise and to listen to various pit crews' conversations with drivers). Because this employee's hearing was thus dampened, she kept the ringer on her phone at full volume. When that extension rang, people across the office would jump. And, she had a habit of replacing the handset on the phone with a loud, violent slam that was likewise distracting. Essentially, the two employees' habits wore on each other. But, for some reason, others seemed able to ignore them both. 

Why office noise bothers some people more than others describes a growing trend in workplace design, the "open" environment. There is advocacy for group settings, fluid spaces, and less constraint from office walls, cubicles, etc. A million years ago, I was enrolled in a school that had embraced this design, and we had no classrooms. Instead, we were in a large room collectively but grouped therein into subject matter subdivisions. The students did not move between classes, but the teachers would rotate from group to group. It was distracting and non-conducive to learning. It was antithetical to learning, but someone had sold the idea to the school board, and the effect on the students was deemed irrelevant. 

A similar "group" environment was inhabited in England in 2016. A ridiculously expensive building for research, a "veritable cathedral of science" was opened for scientists. It was a "collaborative, open-plan space." The idea was to promote interaction and productivity. 

But, "for all its lofty aims, ironically, the building fell short in the face of some scientific truths." It turns out that noise can be distracting (who knew?). The article notes that "some of us" find other people's conversations, phones ringing, pen tapping, printers, eating, and more can frustrate our productivity. To some, the noise can be "enraging" even (picture yourself wearing a Nascar headset in the office). 

The authors note that the "open plan" is not new. It dates to 1904. And, since then "the open-plan office has conspired with several other timely creations (electronic and otherwise) to make the modern workplace an aural nightmare." There are a variety of people who notice a variety of noises and find themselves fighting for productivity. It is potentially troublesome in any environment, but the contention is that the "open plan" facilitates frustration with its acoustics. 

The article is careful to remind us that there is a vast array of noises and personalities. It is therefore extraordinarily difficult to predict what noise will affect which person. It notes that phones and whistling are among the "most vexing," along with various body noises such as "coughing, sneezing, and sniffing." As to personalities, some people work better in silence, others better with some background noise. The author notes there is even a popular YouTube of office noise; the implication being some seek this noise. 

Others who desire background turn to music. The article characterizes this as "extremely common." It cites one study supporting that on average workers spend "nearly a third of their working week listening to" music. Some claim it enhances concentration and others merely crave the distraction it provides. Thus, opposite paths to a singular solution. That in itself is both curious and interesting. This may simply be more reinforcement of our human differences. 

We are all different. Through studies, largely apparently subjective and opinion survey-based, researchers have striven to understand how our "who" (we are) influences the "how" (we react). Their conclusion is that all of their test subjects performed better in silence. But, if there is noise, "the more extroverted (test subjects) were, the less they were affected by noise." This may demonstrate that our personality and predilections may contribute to how we personally react to noise in our environment. But note the first conclusion: test subjects all performed better in silence. 

Thus, the more introverted a worker is, the more likely a noisy environment will affect productivity. The more "neurotic they are" the "more affected by background noise." The ultimate conclusion may likely simply be that we are all different. Thus, the "best" environment for creativity and productivity may be different for each of us. And, it is possible that what is "best" may vary as our personal moods do likewise. We may thrive in an "open" environment one day, and crave a quiet office the next. As an aside, it is practical therefore for employers to test prospective employees if they seek to maximize performance in a given setting. 

Scientists have labeled our reaction to noise: "misophonia." They note that research supports "that as many as one in five" in one study "were consistently bothered by specific sounds." It is possible that we each have our own specific triggers. It is also possible that whether the noise of a particular coworker disturbs us might be in part interrelated with whether we otherwise like or respect that coworker. Perhaps we can tolerate noises from those with whom we otherwise enjoy working? 

The author notes a variety of historically significant people who notably exhibited a desire for quiet. They found noise distracting and were notably creative and productive figures. Therefore, that noise is troublesome to someone is not a determinative of their productivity potential, but a factor that must be addressed personally by each of us to facilitate productivity. 

In the end, the author contends that noise affects us all. Therefore, the "open plan" of our modern world is perceived as "flawed." Despite that, the author concedes that quiet is more important to some than others, and thus an individualized approach for one may be necessary despite the overall effectiveness of an "open plan" for others (perhaps many) who are better equipped to ignore its shortcomings. But, the general conclusion is that organizations should focus on acoustics over aesthetics in planning and building workspaces. Or, they could just issue NASCAR headsets to everyone?

Terrorism or Just Violence?

I found myself at 7:10 Friday morning driving east in light traffic, watching the building westbound traffic I would have to join once I completed my errand. 

I was surprised to see an unmarked, and uncharacteristic model, police vehicle coming west. It was tailgated by an ambulance, both with lights and the usual sirens. These two were in a big hurry, taking to the grass median periodically rather than suffering any pause. My immediate thought was a motor vehicle accident likely would surely have traffic snarled somewhere I would soon drive on my return trip westbound. Not two miles further I saw a Florida Highway Patrol (FHP) SUV also headed east. It was moving as fast as I had ever seen in city traffic. Safety seemed the driver's last concern. I concluded this was likely a very serious accident. 

By 7:30, I was westbound having completed my errand, and turned on a phone app that warns of traffic. It showed nothing out of the ordinary. 

I had driven six miles back west and started over what is referred to as "the three-mile bridge" into Pensacola. I was listening to a nationally syndicated radio show and frankly had quit wondering about those vehicles. The national show paused from entertainment to announce "There has been an incident in one of our markets, we have no details, but we are going to announce it." They proceeded to say there had been an "active shooter" at Pensacola Naval Air Station, several miles further west from the OJCC office, my destination. 

Friday included many updates and conversations. There was a general feeling of dread that surrounded us with repeated visits to various news sites in hopes of an update. Very early, we heard that there were two dead, including the shooter. That grew to three, then to four. There were others shot, but the number was unclear and reports vacillated. The news featured the fact that a weapon had been brought to essentially a "gun-free" zone. The military has some of the strictest constraints on weapon possession. 

