NAWCJ

Florida COVID-19 Litigation



By David W. Langham

Deputy Chief Judge

 Pensacola, FL

 

There have been those who question the volume of COVID-19/SARS-CoV-2 claims. The Florida Division of Workers’ Compensation answered that last week with a report outlining various details of reported cases, discussed in COVID-19 in Florida Claims. The essence of the answer is that 3,807 instances have been reported as of June 1, 2020. The occupations involved are categorized by the Division into a few groups: airline workers, health care workers, office workers, protective services, and service industry. Of the total, 64% were reported in Miami/Dade, Broward, and Palm Beach Counties. A significant volume of Florida claims have been totally denied, according to the Division, but the majority of those (55%, 2,089) have been accepted.

The history of workers’ compensation began with protections regarding injury by accident. Accidents were defined rather simply, and the resulting traumatic injuries were reasonably apparent. As the systems (each state has a workers’ compensation system) evolved, other injuries drew attention and some jurisdictions added employer liability for mental injury, repetitive trauma injury, and diseases. There has been a marked disparity in the compensability of diseases in American workers’ compensation.

In the most liberal interpretations any disease encountered may be compensable. The contracting of a virus such as influenza is sufficient to generate coverage. See COVID and Workers’ Compensation for more. Florida’s occupational disease statute, more aligned with other state systems generally, requires proof of exposure to such disease in the workplace as foundation for any compensation and medical care under the system.

With the COVID-19/SARS-CoV-2 onset in the U.S. various states have changed their workers’ compensation systems. Workers’ compensation is a system for defining liability of employers and benefits for employees. One commentator explains that workers’ compensation has long been characterized as a “grand bargain” between these two. But, contends that “there aren’t just two parties to the bargain; there are three.” In the time of COVID-19/SARS-CoV-2 , he notes “that third party – the state that administers the ‘system’ – wields the most power,” as governors have re-written laws to expand workers’ compensation. There have also been legislative changes enacted in some jurisdictions. Still others have seen bills introduced. The NCCI has a good summary of changes, which is persistently updated.

Many states have integrated workers’ compensation systems where an adjudication process in housed in the same agency as regulatory functions. Florida bifurcated its system in 2001 when the adjudication process became part of the Division of Administrative Hearings. In Florida, the majority of claims are handled administratively through the process at the Division..

When disputes regarding benefits arise, those fall within the jurisdiction of the Florida Office of Judge of Compensation Claims. Thus, any Florida injury would likely come to the attention of the Division of Workers’ Compensation. However, only a litigated dispute regarding such injury would come to the attention of the Office of Judges of Compensation Claims. The Division data supports that employers have denied 1,718 (1,695 total denials, 23 partial denials), or roughly 45%, of COVID-19/SARS-CoV-2 claims. The next logical question may be how prevalent is litigation over those denials.

Any dispute regarding benefits in Florida begins process in a “petition for benefits” that is subject to statutory specificity and filing requirements. Thus, with the question regarding how many litigated COVID-19/SARS-CoV-2 claims exist, the analysis began in this Office with a search of all petitions for the terms “COVID.” The results were analyzed and categorized. Some effort was made to search “corona,” but that yielded many “coronary” claims, which are unrelated.

The search in late May 2020 yielded 14 instances in which there is a clear allegation of injury by occupational disease related to COVID-19/SARS-CoV-2 claims. These include by a police officer, two patient care assistants, a physical therapist, a care-giver, a certified nursing assistant (CNA), a delivery driver, a driver/guard, two other drivers, a behavioral health technician, a professor, a fleet service clerk, and a food server. It is noteworthy that an employee has 30 days to notify an employer of a work injury, section 440.185(1), but the petition for benefits may be filed anytime within two years of when “the employee knew or should have known that the injury or death arose out of work.” Section 440.19(1). Thus, more such petitions may be filed over coming years.

There is also mention of COVID-19/SARS-CoV-2 in claims that are unrelated to that specific personal diagnosis. The effect of COVID-19/SARS-CoV-2 on the workplace and upon workers’ compensation claims may be broader. Its effect on the medical delivery process is also illustrated in some petition allegations. This is seen in allegations regarding unavailability of medical provider appointments, a desire for alternative appointment methodology (telemedicine), a desire for alternative care, medical transportation issues, relocation issues, pre-authorization issues, and the inability of patients to keep pre-authorized appointments for care. In one instance, the “COVID” was mentioned secondary to description of the worker’s employment which involved making masks for virus spread prevention.

There are also pleadings implicating the payment of benefits for non- COVID-19/SARS-CoV-2 related claims. In these instances, the risk of COVID-19/SARS-CoV-2 generally, or the presence of COVID-19/SARS-CoV-2 that is not alleged to be work-related is nonetheless alleged to be a confounding or complicating factor in the delivery of benefits. It is possible that an employee with an orthopedic injury might be see efforts to return to work frustrated by business suspensions or closures.

Thus, the data currently suggests that significant volumes of COVID-19/SARS-CoV-2 claims are being reported to employers, and thus the Division. A significant number of those are being accepted (55%) and benefits provided. However, a significant volume of those are being either partially or totally denied (45%) by the employer/carriers. That has not, as yet, led to a significant volume of litigated claims in which workers seek judicial determinations of compensability or benefit entitlement. However, the time allowed for filing those claims is significant and therefore this is a subject susceptible of ongoing re-evaluation.