Anger and Acting Out

It is worth noting that regardless of the volume of education, obtention of degrees, or other credentialing, there is room for people to disagree. We have a great many experts and organizations striving to guide us all through the COVID-19/Wuhan/SARS-CoV-2. Much like the constantly evolving dietary advice we get (eat this, don't eat that, etc.) the ground beneath our feet is seemingly always shifting. In the end, there is ample evidence that societally we do not know all about this virus, and perhaps we do not yet even know what we don't know. 

We are confronted with conflicting advice that frustrates our efforts. ABC News recently reported CDC and WHO offer conflicting advice on masks. An expert tells us why. The Centers for Disease Control (CDC) now says Americans should be wearing masks. The World Health Organization says you should only wear one if you are caring for someone with the virus. One scientist in Hong Kong says mask use could reduce spread by 80%. Who is right and what do we do about those who are wrong?

That is a fair thought process. Perhaps we should start with what we should not do. First, we should strive to not resort to violence based on our beliefs or conclusions. USA Today reports that a security guard was killed after telling someone to wear a mask or leave a store. A strange incident was also reported in which a patron wiped his nose on a store employee's shirt when asked to wear a mask. A store providing employment for several closed after assorted abuse directed at employees about mask-wearing. The article reports that similarly people have been attacked while wearing masks. 

I recently stood in a grocery checkout line, demarcated by floor tape. The cashier ensconced behind a sheet of plexiglass, and the grocery bagger several feet away. When I prematurely stepped towards the card pin pad, conveniently located several feet away from the “stand here line,“ I was chastised by the cashier for getting too close to the bagger. The curious thing was that the cashier on the lane next to mine was standing approximately 1 foot behind me, also separated from her customers by Plexiglas, with no apparent concern for our shared/unprotected proximity. One might stand in the grocery store and debate the logic of any of these points, but there is no benefit to be gained.

On another trip to the grocery store several weeks ago, turning down the frozen food aisle, I detected the distinct aroma of rubbing alcohol or similar antiseptic. It was reminiscent of a hospital. Proceeding down the aisle, I happened upon a lady who was opening the compartment doors with a visibly damp cloth, and picking up her selections with the same washrag. As I passed her, the aroma of antiseptic diminished, and eventually faded. It’s my suspicion that everything the shopper touched was exclusively with that antiseptic-soaked cloth. One could discuss with her the necessity of such measures, but what is the point?

On a visit to a "big box" store, I was corralled and channeled through a maze of overturned carts, fencing, and "caution tape." Approaching the front door, I observed another customer shopper berating the entrance employee regarding how “useless“ and “unnecessary“ these various efforts were. As I brushed past the two, striving to maintain any distance, I overheard a customer ahead of me utter "idiot"; I was not sure if she referred to the caterwauling customer or the employee guarding the door. I did not inquire further. 

The bottom line is, it appears, that various individuals and organizations have differing opinions as to this virus, it’s perniciousness and reactions to it. In the end, many will eventually likely utter “I told you so,“ regarding their individual perspective. That was illustrated in a recent conversation I observed between two passionate advocates. One contended that the Coronavirus lockdowns and stay-at-home orders were overreaction, emphatically pointing at the erroneous initial death projections compared to the actual outcome to date. The other debater seized upon the March-reduced death toll and argued that statistic merely supports the success of the lockdowns and orders ("what if we hadn't").

Who is right? Does it matter? Can anyone travel back in time to change our course? Can anyone offer perfect solutions and answers? In the end, we are human beings faced with uncertainty and difficulties. In the end, our mission must remain to do our best.

As far as Worker’s Compensation litigation in Florida, our goals will be: (1) striving to maintain clean environments, (2) striving to maintain social distancing adherence in our facilities; (3) requiring the use of face masks in our premises; (4) encouraging sound discretionary decisions as to remote proceedings by telephone, zoom, or other platforms; (5) encouraging an environment of respect and dignity for everyone involved, regardless of anyone's personal beliefs regarding this pandemic or any other topic. Some local governments are mandating masks more broadly. That is their business. 

This is not some adoption of, or rejection of, any particular personal perception of the effectiveness of distancing or masks. We are not endorsing the CDC or discounting the WHO. This is merely an adoption of a rational and reasonable path forward in the face of uncertainty, conflicting opinions, and unfortunately sometimes raw emotions. News reporter Brit Hume recently noted on Twitter:

"The best reason for wearing a mask is not medical. The best reason is to be considerate of those who are frightened by this outbreak and are made uncomfortable around people not wearing one. So mask up not to be safe, but to be nice."

What if everyone made their decisions on that simple fulcrum? What if the only analysis was "am I being nice?" Too simple? Perhaps. 

We will persevere through this threat. As a community, we must remain focused on our purpose of resolving, mediating, and adjudicating worker’s compensation disputes. Others in the community will hopefully remain similarly focused upon their roles in serving employees and employers in this community. In their premises, they may have rules with which we disagree or which we celebrate. Regardless, let's remember it is their premises and their decision. Let's just be nice in their office, clinic, home, etc. 

As we progress, the most important attributes we can strive towards are compassion, patience, and tolerance. The fact is that disagreement will persist. The fact is much is not yet known. The fact is, despite that, we all still have an immensely important duty to fulfill to our community of workers' compensation. The fact is that through disagreement and confrontation we will not change minds about masks, distancing, and more. Our job is to help resolve issues and disputes, and we need to focus on that.

I am hopeful, moving forward, that we do not have any untoward behavior in our community. It is my hope that we all remember our responsibilities of civility and patience with each other. If wearing a mask troubles you, patiently try to work through why. It is my hope that we collectively and individually demonstrate the outstanding professionalism for which the Florida worker’s compensation community has become known. If you have suggestions or criticisms, I’m happy to hear from you. 