I spoke Friday morning to a man whose son was on the base. He described his and his family's efforts to make contact. These events touch many lives both in the moment, in the location, and elsewhere and later. News reports since have documented many anxious attempts to contact family members in those early moments and throughout the morning. The man I spoke to was fortunate to have received an answer to his call but got only "I'm O.K., can't talk," and was hung up on. A terse and brief message, but welcome nonetheless.   

By Friday afternoon, There had been interviews broadcast with the mayor of Pensacola, the County Sheriff, our Governor, and others. Among that, one statement stuck with me though I can no longer recall an attribution: (we are) "investigating whether this is terrorism or merely workplace violence." The quote struck me for two reasons. First, workplace "anything" is what we do and workplace violence is a phrase we hear too often. Second, this was the first mention of the word "terrorism" regarding Friday's attack. I think many of us react to that word, its implications, and its weight. 

Friday, there were unofficial (on condition of anonymity) and later more verified reports that the shooter was a foreign national, from Saudi Arabia. The news included references to that country, and explanations of both the logic and extent of military training delivered in the U.S. to foreign nationals, and our allies. It appears from those reports that a great many people travel here to receive such training and that Pensacola is merely one of the various destinations. 

Friday night, I received a text from far away. It detailed that the local high school wrestling team's assistant coach, Ryan Blackwell, is on active duty Navy, and suffered wounds Friday. Before going into surgery, Airman Blackwell was concerned about his team/students, and before going into surgery called the team coach to advise that "he won’t make this weekend’s wrestling tournament," according to a Facebook post. I would like to think I would maintain such focus and composure if I were shot three times. I see in the contact the recognition that others are affected, though miles away. This coach faced uncertainty and injury but focused on those who would be worried about him. 

On Saturday, we learned the first victim's name. MSN reported "Joshua Kaleb Watson, 23, a recent graduate of the U.S. Naval Academy" was identified by his family as a victim. They described how he was wounded, and yet managed to reach responding law enforcement to inform them of the shooter's location. Joshua was from Alabama and was training to be a naval aviator. 

Later in the day, the Tampa Times reported that Mohammed Haitham of St. Petersburg was a victim. He came to St. Petersburg after Katrina drove his family from Louisiana. He was 19, a former track star. He had just finished boot camp and was involved in flight school training: "he was looking forward to graduating from the flight school program Dec. 19" according to his mother. Officials told his mother that Mohammed "did try to stop the shooter.”

Sunday morning brought an announcement of the names of all three deceased. Fox News described Kaleb and Mohammed, and added the name of "Airman Apprentice Cameron Scott Walters, 21, of Richmond Hill, Ga." Less has as yet been publicized about Cameron. While there is a national impact of this attack, it is noteworthy that these three hail from Alabama, Florida, and Georgia, with a connection to Louisiana. There is much pain in the South this morning.  

I won't waste time discussing the shooter. Details on his life, motivations, and activities are readily available in the press. All that bears mentioning is that he was shot and killed Friday. There are conflicting reports on details, but it appears he was killed by one or both of the two responding Escambia County Deputies who were also wounded Friday. Saturday's news said one of those has been discharged from the hospital already. There have been news reports that at least suggest Navy police were responsible for stopping the shooter. I am grateful both for whoever stopped him and for the many who sped to the scene to both protect and treat.

As mentioned, there is a discussion of whether this is workplace violence or terrorism. I would suggest that while such a distinction could be relevant in some contexts, it does not change that three young men are dead and several other people have been wounded. It is notable, also, that these shootings occurred "even though firearms are not permitted at the base" according to Fox News. Shootings seem to often occur in places where guns are not permitted. There is a discussion of how the shooter obtained the gun used, as reported by the Pensacola News Journal. There will likely be more on these issues in the coming days. 

The fact is that whether workplace violence or terrorism, there is risk in the world today. Unfortunately, tragically, people will get hurt, and some killed. In the present context, the connection to Florida workers' compensation is one of community. Some news reports say the military and local law enforcement have conducted joint training in response to such events. Friday's press conferences reiterated that. It is noteworthy that whoever killed the shooter, two Escambia Sheriff's deputies are among the wounded. Local law enforcement responded to the threat with a resolve not perceived in some other tragic instances. 

For that risk of injury and death, there is a safety net of workers' compensation. It is, by all accounts, an imperfect system. Many have complaints about workers' compensation in anecdotal and even systemic perspectives. But, with its flaws, workers' compensation is with us, daily, for those risks. It is insurance, which requires underwriting. That is, mathematicians and actuaries must discern the probability of injury and payments. Based on that, regulators can determine how much a carrier can charge as a premium for assuming that risk. 

But, we learned after September 11, 2001, that predicting or anticipating risk can be quite a task in the realm of terrorism. In this one context, it may be quite relevant whether a particular act is terrorism. Following that 2001 terrorism, Congress stepped in to provide national support and continuity in the event of terrorism. See Congress Adjourns - No TRIA Re-Authorization Yet and Federal Terrorism Backstop Re-authorization Now Seems Certain. This is a legislative methodology to provide consistency and national focus to what may be very local events. It is supportive of companies continuing to provide workers' compensation insurance even in the face of the threat of terrorism that may be more geographically localized. 

Business Insurance reported in October that the U.S. House had moved the proposal to reauthorize TRIA (there have been various names for the bill and its reenactments, but this original designation is a shorthand reference usually employed). More recently, there has been movement in the Senate to re-authorize the Terrorism Risk Insurance Act, according to PropertyCasualty360. The program expires in 2020. As recent events have reminded us, we remain in a world of risk. There will perhaps be instances in which the distinction between workplace violence and terrorism is critical. It is hoped that Congress will proceed with re-authorizing TRIA before it expires next year. 

