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The Dangers of Standing Still

One of the most telling episodes of Kodak’s slide into bankruptcy was how it incorporated digital capabilities into its Advantix camera system.

Kodak spent more than $500 million to develop and launch the Advantix in 1996. The system capitalized on emerging digital capabilities— especially the digital sensors that Kodak engineers had invented two decades earlier—to capture date, time, shutter speed and lighting conditions to produce better pictures. The strategy culminated in the Advantix Preview camera, which allowed photographers to preview shots and mark how many prints they wanted. Kodak gave users no ability to save the digital images, however. The Advantix required traditional silver halide film and prints.

Advantix flopped. Why buy a digital camera and still pay for film and prints? Kodak wrote off almost the entire cost of development.

Kodak’s strategic blunder was not because of a lack of technological prowess; it was because of an inability to embrace business model innovation. Kodak was the market-leading photo film, chemical and paper business. It bet its future on “the hope that demand for digital images would sell more film.” As a result, Kodak protected its traditional business to the bitter end—until others leveraged digital to make film irrelevant.

Judging from recent comments by Carlos Ghosn, Nissan’s chief executive, we might one day read about how Nissan repeated the pattern of Kodak’s decades-long blunder and demonstrated the dangers of standing still during a period of industry innovation (like what’s happening in insurance).

Ghosn has championed his company’s efforts to develop autonomous driving technologies to allow cars to operate without human intervention. And, unlike some other large automakers (such as Toyota), Ghosn does not dispute the technical feasibility of driverless cars.

But Ghosn views the choice of semi-autonomous vs. driverless as a strategic decision—and he is clear that his choice is to use autonomous technologies as incremental enhancements to cars with drivers. As reported by the Associated Press via the New York Times: Ghosn said Nissan sees autonomous vehicles as adding to driving pleasure, and a totally driverless car is not at the center of the automaker’s plans. The autonomous driving Nissan foresees will assist or enhance driving. Nissan may end up with a driverless car, but that was not the automaker’s goal, he said. “That is the car of the future. But the consumer is more conservative. That makes us cautious.”

In other words, Ghosn’s strategy is to hope that the demand for autonomous technologies will sell more cars. Like Kodak, he is aiming to reinforce Nissan’s current business model rather than embrace business model innovation.

By being cautious, however, Ghosn risks emulating Kodak’s failure by waiting for others to leverage driverless technologies to make traditional cars irrelevant. He also risks ceding emerging business innovations to Google, Uber and others willing to make driverless cars their explicit primary goal.

The unanswered question is whether Ghosn, behind the scenes, is parlaying his technological forward-mindedness into strategic preparedness.

Carlos Ghosn need not shed his caution. But, as I previously argued, trillions hang in the balance. Given those stakes, has Ghosn hedged Nissan’s strategic bets in case the driverless “car of the future” comes more quickly than he expects?

Some argue that, of course, Nissan won’t be caught flat-footed even if driverless cars come sooner than expected. Look, for example, at its research partnership with NASA. But research is not enough.

A trap that market-leading companies fall into is believing that they can catch up if their initially cautious strategies turn out to be wrong. One lesson that Paul Carroll and I found in our study of thousands of large company failures is that it is very hard to excise denial from multiple layers of the organization—even after objective evidence argues for doing so. Another lesson is that, while it is possible to catch up on raw technical expertise, it is hard to catch up after yielding multiple product-oriented learning cycles to competitors.

Take electric hybrid cars. A former senior technologist of one of the big automakers told me his company considered but rejected hybrid electric cars before Toyota launched the Prius. The automaker was at first dismissive of the Prius and then surprised by its market success. It did jump into the market with its own offering. But, the technologist bemoaned, it has not been able to catch up. With each model, Toyota gets further ahead. The company ceded too many learning cycles to Toyota.

The same could be happening with driverless cars.

Nissan espouses caution about driverless cars. Whatever research is going on in its labs is mostly hidden from the public (perhaps to not confuse the market or provide succor to competing strategies).