If something in our process makes you angry, or upset, please let me be the recipient of your comments, the target of your angst or even anger. But, please allow our security, judges, mediators, and staff to fulfill their responsibilities as they have been asked. We are doing our best for you, and appreciate you more than you know. 

Coaching or Pinch Hitting?

The Superior Court of New Jersey recently rendered McGory v. SLS Landscaping, DOCKET NO. A-4837-18T2. It is a decision about due process and the impartiality of adjudicators. It is many miles from Florida, but it is a good reminder of the constraints presented by the right to be heard. Adjudicators anywhere would benefit from a review of this case. It may also be instructive on the positive attributes of veracity and the potential downsides and complications of misrepresentation(s). 

For whatever reason, the employee in this case "jumped from a loft" at the employer. The event was not witnessed by any owner or his supervisor, Ms. Caruso. She did hear his landing from the jump, and investigated. She asked Mr. McGory if he was hurt, but Mr. McGory declined care. After he returned home, he concluded the injury required treatment and texted Ms. Caruso to inform her he was seeking care at a hospital, though he expressed an intent to cover the expense with his "health insurance." He noted that Ms. Caruso did not object to his intentions, nor did she specifically tell him that failing to tell the truth "was improper." (As I typed that, I thought of Robert Fulghum for some reason). 

Mr. McGory visited "two health care providers, an urgent care center(,) and then a hospital." he provided a history "to each": that he "injured [his] foot when [he] fell off a roof while cleaning gutters at [his] home." This may cause some concern to some. First a misrepresentation, but reiterated multiple times. He later explained that he made those statements because he did not understand workers' compensation and feared punishment at work if he sought care. He was diagnosed with a fracture and received medical care. 

Returning home thereafter, Mr. McGory testified, his parents educated him regarding workers' compensation and recommended that he report the injury accurately. He therefore contacted the Employer and the medical providers "to correct his record." The Employer then provided some additional medical care but "later denied his claim" based upon his untruthful initial representations regarding the facts. 

Mr. McGory then filed a petition seeking both medical care and indemnity benefits. This was "supported by his affidavit" providing an additional explanation as to how he was injured. He explained his declining the initial offer of care and described being embarrassed (apparently of his jumping action). The employer denied the benefits asserting that his "injuries (occurred) while jumping off a ladder at his home." Some, at this point, may question whether that is disingenuous when the supervisor (1) heard the landing, (2) investigated, and (3) thought it was serious enough to offer medical care initially.

Thus, the situation presented an employee seeking benefits, and an employer denying them. The matter proceeded before a judge. And, at a preliminary motion hearing, the case took an interesting turn. Some may perceive that there the umpire (judge) became a coach or even a pinch hitter for the employer or even the employee. After hearing why the employer was denying the claims, the judge spontaneously raised the issue of "fraud," but the Employer expressed no desire to pursue that defense. Despite that pass, the Judge decided Mr. McGory should "remain silent," (pinch hitting?), limiting thereby both due process and free will, and ordered the employer to produce Ms. Caruso (supervisor) to testify. 

Concluding that the petition/affidavit might alone carry Mr. McGory's burden of proof, the judge essentially seems to have rested the Claimant's case for him (pinch hitting?) and to have allowed the defense to proceed. One defense witness testified as to what others told him of the injury (hearsay perhaps), and that when he returned to the premises Mr. McGory had departed (not an eye witness). Ms. Caruso testified, describing her hearing the event and conversation with Mr. McGory including the offer of medical care he declined. 

The judge then expressed his lack of understanding as to "why the petitioner would jump from the loft." The judge asked if Mr. McGory would explain that in testimony, and renewed his questioning about investigating "fraud" (coaching?), which the employer again declined to assert. It remains unclear how his reasoning of why to jump would be either relevant or important. And, the record does not seem to indicate such an inquiry was raised by the parties. 

The appellate Court noted that a later review of the record demonstrated the judge said "fraud" more than a dozen times that day. At this motion hearing stage, the judge vacillated on how to move forward, now expressing uncertainty about "whether (Mr. McGory) presented a prima facie" case with his affidavit, having already prevented him from testifying, and moving to the defense case first. The judge editorialized further as to his perceptions, raising and suggesting some potential defenses, and concluded that more evidence was needed (coaching?). 

Before the case reconvened, the Employer sought a judgment through a motion, essentially arguing the misstatements Mr. McGory made, and asserting that his actions were "willfully negligent, or constituted horseplay," which defenses the judge had previously suggested (coach?). Counsel for Mr. McGory reminded that the Claimant had not yet testified and argued dismissal was therefore premature. The judge returned again to the word "fraud," but reassured the parties he was "not rushing to judgment." He directed the Claimant's counsel to file a response to the dismissal motion (coaching?) and instructed regarding the details he wanted included in the response (coaching?).

Ultimately, the judge advised the parties he had decided "to have an all-out hearing," where he would "get to the bottom of this." (side note, the judge's role is to hold a hearing). However, he did concede that he had yet to hear from Mr. McGory. Despite his announced perception of a hearing being needed, the judge then "proceeded to make findings concerning" the affidavit, such as the statements to medical providers which "reveals a lie," and his statement to the employer about using his health insurance "was a lie" (as it was Medicaid and not "personal health insurance"). The appellate court characterized the judge's comments in this regard as "commentary."

Then, before Mr. McGory was allowed to testify, the judge made "credibility determinations and factual findings" about the accident and injury. These included that the Claimant was "a multiple liar." Reversing his prior conclusion to hold "an all-out hearing," the judge instead dismissed the petition (pinch hit?), but "without prejudice" (meaning it could be filed again). The judge suggested it could be reinstated (coaching?) if Mr. McGory proved "he is honest." On that showing, the judge concluded the Claimant could then present his case.