For today, however, my thoughts are with those wounded, and the families and friends of the wounded and dead. I am hopeful that they will find peace. I am grateful for those who engaged the shooter and put a stop to his idiocy. I am conscious that there are many whose day Friday was scary and stressful as they strove to reach loved ones. I can only imagine their stress and emotion. I am even more grateful for those members of our community who will undoubtedly strive in the coming days to bring solace to all of the victims, families, and friends. In the end, that is our greatest strength, community. Take a minute today to tell someone that you appreciate them. 

RIP Cameron, Kaleb, Mohammed. Speedy recovery to Airman Blackwell, the deputies, and others recovering from wounds or injuries. You are in our thoughts. 

Make it Work for You

Why do we do what we do? I was in a conversation that included some critique of an (allegedly) annoying marketing campaign. The speaker was annoyed and felt that the ad campaign was obnoxious and unproductive. She questioned the gathering "Why do they do that?" There was some agreement and further derision of the effort. I offered a simple answer to the query, however: "Because it works." Companies persistently measure marketing efforts. If an ad campaign is not working, the company will spend its money elsewhere. The point of the effort, the campaign, is that it works. I addressed spam emails similarly in Because it Works. 

This came back to me recently when I was reviewing some cases. The subject matter was Expert Medical Advisors (EMA), appointed pursuant to Section 440.13(9), Fla. Stat. Two practices were noted from various appointment efforts. First, there is a practice of filing "notices" instead of "motions" for EMAs, and second there is important information that may be helpful to a party in getting what they want (a resolution) regarding such a desire for EMA appointment regardless of whether "notice" or "motion" is the selected tool.

When a motion is filed, clearly the parties are obligated to communicate with each other. The obvious purpose of rule 60Q6.115(2)("that the movant has personally conferred or has used good-faith efforts to confer with all other parties") is for the parties to attempt to sort their issues prior to any need for judicial intervention. The certification required for motions merely facilitates the judge quickly acclimating to a particular situation. In the motion setting, the filing party is required to enunciate whether opposing parties have any objection to the relief sought.

Certainly, in the notice setting, that rule is not technically applicable. However, the party filing a "notice of conflict" is seeking to move their client‘s issue forward. The party is seeking an order appointing an EMA. The District Court of Appeal analyses that excuse the necessity of a motion in this setting relieves the party of the rule obligation to state the opposing party's position. However, making such a statement will nonetheless facilitate the judge's rapid and clear understanding of the nature of the situation. If opposing counsel does not object to the appointment of an EMA, why not so state in the "notice?" Why not facilitate the process of obtaining that order?

If an EMA is to be appointed, the next immediate question becomes who is appropriate for performing that service. Anyone who has practiced in Florida worker’s compensation understands that the published list of expert medical advisers is thin in some specialties and localities. I have been impressed with the attorney‘s inclusion of suggestions (which with a statement regarding the opposing counsel’s position regarding opposition could very well be stipulations) regarding the appropriate specialty the EMA physician should possess. Something like: "The parties agree the appropriate specialty for the EMA in this case would be an orthopedic surgeon."

However, it is common that lawyers will instead state only the required information, e.g.. “there is a conflict between the opinions of Dr. A and Dr. B.“ In such a minimal statement, there is no edification regarding those physician's specialties, or what other physicians may be involved in the case. Of course, it is possible that either party may lack full knowledge of all physicians who have played a role (a physician may have been consulted as an expert adviser, but not be listed as a witness, nor have any hands-on experience with the patient). But, it would be very productive to at least the identity of those physicians who have evaluated and treated the claimant. 

In any notice of conflict or motion for appointment of an EMA, it would be very handy for the judge of compensation claims to know:

(1) whether the parties are willing to stipulate to the appointment of a particular physician. This is particularly helpful if the available population of certified EMA providers is exceedingly thin, and the parties are able to select a provider that could be certified by stipulation. This may be more of a "consensus IME" pursuant to section 440.13(5)(g), Fla. Stat., and would not even require an order.

(2) The community that is most convenient to the parties (both patient and attorneys, for the purpose of discovery); e.g. "the parties agree that an EMA in __________ . . ." or "the most convenient location for an EMA would be in __________."

(3) if any of the EMA physicians listed by the state are inappropriate for appointment due to their past involvement in the case, or the past involvement of any of the physician‘s partners or associates; e.g. "the EMA list includes Drs. X and Y, who have previously treated claimant (or who are partners with Dr. A) and would therefore be inappropriate to perform the EMA."

(4) whether any of the EMA providers listed would be inappropriate in this case according to the consensus of the parties. For example, in a spine-related case, the parties may well know in their local community that a specific physician on the list is a hand specialist, shoulder specialist, or knee specialist, while that may not be obvious from the EMA list.

This all returns to the analysis in that conversation mentioned in the first paragraph. Why did that company continue with the advertising campaign that so aggravated the individual? Because the advertising campaign worked. In the broader context of practicing law, it is appropriate to follow the rules and to do what the rules require. However, if there are actions beyond the rules that will “work“ and move your client's issues forward, then why not similarly engage in those productive practices even though they may not be required or mandated?

If you provide pertinent information, and fulfill your obligation to bring the adjudicator up to speed, you may find that you receive more rapid, cogent, and thoughtful responses. Those likely work to the benefit of everyone involved by expediting the EMA order and by avoiding subsequent reconsideration of the appointment following later disclosure of critical information. The suggestions above may decrease the necessity for motion hearings or status conferences. It is practical to anticipate and avoid delays related to a provider her or himself subsequently noting a conflict ("I have previously treated/evaluated the patient"). That disclosure could come weeks after the EMA appointment, and that is wasted time. 

In a broader concept of professionalism, there is never harm in more communication between adverse parties. The requirement of 60Q6.115(2) makes it happen in the "motion" context, but it is good in any context. Communication is, at worst, educational and informational. The more we communicate, the better we communicate, the more productive we can be. This is true as between counsel. It is true when seeking an order: communicate and move your client's issues forward. Not just because the rules require it in motion practice, but because in all contexts it works. That is the best reason to communicate, it works. 