Google, on the other hand, will soon release 25 prototype driverless cars onto the streets of Mountain View, with plans to launch 75 more. Google’s self-driving cars have logged a collective 1.7 million miles and are adding about 10,000 miles per week, mostly on city streets. Google has not cracked all the issues involved with driverless cars. It has, however, created the ability to learn faster.

Kodak, as evidenced by its own tongue-in-cheek marketing video, ended up play “grab ass” for years with digital photography. Late attempts to “get serious” were too late. Even now, 40 years after Kodak engineer Steven Sasson invented the digital still camera, Kodak still struggles to realize the potential of its IP portfolio.

Likewise, every market-leading department retailer of the 1950s and ’60s, such as Macy’s, Woolworth’s and Ames, thought it could contend with discount retailers like Wal-Mart if the need arose.

Only Dayton Hudson took the discounting business model seriously. Rather than watch and wait, Dayton Hudson formed a discounting business unit and unleashed that subsidiary to compete as hard as possible against the traditional business. That discount subsidiary was named Target. Of the more than 300 department-store chains in the U.S. in the late 1950s, only Dayton Hudson/Target successfully moved into discount retailing. Most of the others preceded Kodak on the path to bankruptcy.

Rather than following in the footsteps of Kodak and all those defunct department stores, Nissan should be more like Dayton Hudson.

Instead of just betting on caution, Nissan should also unleash innovators to create its own driverless offering and charge them with competing as hard as possible against its traditional business.

A Tale Of Two Broken Hearts

Imagine, if you will, twin boys born on some sunny day not too long ago. Neither one of the boys, nor their parents, nor even the delivering doctors knew that both boys were born with a heart condition. This congenital heart anomaly, a patent foramen ovale, left a small hole open in the walls of each brother’s heart, exposing them to higher risks of stroke.

These twin brothers, let’s call them Keven and Kenny, seemed to be joined at the hip. They enjoyed all the same activities, all the same food, went to the same school, and, when they decided it was time to purchase homes of their own, bought two adjacent houses. Being as close as they were, they tore down the fence between their properties and right in the middle built a small gazebo where they could enjoy breakfast with their families every weekend morning.

In choosing a profession, Keven wanted a job that would keep him physically fit while allowing him to serve the community and even save the lives of his fellow citizens. So he became a firefighter. The job kept him physically fit and allowed him to maintain a clean bill of health … except for that congenital heart anomaly, which no one knew about.

Kenny, on the other hand, decided to pursue the absolute highest calling — the profession which the bravest and noblest aspire to. He didn’t want to become a physician, or an engineer, or even a scientist. He decided to become a workers’ compensation defense attorney (not unlike your humble author).

Still, the two twin brothers were in every other respect exactly alike, and spent every Sunday morning having breakfast together in that shared gazebo, along with their wives and children.

Then, tragedy struck! One morning, as Kenny and Keven sat next to each other, enjoying the morning air, each with a newspaper in the left hand and a piece of toast in the right, they suddenly sat straight up, looked into each other’s eyes, and both collapsed to the ground with strokes.

Their families rushed them to seek medical treatment and, fortunately, each of the two brothers recovered. Before long, they were sitting next to each other in their shared gazebo, when Kenny had an idea. Why not file workers’ compensation claims for the strokes — surely, the stress of being a firefighter caused Keven’s stroke. And, if being a firefighter is stressful enough to cause a stroke, then being a workers’ compensation defense attorney is even more so!

As the cases progressed, each of the two brothers agreed to use an Agreed Medical Evaluator, and each AME came to the same conclusion: the AMEs both found that, in their respective cases, the “stroke … occurred in an individual whose only major risk factor for stroke in terms of this industrial analysis appears to be his congenital heart defect … all of his conditions apportion 100% to non-industrial causation.”

Kenny was crushed — his case was effectively at an end as the workers’ compensation Judge ordered him to take nothing. After all, the Agreed Medical Evaluator had found that there was only one cause for his stroke — a non-industrial condition acquired at birth. How could any legal system, short of denying a defendant-employer due process, require workers’ compensation payment for something so patently and obviously unrelated to any work causes? Keven’s case, on the other hand, was just warming up.