The judge then instructed the employer that it "might" have its dismissal with prejudice motion granted if "it's based on fraud." (Coaching?). But, the claimant did not seek to reinstate the petition nor did he testify. Mr. McGory instead elected to appeal, and the Judge was informed that had been filed when the parties appeared at a subsequent hearing. There, despite there having been no filing by either party to resurrect the petition, the judge announced "'There is a new motion,' referring to respondent's" previous motion to dismiss (already granted in part). The Court noted that the parties exhibited confusion in response to the judge's pronouncement, and that "the judge then scheduled a hearing on" that dismissal motion (directed at a petition already dismissed). If you are confused, in calm retrospect, imagine the parties striving to keep up in real-time).

The judge then proceeded with a July 10, 2019 hearing on the motion to dismiss (despite the fact Mr. McGory had never filed any motion to restore the petition, and despite the fact that it was already dismissed). Additionally, Mr. McGory had filed an appeal the day before that hearing (the judge had no jurisdiction). No testimony was taken at this hearing, and the judge then "rendered a decision on the merits of" the dismissal motion (which he had already essentially granted). He concluded Mr. McGory lied to the medical care providers and that he "was injured at work." Then, without Claimant testifying to tell his side, the judge concluded that "the injuries were not compensable because they resulted from petitioner's willful conduct - jumping." (Pinch hitting?). 

The appellate Court noted that of course, the judge had no jurisdiction as the matter was the subject of an appeal. Further, since the petition had not been refiled nor any motion to restore been filed, the argument was made that the judge further lacked jurisdiction (even in the absence of the appeal). It found curious the judge's conclusion that he had "'reopened' the case in June and thereafter afforded the petitioner (McGory) the opportunity to testify, which petitioner declined." Though the trial judge might perceive that history, it seems at odds with his ordering the Claimant not to testify, his vacillation over the weight of the affidavit, his promise of a hearing, commentary without hearing, and later return to the premise of hearing after the case was appealed. 

Mr. McGory contended on appeal that his due process rights had been violated. He complained of the "initial dismissal order" and the deprivation of any opportunity to testify, and the dismissal that followed the final (and tardy) opportunity for hearing while the appeal was underway. 

Acknowledging that "[d]ue process is not a fixed concept . . . but a flexible one that depends on the particular circumstances," the Court reminded that "due process" "includes not only the right to cross-examine the adversary's witnesses but also the right to present witnesses." It concluded therefore that the May 29 dismissal "without prejudice violated petitioner's fundamental due process right to present evidence supporting his claim." The Court was critical of the judge's promise of a hearing, followed by denial of a hearing. It noted that 

"the notion that a case where the credibility of the witnesses is an issue and the underlying facts are disputed can be decided without the need to "hear the evidence" is inconsistent with the fundamental fairness to which every litigant in every litigated matter is entitled."

The Court held that 

"no court or administrative agency is so knowledgeable that they can make fair findings of fact without providing both sides the opportunity to be heard." 

The judge's dismissal was presumptuous, based on less than a full opportunity to be heard, and based upon the judge's assumptions and conclusions that "petitioner was a liar." The Court was critical of the judge's imposition of a litmus test (prove you are honest) as a foundation to reinstate the petition, concluding "there is no requirement a petitioner first establish he or she is honest before obtaining a hearing on a claim petition." I reiterate that the judge's obligation is to afford all parties a fair and open hearing. Conclusions and decisions should wait until after that opportunity, after the parties themselves choose what to present as evidence and then rest their respective cases. 

In short, "the judge predetermined the issue of petitioner's credibility at the outset of the matter, and throughout the proceedings, he oft-repeated his determination petitioner was dishonest and not credible." The judge thus "demonstrated he could not fairly consider" the testimony." The judge's statements were "inconsistent with the fair and impartial consideration of evidence by a fair and impartial judge to which petitioner was entitled." The Court reversed the dismissal and returned the case to the trial level with directions that the matter be assigned to a different trial judge for further proceedings. Such an instruction is rare in appellate decisions. 

In litigation, some party bears the burden of proof. That party should be afforded the opportunity to present their claims or defenses (picture a presumption case where the law says the worker wins unless something is disproven). The opposing party should have the same opportunity. The judge should not predetermine any fact, form any opinion, or express any advice on appearances, perceptions, or how any party might or should proceed. The selection of claims is for one party and the selection of defenses for the other. The choice, timing, and manner (live, deposition, etc.) of the witnesses is up to the parties to pursue. Judges are there to perceive and to judge not to suggest (coach), direct (coach), or provide commentary (coach).

The judge's job is to be the referee as the parties find friction with each other. As disputes over those claims, defenses, and choices occur, the judge is the umpire. She or he should never leave that role and don the uniform of either team on the field, or suggest to them plays or strategies. The parties bring the case, the judge hears what they elect to present, and then a decision is rendered. Does that mean that the parties are always effective? No. Usually, at least one party loses in every trial. That does not mean the party was wrong or ineffective. It just means the other party was more effective that day, with those facts, in that case. 

Judges owe to the parties and to the adjudicatory system to remain in their appropriate role. When they venture from that referee or umpire role, it damages the rights of the parties. But, as importantly, it damages the adjudicatory process, all judges, and the public that are supposed to be served. Unprofessional, advocate behavior damages the public perception, erodes the public faith, and creates problems. Judges should allow parties to try their case, make their decisions, and then decide the case based on what is presented and the law. 

Inconceivable!

In 1987, The Princess Bride hit theaters. It is a quirky movie, which some refer to as a "cult classic." In it, the hero (Wesley, played by Cary Elwes) pursues three adventurers (seemingly villains, but they later come to help Wesley) that have kidnapped "The Princess Bride," named Buttercup. The film is replete with great quotes. I was recently reminded of an exchange between the supposed brains of the the three villains, Vizzini (played by Wallace Shawn) and Inigo Montoya (Mandy Pantikin). The brain, Vizzini, has just cut a rope that Wesley is climbing, yet Wesley does not fall:

"Vizzini: HE DIDN'T FALL? INCONCEIVABLE."

