Closing More OJCC Offices

Change is coming. We find ourselves in the wake of great technological advances that we have worked very hard to develop and deploy. The onset of the Great Pandemic in 2020 drove our societal reliance on technology and those who practice Florida workers' compensation were benefitted. Time and again, we hear of the challenges that were faced by lawyers and litigants as other adjudication systems stalled, faltered, and failed. We were all resilient; lawyers, judges, staff, and more were amazing. 

I was reminded of that when an attorney recently inquired about that history, "whether the OJCC’s offices were shut down for any time period during Covid." The attorney was working on some reporting or documentation of the pandemic. I think the attorney was a bit surprised by the response, that the OJCC never shut down for COVID-19.

There were a couple of days that particular offices were closed for cleaning. There were a couple of instances in which our landlords constrained public access to an office here or there. There were the inevitable examples of an employee or two missing work for a variety of challenges. It was not an easy time, and I would not want to minimize the impacts of the pandemic. But, throughout, we remained open.

There were accommodations for the pandemic. Mediations shifted to telephonic in a March 2020 mandate. We strove to return to live mediation in July 2020, but lawyers did not wish to return. In short, we were inundated with requests to appear telephonically. The filing flood led us to reinstate mandatory telephonic mediation later in July and maintain it for another 8 months. We returned again to in-person in February 2021. And no one came back.

We struggled with process and the challenges of trial. There was no systemic change for trials and hearings. But, in March 2020 we offered Zoom hearings and other alternatives to live appearances. Make no mistake, in-person trials continued throughout. There was plexiglass, masks, Lysol, and more. But, with these tools and efforts, "live" trials never ceased. Many lawyers elected the Zoom alternative. At least one judge opted for telephonic trials. And, we persisted. As the pandemic ended, and we strove to return to normal early in 2021, the lawyers did not want to come back. Zoom trials persisted.

There is the old movie saw that "if you build it they will come" (Field of Dreams, Universal 1989). And as well as that ball field in the cornfield worked out for Kevin Costner, the adage rang shallow in the world of Florida workers' compensation. Build it we had, but they didn't come. The practice persisted in its preference for remote appearances, video technology, convenience, and the lawyers didn't come. Some even complained that there were too many OJCC offices, too much space, and questioned why. They advocated for a smaller footprint.

This fed the perception in Tallahassee that the OJCC paradigm of distributed district offices was antiquated and unnecessary. The great success of the great pandemic response demonstrated that technology can overcome distance, and it did. The practice demonstrated its preferences and the accountants responded. A statute was quietly amended in 2022, and Florida's practice changed. By the end of fiscal 2022 (June 30), The OJCC had seen DOAH close Melbourne, Lakeland, and Port St. Lucie. The closure of Gainesville was foreshadowed then.

In fiscal 2023, the closure of Gainesville came to pass as predicted. And progress continued. In March 2023, the next round of closures was announced in Further Consolidations in 2023. In the coming days, Daytona will be consolidated into District Orlando, Panama City will be split and the counties and cases reassigned to Districts Pensacola and Tallahassee, and District Sarasota will be integrated into District St. Petersburg. We will retain all of our judges and staff throughout the process. Judge Moneyham will undertake a new docket in St. Petersburg, alleviating a long-standing overburden there.

I anticipate that these 2023 changes will bring me the same reactions and comments that marked 2022. I will hear from lawyers who are troubled by the change because it is change (no one likes change). I will hear from lawyers who are troubled by their loss of convenience ("do you know how far I will have to drive for a hearing?"). I will hear from lawyers who lament the inconvenience to their clients in terms of travel. I have heard recently from several who lament the challenges their clients experience with technology, bandwidth, and more in the new era of Zoom mediation.

In the end, there will be change. In the end, the Florida OJCC will have a smaller footprint, a less geographically diverse presence, and a continued or perhaps increasing reliance on technology. In the end, if you wish to cast blame for the world changing, perhaps it is on me. The present could likely not be without the technology and innovation of the last two decades: videoteleconference, electronic filing, electronic service, digital appellate records, and more. The world has changed. I am proud to have been along for that ride, as a cheerleader, but not a programmer. 

Or, perhaps the blame is on you. When the local offices were ready and willing in the early days of pandemic recovery, and live mediation returned, the public did not. We had built it, but they did not come. After a more extended pause, we returned again to in-person mediation, and still they did not want to come. The market chose remote, technology, and convenience. There is a sound argument that the place we are in today is what the customers demanded.

Or, perhaps there is no blame. Perhaps we are all in the midst of a cascade of change and challenge that was inevitable. As the world evolved and reacted to the convenience, economic pressures, and progress, we would perhaps have been at this station regardless of any effort or pandemic. Possibly, in the spirit of The Butterfly Effect (NewLine 2004), we would have all found ourselves at this junction, at ten remaining District Offices anyway. Maybe not as rapidly, maybe more rapidly still. In the end, we shall never know.

What we know is that this station is where we do stand today. The reality of 2023 is that further District closures are coming. The timing will be within days. We expect to transfer these counties and reassign these cases in March. We anticipate ceasing live proceedings in Daytona, Panama City, and Sarasota by April. As Theodor Geisel might say, "the time has come, the time is now." (Marvin K. Mooney, 1972).

There will be inevitable questions about what the rest of the journey looks like. Knowing we have arrived at this station, some will ask what the next station on this track looks like. In the historic words of Mr. Spicoli (Fast Times, Universal 1982), "I don't know." Write that on the board for everyone. Will there be further changes in years to come? Will technology further revolutionize the practice of law? Will lawyers use the remaining facilities around the state? Again, Mr. Spicoli, "I don't know."

The future will be addressed as it becomes the present. Evolution will proceed with us, through us, and perhaps even without us. How the world changes is largely up to you and perhaps a great many things like technology over which you have no control or even comprehension. So, for now, enjoy this station stop on the trip. We know what it looks like, that it has Zoom mediation and ten District Offices.

Tell me how it is or is not working for you and we will strive to serve you. Tell me how you think we could serve you better. Be a part of where we are today and make tomorrow match your expectations and preferences through your participation, contribution, and leadership. Tomorrow opens before you like the next stop on this train track. Be a part of it as you are drawn down these tracks to the next stop. We have been resilient and will remain resilient. Whether you like it or not, I believe in you. 

Meta Analysis

According to BMJ Journals, Meta-Analysis

is a research process used to systematically synthesise or merge the findings of single, independent studies, using statistical methods to calculate an overall or ‘absolute’ effect.

This is a process for coalescing data across an experience or inquiry in order to reach overall impressions or conclusions. It is somewhat lauded in the scientific community. But it is admittedly subject to limitations. The BMJ Journals notes the efficacy of evidence-based studies and the meta-analysis process. However, it also concedes that this process may include studies with differing quality, minimal size, and poor design. It stresses that the analysis process cannot "magically resolve" those shortcomings. Thus, it is a tool; one that is perhaps both informative and imperfect.

The concept was introduced recently in a Vox article regarding the ongoing and often divisive study of mask-wearing related to our recent pandemic experience. The article introduces to a "UK-based nonprofit" called Cochrane which is said to be a "major source of high-quality, reputable meta-analyses." The author notes they are often the "gold standard" for such studies.