Keven’s attorney argued that, under Labor Code section 3212, “any heart trouble that develops or manifests itself during a period while [the firefighter] is in the service of the office, staff, department, or unit … shall be presumed to arise out of and in the course of the employment.”

Now, isn’t that presumption rebutted? After all, as in both the case of Kenny and Keven, the Agreed Medical Evaluators have found that the sole reason for both strokes was the congenital heart condition — exactly 0% of the causation had anything to do with work as a firefighter or as a workers’ compensation defense attorney.

Well, as Kenny feels once again misused and ignored by the system he so gallantly serves, Keven has another line of defense: “The … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”

Keven’s attorney would have to prove that Keven is a firefighter — something he could establish without much difficulty (showing up at the Board with a fire axe is not recommended, even if you believe you’ve got “an axe to grind”). Then, he would have to prove that Keven’s injury could be considered “heart trouble.” This should be no problem, considering the fact that case-law has established that there are very few non-orthopedic injuries that might be considered not heart trouble (Muznik v. Workers’ Comp. Appeals Bd. (1975)).

But what about that pesky requirement of “in the service of the office …” as required by Labor Code Section 3212? If the firefighter is sitting in his and his brother’s gazebo, drinking coffee on a beautiful Sunday morning and indulging in that antique of an information-delivery device that people so often read, is he really in the service of the fire department?

For example, the Court of Appeal in Geoghegan v. Retirement Board (1990) upheld a retirement board’s denial of benefits for a firefighter who sustained a heart attack while skiing.

Now, before the applicants’ attorneys out there start mumbling something about a ski-lodge burning and a San Francisco firefighter being called in to ski down the slopes and shovel ice onto the flames, your humble author assures you, this was a vacation. The treating physician found that the heart attack was caused by the altitude and Mr. Geoghegan had recently passed the fire department’s physical exams with skiing flying colors.

The Board of Retirement had rejected Geoghegan’s application for retirement benefits, and he appealed. There, the Court of Appeal rejected Geoghegan’s argument that Labor Code section 3212 applied and that he should be, at that very moment, counting his money instead of appealing his case, because the trial court had found that “the conclusion is inescapable that plaintiff’s disability was due to the myocardial infarction caused by the cold and altitude encountered while skiing.”

Previous decisions, as cited by the Geoghegan Court, included Turner v. Workmen’s Comp. App. Bd. (1968) and Bussa v. Workmen’s Comp. App. Bd. (1968). In Turner, a police officer’s heart attack sustained while on duty after a day off spent abalone fishing was found non-industrial, and the presumption of Labor Code Section 3212.5 was rebutted. In Bussa, a firefighter’s exertions on a second job were used to rebut the presumption of industrial causation for his heart attack.

Well, Keven’s attorney could easily fire back that those three cases can be distinguished because they don’t touch on the anti-attribution clause (“[t]he … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”) And, as the Agreed Medical Evaluator in Keven’s case had found that 100% of the disability was caused by a congenital heart defect, that leaves (let me get my calculator here …) 0% available for causes not “attributed to any disease existing prior to that development or manifestation.”

Geoghegan was already a firefighter when he sustained his heart attack; Turner was already a police officer when he sustained his heart attack; and Bussa was already a firefighter when he had his heart attack. On the other hand, each of these cases showed an injury attributed to something other than a condition in existence prior to the start of the applicant’s career with the fire or police department.

Keven, on the other hand, was not exerting himself at all — he was having coffee with his twin brother and their respective families over a relaxing Sunday breakfast.

But doesn’t something seem strange about sticking the fire department with the bill for a condition which existed at birth? After all, we’re talking about medical care and temporary disability and permanent disability and maybe even a pension. That’s not to mention the litigation costs. The city in which Keven is a firefighter could be deprived of a firetruck or several firefighters’ salaries if it is liable for Keven’s stroke.