"Montoya: You keep using that word. I do not think it means what you think it means."

In a recent educational program, I heard a judge similarly focusing the audience on the meaning of words. Words are critical to the law, particularly in the realm of interpreting writings such as statutes and contracts. What words mean matters. 

There are certain approaches to statutory interpretation that are accepted in the American legal community. The subject is discussed in various publications, an excellent overview from a legal writing perspective is A Guide to Reading, Interpreting, and Applying Statutes. This is an expansive and detailed examination of interpretation from the perspective of more effective legal writing. For those who would study the employment of prose, it is detailed,  informative, and helpful.

The primary rule of interpreting a statute is that the plain meaning of the statute should be applied when it is clear. In other words, the first step in interpreting is to read the language of the statute itself. 

“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Barco v. School Bd. of Pinellas County, 975 So. 2d 1116 (Fla. 2008).

Thus, the primary tool for interpreting a statute is the statute itself. A judge should read the language, and strive to follow its plain meaning. There have been challenges as to that process. In the Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013) decision of the Florida First District Court, both the majority and dissent cited the "plain meaning," but disagreed as to what that was. The dissent contended that the majority was instead "crafting a new statute in derogation of the plain text." Thus, purportedly not an interpretation so much as a re-write. See Westphal is Over, Questions Remain. 

Another interesting read is Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. Dist. Ct. App. 2019), reh'g denied (May 30, 2019), review denied, No. SC19-1044, ___ So. 3d. ___ (Fla. Oct. 28, 2019), which is discussed in Personal Comfort, Testing Compensability. A main focus of the Court there is interpreting words. Some will argue that another key feature is stare decisis, with both majority and dissent finding a foundation for respective positions based on the same prior decisions interpreting "arising out of" and in "the course and scope of."

In the analysis of words and meaning, "it is appropriate to refer to dictionary definitions when construing statutes or rules." This may mean reference to a general dictionary such as the Miriam Webster Collegiate Dictionary, or perhaps to a more specialized publication such as Black's Law Dictionary. Both were consulted in Barco. But, the important point is that it may well be critical to understand what the word "inconceivable" really means. It may be important for the person who writes it into an argument, rule,  statute, or decision. It may be equally important thereafter when someone strives to understand and interpret what that writing means.

The legislature is tasked with making laws. It is this conglomeration of elected representatives, with the assent of an elected Governor, that must collectively change the law. That process is punctuated with opportunities for public input, open discourse, disagreement, and discussion. It is collaborative, contentious, and even combative occasionally. The Courts presume that in that process the legislative branch is "aware of case law," that is that it is aware of the Court's previous interpretations. In City of Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000), the Court reminded of this: “The legislature is presumed to know the judicial constructions of a law when enacting a new version."

Upon that knowledge, upon the appreciation of the interpretation, the elected representatives are certainly empowered to disagree. A prime example is the Court's interpretation of section 440.09(1)(b), Florida Statutes (Supp. 1994), the "major contributing cause" standard in Florida workers' compensation. The Court concluded that standard meant:

"if the workplace accident contributes more to the disability or need for treatment than any other single cause."

This Court interpretation was founded largely upon the legislature's use of the word "the," as in "the major contributing cause." See Closet Maid v. Sykes, 763 So. 2d 377 (Fla. 1st DCA 2000). 

The Florida legislature responded in 2003 by amending section 440.09(1)(b):

"the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of the disability or need for treatment." 

Whether the Legislature originally intended the outcome interpreted by the Court or intended this "more than 50 percent," The Court reached what some see as a strained (depending on the definition of the word "the") conclusion. The Legislature's intent in its correction is clear and succinct. It both changes (corrects) the Court analysis and provides clarity through specificity. This example illustrates the burden of the interpreter to follow the words of the legislature. Admittedly, there may be disagreement on such interpretation, as illustrated in the Westphal and Valcourt discussions above. But, always the elected representatives are afforded the opportunity to review such interpretation and to clarify their words as they deem appropriate.

The process is perhaps not necessarily efficient. But, the process calls upon the separate branches to remain in their lanes and to perform the functions that "we the people" designated for them in our adoption of a constitutional republic form of government. For its potential failings, ours really is perhaps "the worst form of government, except for all the others," as Winston Churchill once suggested? Certainly, it is not perfect by any means. But, if the branches remain focused on their roles, if judges remain true to words, then this imperfect system should produce consistent results for those who depend upon it. If we fail to give the plain meaning to words, well that would be "INCONCEIVABLE!" Or maybe you "do not think it means what I think it means?"

Personal Attacks Unbecoming

I recently read some interesting pleadings. These included verbiage that was harsh and untoward; it was not a display of professional behavior. The exchange between the parties led to the entry of an order by the assigned Judge. Of particular note in that order is the inclusion of a "reminder of professionalism" directed at the attorneys. That reminder is quoted verbatim below. 

This situation struck me for two reasons. First, the language choices were indeed unfortunate and the Judge mentioning that is laudable. Second, we once lived in an age of hearings where invective and hyperbole sometimes surfaced in the heat of a moment; but for such language to survive the review and hopefully, retrospect involved in drafting and proofreading is only more unfortunate. As a side note, there is some perception from the bench that proofreading has generally gone the way of the daily newspaper, the fax machine, or the rotary telephone. The statements in this case were written or dictated, read, hopefully (re)considered, and then filed nonetheless.

The pleadings included the following quotes:

"the Employer/Carrier's strategy is lackadaisical or intentional"  

"to say that request is vague and overbroad strains credulity"  

"the objection . . . is incomprehensible."  

"This is the very circumstance that provides the fertile ground for gotcha litigation long prohibited by Florida courts." 