Vox says that a recent Cochrane analysis of various studies has concluded that

Wearing masks in the community probably makes little or no difference to the outcome of laboratory-confirmed influenza/SARS-CoV-2 compared to not wearing masks.

At last, a definitive conclusion of the overall debate regarding masking. This is not a conclusion based on a study or a singular perspective. It is a broad conclusion that comes from, essentially, studying the studies.

I have written often on masking and the many vacillations and arguments that ensued. See A Great Hamburger and a Smile (April 2021); The Science of Consensus (June 2021); Tootsie Pops Make you Think (August 2021); Breakthrough, Vacillation, and Consensus (August 2021); Violence in the Workplace (August 2021); and The (un)Masked Man (September 2021). It is perhaps fair to say that 2021 was The Year of the Mask or The Year of the Mask Debate. It is certainly fair to say that I have not been a mask fan. I recently encountered a couple grocery shopping in masks. Their glance was wary as I passed. I heard a lady behind me greet them with "you're not from around here are you?" 

The Vox author notes that the leader of that Cochrane study endorses the conclusion. But, the article proceeds to attack the author regarding other "eccentric and flatly nonsensical opinions about Covid-19." Next, the article faults the study itself based on content - "The review includes 78 studies. Only six were actually conducted during the Covid-19 pandemic." So, much of the data regards instead the transmission of influenza.

Finally, Vox is critical that only two studies were COVID-specific, and that these are perhaps more aptly described as studies of the effects when "people were encouraged or told to wear masks by researchers," not necessarily the same as actually wearing masks. In short, the Vox article leads with praise and edification for Cochrane and these Meta-analysis approaches, proceeds to assault on the outcome's author, and then criticizes that epidemiologist's approach to the question.

Vox discusses specific masking studies, and outcomes or results more amenable to the author's seemingly preferred conclusions about their efficacy. The author concludes with "Science is full of judgment calls," and the opinion that the "Cochrane review" is somewhat "a scientifically irresponsible way to represent these findings." It asserts that human scientists with individual "strength(s), weaknesses, and eccentricities" are prone to, or at least amenable to, mistakes and failures.

It is an intriguing position to advocate in a world of "follow the science" mantras and shaming. Anyone that differs with the consensus is belittled and attacked in the press or social media. They are labeled "deniers" or worse. Science is held up as the be-all and end-all until it disagrees with someone's favored consensus outcome. Then it is derided, faulted, and belittled by the very "follow the science" echo chambers that are so adamant about the infallibility of the science on topics they love.

Perhaps I miss the mark. Maybe there is value in questioning science and its conclusions on a variety of subjects. Perhaps neither science nor scientists are perfect in any context? Maybe Giordano Bruno would have a thing or two to say about all of that? Perhaps a great many who hold unpopular but nonetheless scientific opinions might wish to comment?

The perspectives are interesting. The strength of the science, and the analysis, are perhaps empirical, conjecture, consensus, or nonsense. That science is capable of mistakes and misconclusion is beyond doubt. Shall we judge the outcomes based on our pre-disposition? If science agrees with us shall we exalt it and attack critics of those conclusions" Shall we conversely deride science if it contradicts our beliefs? Perhaps hypocrisy is in our very human nature.

 

Disease or Choice?

There is a developing tendency to consider obesity from different perspectives. Body habitus is not new to these pages. See Can I Get a Team Gulp (July 2014), Stool Transplant (October 2019), What's in a Name (August 2020), Comorbidity of Obesity (October 2021), The BMI Conundrum (August 2022), and Obesity Yet Again (January 2023).

There is a fascination in America with body habitus and health. We spend tens of billions each year on workout equipment, gym memberships, diets, drugs, and more. And, there is a growing sentiment, it seems, that fat is inevitable and unassailable through simple diet and exercise. The Yet Again (January 2023) post notes the latest scientific conclusion that drugs and surgery for children is the right path to svelt.

In a recent article, focused on the off-label use of diabetic medication for weight loss, there is a repetition of the word "disease." Repeatedly, I have noted the distinction between science and consensus. and the potentiality for them to become intertwined, intermingled, or even confused. And, in our world, there is an ever-present effort to manipulate and persuade through the careful selection of words.

In that vein, there may be some challenge in the medical community with differentiating a diagnosis (malady, damage, or disease) from symptomatology. For a layperson, this is an easy dichotomy to overgloss. The simple question “what is wrong?“ when directed at a patient, is likely to evoke a list of symptoms ("it hurts when I do this"). When someone asks us what is wrong, it is our habit to tell them our perceptions. In terms of what is actually wrong (causation), it is the scientist's job to name and explain the damage, the dysfunction, or the disease.

Doctors have long distinguished between the two in their discussions of “complaint(s)." This section of the medical record or report is an opportunity for the doctor to delineate those complaints or symptoms voiced by the patient: pain, discomfort, dysfunction, or inability. In an utterly distinct section, there is the conclusion of cause, the “diagnosis.“ This is the scientist's delineation of damage or dysfunction or disease from which the scientist believes the symptoms emanate.

For the sake of clarity, I am neither a scientist nor a patient. I have never played one on TV. It has been a long time since I stayed in a Holiday Inn Express.

The diabetic drug article demonstrates what seems to be a growing tendency toward confusion between the cause (the illness) and the effect (symptom). A doctor is quoted in the article, acknowledging a perception that one demographic "struggle(s) with the disease of obesity." The article also notes that this diabetic medication, may not be the answer for "everyone with obesity . . . As with treating other diseases, different types of therapy may be needed."

That seems to overstate obesity. It is hard to consider body weight itself as a disease. However, as it is defined, this is perhaps accurate. 

Brittanica says that "disease" means

disease, any harmful deviation from the normal structural or functional state of an organism, generally associated with certain signs and symptoms and differing in nature from physical injury.

Websters defines it as

a condition of the living animal or plant body or of one of its parts that impairs normal functioning and is typically manifested by distinguishing signs and symptoms

It is difficult to perceive that symptom is synonymous with disease. However, it appears that at least some consider obesity in this category. And, with the off-label success some are having in using this diabetes drug as a weight loss tool, there is lamentation that some obese people cannot afford this medication. The spirit of the article seems focused on a perceived inequity in access to financial resources. A better focus might be on how increased exercise and decreased caloric intake can result in weight loss. 

The perspectives on this obesity epidemic are intriguing and troubling. As a species, we are apparently losing this war on every continent. CNN reports obesity is growing at such a rate that "more than half of the world’s population will be overweight or obese by 2035." That is roughly 4 billion people reaching that threshold in the next dozen years, an expansion from the 2.6 billion now obese. This is based on a recent report. 

The article acknowledges the recent endorsement of drugs and surgery for children. It laments the predicted doubling of "childhood obesity." The fat wars could cost us 3% of global GDP by 2035. The most significant growth rates are predicted in "low- or middle-income countries in Asia and Africa."

An article from the British Broadcasting Corporation provides an analysis of the causes of this trend of increasing obesity. It lists:

1. dietary preferences towards more highly processed foods,
2. greater levels of sedentary behavior,
3. weaker policies to control food supply and marketing, and
4. less well-resourced healthcare services to assist in weight management and health education

These seem to provide some reasonably simple solutions (1-3). They are not treatment foci, as with disease, except perhaps 4. They largely come down to prevention foci on not eating categories of food, getting off the couch, avoidance, and education. Perhaps the marketing aspect of such things as the Food Pyramid and MyPlate are not answering the need for public information? Do people even know what MyPlate is? As a publicity campaign, might the lack of exposure be indicative of its failure?

