Repose and Limitations in COVID

by Honorable David Langham
Deputy Chief Judge of Compensation Claims
Pensacola, FL


The good news just keeps coming (sarcasm for the uninitiated). Recently, in Always on My Mind? (February 2021), I returned to the subject of the “long-COVID” and how that might have long term implications for workers’ compensation claims. There are long term implications from COVID-19 garnering news coverage, and there is a tendency for the workers’ compensation community at large to overlook both statutes of limitations and statutes of repose. The subjects perhaps bear consideration in detail.

The repose and limitation concepts are not new to this blog. See Stare Decisis, Goodgame, Livingood and Westphal (2015) and Statute of Repose Forecloses Claim (2020). Quoting the Kentucky Court in Stare Decisis, the distinction is clear: limitation is the “time in which one may bring suit after the cause of action accrues, while . . . repose potentially bars a claimant’s suit before the cause of action accrues.”

In Florida, the workers’ compensation limitation language is found in section 440.19:
“all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.”

Some will focus there upon the “2 years.” Others may instead focus upon the “knew or should have known” that follows it. There is also specific repose language regarding some elements of occupational disease claims in section 440.151, as regards the most serious potential outcome:
“In claims for death under s. 440.16, death must occur within 350 weeks after last exposure.”

Thus, an exposure might occur that causes disease. However, if that disease and death occur too long after exposure, there may be no compensation. That is repose.

There are factors outside of Chapter 440 that may likewise influence workers’ compensation in some contexts. In December 2020, the Florida First District Court decided Palm Beach County Fire Rescue v. Wilkes, 309 So.3d 687 (Fla. 1st DCA 2020) in which it explained the statute of repose for Florida’s recently adopted mental/mental exception applicable by presumption to certain employees. See section 112.1815(5), Fla. Stat. While this may be a provision of narrow application, it is nonetheless worthy of consideration in understanding the potential impact of such statutory constructs.

With all of this in context, it is important to recall that incidence may not necessarily be evidence. The coincidence of events with symptomatology does not necessarily equal causation in any claim. It is entirely possible for some event to occur in your life, followed by the onset of symptoms, and yet there still be no scientific evidentiary foundation to connect the two.

Over the course of years, I have had various scientists describe to me that the temporal relationship may be critical in that instance. That is, how quickly following the event do the symptoms appear? Based upon that temporality, a fair few have historically been willing to render medical opinions regarding causation (positive or negative). Thus, in their opinion, if a patient lifts a box at work at 10:00 a.m., and coincidentally has the immediate onset of symptoms, there is perceived a “correlative” relationship between cause (lift) and effect (symptom). But, what if that symptom does not appear thereafter for 5 minutes, 5 hours, 5 days, or 5 months?

A somewhat famous quote “the absence of evidence is not evidence of absence” comes to mind. The origin of that is somewhat unclear and perhaps came first as regards Hittites, a bull, glaciology, or even Vikings. Regardless of provenance, this bit of wisdom has received acceptance among many, including modern figures such as Carl Sagan. I have heard the quote on various occasions in the context of a workplace injury as well.

However, that symptoms do not appear immediately cannot conclusively demonstrate lack of causation. Similarly, the immediate of symptomatology is not necessarily definitive evidence of causation. These may be factors for consideration, and any particular expert might find the symptom onset of relevance in expressing an opinion.

So, consider an employee ill in 2020. A test is performed and COVID-19 diagnosed. The employee is obligated to report this to the employer, subject to some exceptions, by section 440.185(1):
“An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury.”

Note this is the notice provision cited by the Legislature in the statute of limitations, section 440.19, above. But, is it possible that the employee might not make an immediate mental connection between the COVID-19 diagnosis and work?

This may be where the “knew or should have known that the injury or death arose out of work” of section 440.19 might be argued. It is possible, perhaps, that an employee might reach conclusions regarding the cause of infection after the passage of some time. Might that require two years? Might an employee reach such a conclusion and yet defer notification of the employer because of distraction with other concerns of daily life, quarantine, return to work, etc.? Might an employee be determined to have reached that conclusion in 2022, or might it be determined that in 2026 the employee “should have known” that the 2020 exposure “arose out of work?” The implications of such determinations on compensability determinations may be critical.

How will these factors appear in the community of Worker’s Compensation? The statute also demands objective medical evidence. In that context, is it practical for a worker to “know” the cause of such an illness without scientific proof? As symptomatology persists in some categories of patients, might more scientific focus be directed at the underlying COVID? As time passes and physicians or scientists are less required for vaccine development and acute symptomatology treatment, might more science become focused on the lingering impacts, the so-called long-COVID?

As time passes, will it become increasingly difficult to document dates of symptom onset regarding COVID? Might an employee find out from an antibody test that she/he must have had it at some point (asymptomatic), but having never had symptoms perhaps struggle with the onset, the “knew or should have known,” and the burden of proof? Perhaps of little concern for some, but if that previously infected person faces significant “long-COVID” effects in 2026?

In the context of the scientific standard established in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), Might it require some time for science to provide the study, analysis, and peer review for making causation determinations? Until that peer review can occur, is there any way a lay person could effectively “know” about causation in this setting? Might symptomatology in 2020-21 later be determined to be related to COVID-19? Could a convincing argument be constructed that such a causation connection was not practical or even possible without medicine that evolves or develops in later years?

WebMD reported recently
“About 33% of COVID-19 patients who were never sick enough to require hospitalization continue to complain months later of symptoms….”

However, many patients who suffered mild infection are said to “have these persisting and really life-altering symptoms.” The challenges from this infection may be grinding to a slow halt here on what I consider to be the one-year anniversary of this pandemic. It was St. Patrick’s Day 2020 that the impacts first began in earnest for me, though I began monitoring the infection’s progress in early January 2020. As we face decreasing infections, increasing inoculations, and public sentiment that is seemingly simply “over it,” perhaps the immediacy of treatment and fear lie behind us.

In front of us, however, lay the potentials for complications and ancillary care issues. Those thousands of COVID-19 claims that were accepted as work related in various jurisdictions may become greater concerns due to such long-COVID. The future of those claims may be implicated by either limitation or repose. As we return to our busy lives, and there is no apparent need for ongoing COVID treatment, might those legal implications have impact before the so-called long-COVID symptoms someday appear? Perhaps these musing are of no import. But, perhaps there will be litigation over such symptoms, knowledge, science, testing, repose, and limitations in years to come.