"The hair-on-fire ranting offered up through the motion"  

"At paragraph 6 of his Motion, in an apparent fit of outrage and pious indignation"  

"The profound hypocrisy of this invective is underscored" 

"This reality brings to mind the proverb 'Those who live in glass houses should not cast stones'."  

"Claimant's lack of self-awareness and rank of subversion" 

"in refutation of the Claimant's baseless and self-serving insinuation to the contrary"  

"the Claimant's hypocritical chastising of the E/C is at minimum dubious and at worst completely disingenuous and meritless."  

"it boggles the mind that the Claimant would take offense to these responses"  

"infers deceit and gamesmanship on the part of the undersigned"  

"takes personal offense at the Claimant's scurrilous, contemptuous, and completely unfounded assertion"  

"little more than exercise in prurient navel-gazing"  

"Such aimless and sweeping tactics"  

"proposition is impractical if not preposterous."  

"Motion as a cudgel being wielded"  

"an improper and unwarranted 'fishing expedition', for the apparent purpose of harassment, annoyance, oppression, undue burden, and intimidation." 

The Motion to Compel was denied. The Judge, however, included the following in that order: 

REMINDER OF PROFESSIONALISM: The language utilized by BOTH claimant's attorney in the motion in question and E/C's attorney in his response to the motion to compel is inflammatory and unprofessional. Language implying E/C's strategy is lackadaisical or intentional and claimant's motion contains hair-on-fire ranting and is hypocritical are personal attacks unbecoming of the legal profession and distracting from resolution of the issues at hand. Pleadings, motions and responses, should be factual in nature without implying some nefarious or wrongful intent by a party or their attorney. 

The keywords there are "inflammatory and unprofessional." One might engage in a discussion of "who started it," but let's face it, that never worked with mom either. The point is that it "requires two to tango"; remember, "two wrongs do not make a right." Before you return hyperbole or stoop to ad hominem attacks, take an evening to think it over. Dictate or type that response if you must (get it off your chest). But then let it sit on the desk overnight and take a fresh look at it before serving or filing.

In that retrospective proofreading moment, ask yourself if the invective, insults, or abuse are: (1) necessary, and (2) likely to persuade your reader. Remember, at the end of the analysis, the client has hired counsel to prevail, to be convincing, to be persuasive. It is practical to suspect that being offensive, distasteful, and insulting may not lead to success. Choose words carefully, focus on the issue at hand, not the person, and strive to be the better person. Admittedly, that may not be easy. But as obviously, it is the path to take.

A Unicorn Fax

A recent decision of the Iowa Supreme Court leads us back to the subject of notice. This is one of two fundamental elements of our constitutional premise of due process. I tell my students that due process is so important we have included it in the U.S. Constitution twice: "nor be deprived of life, liberty, or property, without due process of law," U.S. Const. amend. V. "nor shall any state deprive any person of life, liberty, or property, without due process of law," U.S. Const. amend. XIV, § 2. The essential difference is that the Fourteenth focuses on prohibiting state impairment of rights while the Fifth is focused on federal action. That may be an oversimplification, but will suffice here. 

Notice is not a new subject for this blog. In Notice is Notice (August 2017), is the story of a claimant in North Dakota seeking a do-over after failing to open his mail. He argued that he only "received" notice when he eventually opened the envelope. That case reminded me of Patry v. Capps, 633 So.2d 9 (Fla. 1994), as does the recent decision from Iowa. In Patry, the Florida Supreme Court found fault with the enforcement of a statute requiring notice in a specific form. The question, it stressed is whether actual delivery occurred regardless of what the law says. 

In another discussion of notice from North Carolina, the necessity of proving when something was received is the focus. This is discussed in Proving Appellate Jurisdiction (December 20180. Potentially, there is also some potential leeway in the due process discussion of notice when the situation is emergent, see Emergency Hearings and Due Process (July 2018). The sum of all of these seems to be that notice issues depend upon facts. It is interesting how many attorneys do not make a differentiation between the day-to-day and the demands of exigent circumstances. 

But, we return to Iowa and Logan v. Bon Ton Stores, Inc., No. 19–0608, May 1, 2020. The injured worker there was unrepresented. The Court concluded that service by facsimile is sufficient service. The Court relied upon its own recent decision in Ortiz v. Loyd Roling Construction, 928 N.W.2d 651, 655 (Iowa 2019). There, a petition was emailed to opposing counsel. The Court concluded that the real issue was whether the "petition was actually received" and whether "prejudice resulted." Concluding both the actual receipt and absence of prejudice, the Court concluded that the purpose of the statute was satisfied. Notably, the plaintiff, Ortiz, "was represented by an attorney." 

More recently in Logan, the Court saw similarities that were more persuasive than noted subtle differences. In this instance, Ms. Logan suffered an alleged work injury and had filed multiple petitions. She was unsuccessful. She later "filed a pro se petition with the Iowa District Court" for review of the Iowa "commissioner’s ruling." The document "was electronically filed," and was faxed to the employer/carrier's attorney. The attorney did not dispute that the petition fax was received but raised a procedural objection in support of the motion to dismiss. 

The argument was founded on Iowa Code section 17A.19(2) (2019), which "requires" a petition to be mailed or personally served. By the time the matter came before the Court for hearing on the motion to dismiss, Ms. Logan had also served the petition on counsel by certified mail (albeit outside the ten-day period that was defined for service). The trial court acknowledged the “substantial compliance" argument of Ms. Logan but dismissed the case for failure to satisfy the statute. 

In deciding Ortiz, the Appellate Court noted that when the subject statute was enacted, "electronic mailing was little more than a thought of a few." However, the use of email has expanded since, becoming ubiquitous. Its prevalence has become systemic in society, and the Court noted in the legal practice. It concluded that the "use of the term 'mail' should not preclude the word to apply to a means of communication that would later displace postal mail as the standard and most reliable means of routine, reliable communication.” Thus, in Ortiz, the Court essentially found email and mail indistinguishable. In deciding Logan, the Court acknowledged that the trial court in Logan made its decision before the Ortiz opinion was published. 