Sober as a Judge

Some years ago, I attended an educational program that was centered on professionalism. It is a subject that receives far too little attention in our daily work. The pressures of making the rent or the payroll are ever-present and put pressure on most businesses. Finding the time to be introspective and contemplative is never easy in business. 

This particular program was focused in part on labels. It involved components of self-perceptions and group discussion. As I recall it, the speaker started by asking us to write a list of characterizations or attributes that we thought would describe ourselves. A list of adjectives attributable to our subjective self-image. We retained those after writing them. The second portion of the exercise involved us writing adjectives that we thought epitomize our profession. These we passed in. 

The moderator was amazingly skilled at continuing the lecture while simultaneously writing these adjectives on a large flip chart. Skilled not because of the ability to speak and write simultaneously, but because the writing also included skillfully organizing those adjectives into somewhat related categories on the chart for our observation. We then had a collaborative discussion of these aspirational adjectives. We were questioned about their appeal, how we would rank them, which we would eliminate if the list had to be rendered more concise. I learned from the introspection.

The point of that exercise was about arriving at a collective group expression of the attributes that we could agree upon. We eliminated words that our collaboration and discussion convinced us were redundant or repetitive. We discussed what we meant by various adjectives, and as I recall it there were some individually proposed words that we collectively decided should be eliminated in favor of substitutes that we arrived at through our discussion of what we actually meant. It was collaborative, introspective, and informative. 

The exercise came back to me recently as I wrote Conferences and Consequences. But, the thoughts were focused when I discussed that post with a reader. That post is about three drunk judges who found themselves in a physical altercation and shooting at a White Castle hamburger restaurant at 3:00 a.m. one fine May 2019 morning. They found themselves in a world of troubles that all started with a less-than-ladylike display of sign language. The instigating judge admitted in the ensuing investigation that she "drink(s) and get mouthy," and "I’m fiery and I’m feisty." 

As an aside, the very best comment I received on that post came from one of the brightest attorneys I know. He questioned whether this story forever destroys the idiom "sober as a judge." That, in itself, is a troubling indictment of the damage those three inebriated, strip-joint-seeking, White-Castle-eating, judges did to the honor of this profession. But I digress. 

When we think of what epitomizes a good judge, what adjectives would we select? 

In 2007 A Pursuit of Justice published The Qualities of a Good Judge. Adjectives that were used there included: understanding, communicative, calm, courteous, patient, "open-mindedness, tact, courage, punctuality, firmness, understanding, compassion, humility and common sense." The article goes on to mention "forbearance under provocation," sensitivity, intelligence, awareness, courage, integrity, experienced, educated, active, expressive, vigorous, reputable, moral, and discreet (some of these are specifically mentioned in the article and others have been inferred from context). 

The article concludes that judges should be able to "assimilate data outside the candidate’s experience without bias and without undue difficulty or stress." When stress does present, the judge: 

"should be able to handle personal stress without unloading on others; he or she should recognize that the position is not only stressful but an official governmental position of public trust, with its business conducted largely in full view; and that criticism and scrutiny are inherent in the position." 

Sound advice, and an astute reflection on this profession. There will certainly be stress, criticism, and scrutiny. But, despite the breadth of this analysis, I note that the attributes selected by that author simply ignore the "mouthy," "fiery," and "feisty" that Judge Bell used in self-description. Are these three attributes that should be included in epitomizing a good judge? 

Could all judges benefit from a periodic reconsideration of what attributes or adjectives each considers important to this difficult and challenging profession? Might we likewise benefit from careful (re)consideration of our personal attributes and performance? Should we all reflect on what we think is appropriate, and whether we think we are fulfilling the role. Should we consider whether others in the community feel we are doing so?

I think we should. I think it is important to be reflective and introspective every so often. Let's look inward and consider who we are, what the public has the right to expect of us, and whether we are delivering. Let's not be "mouthy," "fiery," "feisty," or even obnoxious drunks. And, if we note our peers in such behavior, let's be the first and most strident to speak out and correct them privately. Let us encourage each other to be what we aspired to be when we sought these challenging and demanding jobs. Let's be proud and describe ourselves accurately with the adjectives listed by A Pursuit of Justice. That requires that we periodically ask ourselves to be introspective and self-critical.

Severe Addiction Treatment

Addiction and overdose have been with us for years. The volume of Americans dying each year from overdose is simply astounding. There are those who believe that injuries (work and not) lead to prescription opioids, which lead to dependence in some instances, or addiction, and potentially death. They contend that even those whose prescriptions are weaned or discontinued may yet suffer as they turn instead to street drugs for relief of either the injury or the pain that such substances can themselves inflict when used chronically for sufficient duration. The forms that deliver opium are incredibly diverse. 

Treatment is not a new idea. In the 1960s and 1970s, there was a heroin crisis in America. One of the solutions to that crisis was (believe this or not) a prescription for a different opioid, Methadone. One addiction website characterizes the crisis when "heroin abuse moved out of the slums and ghettos to infect the sons and daughters of well-to-do." The implication seemingly being that the cause for concern was influenced by the "who" of the crisis" as much perhaps as the "what." 

Addiction is not a simple subject. As one site explains "addiction is a very complex disease that we’ve only recently begun to understand." It explains that addiction does not fit clearly into either a physical or psychological category. It seems that our difficulty comprehending it, and how to treat it, is in part caused by our prejudices, beliefs, and perhaps misconceptions about the nature of addiction. There is a misconception, they note, that addiction is a character flaw of defect. 

Certainly, how any of us react to outside stimuli is personal. We share similarities and commonalities, but we are each somewhat unique nonetheless. Thus, our propensities or personalities may play a role in how we respond to an injury, an insult, or even a substance. What is absolutely certain is that none of us is perfect, infallible, or incorruptible. 

The world of addiction treatment is evolving. Psychotherapy, neuroscience, supportive group involvement, and overdose antidotes are often discussed. There is a great focus on prevention through avoidance. I recently attended a medical conference at which multiple doctors explained the potential for avoiding the instigation of use or misuse by declining to prescribe opioids in a variety of clinical situations. There is seemingly agreement that addiction can be started innocently through prescription opioids, and that path can be inhibited or limited with careful consideration of opioid prescribing habits. 