There are likely those who are predisposed to issues with body habitus. But, in the end, we each can control what we consume and how we spend our time. Caloric intake and activity level are the calculus of this growing epidemic. Characterizing the resulting obesity as a disease, and thus casting it as an effect for which we bear no responsibility, is unfortunate and with most inaccurate. The enemy is processed foods, empty calories, and inactivity. We have seen the enemy, and it is us. That is not encouraging, but with the knowledge comes the power to defeat it. 

Pronouns in the Workplace

The workplace can be a challenging place. It is a place in which safety has evolved significantly in the last 100 years. There are layers of protections for workers today that simply did not exist a century ago. Examples, beyond workers' compensation, include the FMLA, the ADA, the OSHA, Social Security, and more. We have seen the Equal Employment Opportunity Commission dawn and become pervasive in the workplace. Some have the sense that this journey has just begun. Some think we have gone too far. Others are merely bewildered, and they stumble through the workday hoping for the best.

Words have long mattered in the workplace, and there are few objective standards as to what words are either appropriate or not. There is a litany of context and circumstance that are intertwined and thus challenging for management. Is it appropriate for one to use a particular word? Does it matter who uses a word? Does it matter how that word use is perceived by others? If it is self-deprecating, can it nonetheless be offensive to some listener? As rights collide, where does one person's freedom of speech stop and another's freedom from offense start?

The news recently highlighted the settlement of a California fast food case that brings the discussion further. A new hire found that (insert pronoun, or "IP") was challenged by (IP) pronouns in the workplace. The worker was allegedly "repeatedly misgendered by co-workers." The worker complained to management about the co-workers' use of pronouns and did not feel that (IP) received the appropriate managerial support. The worker "filed a complaint" alleging (IP) "was subjected to "discrimination, harassment and retaliation." The restaurant chain has agreed to pay the former employee $20,000.

This becomes potentially complicated by the preference for less familiar pronouns (zie, zim, zir, zis, zieself). Some adopt instead plural practices, opting for "they," "them," etc. This is confusing to some, whose experience with the language suggests that plural actually refers to more than one. This is an antiquated concept, English that is. And perhaps the dinosaurs that cling to such things as tense, number agreement, nouns, verbs, adjectives, punctuation, and the rest of that nonsense need to just get over it. Just know that what one says may or may not be what one (or more) means. The point is personal comfort, not effective communication. 

The restaurant employee in this news story complained that management did not correct coworkers and enforce the pronoun use to which (IP) adhered. Instead, "Management told (IP) repeatedly that (IP) would have to explain (IP) gender to co-workers rather than rely on management to correct discriminatory behavior." In the article, the author elected to use pronouns. It is unknown whether those were designated by the complaining party or assumed by the author. When one quotes a source, we are dependent upon their research, conclusions, and presentation, or we can ungender with an ("IP"). 

There is perhaps some limitation to this $20,000 settlement as the news notes that "California law prohibits 'intentional misgendering' in the workplace." This suggests that any such use of pronouns would first have to be "intentional." It is not clear whether ongoing and persistent negligent or even willful indifference would suffice. And, second, as this is in California, perhaps the outcome would be different in other jurisdictions. Possibly not all states have a "misgendering" limitation on free speech. Or, perhaps it is a "hate speech" exception to free speech. Should constitutional protections on free speech exist in the workplace?

The story illustrates the challenges that management faces in the broadest contexts. From years in the restaurant industry, long before the labor challenges of COVID, finding and retaining staff can be challenging. Training and supervising staff can be challenging. Being the only on-duty manager, with responsibility for both the kitchen and dining room can be beyond challenging. And, in the midst of the workday, a variety of other complications can come to the fore including plumbing, cleaning, inventory, customers, and more. Every restaurant critic should do a mile or two in those sandals. But, perhaps most important is the challenge of assuring that no one's speech creates a misgendering.

I recall, as these thoughts cascade, a bit by noted comedian bblbblbblbblbblb (whose stage name is Steve Martin). Steve described in the 1970s how (IP)'s parents had bestowed challenging names on both Steve and a sibling. There is some illustration mentioned there of how neighbors perceived Steve's birthing parent when the humans of non-majority were summoned. That is of interest, perhaps, as the perceptions and conclusions of the neighbors may be as important as those of restaurant patrons. If an employee insists that (IP)'s pronouns are "your highness" and "gesundheit," how might the customer perceive hearing communication with your highness? If I offend you by using his "preferred name" of "Steve," I apologize. Writing this, I am thinking of Bud Abbot, and I cannot figure out why.

In what universe does it matter what someone wants to be called? If bblbblbblbblbblb is troubled by that moniker and wants to be known as "Steve Martin," it is likely irrelevant what anyone else thinks of that. Arguably, what is relevant is that "Steve" prefers that. Though we may feel there is a Constitutional right to free speech, calling "Steve" "bblbblbblbblbblb" may be hurtful or upsetting. But a great many things one might say are potentially hurtful or upsetting. Shall we ban them all?

Certainly, in a work setting, the use of pronouns or names might be subject to constraints. The language used might be offensive to customers and thus damaging to the business. If a counter worker in a restaurant asks to be called an expletive, slur, or insult then there might be a problem. Most will likely agree that restaurant patrons could react badly to some employee being persistently referred to as "idiot," despite that being the employee's choice and preference of personal pronoun. Other examples might be even more pejorative and challenging.

The personal pronoun discussions are not new. The University of Michigan allowed students to designate pronouns back in 2017. The responses it received were intriguing. Students asked for such references as “The Exalted King,” “Supreme Leader,” “A Man Has No Name,” “LG LCRT2010ST Microwave Oven,” and “(-b +- sqrt(b^2 – 4ac) ) / 2a.” I know how often people mispronounce my name. I might struggle with how to pronounce that last one. Or, might I inquire "can I just call you 'Microwave' for short?" Or do I risk offense by pronunciation? See Key and Peele. 

In 2022, the 6th Circuit (in Cincinnati, the chili capital of the world) concluded that Professor Meriwether of Shawnee State University had a free speech right to decline to use the preferred pronoun of a student. The professor used the reverence "sir" to refer to a student that did not prefer that. A second case is in the news more recently, at Southern Utah. A similar incidence of title or use is now the focus of the university. Professor Buggs there has reportedly been admonished and perhaps faces further scrutiny or discipline. A lawsuit has reportedly been filed.

Professor Buggs apparently was asked to call a student by plural pronouns "they" and "them." When he declined and used the "student’s given or preferred proper name" the student "filed a Title IX complaint against him." This seems not to be an avoidance of pronouns one does not like (use of the name and even preferred name does that), but an insistence that the professor use the preferred pronoun. This is not freedom of speech as much as it is compelled speech. In Michigan, which might be “(-b +- sqrt(b^2 – 4ac) ) / 2a.” In the example above, it might be "idiot" or worse. I struggle with understanding how there is some personal harm in being called your name?

Workers nonetheless deserve respect and appreciation. If an employee is offended because a co-worker persistently utters some absurdity like "roll tide," "gator nation," "geaux tigers," or "hoddy toddy" management should absolutely intervene. There is offensive and then there is offensive. No offense. I will no doubt hear from some graduates of those magnificent institutions of higher learning. And, I reiterate, no offense. It's a joke. 