The Court found similarity with a facsimile, noting "Fax, like email, would not have been on the legislature’s mind when it last amended Iowa Code section 17A.19(2) in 1981." The Court concluded that facsimile "did not flourish until the late 1980s and the 1990s." In so doing, the Court acknowledged that the facsimile was "invented in 1842." It also noted that the rules of Court ("civil procedure"), unlike the legislature's statute, allowed service by facsimile. Its explanation for its expansion of the exception seems founded less on any principle than on an inability to find some attractive distinction from Ortiz. 

The Court noted that in Ortiz it had warned of more strict construction of the statute in the future. It suggests that its decision in Ortiz "was driven by a textual approach that interpreted 'mail' as including" the current email alternative. The Court saw this as a "linguistic stretch," and that admittedly "'fax' seems to be a stretch too far." The Court seems reluctant to extend the exception but also struggles with its perceptions and conclusions. 

Abandoning its attempts to stretch the words or balance the linguistics, the Court moves on to an analysis more on par with the 25-year-old Patry analysis in Florida. It ultimately concluded the fax accomplished "substantial() compli(ance)" with the statute. Upon that conclusion, it held that the trial court should not have dismissed the petition faxed by this pro se litigant. In that regard, some will perceive the Court abandoning both Ortiz and what some see as the strained logic of its "email replaced mail" linguistic gymnastics. 

Seemingly seeking a balm for its linguistic bruises, the Court then noted that perhaps the facsimile is even better notice than email, a superior method. It described the facsimile has become a "rarity these days." While an attorney might receive many emails, and could "miss" one "among the electronic clutter on his or her computer," an attorney "is less likely to miss a unicorn fax." While certainly, the Court noted, "the golden age of faxing has come and gone," perhaps it is a viable alternative. With the Logan decision, certainly, it now is, but in the broader context than a raft of specific exceptions, in the context of actual delivery shall suffice. 

The opinion was not unanimous. Justice McDonald dissented (joined by Justice Oxley) stressing that "the service requirements are mandatory and jurisdictional." He argued that "a failure to comply with them deprives the district court of appellate jurisdiction," and that this should end the Court's analysis. His dissent acknowledges the "single exception" in Ortiz and essentially rebukes the Court for widening that exception. Justice McDonald would perhaps be an advocate of the old quote beware when "the exception becomes the rule." (Origin unknown). 

Justice McDonald would more narrowly construe the Ortiz exception. He stresses two logical points in favor of the email exception and argues the fax fails them both. First, email has replaced U.S. mail and is thus a monitored and expected delivery mode. And, Ortiz concluded that "service by email substantially complied with (the) Code," when done in compliance with court rules. 

Second, citing the specific language in Ortiz, Justice McDonald contends the majority decision violates the Court's decision in Ortiz. The exception in Ortiz "stated the 'substantial-compliance doctrine would not normally include using a means of communication different than provided under the statute.'” Thus, in allowing the email exception, McDonald contends the Court foreclosed further exceptions only to then further expand a year later in Logan. 

Justice McDonald notes that Ortiz says any method other than email “would be unexpected and jeopardize the purpose of the statute," and then nonetheless endorses the unicorn facsimile. That in itself is an interesting point under the purview of stare decisis and predictability of judicial decisions. It is likely that both the majority and dissent would argue their allegiance to prior precedent, but in fact one of them is wrong. 

Too often, courts forget that their role is to interpret statutes. That means to follow them as written unless they are internally ambiguous (something in the statute does not make sense or is contradictory) or externally ambiguous (the content contradicts another statute or constitution). Absent these, the legislative action should be given its due. The Florida Supreme Court abandoned this ideal twenty-five years ago in Patry (without word games). It now seems Iowa has followed suit with the erosion begun in Ortiz further empowered by Logan. 

A side note to the majority opinion is a contention that judicial interpretation is subject to the constitutional separation of powers. As such, the Court noted, the legislature is free to correct any statutory interpretation of the judiciary merely by revising a statute to clarify the legislative purpose was not as interpreted by a given court decision. This is a well-cited maxim, and in casual observation is sound. But, in reality, the passing of a bill is a monumental undertaking requiring significant will, patience, and persistence. Thus, courts may perhaps often be wrong, but enjoy the collective balm of "well if we were wrong the legislature would fix it."

Latest Filing Volumes

Another month of COVID-19 is behind us. I strive to look back on the onset of this pandemic and the challenges that have faced the workers' compensation community. I have had the opportunity to informally discuss obstacles and innovation with so many in the community. Perhaps some have received help through those conversations, others maybe simply got the chance to vent their frustrations and struggles. 

Through it all, despite the serious consequences many face, I have been overwhelmingly impressed with the flexibility, innovation, and professionalism I have encountered in this workers' compensation community. Last week, I even attended a virtual Inns of Court meeting with the E. Robert Williams Inn in Jacksonville! Despite the challenges of group gatherings, the Inn continues to serve its members and community. 

That does not mean things have been trouble-free or easy. Many things have been anything but. Is COVID-19 affecting Florida workers' compensation litigation? The answer in March was "not yet." In April, that turned to "yes." With the numbers now apparent for May, the answer is "yes, consistently." The Florida Office of Judges of Compensation Claims (OJCC) continues to see decreased filings. I have had some people question why the analysis of these numbers is important. There are multiple reasons. 

First, market segments (an employer, a carrier, a law firm) may perceive their current experience as altered. One might feel from their own isolated perspective that claims are increasing or decreasing. There may be a tendency to question whether that is isolated to that segment (personal experience), or whether that segment's perceived impact is consistent with overall averages and experience. Hopefully, knowing the overall community activity level is helpful in that regard. 