Your humble author directs you to the recent case of Kevin Kennedy v. City of Oakland. Mr. Kennedy, a firefighter, had sustained a stroke while he was off work and filed a workers’ compensation claim against the City of Oakland, reasonably arguing that the stroke was “heart trouble” as contemplated by Labor Code section 3212. After an Agreed Medical Evaluator found that Mr. Kennedy’s stroke was entirely caused by a congenital heart anomaly, and had nothing to do at all with any work-related activities or trauma, the workers’ compensation judge found that the City of Oakland was not liable for the injury.

Mr. Kennedy’s attorney made a fairly logical argument: Labor Code Section 3212 prohibits the attribution of heart trouble to “any disease existing prior to that development or manifestation” of heart trouble. Additionally, the same Labor Code section requires heart trouble in firefighters to be presumed industrial, although this presumption may be rebutted by other evidence. Here, there is no evidence available with which to rebut this presumption, because the AME found that 100% of the causation should be attributed to the congenital heart condition.

The workers’ compensation Judge, however, found that Mr. Kennedy could not recover — based on the opinions of the AME, the stroke had absolutely nothing to do with Mr. Kennedy’s employment.

Applicant petitioned for reconsideration, and the Workers’ Compensation Appeals Board granted reconsideration, reasoning that Mr. Kennedy’s patent foramen ovule was a condition existing prior to the development or manifestation of the stroke, and that Labor Code Section 3212 necessitated a finding of compensability. The Court of Appeal denied defendant’s petition for a writ of review.

In issuing its opinion, the Workers’ Compensation Appeals Board was consistent, echoing a similar decision in the matter of Karges v. Siskiyou County Sheriff, finding a deputy sheriff’s congenital heart condition compensable under Labor Code section 3212.5.

So … what’s to be done? Common sense and a basic inclination for fairness militate against this outcome. We’re not talking about a weak heart being aggravated by work conditions, but rather a firefighter at peak physical fitness succumbing to a condition with which he was born and an illness in which his work played no part. It’s entirely possible that if Mr. Kennedy had spent his life behind a desk, much like his imaginary twin brother Kenny, his heart would have been strained by office junk food and a sedentary lifestyle, much like your humble author’s.

As promised, here are a few crackpot arguments to be used only by the most desperate in such cases. Your humble author doesn’t know if these will work, but if they are the only alternative to writing a big check, perhaps they are worth exploring.

  1. As with the Karges decision, the argument should be raised that Labor Code Section 4663 is the more recent law, and therefore reflects the more current legislative intent. In litigated matters, judicial authority should be used to further this Legislative intent and not find impairment caused entirely by non-industrial factors to be compensable.
  2. In the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board, a corrections officer’s claim for heart disease was ruled non-compensable when the Agreed Medical Evaluator found cardiovascular disease manifested prior to the start of his tenure with the Department of Corrections. In the Kennedy, matter, the defense might argue that the patent foramen ovule is the “heart trouble” contemplated by section 3212, and it manifested itself at birth, before the term of service with the fire department. Mr. Kennedy’s stroke, being directly and exclusively caused by this manifestation, should not be presumed compensable.

    After all, the poor guy had a hole in his heart — not in the sense that he couldn’t love or open up to other people, but the wall to his heart had an actual hole. Studies had shown that this practically guaranteed that he would sustain a stroke at some point in his life. (Understandably, this one is a stretch).

  3. Webster’s dictionary defines “attribute” as “to regard as resulting from a specified cause.” However, as the Labor Code does not use the words “apportionment” and “attributed” interchangeably, we can only suppose that they mean two different things. So, while section 3212 prohibits us from attributing heart trouble for purposes of AOE/COE (Arising Out Of Employment/In The Course Of Employment), perhaps we are still permitted to “apportion” the heart trouble to non-industrial causes. If such is the case, the Kennedy matter should have found the stroke compensable, and yet apportioned 100% to non-industrial causes.

    In other words, Mr. Kennedy should get the medical treatment but not the permanent disability indemnity.