But, where will the apparent conflict between freedom of speech and freedom from discrimination end? The Supreme Court of the United States has concluded already that the Civil Rights Act protects against discrimination based on sex. Bostock v Clayton County, 140 S. Ct. 1731 (2020). The 6th Circuit has concluded that does not necessarily mean that a person's pronoun preference can be enforced. The Utah case may sort out whether I can be forced to call you "idiot." The California settlement suggests that it disagrees with the Cincinnati court. 

Undoubtedly, one of these disputes will reach the Court one day and we will get a clearer picture of how the employer's responsibilities in the workplace coincide with the free speech rights of the speaker and the discrimination protections of the listener. While it is likely, it has not happened yet. In the meantime, there is likely significant money being invested in litigation and lawyers to strive to sort out these competing interests. When we reach a point where one may be sued for declining to use a word you prefer, and simply call you by your name, we are perhaps down the rabbit hole. 

Imagine what we might devote resources to instead of litigation over forcing people to call us what we prefer, regardless of the potential for offense. Perhaps, a universal pronoun of some manner would suffice to render everyone pleased and satisfied. Could we all agree on some such word? In America today, we seem incapable of agreeing with anything. But maybe our universal, ungendered, pronoun could be O-H-I-O! Imagine a school so proud of itself that it spells its name at the drop of a hat. Let's just replace all pronouns with Ohio? But in California and perhaps in Utah, the government will force the use of some other choice.

Imaginative Engagement

The challenges and tribulations of professionalism in the practice of law, and specifically in the Worker’s Compensation community, have been in the fore lately. There has been much discussion of the separation that came through the advent of technology, exacerbated and leveraged by SARS-CoV-2. In no way trivializing the great human suffering of the pandemic, it is possible one of its most lasting human effects will be societally and socially on the way we interact.

There is growing recognition that the workplace of yesteryear had deep social and interactive benefits. The British Broadcasting Corporation (BBC) recently noted that "for older generations, work was the sole place of connection." The virtuality of the pandemic reaction is seen as impacting us all in terms of social interaction, with a particular emphasis on the young. The article concludes that "without offices, young people have to get clever about making friends."

Making friends is a challenge in any setting. Many struggle with the social interactions that society deems normal or expected. And, the BBC features young people who conclude that their pandemic isolation fueled feelings of being "anti-social." They lost human contact, and it seems, simply became accustomed to their isolation and lack of contact. Generation Z members who had been "very sociable" simply lost focus on "cultivating relationships," and became reticent or resistant to meeting new people. There was some degree of emotional discouragement regarding the social environment.

I am persistently hearing anecdotes of people whose "interactions" are long distance. One fellow "boomer" lamented recently that a family member's sole engagements with others in the same age group are through social media. The only "friends" are names on a feed, pictures on a "wall," and none are within even a reasonable day's drive. There is engagement there, but there is a perceived faux nature and persistent disconnect. There is nothing like being there.

Various bar leaders approached me last year regarding their perceptions of the challenges of professionalism in the practice of law. We strove to meet in October, but our nemesis Ian intervened. However, since mid-November we have been trying to brainstorm some ideas for moving the ball forward in terms of professionalism and the practice of workers' compensation law. There is enthusiasm, and in some instances perhaps we find ourselves struggling to keep pace with the efforts.

The outgrowths of this have been multifaceted. I think the most effective progress has come at the hands of the Section and the OJCC, though many are contributing.

Phillip Augustine, the current Section Chair, is striving to bring back the Town Hall setting for discussions and interaction. There was one last week, and two more are already on the agenda for this spring:

• February 21, Workers’ Compensation Section Town Hall (Case, Hedler, Sancerni), ZOOM
• March 10, Workers’ Compensation Section Town Hall (Anderson, Grindal, Moneyham), ZOOM
• May 16, Workers’ Compensation Section Town Hall (Kerr, Young, Pitts), ZOOM

These are exceptional opportunities to connect with the community, see some familiar faces, gain some insight, and ask some questions. If you have thoughts on making the programming better, contact Mr. Augustine. If you see him, thank him for making these real.

The Chair-Elect, Paolo Longo is already engaged in his upcoming term as Chair. He has launched an in-person adjunct to the Town Hall. These are bring-your-own lunch meetings that focus on small-table interaction with a variety of judges in a particular district. The first was in Orlando in December. The next is April 5 at the Jacksonville District office. I am honored to have been included in that gathering. These are more intimate, interpersonal, and may require us to get out of our shells a bit more than the Town Hall. But, in-person is a great alternative.

These lunches are being planned in other cities. The intent is to gather the bench and bar. The benefit is in the collaboration, commiseration, and collegiality. Stay tuned for more such opportunities to come. If you want to help one happen in your geography, contact Paolo and volunteer to make a difference.

Also in April, we will be at the Forum in Orlando. That will be a two-day opportunity for education, communication, and interaction. There will be bread to break, stories to recount, and catching up to catch up. Some of it may seem distracting, non-billable, non-income producing. Your perceptions are not wrong. It is intended to be a step back, a social environment. There is value in the education, but more in the interactions. Let's take a selfie together there?

In May, the OJCC will offer the first Work Comp Academy. This is focused on the next generation. We will gather in Orlando (recurring theme?) to present the nuts and bolts of practice for those who will soon enough inherit it. This practice and community is losing the old and greying at an epic pace. As we fade from the scene, who will step forward? That is the target audience as we launch this in-person initiative for increased knowledge, experience, and interaction. The response to this has been overwhelming and a second iteration will occur in Tampa in October (an event not in Orlando!).

There is always enthusiasm for the Inns of Court. There is praise for the Miami district “meet the judges.“ There is grateful recognition of the participation in programs with the Worker’s Compensation section, the WCI, and beyond. The program the OJCC and WCI produced last week in Tallahassee was phenomenal. There are opportunities in every geography, community, and population. The effort is being made to put the water out there. The leaders are leading you there. Will you drink it?

The professionalism panel moderator, starting the last panel of the day in Tallahassee, noted some chilling facts. This profession we have chosen is persistently among the most lonely. It ain't just the Generation Zs mentioned above. Loneliness and isolation are endemic. The practice of law is stressful, energy-sapping, and at times frustrating. We toil here and too often see little progress, unsatisfying results, and frustration. I talked with a millenial lawyer last week that laments the level of satisfaction from this work, and expressed a desire to be a car mechanic instead. Recognize it, talk about it, and let's somehow begin to remedy it.

There is, to be blunt, a tremendous amount of effort being expended in the interest of professionalism. That effort is, however, admittedly sporadic, diverse, and perhaps too easy to overlook. As we turn our eye to professionalism, we truly miss the boat if we fail to acknowledge the various efforts of so many in both bench and bar. Let us not forget their efforts, their initiatives, and their enthusiasm.

We can complain about our challenges and their impacts on us. Or, we can strive to make the practice, the community, better. We can move mountains if we begin by “carrying away small stones.” You do not have to plan a Town Hall, just attend one. You need not coordinate a lunch gathering, just attend one. Attend the forum, meet someone new, and tell your friends. You can make a difference through your decision to engage in these opportunities. Or, you might make a bigger difference by putting forward your ideas for some other engagement opportunity. If you have an idea, say so.