But, one of the latest addiction efforts recently made the news in Britain, though its focus is on the efforts in West Virginia. The British Broadcasting Company (BBC) reports that the U.S. Food and Drug Administration (FDA) has given the go-ahead for the use of "brain implants to help reduce their (addicts') cravings." In fact, the first surgical implant has already been deployed. The doctors involved are quick to assure us that this process is remedial in a specific manner and that it "should not be used for 'augmenting humans.'" There is a fear of integrating humans and technology, whether realistic or not. 

The technology itself is not necessarily new. The BBC notes that "so-called deep brain stimulation" has already received FDA approval for "a range of conditions including Parkinson's disease, epilepsy and obsessive-compulsive disorder." Notably, the latter of these is a recognized and "common" mental condition, according to the National Institute of Health. Thus, the prior FDA approvals already included both physical and non-physical maladies. 

To install this device, the physicians drill "a small hole in the skull" and "insert a tiny 1mm electrode in the specific area of the brain. This area, identified on brain scans, "regulate(s) impulses such as addiction and self-control." One of the physicians colloquially refers to this as a "pacemaker for the brain." In a similar fashion, this electrode will deliver a stimulation to the brain. to instigate reaction. In design, it is perhaps not dissimilar to other stimulation treatments, of which there are several. 

The researchers/physicians involved reiterate the recognition that "addiction is complex." They note the "wide range of social dynamics" and "genetic elements" that may influence either addiction or the treatment it requires. They also are quick to caution that this procedure is not a go-to solution, but "is for those who have failed every other treatment." including "medicine, behavioral therapy, (and) social interventions." This blog has cited numerous contentions regarding the volume of overdose deaths in this country, and the evidence is that far too many continue to die. 

The BBC describes the pandemic of overdose in America. The "main cause of death for under-50s in the U.S." is overdose. And, that is a large problem in West Virginia. That state has the "highest age-adjusted rate of drug overdose deaths involving opioids." Why we bother with distinctions like "age-adjusted" is not clear. In short, there is a serious national problem, that disparately impacts West Virginia, and therefore the effort is underway there to attack addiction directly and innovatively. 

There are ethical concerns regarding the "merging (of) machines and humans. Companies are working on amazing innovations in neuroscience. The BBC notes that some will be inserting brain stimulators for maladies such as paralysis. Another company is working on a machine that converts thought to text at amazing rates up to "100 (words) per minute." A machine interpreting your thoughts. The science fiction value alone is astronomical. There are those who believe we will one-day implant computer chips directly into our consciousness. There is fear about the potential. 

The advocates of stimulator-based addiction treatment reiterate that this is a surgical intervention. Surgery includes "inherent risks" and should not be the first modality engaged in many medical situations. Certainly, following a traumatic physical injury or systemic failure, surgery will be the first response. But, because of the risks, these researchers advocate this addiction treatment as a last resort. But, in time, should these various interventions with our brains bring success, it is possible that such inhibitions might diminish. With success may come a diminishing aversion to what today sounds a bit scary to many. 

The implications and potential impacts of this research are intriguing. Has medical science reached a point of influencing our very thoughts and emotions through mechanical intervention? Could we evolve to a state of consciousness that is significantly influenced, enhanced, or replaced by a computer? Might we view these potentials as rare and human interventions today, only to see them gain acceptance and through ambivalence come to significantly impact our existence? Or, is it all just science fiction? Time will tell. 

The Eoyores Walk Among us

In 2017, I penned Negativity and your Inner Pooh. I described the attitudes that we each bring to our community. As I travel this road with you all, I see so many people channeling their inner Pooh. They are kind, generous, unassuming, and generally upbeat. But, I also noted there that the "Eeyores" walk among us also. That thought returned to me recently when I was reading a Bob's Cluttered Desk post on Defending Award Recognition for Injured Workers.

The post focuses upon a blog post written by an attorney, which questioned the efficacy, or point perhaps, of the Comp Laude Awards. In the interest of full disclosure, I have written about the Laude before. See Something New for Comp Laude 2016, Comp Laude Nominations Open, Comp Laude Overview, Community, and Commitment, Comp Laude Nominations, Comp Laude - Michael Made Me Do It!, Some 2018 Comp Laude Honorees, Comp Laude 2018 is Around the Corner, and 2017 Comp Laude Finalists Named. Some might discern a trend.

I have been proud to serve on the Comp Laude Advisory Board since 2016. I have been an attendee, a presenter, and even an honoree. And, there have been times I have been a critic. That is to say, I think criticism is a valid and important tool in our society. When we perceive fault or shortcoming, we should speak of it, engage others on it, and strive to remedy it. We all owe our community the best efforts to measure and improve it. 

The post discussed by Bob Wilson focuses on the injured worker segment of our community. The author drew distinctions between catastrophic injuries and other workers' compensation injuries. I came away from the post with the perception that the author has concluded that the Comp Laude awards are imperfect. That is fair, we are all imperfect as is all that we create. We strive for better, and aspire for perfection, but ours is a journey.

He points out that there are no injured worker honorees in 2019 in the category (essentially) of legislative advocate or agent of change. He also seems to advocate a greater breadth in the award recipients. He advocates that the awards process improve. There are admittedly many worthy workers who bear recognition, but who are fortunately not catastrophically injured. Bob Wilson found some common ground to agree with the post's author. In that vein of "bridge building," so have I. 

The award recipients are not perfect (note, I was a recipient once); not as individuals and not even collectively. There is room for greater geographical, ethnic, racial, gender, and background diversity (there may be other perspectives I forgot to mention, but these are examples). Certainly, there is room for consideration of advocates and non-advocates, union and non-union employees. 