Second, an understanding of trends is helpful to all community participants. Whether new cases are being filed in consistent volumes may indicate claim frequency or claim denial perceptions. Whether overall filings remain significantly consistent in trend and volume with petition filings may offer insight into the intensity of litigation that is occurring.

In April 2020, the "new cases" filed with the Florida OJCC were markedly decreased from April 2019. The overall petition volume similarly decreased. This is detailed in COVID-19 Effect on Florida Litigation? The short version is that petition filing had been increasing in fiscal 2020 (started July 1, 2019). In March 2020, petition filing dropped 2% compared to March 2019. April 2020 petitions dropped 23% over 2019. The new figures for May demonstrate a 29% decrease compared to May 2019. Litigation is slowing.

Thus, the previous trend of increasing petition volumes has changed in recent months. The most recent two months have markedly decreased compared to 2019. Through June 15 2019, 70,181 petitions had been filed for that fiscal year. For the same 11.5 months of fiscal 2020, through June 15, 2020, 69,203 petitions had been filed. The annual (through June 30, 2020) decrease in petition volume is therefore expected to be about 1%. That should be considered in light of the marked decreases at the end of the fiscal year, an indication of the strength of petition filing growth earlier in the fiscal year. 

The "new cases," cases that are first being created in the current fiscal year, demonstrated similar decreases noted in COVID-19 Effect on Florida Litigation? The trend was increasing volumes of new cases in fiscal 2020, as of the third quarter (March 31, 2020). However, in March 2020 new cases were merely 1% more than in March 2019. The new cases in April decreased 24% compared to a year earlier. That trend continued in May 2020 with new cases decreasing 33% compared to May 2019. For the 11.5-month period through June 15, 2019, 30,386 "new cases" had been filed. For the same 11.5-month period ending June 15, 2020, the "new cases" totaled 30,022, another decrease of about 1%.

Overall, OJCC filings (all pleadings) likewise were trending upward through the third quarter of 2020 (through March 31, 2020). However, that growth flattened in March with the March 2020 filings (52,581) virtually the same as the March 2019 filings (52,423). The overall filing rate dropped by 11% comparing April 2020 to April 2019. The decrease in May was more pronounced dropping 19% from 54,169 (May 2019) to 43,500 (May 2020). 

Therefore, it appears that fiscal year 2020 is likely to demonstrate overall filing rates similar to 2019. However, those overall annual figures include increased filings early in the fiscal year and markedly decreased filings in recent months. 

Notably, the effect of decreased petition filing does not generally have an immediate workload effect. When a petition is filed, a mediation is necessitated (unless one is already scheduled based on some prior filing). That mediation will be 70 to 130 days in the future. A final hearing is also likely to be set 150 to 210 days in the future (some judges wait until after mediation to schedule, but that affords parties less notice and can lead to continuance issues). Thus, the impact of the decreased petition and "new case" volume on a judge or mediator's calendar should not be immediate. 

In June 2020, a judge's calendar is likely to be consumed with petitions filed in December, January, and February, and the motions that are related thereto. There is likely also motion activity related to some of the petitions filed in March, April, or even May, but perhaps less so. In June 2020, a mediator's calendar is likely to be filled with issues filed in February and March, with some lingering contribution from January filings perhaps. 

Similarly, the impact of decreased filings in May and June, 2020 will most likely evidence a slowing of mediation and trial volume later in calendar 2020, that is during the first six months of fiscal 2021 (July 1, 2020 through June 30, 2021). There is no mathematical corollary in absolute terms. However, a 29% percent decrease in the volume of petitions filed one month (May 2020) may be rationally expected to lead to a decrease in the volume of mediations in August or September and a decrease in the volume of final hearings in November and December. 

The fact is that petition filing rates have demonstrated some inconsistency historically. Because of weather, business cycles, or causes unknown or undetected, there have been fluctuations before. Depending upon the cause of a particular decrease, it may be that filing volumes might seem to thereafter surge (weather-related closures). In other instances (business cycle decline and fewer accidents), there may not be any such immediate surge thereafter. It has proven difficult to predict filing rates. 

This is important for market participants to consider as the decreased volume of filings may create a near-term languor. In those times it is important to remain productive and to accomplish delayed tasks or build better processes to facilitate better performance when volume returns. And, there is a need to be prepared for the agitation or challenges that a returning volume may bring, whether in a surge or not. 

The current volumes illustrate a slowdown in Florida workers' compensation litigation. March brought a "flattening of the curve," and more recently we have seen a significant decrease. While the overall figures for 2020 will not demonstrate a drastic decrease overall, the volumes in recent months will more than offset the increased filings earlier in the fiscal year. Those who work in this marketplace will likely struggle with a general slowing of pace in the near term, and the challenges of a return to normal perhaps in mid-2021 (the holiday season of calendar 2020).

Rude Behavior Only Begets Regret

A recent WorkCompCentral article caught my attention: Fed Up With Rude Behavior to Staff, Chairman Orders One-Day Delay in File Processing. (Paywall). The headline is not quite descriptive. Essentially, the Illinois Commission has been providing "same-day document processing . . . throughout the COVID-19 shutdown." The Illinois Commission is not paperless, though it has expressed an intention to be so in 2021. That is somewhat hard to wrap one's brain around, but the plan for this evolution is a promising sign. 

The article notes that similarly, the Commission in Illinois has not traditionally been engaged in remote hearing. That too has begun to evolve, however, with the announcement in "late April that arbitration proceedings could be done via teleconference." This is noteworthy as Plato explained that "necessity is the mother of invention." Each day it seems, that COVID-19 demonstrates some necessity, and I am impressed with how the workers' compensation community has invented, augmented, and responded. 