We are resolved that professionalism is a concern. We are convinced that human contact is a critical element. We are enthused at the consensus of hope. We are eager to begin a conversation. We are in need of your contribution, participation, and inspiration. How will you contribute to this conversation? How will you leave this community better than it found you? Figure it out, get in the game, and call or write if I can support you in any way in that effort.

A Great Day of Collegiality

Another OJCC winter seminar is behind us. Over one hundred lawyers, risk professionals, and more gathered at the Florida First District Court last week for a series of panel discussions focused upon the challenges of moving a case through the Florida litigation process. Titled Sharpening and Adding to the Tools in Your Trial Toolbox, this afforded insight into the process and the perceptions of those who participate within it. Friday was an exceptional opportunity for personal growth and education.

Some perceived or misperceived that one of the judges suggested attorneys should "sandbag" or hold out on the opposition in a case. That was not the intent of that comment. Fortunately, various other presenters returned to this point throughout the day and hopefully tempered that unfortunate perception, which I am sure was not intended. Certainly, it is the attorney's and party's obligation to respond to discovery, to be forthcoming, and to strive for the resolution of issues and claims. It is not appropriate or professional to withhold evidence or to strive to surprise an opponent at trial.

From the panel discussion of the pre-petition process, petitions, responses, and discovery, we gained significant insight into the potential for challenges. The communication and careful preparation in that time period has a fundamental and imperative impact on the probable course of the litigation. The early days, the gathering of information, and careful communication can set the stage for all that follows. The one point that I would have been more emphatic upon is the simple note of Rule 60Q6.115 - the motion is our best tool for seeking judicial intervention in a case.

The mediation panel was interesting and at moments humorous. It is always fortunate when presentations include some moments of levity and that also adds to the probability of retaining information for later use. There was one joke that some perceived as a bit off-color regarding man and wife or woman and husband. Some perceived misogyny. There was no intention to offend or to cause discomfort with that reference, and I apologize to any who were troubled by that reference.

Despite that unfortunate illustration, the message intended was valuable. We make mistakes in the process of conciliation and compromise when we use inflammatory invective. The point of a dispute can be aptly conveyed and strengths and weaknesses addressed without insult, accusation, and offense. When the listener is offended, it may be hard to move them toward compromise and agreement. When the listener is offended by your analogy, they may discount your point or even stop listening. 

The panel addressing pretrial stipulations and trial memoranda was focused on its advocacy regarding the importance of these two documents. It supported some of the earlier panel conclusions and assertions. Of particular note, there is a strong potential that these two documents will be all that your judge has read prior to trial. These are an opportunity to tell your story, prepare the judge for your evidence, and to be effective litigators.

Among the more pertinent points regarding pretrials was the advice to start the process early. There was advice to be focused on this form informally even in the initial review of the case or intake of the client. The witnesses, the critical facts, and the documents that will likely be important to disclose may well be apparent at those early stages. Building the disclosure as the information is gleaned will prepare for that ultimate disclosure in a busy practice.

There is a concept with the trial memoranda that I refer to in teaching college as the "baby bear" paradigm. Any trial memoranda may be "too brief or "too long," just as the porridge may be "too hot" or "too cold." The critical point is to convey what is important in the case so that the judge is prepared to hear the case. The trial memoranda should be "just right," and what that means depends on the case. But, adjectives to consider are "complete," "thorough," "succinct," "organized," and "informative." There are perceptions that the memo is not always effectively engaged to full advantage.

The reality of the twenty-first century was one of the critical points of the "workers' compensation trial." Technology is upon us and it impacts our preparation for litigation through video depositions, less interpersonal interaction overall, and the potential for remote hearings. The three judges on this panel provided insight into some of the challenges that are probable in such settings, while also recognizing that video is not an eventuality.

Today, lawyers and parties must be aware of the potential for live trials, video trials, and the "hybrid" that lies in between. Each has its own challenges and possible tribulations. Some critical points included communication between the parties in preparation, not losing sight of the potential for technology shortcomings or failures, and patience. The key message that seemed to recur was one of cooperation and communication between all involved.

The appellate panel was enlightening and entertaining. There was the reiteration of much that lawyers knew or suspected. But, there were also some critical thoughts that every system participant should really ponder. Of particular note, is the criticality of a motion for rehearing. In this era, it is very important to seek rehearing so that claimed errors may be considered by the JCC. Failing to file for rehearing may be fatal to the appeal. And, appellate counsel should be engaged in preparing for that process. The appeal decision should likely be part of the first reading of a trial order; time is limited.

Another imperative point of this panel was the challenge of determining what is or is not a final order. This included the necessary language to include in a non-final order that may nonetheless allow appellate review. There remains doubt regarding finality in some settings, and careful counsel would be well advised to understand both the challenges of defining "final" and the tips for handling doubt or uncertainty in that regard.

The day concluded with professionalism. That topic is a recurring theme in workers' compensation. In 2022-23, it has been a recurring theme as we discuss many aspects of this challenging practice. The panel was outstanding, and unfortunately, a fair number of folks opted instead for an early departure. Of course, avoidance of Friday afternoon traffic and long distances home contribute to that. But, they really missed a great discussion.

The Florida Bar Center for Professionalism provided some insight into the challenges that we all face. The truth is that the litigation process is often lonely, stressful, and personally challenging. That was, of course, not news to anyone in the room. However, it was a poignant reminder of why professionalism can be hard. The panel brought together some of the points that had been made throughout the day as regards our challenges, the nature of litigation, and our involvement.

The greatest challenge facing workers' compensation litigation is likely professionalism. We are in an increasingly connected world that is anachronistically less and less personal. Though communication is easier, our connections to one another are perhaps harder. This is impacting us personally and professionally. This reminder was important, and the panel's perspective brought an ideal close to the long day of discussions.

A small contingent remained for the courthouse tours and the balcony reception. There were opportunities for reflection on the outstanding presentations, and for sharing perspectives. The day was a sound investment in two critical ways: knowledge and collegiality. As important as the education was, the in-person gathering, conversating, and reconnecting were equally compelling.

I am grateful to the many that took the time to engage with us, and to be a part of this community. I am particularly grateful for Judge Moneyham's labor and organization in planning and producing this outstanding program. And, a hearty thank you to the many speakers who prepared these topics, provided insight, and answered difficult questions. Those speakers moved the proverbial ball and delivered tools, tips, and knowledge. We are very grateful to the First District for its persistent support, its outstanding facility, and the participation of its judges. Finally, we are thankful to the Workers' Compensation Institute and their team for the outstanding support and sponsorship of this annual event. The WCI has supported this program for a dozen years and we could not do it without them.

The preparations for 2024 will soon begin. If you have topic or speaker suggestions, you may email david.langham@doah.state.fl.us or call at your convenience. If you have questions or comments regarding the program, I am at your disposal.

The Point

I was fortunate to attend a virtual Work Comp College event this week. The College was founded in 2022 with the goal of developing and deploying educational programming for workers' compensation professionals. My perception was initially that it was intended for claims and risk management professionals, but the event this week was attended by a broader spectrum of community roles: risk management, medical care, regulators, and more. 