There is room for discussion of the substance of workers' compensation, and the potential we each hold to change the conversation about, and community of, workers' compensation. Some of the most admirable injured workers I ever encountered did something to change a workplace, a practice, a law, or a regulation. And, without the catastrophic injury, the post mentions. In short, I agree that we can find much to admire in many diverse and different people; if we look. We can do all of this and more by channeling our inner Pooh (kind, generous, unassuming, and generally upbeat). 

Or, we can be Eoyore. We can deride and complain. We can diminish and dismiss. In short, complaining is easy, and progress is hard. I went to college with a man who was famous for walking through project after project always with a "you know what you ought to do . . . ." He always had advice but never lifted a finger. He was a (self-proclaimed) font of wisdom. Advice is great, but there is so much more to the Pooh side of the equation. 

Let's never hesitate to be critical and thoughtful in our perceptions of this community. I have drafted and submitted many Laude nominations. A significant volume of those were selected as "finalists." Submitting a nomination requires about 5 minutes of your day. If your nomination proceeds to the "finalist" category, then you have to draft a more lengthy explanation of the candidate, obtain a digital picture, and recruit some references. But, in truth, submitting the supporting material for a "finalist" is not more than a 10-15 minute commitment. 

So, if you feel there is not enough diversity in the Laude winners, perhaps that is because there is not enough diversity in the nominees. And, you can make nominations. The field is open. If the winners do not look to you like they are representative, nominate those you feel would be. If you perceive some inclination toward some factor (catastrophic injury), nominate someone who lacks that and explain in your submission why you believe that person or entity has moved this community forward (there are various categories, one is "other"). What has the person or entity done to improve the conversation about workers' compensation? How has our community improved from their presence, attitude, effort, communication, or contribution?

I have drafted well over 1,000 blog posts and dozens of Comp Laude nominations. In my experience, a Laude nomination takes far less time to draft. Don't complain about what you perceive is, do something to change what you perceive into what you would like.

In short, the story may not today be what you would like. The solution is to change the story. I am hopeful that everyone who reads this post will make one nomination. We must recognize those who inspire us. By making the nomination, you let someone know you value their contribution. I can assure you of one thing (which will likely disappoint the Laude officials): I was more flattered to be nominated than I ever was to be presented the Laude award. That someone thought enough of me to nominate me was one of the highlights of my career. Certainly, I was honored and flattered to be presented with the award. But, honestly, my heart soared the day I received notification of the nomination. 

Laude judges cannot control that. You can do that for someone you appreciate, admire, respect, etc. You alone own the decision of nominating someone. You alone can change the conversation of workers' compensation. You alone, similarly, can thus change the Comp Laude itself. Make your nominations! Be the Pooh you can be! "Be the change you wish to see in the" Comp Community. And, this week, as you strive to be thankful, think of all that the Laude has already done to build collegiality and change the conversation about workers' compensation. I am grateful for what it is and what I think it can be. 

Cybersecurity 2020

WorkCompCentral recently reported Cloud Security a Growing Concern for Insurers. The upshot is that insurance companies, large and small, are increasingly using data storage that is centralized and therefore perhaps more accessible. This centralized and "off-site" storage of data, generally now in the hands of "a third party," is referred to as "cloud" storage. It is replacing the "on-premises" practices of the past.

Cybersecurity has been a critical concern for years. Information is a commodity that has inherent value. Companies collect data to enhance their business and functions. The unscrupulous seek to obtain that data and to apply it to their own ends either using or selling that data. That may be done by breaching a network from the outside, or perhaps by planting something on the inside, see Hardwired Hacking.

The transition of data from proprietary locations to "cloud-based systems" is fueling predictions "that cloud security will become a greater focus in the coming year." There has already been "an increase in spending on cybersecurity across the board” according to one expert who expects that spending "to accelerate.”

There is a perception that cybersecurity has been a secondary function, an "afterthought" of network design and construction. Systems were designed from the standpoint of function, data management, and user functionality. The article asserts that the foundation is changing and that "instead, systems are being designed with security in mind from the start." And, the potential threats can come from any direction; the hardware, software, and people that are engaged could all present risks both purposeful and not. 

Security, it seems, is taking on a primary role. It is intriguing that the transition would be limited to, or even primary to, cloud computing. It would seem more logical that such a shift to the primacy of data security would be a logical paradigm change for anyone designing a computer network, in-house or "off-site." It is probable that is the actual focus, but this article's focus on the cloud flavors the perspective in that direction. 

In either event, the insurance industry in general is focusing on security because it is dependent upon technology and computing. The article notes that systems, now including "cloud-based systems," are engaged in "underwriting, claims, billing, and data analytics." In these processes, insurance carriers come into possession of a vast array of private and proprietary information. 

There is therefore a critical need for carriers to protect that data from breaches. The news has been laced with examples of data breaches around the country. Business Insider recently reported that "hackers have become so sophisticated that nearly 4 billion records have been stolen from people in the last decade." That is "billion" with a "b." By any measure of severity, that has to be accepted as a serious volume of data being compromised. 

Key points of that article include:

"The past decade has seen an explosion in the number of people entrusting massive tech companies with their personal data. There has also been a rise in large-scale data breaches and hacks."

"Of the 15 largest data breaches in history, 10 took place in the past decade. The two largest data exposures of all time happened in 2019."

"Organizations that fell victim to the attacks include Facebook, Target, Equifax, Adobe, and more."

"Data violations have only become more frequent in the past decade, according to a recent study."

The trend is thus toward increasing threats to data security. The largest, and perhaps we might suspect most sophisticated, entities in business have been victimized. Though we note that these entities are victims, it is more accurate perhaps to say that the customers of those entities are victims. While the company data may be of value to the criminals breaching these systems, it seems likely that the customer's data is the real target. 

Facebook advertises that (essentially) no matter what you are interested in, "there is a Facebook group for that." The Basset Hound group has been featured in their advertising. That got me wondering if there is a Facebook group for people whose identities and data have been hacked from Facebook? Some jokingly say that there is definitely a Facebook group for people whose private data has been sold by Facebook itself, the group is called "Facebook." Ouch, that one might hurt a little. The poignant point of that joke is that perhaps people are too trusting with their data to begin with?

The trend is for us to hear about data breaches when they are large-scale, affecting many people. When thousands or millions of people are potentially affected, the headlines will be vivid. But, what about the smaller businesses? Doctors, lawyers, insurance agents, and more store a vast array of information about their patients, clients, and customers. Might a hacker be interested in that data?

Or, might a hacker find interest in a small business because that business is interconnected with a customer or payer through an "in-house" or "cloud-based" network? If the doctor's office computer can interface for records or billing with some host (like an insurance company), might that connection be exploited for a hacker's gain? Is it unreasonable to suspect that while the network at a big insurance company might be protected by a team of cybersecurity experts, the small business that interacts with the insurance company might be protected by nothing beyond a generic anti-virus program? In other words, the small business might be the weak link in a security cordon.

There is the threat of exploiting data through hacking and the Internet. But, there is also the threat of simple theft. An industry insider related to me how a company was bankrupted when there was a physical break-in, and computer servers were physically removed. Those contained data, the same data one might expect to be hacked on the Internet. Perhaps this sort of theft is better because it is quickly known? Perhaps no sort of theft is any better than the rest. 

There are those who advocate, in the WorkCompCentral article, that the transition to a "cloud" includes a purchase of sophistication. They contend that those who use a cloud are putting their data "in the hands of technology specialists who can focus on security and maintenance issues." This, it seems, is an outsourcing of security for those who may not have sufficient expertise or sophistication to provide that protection internally. In this regard, there may be a distinction illustrated between the small and large enterprises in this proposed shift to the cloud.

WorkCompCentral also reminds us that technology is evolving, something that has likely challenged each of us at some stage of our careers. There are evolving technologies, tools, and the coming evolution of artificial intelligence among our concerns. While small entities may lack the financial or intellectual foundations to appreciate and leverage those changes independently, the implication is that cloud services will include that leverage in their products and pricing. 

For whatever reason(s), there is an apparent trend. The article notes that "cloud installations now represent more than half of insurance core systems." And in deployments, a recent report contended that "63% of insurers were looking to move more of their applications to the cloud in 2019." But, there is not much 2019 left. It will be interesting to see what the trend is in 2020.

Therefore, there are three issues. First is the decision regarding trusting your data to a third party, a "cloud." With that could come both benefits and burdens (if their sophistication fails, or if one of their users is lax, it could compromise your data). Second, more broadly, what are your options to protect your livelihood from hackers and other threats. Finally, what demands will your customers and business partners make upon you in regard to these or other security decisions? 

WorkCompCentral noted that a recent blog post by AmTrust said “Workers’ compensation insurers need to be prepared for possible data breaches.” And, if we accept that as true then perhaps the same can be said of us all? The threat, it seems, is to us all: large, small, in between. Perhaps all of us need to focus more attention on our data, security, and protocols. Is it something we have even thought about recently? Shouldn't we?

Historic OJCC Stats 2019

The Florida Office of Judges of Compensation Claims produces an annual report each November. It is as comprehensive and inclusive as any I have seen in the world of workers' compensation. The reports are available on the website (under the "reports" tab). The report is required by Section 440.45(5), Florida Statutes, which delineates multiple metrics that must be addressed. The report, however, addresses more than is mandated, in an effort to convey the full scope of what this Office does. 

The Florida Legislature has seen fit to define three time parameters for this Office: (1) time to mediation, (2) time to trial, and (3) time to the final order. These are in § 440.25(4)(d) Fla. Stat. (2003)(trial within 210 days of petition filing and order within 30 days of the conclusion of trial) and § 440.25(1), Fla. Stat. (2003)(mediation within 130 days of petition filing). It is believed that these statutory requirements resulted from legislative perceptions that this Office was not historically timely in its efforts. There are attorneys who can relate anecdotal examples of long waits for trials and orders before the last century. Some can relate to such instances even after the turn of the century. It is fair to say that some cases simply require more time than others. 

For sixteen years, these statutory time frames have been referred to and discussed in the annual report. Very rapidly after their implementation, the state mediators began collectively meeting the 130-day parameter for mediation. The process of "auto-scheduling" mediation appointments helped in that regard. However, the professional's focus on meeting the parameter undoubtedly increased compliance. By 2007-08, 100% of the state mediators were averaging less than 130 days from petition filing to the initial mediation (some cases are mediated more than once). In 2018-19, for the eleventh year in a row, the state mediators each averaged less than 130 days. 

The definition used by the OJCC for "trial" was consistent for many years between 2006-07 and 2015-16; it included a variety of hearings that each judge determined were "evidentiary." Then the definition was changed because a minority of Judges of Compensation Claims were reporting various simple, procedural, and stipulated matters, resulting in minimally involved orders as “trials.” The term was redefined to a more constricted population primarily merits orders on petitions and attorney fee/cost orders. Before that change in definition, the overall "time to trial" had dipped below the 210-day statutory parameter.

The change in definition made a notable impact on that in 2015-16, back to an average above 210 days. Thereafter, the average performance for this metric did not return to under 210 days until 2018-19. 

The change in definition may also have affected the "time to order" measure. There was a notable increase in the days to order that year. However, the "time to order" trended back downward rapidly after 2015-16. Notably, the 14-day average for 2018-19 is less than half the statutory parameter of 30 days. 

These are the overall aggregate averages of all the trial orders entered in a particular year. Notably in 2018-19 however, 100% of the Judges of Compensation Claims individually averaged less than 30 days between trial and order. That is a significant and noteworthy achievement. It is historical because even in previous years when the overall aggregate average was within the 30 days, 2018-19 is the first time that 100% of the judges met this metric on average. In that, 2018-19 was a banner year for the performance of the Office of Judges of Compensation Claims. 