The Web gathering included some discussion of the College itself but rapidly evolved into a discussion focused upon the challenges of recruiting and retaining talent in this community. One participant noted a perception that workers' compensation long ago began struggling with recruiting new talent. The conclusion voiced was that instead community members essentially elected to recruit talent from each other, labeled "stealing" team members from other entities. The urgency of recruiting today, according to that commenter, results from retirements and departures leaving too little talent left to go around. 

There was a discussion of the way in which the world perceives workers' compensation. One reiterated that most, or perhaps all, of us "fell into" workers' compensation. That refrain is not new, and frankly has some truth to it. I have yet to meet anyone that grew up dreaming of being in this industry. A conversation was recounted of a young professional questioned whether he/she would follow a parent's path and join this workers' compensation community. The young person's response was rapid, negative, and certain. No.

This turned the discussion to thoughts on the absence of workers' compensation exposure and focus in higher education. Some echoed their perception that ongoing education opportunities also seemed elusive, particularly as to the theory of these systems and both the operations and implications. The conversation returned to how workers' compensation is perceived, and the young person mentioned above. It was suggested that there is a belief that this community is about shuffling papers, filling in forms, and juggling priorities. There is some truth to that. But, the suggestion was that instead, the community should stress that it is "restoring broken and shattered lives."

As the focus turned back to higher and ongoing education, there was suggestion that perhaps the best place to recruit talent is from the coffee shop or other service-sector jobs. The implication being that personal skills are important. There is no doubt that people skills matter. 

One commenter suggested that the solution to replacing team members in this community would be to simply waive or eliminate education and licensing requirements. She suggested that such education parameters are discriminatory and preclude entry (lockout) of a population of potential staff and support. While there is some truth to the fact that qualifications may preclude some prospects, there are also good reasons for skills, training, and education. The idea of eliminating all standards and licensing seemed a radical approach. It seems to denigrate those who have striven to achieve licenses and qualifications. To some, it may have even been insulting. However, it did stimulate conversation. 

There was an opportunity in this event for professionals to comment regarding their challenges with ongoing education in this community. They voiced that they are benefited from opportunities to learn new things, particularly skills or knowledge that are related to their profession but not necessarily within their personal role. There is some perception that we are gathered in siloes or categories and need to understand our neighbors better. The theme of this discussion was the benefit of medical professionals having exposure to claims challenges, or vice-versa. 

There is a perception voiced that exposure to and understanding of the roles of other community members could build better interaction and a more persistent focus on the overarching goals (recovery and remediation). Others noted that such exposures may also be likely to remind us of knowledge that has simply become buried or obscured in the volumes of experience and knowledge that accretes over long careers in the community. Essentially, too long in our own specialty or focus may cloud our recollection of the challenges others face. 

There was further discussion of roles, interrelationships, and challenges. There is recognition that claims professionals, regulators, administrators, and more are perhaps challenged at this time by the lack of interaction and intermingling that the pandemic drove. This opportunity to gather virtually with a diverse group and share perspectives was perhaps as critical in that vein, simple community and conversation. There was illustration here that workers' compensation is a fabric that involves a great many strands. Some might criticize and label it instead a "patchwork." That may be troubling, but perhaps accurate.

The conversation turned to a foundational theme of recent focus. Bob Wilson (one of the College founders) has been focusing on the term "worker recovery" for about a decade. The idea is to re-work or reconsider how people perceive this endeavor in which we all toil. The fundamental purposes of these systems are focused on the remediation of bodily injury, restoration of function, palliation of symptoms, and return to work. These are each admirable and appropriate goals.

There are those who see the "compensation" in its name as the antithesis of these goals. They find the "compensation" label of these various and varied state social safety nets as focusing attention on the monetary, and distracting from the remediation, restoration, and rehabilitation. Thus, they advocate us talking instead about worker recovery. And, in that theme, perhaps the name will evolve one day to Worker Recovery College?

The next opportunity for a free gathering for a conversation like that will be in April. However, the subject of worker recovery and more specifically the concept of "claims advocacy" will be the topic of the second edition of The Point webinar. This is a quarterly offering in which we strive to drill down through perceptions and vocabulary of workers' compensation and get to The Point. Many have heard of Advocacy Claims, and plenty speak of it. But, what is The Point?

This webinar will be an ideal opportunity to learn what goes on in a silo or category, claims, which is perhaps not your specialty. For the legal, the medical, the risk, and other professionals, this will be a valuable discussion. This will be an exposure to the challenges of the claim's professional and the contribution of that team to the remediation of injured workers. It will be an interesting discussion on Wednesday, March 1, 2023 at 2:00 Eastern.

The conclusion of the recent call seemed simple. We can learn through our interactions and conversations. We need not always agree, and some in the community may have some significantly radical ideas and beliefs. Despite our differences in background, worldview, and more, such conversations can stimulate discussion, interaction, and analysis. The opportunities, at a minimum, can help us understand better why various ideas and beliefs do or do not appeal to us personally.

Child Labor News

In the interest of full disclosure, I took my first job when I was twelve years old. There were child labor laws even in those dark ages, but I was fortunate to find a loophole that allowed me to be an independent sub-contractor for an independent contractor that distributed the Washington Post. I naively told people I worked for that paper, blissfully unaware of the subtle distinctions that permeate the world of work. I worked in the dark, seven days a week, without supervision regarding my safety or performance. I did not earn the mandated minimum wage. I was proud of my work, and pleased to have the opportunity. It taught me a great deal over four years. 

There are a raft of laws that protect children in the world of work. The move in that direction likely took a turn back when the United States Supreme Court took a hard u-turn on the commerce clause and concluded that the federal government could regulate intrastate activity under the authority of the interstate commerce powers it had been granted. That analysis in Hammer v. Dagenhart, 247 U.S. 251 (1918) is among the more intriguing reads one might find. Explaining the Court's logic in reversing its then-existing precedent might well come off like an Abbot and Costello routine. 

Despite that, federal laws do constrain intrastate activity as regards the workplace. The rationale and reasoning of Hammer lies at the root of a plethora of federal workplace regulation that has been layered on in the century since (OSHA, FMLA, ADA, etc). There are those who see the current coexistence of state and federal labor regulation as dual federalism, and others who find that label inappropriate based upon criticism of the order and predictability elements. It can make for cocktail party conversation, but not of the most compelling nature. If you run into someone that is ready for a Hammer discussion, you have likely wandered into a unique party

I recently ran across a news article, or perhaps opinion piece, published by the Guardian. As a side note, opinions should be clearly labeled by those who are journalists. It asserts that "child labor law violations have been on the rise in the US," and criticizes various state legislatures for both discussing changing state labor laws and advocating for federal changes. There is a perception or conclusion that our current post-pandemic economy has led businesses to recruit the young. The Guardian does not shy from its criticisms and conclusions. However, empirical evidence is thin in some regards. 

Certainly, the national news suggests that existing labor laws protect children effectively. The USA Today reported recently about a multi-state sanitation company fined for employing underaged in overnight cleaning operations. The Hill recently noted the allegation by some lawmakers that there are systemic child labor issues in some supply chains. HR Morning noted fines levied against a trampoline park here in Florida, as well as other violations of the Fair Labor Standard Act (FLSA). In short, there seems ample investigation and penalty underway regarding underage employment. 