It is possible that with increasing petition volumes, which will be addressed in a future post, meeting these three metrics will be increasingly challenging. However, at this time the OJCC is proud to have met the three metrics for 2018-19 on average. More so the OJCC is proud that all mediators averaged less than the 130 days and all judges averaged less than 30 days between trial and order. That 100% individual effort is worthy of celebration and congratulations. It is indeed a proud day for this agency, and the credit belongs to the phenomenal individuals who serve as mediators and judges in the Florida OJCC.

Too often, we see or recognize organizations. Too infrequently, we pause to recognize the individual. The individual is critical to the performance of any team. The OJCC is blessed with a team of outstanding individuals judges and mediators. We do not note their contributions often or loudly enough. But, we should.  

On Branding and Advertising

Law was once a profession. That is no longer the case, though there are still demands of professional behavior and professional standards. The profession of law has evolved largely into the business of law. It is not hard to find the vestiges of professionalism. The Rules Regulating The Florida Bar include a chapter of Rules of Professional Conduct. The Florida Supreme Court and bar have jointly created the Latimer Center for Professionalism. Do not misunderstand, professionalism remains integral to and ingrained in the business of law.

Just over forty years ago, the Supreme Court of the United States interpreted constraints on lawyer advertising in Bates v. State Bar of Arizona, 433 U.S. 350 (1977). That interpretation is essentially that state advertising regulation must be balanced with the individual professional's First Amendment rights to expression and association. With it, some see the beginning of the legal transformation into the business of law. 

Lawyers are not alone. There was a time when physicians did not advertise, nor did hospitals. Some will note that other professions have also entered the advertisement paradigm, such as accountants, dentists, and architects. While there is a recognition that professional advertising is somewhat recent, there is also support that overall advertisement as we know it is a reasonably recent phenomenon. And, the impetus for the evolution of marketing was allegedly based upon an oversupply for which demand had to be generated. 

The British Broadcasting Corporation (BBC) recently published Are Cigarettes Responsible for Modern Marketing Methods? It contends that the modern ubiquity of branding was not the norm in the 1880s (140 years ago). The early adopters of the "awesome power of branding," was pioneered by Camel cigarettes. The BBC contends that following Camel's lead into branding were such companies as "Kellogg's cereal, Campbell's soup and Colgate toothpaste." Branding is the promotion of the name and identity of the producer as opposed to strictly the product. 

The article describes various innovations that led to increased smoking but describes the "starring role" of one James Bonsack. He is credited with building or adapting the first mechanical cigarette machine. With it, in 1881, the cigarette went from a "niche product" to a common product. Pre-rolled cigarettes could be machine-produced at a rate of about "200 cigarettes a minute" which was about what a human "could make in an hour." As an aside, this illustrates again technology impacting jobs. But, as the demand was not as significant pre-machine, perhaps few jobs were actually lost? 

The result was a significant supply of cigarettes in search of a market, and marketing stepped up to create the demand. Some companies spent as much as "20 percent of" "revenues on promotion," an unprecedented figure. Within forty years, cigarettes had surpassed chewing tobacco, pipes, and cigars - they became "the most popular way for Americans to consume tobacco."

There were public perceptions in the 1990s that smokers unwittingly became addicted to smoking. The U.S. government began mandating the now ubiquitous Surgeon General warnings on packaging in the 1970s. It has now been almost 50 years since those warnings have been present, and yet people start smoking every day. Some feel other countries are doing a better job of warning citizenry of the dangers. See, Cigarette Pack Health Warning Labels in US Lag Behind World (noting more graphic, prominent, and emphatic warnings in other countries).

Despite perceptions, the BBC notes that the dangers of smoking were advertised during the early branding of the products. When one brand promoted its use as an avoidance of candies, "sweet makers were outraged." Candy companies responded with advertisements that informed cigarettes would "inflame your tonsils, poison with nicotine every organ of your body, and dry up your blood - nails in your coffin." That is fairly direct? "Nails in your coffin?" The tobacco companies allegedly responded with the endorsements of physicians who said they smoked those products. 

The article notes that decades later the U.S. government eventually banned the involvement of physicians in such advertising. Then in the late 1940s and early 1950s, there was at least some recognition that cigarettes were largely indistinguishable, homogeneous. The manufacturers were faced with admitting the uniformity of their product and competing on price, or turning to the concept of "branding." The authors explain that price competition "erodes profit margins," and contend that therefore the market turned to "branding." The personality and perception of those who smoked became critical. It was the birth of "the Marlboro man" and various slogans appealing to our personal vanity or self-perceptions. 

The BBC explains that in a market there is potential for a "consumer surplus." This drives our consumption; it is the "enjoyment the product produces, minus" what the product costs us (price primarily, but the detriments to a product might also be included in "costs"). What does our consumption of a product or service say about us, to us? Does that drive our decision to buy a particular brand of vehicle more than the attributes, benefits, and costs of that vehicle? Can the same be said of the clothes we wear, the restaurants we frequent, or any of our consumer choices? Is branding the overriding driver of our consumption?

The article concludes that these questions may be of concern to us as we make consumption decisions. It suggests that we, as consumers, have to be conscious of the impact that branding has on our decision-making. To some extent that may be influenced by the what and how of branding that is permitted by the government, as the evolution of cigarette advertising has perhaps illustrated. But, in the end, it may simply be up to us individually to make critical decisions about how we consume. 

In that regard, we may be challenged by the availability of information. There may be environments in which "the message" might be less clear than others. The BBC notes that despite our modern appreciation for the risks of tobacco, there are still major governments that regulate its advertisement less than the U.S. The article cites China, and the interrelationship between tobacco, taxes, and the role that the prestige of "premium brands," and branding overall may play in consumption. It points out ironies in the more recent shifts of consumption. Its conclusion is that "the power of brands to create credulity is still as strong as ever."

What do you convey? Is your reputation in your profession stellar? Are you marketing a service or product? Or, are you marketing a brand, your brand? Do you seek to influence the perceptions of the community you serve? What do you do to communicate your attributes and strengths, or merely those of your product/service? Or, do you remain above the fray of branding? Some introspection might help us each in better understanding the market and our individual or collective participation in it.