The underlying Guardian theme seems to be focused on what hours of the day are permissible for employment for the young. There is criticism of the roles and "types of jobs young workers are permitted to do." And, in that, there is likely room for discussion and debate. There is some friction between a person's right to work and the government's desire to protect them. But, the Guardian proceeds to further criticize legislative efforts or discussions it perceives as intended to "shield employers from liability for injuries, illnesses or workplace fatalities involving very young workers."

As the inimitable Billy Shakespeare once noted, "ay, there's the rub." Hamlet, 1599-1601. The Guardian provides no citation for any proposed legislation that would provide employers with such liability protection. In point of fact, the criticism is seemingly more likely directed not at any changes or any proposals, but at the "grand bargain" that is American workers' compensation. That is the law, through employer immunity, that provides such a "shield" as regards all employees. This is not based upon age, nor is it somehow suspicious or suspect, or untoward. 

The Guardian analysis cites evidence of "increased" citations for "child labor law violations." Those statistics are troubling ("37% increase"). There are anecdotal examples of "high-profile" allegations of violations involving recognizable employer names. Those are seemingly ongoing investigations or prosecutions. The coverage does not provide clarity as to whether there have been conclusions or convictions in those cited instances. The result of those citations might well be that the law is operating as intended?

And, subsumed in the article's analysis is criticism of a state considering the expansion of the kind of work in which teenagers can engage. The focus is Iowa Senate bill SF-167. The Guardian article does not cite the bill but does provide a link to another article that cites the bill. It is frustrating sometimes that journalists leave us to hunt down source material that is easily citable. The Iowa bill does expand the scope of some work activities, but arguably further restricts others. That balance is missing from the article. 

The bill does not mention workers' compensation specifically but does address "civil liability" regarding students participating in work-study. Perhaps either the authors ("also strips workers’ compensation rights for these workers") or I may be misconstruing the bill in this context. There seem to be multiple potential interpretations of the bill. Despite not being linked in the article, it is presumed that the actual bill was read in drafting the Guardian piece, and the other article alone was not the source of information. 

The president of an Iowa labor group is quoted criticizing the bill. He voices a perception that the bill dramatically turns back the clock on child labor, and characterizes the legislative process as "re-litigating a lot of things that seem to have been settled." Legislatures are not litigation. He reminds that "Child labor law is there to make sure that kids are working in age-appropriate work activities or occupations that are appropriate for their age." This redundancy clarifies it is critical that age-appropriate work is appropriate for age. How could one argue with that? Or, perhaps this argument is persuasive regarding the proposed changes in state law?

The authors bring valid attention to the risks of injury for young workers. There is empirical data that supports that young people have higher rates of injury. There are also perceptions in the workers' compensation industry that new employees suffer more work accidents than more seasoned workers. Each of these is likely attributable in part to inexperience and inattention. The article alleges that the rates of minor injuries are "likely an undercount" and the frequency is actually higher. There is no data cited in support of that conclusion or conjecture. The conjecture occurrence in media is likely undercounted (I made that up). 

The quoted sources in the Guardian article focus on their desire for greater consistency in the regulation of labor. They lament that children work on family farms and in family businesses under existing exclusions or exceptions. There is criticism and angst regarding legislative debate and discussion, but there is little or no citation to the perils or dangers that are paraded in those settings. There is no discussion of equal protection of the laws and the discriminatory effect that allows the child of a business owner greater access to employment than those of us whose parents did not own businesses.  

Iowa is not alone. Minnesota is purportedly considering changes to its labor laws also. Business Insider reports that the potential is related to a shortage of labor. It casts the debate as a sufficiency analysis in which it perceives two interactive elements: sufficiency of payroll and sufficiency of supply. It asserts that increasing labor supply through labor law alteration is one solution to insufficient labor supply, but that increasing payroll would otherwise increase labor supply by drawing the majority workers back to the workplace. It is possible that increased wages would impact that supply/demand equation. But, there is no empirical data cited. Are majority workers on the bench due to their perceptions of wage availability, or are there other causes?

In the end, the sentiment of the Guardian author's analysis is that the young are being subjected to exploitation if they are allowed to work longer hours during "summer months" or "on holidays." There is the perception expressed that such exploitation is possible if young people are permitted to "extend working hours" with their parent's permission. There are fears expressed regarding "placing (the young) in dangerous work environments," but no discussion of the specific prohibitions in the Iowa bill regarding such work (NEW SECTION. 92.6B "Persons fifteen years of age may not be employed in").

No article cited herein regarding proposed changes in state law makes any mention of the Supremacy Clause of the U.S. Constitution. The federal laws will control when there is conflict with state law. There is no path for states to legalize what is controlled by Federal law. Certainly, the great pot-rush of the twenty-first century has demonstrated to us that states can decriminalize behavior and ignore federal law if they wish. A great many have championed and applauded this rampant disregard of federal law. But, the success of the pot-rush has been endorsed and facilitated by the federal legislature that refuses to change federal law on one hand and precludes its enforcement on the other. 

In the end, the critics would perhaps be better served to confront that riddle. Is there to be effect of federal law? Is federal law meaningful? If it is, the FLSA is both valid and effective preclusion of child labor. No action of the states will change that federal law, so long as the Congress allows it to be enforced. But, the great pot-rush has taught us that money talks and perhaps the potential for failure or preclusion in federal law enforcement is what keeps the critics and journalists up at night regarding states and their suborindate child labor statutes?

The Donut Hole

The "donut hole" has been used over the years to describe or illustrate a great many situations. My favorite is where the element of dough is excised from the main element, creating a hole in that main element, and then the excised portion is separately cooked and doused in some sugary concoction. Sure, it tastes no better than the donut itself (the main element), but there is something exceedingly attractive about the bite-sized delicacy that is colloquially the "donut hole."

But, the term has also been used to describe a "gap in coverage" with Medicare. Enid News and Eagle. It has been used to express a perceived inadequacy or incompetency as regards Football by Steelers Depot. Think Advisor uses the term to discuss Social Security. The term has come to represent a "gap" or "space." And, there are more than a few who perceive some donut holes in the practice of law. Though there is some generalized application of the term here, there are specific concerns expressed about Florida workers' compensation.

There are those who perceive the Florida Legislature's changes of 2003 as disincentivizing litigation of workers' compensation issues. They point to the 2003 "end" of hourly attorney fees, though this ignores the persistence of section 440.34(7) hourly fees within a specific constraint. With that statute change, some perceive less motivation to litigate. Critics of this perception insist that lawyers are unmotivated and unswayed by monetary reward and pursue justice for justice's sake.

The former, perceive that the 2003 law changes resulted in less litigation and a greater propensity toward settlement. They may, in their haste or simplicity, forget that an earlier revision in 2001 had made significant changes in the settlement process writ large and thus simplified the process. It is entirely probable that those changes produced some degree of settlement preferences or proclivities. Florida's history demonstrates an intriguing progression in terms of perceptions regarding settlement. 

In the end, however, there was a perception that workers' compensation practice in the twenty-first century became more about settlement. This contravened a perception in the twentieth century that workers' compensation was a practice in which litigation and lawyering were endemic. It was a practice to which young lawyers were often drawn by opportunities to try cases, independently manage discovery, and otherwise glean significant experience. Some perceive those opportunities diminishing in the early twenty-first century. Thus, they perceive a decreased attraction to the practice.

After the Supreme Court's intriguing analysis in Castellanos (See Castellanos Decided by the Supreme Court, April 2016), there were those that anticipated an increase in litigation. Some prognosticators believed that litigation would precipitously increase and there was anticipation and, in some quarters, anxiety. There was a proposal for an increase in workers' compensation premiums in the expectation of litigation, and perhaps uncertainty. See Attorney Sues NCCI (August 2016). Some perceived that there had been a drought in young lawyer hiring in workers' compensation and some predicted this increased litigation would bring more hiring.

Despite the predictions, litigation has not increased significantly. Whether there is empirical support that young-lawyer hiring decreased in the early twenty-first century or increased after Castellanos, or not, remains unclear. But, today there is a perception of more young lawyers in workers' compensation. Observers often discuss that perception, and there is some disagreement as to whether the Supreme Court decision is responsible or whether it is merely a reflection of the passing years and increasing retirement rate of the Boomers. Whether we acknowledge it or not, time comes for us all. 

While that may be of academic interest, the overriding point is that we perceive more young lawyers in workers' compensation litigation. And, there are those who perceive a "donut hole," with the gap being the presence of mentors and managers that are close to these young lawyer's age and experience. It was once common for workers' compensation firms to have "senior partners," then "partners," "senior associates," and the "new hires." In today's practice, some perceive an absence of "senior associates" in many instances, and even of "partners" in some.

In short, there is some perception that "new hires" are once again proliferating. There is a fear, however, that they are doing so in an environment of minimal camaraderie and collegiality within a firm. When I have heard this discussed by the old and grey, they often lament that such mentorship is largely missing in the workers' compensation practice at large. The potential exists in some areas with an Inn of Court, but some perceive that less than complete. They acknowledge it "as a start," and are quick with some criticism.

The Workers' Compensation section is striving to rebuild connections. There was once a perceptibly more convivial spirit in this practice. The days of yore were replete with live events, informal meetings, live depositions, handshakes, small talk, babble, and even prattle. We used to be with one another persistently and repeatedly. Work was a social experience as well as a money-making endeavor.

Technology changed us.

The pandemic changed us.

The next generation's tech-savvy/tech-comfort is changing the practice.

On this side of the donut hole, it is inspiring to see so many young people becoming part of the practice. We see new people coming to workers' compensation from other practices, and fresh from law school. We are experiencing a renaissance, renewal, and reinforcement. The next generation is here, and it is undoubtedly not the Boomers that will be owning firms, writing rules, and navigating this narrow path between capitalism and socialism that is workers' compensation in 2030 (sure, a few may still be around, but they will be yesterday's news).

The Forum is in April. I wrote The Time is Now (April 2022) describing the Forum. It is an excellent opportunity to gather and collaborate, commiserate, and cultivate experiences. I encouraged there that we all go looking for "the next generation" in 2022. I am hopeful that many of you have done so over the last year. Now is the time for those lawyers to gather, connect, and communicate. As they face potentially less camaraderie or mentorship within firms, the time is right for them to find opportunities for collaboration and growth among their peers.

How many firms will send a young lawyer to the Forum in April? Last year I extolled one that did. I hope this year to find many fresh faces in Orlando. I hope to meet many young lawyers who are entering and claiming this practice as their own. The leaders of tomorrow will not be born or found; they will be made. I am hopeful that you will make them, foster them, and encourage them.

The OJCC will strive along with you. In May, we will sponsor our first Work Comp Academy. The response has been overwhelming. No one can contest that the community is ready for such an effort and that young lawyers are in need of such an effort, and judging by our 40-plus faculty it is apparent that the community is committed and ready as well.

The time is indeed now. I look forward to seeing everyone at the Forum. Please consider including your new-to-comp colleagues in the opportunities. Let's build on our excellent foundations and bridge the "gap" or donut hole. And, on that note, bring some donut holes if you happen to think of it.

Billboards

Valentine's day, when a young man's thoughts turn to candy. Sorry, but that is a brutal truth. I recall throwing away a great many valentine's cards back in the day. It was traditional that each child in each class provided a card to every other student. Talk about wasted forest resources. The only retention was the lollipop, or occasional chocolate attached. As we age, perhaps this Hallmark holiday became of more significance? Or, perhaps less?

This valentine's day, however, brought a press release from Florida. The Governor appeared with both Senate President and House Speaker on valentine's day to announce an effort to address the perception that Florida is "a judicial hellhole due to excessive litigation and a legal system that benefitted the lawyers more than people who are injured.” Workers' compensation is not mentioned in the release, but there are possible potential implications. 

I have heard criticism from various jurisdictions regarding perceptions that workers' compensation benefits are inadequate or incomplete. Many across the country complain about their perceptions of the "grand bargain," and lament their conclusions regarding the adequacy of benefits and the evolution of the quid pro quo. In those conversations, I am often reminded of the sentiments of various groups regarding attorney fees in their respective jurisdictions. Too often, the refrain is a comparison of fees to substantive benefits and allegations of perceptions that lawyers benefit more than the injured worker. 

The focus of the valentine's day press release is on "billboard attorneys." Senate President Passidomo noted a distinction, and assured that “the vast majority of attorneys work very hard to provide sound legal representation for Floridians in these difficult circumstances." The perception is not of a broad nature, not a conclusion regarding "lawyers" in toto. But, she explained a perception that "there are a few bad actors who are in the business to draw out civil cases as long as possible, collecting more and more fees from insurance companies, and that has to stop."

The conclusion of the release is that the 2023 legislative session will include "the most comprehensive reforms in decades to decrease frivolous lawsuits and prevent predatory practices of trial attorneys." This is reportedly to "include eliminating one-way attorney fees and fee multipliers for all lines of insurance." And in that, "all lines," is the potential perhaps that workers' compensation could be implicated. 

There are those who will see any inkling of "reform" as disruptive and even threatening. Others may view "reform" as empowering and inspiring. The details will be in a bill, and that will undoubtedly provide greater edification of the reform proposal. 

The release notes that reform will bring Florida closer to the processes in other states. There is a focus on the manner in which "Litigation drives up the basic costs of goods and services for everyone across all areas of industry and commerce." In that regard, some may likewise see implications for workers' compensation. At every level of business, there is an element of consumer cost that comes from workers' compensation. Most businesses are paying such premiums, and include that cost in their prices. Each supplier, service partner, or other entity involved with any business or consummer likely has some degree of workers' compensation expense built into its pricing, with the exception of small employers (less than 4 employees). 

The release notes the potential for litigation, and the environment it sustains, to result in "the hidden cost of lawsuit abuse." The Speaker noted that this "has cost the state jobs and driven up the cost of goods and services.” The Speaker cited a report concluding that "lawsuit abuse costs Florida households more than $5,000, and costs the state more than 173,000 jobs annually."

The release proceeds to identify objectives such as "eliminat(ion of) one-way attorney fees for all lines of insurance and attorney fee multipliers to permanently disincentivize frivolous lawsuits." The Florida "bad faith" law is mentioned specifically, as is an effort to "incentivize good faith between both parties" in litigation. There is also reference to previous legislative action in regards to reform in a special session last May. 

Under this reform proposal, Florida’s “bad faith” law would be modernized to balance the scales between plaintiff attorneys and insurance companies to incentivize "good faith" between both parties and promote the best interest of the consumer. This provision would also maintain consumer-focused protections to ensure that true bad actors are held accountable.

The Legislature convenes this year on April 10, 2023 and committee work is underway.