Back to Illinois, the lack or e-filing means that documents have to be transmitted to an office for filing. The Commission Chairman noted in a memo to the public that "the impact of COVID-19 upon the Commission has proven most difficult." The impact has apparently affected function, as the "commission has closed its offices to the public since mid-March but has allowed documents to be dropped off at the Chicago headquarters." There, a small group has endeavored to keep up with processing the paper and making items available for pick up. 

That is a story that is a recurring theme in this COVID-19 drama. Small teams, volunteers, and innovators are all stepping up, meeting needs, and getting the job done. They are absolutely praiseworthy and deserving of our thanks whether they are in government, adjusting physician, attorney, case management, or other offices. These folks are coming to work every day, at personal risk, thus facilitating the function of so many that are telecommuting. Don't get me wrong, the telecommuters have challenges also. 

So, the Chair noted that the Commission's "employees are stressed." Perhaps an understatement? That has been exacerbated by "certain members of the bar" and their agents who "have been abusive to commission employees." As a result of one "bout of verbal abuse toward commission staff members," the Chair has decided to decrease the stress on these employees by slowing the pace a bit: "The commission will no longer provide same-day document processing." 

It is easy to engage in emotional considerations of the COVID-19 effects. They are widespread. The Kaiser Family Foundation recently published a work regarding the mental health of Americans in the wake of COVID-19. There is stress, isolation, fear, and more. Whether you see it in someone's behavior, hear it in their words, or not, the fact is you have no idea what people are dealing with or going through. That is always true. But, the chances that someone is having a rough time is enhanced in this era. 

It is unfortunate that Illinois does not have e-filing. It is unfortunate that hearings there are just getting back on track. But, without any personal Illinois experience, I can tell you unequivocally that the people handling the mail are not responsible for any systemic shortcomings. The human beings are who make any system work. Their intellect, their camaraderie, and their dedication are critical to any organization's success. 

This time, of COVID-19, is not a time to look for or find fault. This is a time for the workers' compensation community to pull together for the betterment of the people who are affected. This is the time for innovation and contribution (such as that skeleton crew that is still in an office, facility, or plant). We owe to them, our community, and our fellows civility, charity, and compassion. Again, I get that telecommuting has its challenges. Could the folks still in the office handle the whole load alone? No. Those working from home are also shouldering the load, perhaps differently but effectively nonetheless. 

Before you reach for the anger, take a minute to breathe, Before you say something you will regret, strive to remember others may face challenges you neither perceive nor necessarily understand. If you do find anger, know that may be unavoidable due to your stress or emotional state. That said though, if you find anger, deal with it as soon as practical, and always provide an apology (even when you know you're right). 

This virus seems large and unassailable. But, the fact is we will get through this time. We will suffer pain and perhaps loss, but we will get through. You don't need a memo from the Chair to tell you that rudeness and abuse are wrong. You well know it. And, if you really want to make someone's day, how about lobbing a compliment or two around in the work setting? Nothing makes someone's day more profoundly. If someone is making your day better, say so. Our humanity and emotions may be a great challenge, but they are our greatest strength. 

In that vein, this is a shout-out to the rock stars that make up the OJCC information technology team. They are literally the wind beneath our wings, and we don't say it often enough: Thank you for making us all capable of production in this new world. 

Be well, and stay safe.

Florida COVID-19 Litigation

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 a 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 the 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 the 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 a police officer, two patient care assistants, a physical therapist, a caregiver, 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 the 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 the 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, “COVID” was mentioned secondary to a 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 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 are 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 to ongoing re-evaluation. 

COVID-19 in Florida Claims

On May 31, 2020, the Florida Division of Workers' Compensation issued a 2020 COVID-19 Report. This addresses the frequency of COVID-19 workers' compensation claims in Florida. The statistics were pulled from the Division's databases by searching for a "Cause of Injury Code 8300," and keywords used "in the accident description."

Through the end of May, the Division reports 7 claims occurring (date of injury) in January, 26 in February, 1,949 in March, 1,558 in April, and 300 in May. The total reported is 3,807. This represents 15% "of all indemnity claims (25,449)," and payment of $3,431,342 (2.9% of the total $118,023,159). Those payments ($3,431,342) were comprised of

Private Insurer 1,418 claims totaling $856,484

Private Self-Insurer 822 claims totaling $721,127

Government Self-Insurer 1,567 claims totaling $1,853,732

Among those, a few (23) were partially denied. Those were predominantly by private entities (Private Insurer = 10, Private Self-Insurer = 12, Government Self-Insurer = 1). More were denied "totally," 1,695, which is about 45% of the total of 3,807 (contributed to by Private Insurer = 775, Private Self-Insurer = 175, Government Self-Insurer = 745). Thus, of the 3,807 (1,695 + 23), about 55% (2,089) have been accepted.

Of those 3,807 claims, 42% (1,584) were in Dade County (Miami). Broward County (436, 11%) and Palm Beach County (402, 11%) were second and third in terms of frequency. Those three counties combined for a total of 64% of the Florida claims. Similar to the infection analysis in Florida, a significant majority of the impact so far has been in South Florida. As of June 9, Florida had 66,000 cases, Dade was 19,980, Broward 8,035, and Palm Beach 7,518 (total of 35,533 in three counties, about 54% of the state's total.

The payments for workers' compensation in those three counties accounted for 67% ($2,307,747) of the $3,431,342 paid. Of Florida's 67 counties, 12 counties have not yet had a COVID-19-related workers' compensation claim.

The breakdown of occupations is also interesting. Airline workers account for 57 (1.5%) of the claims, health care workers for 1,740 (45.7%), office workers for 234 (6.1%), protective services (public personnel in fields such as correction officers, police, firefighters, forest rangers, and state troopers) 1,431 (37.6%), and service industry for 345 (9.5%). The expenditures for each group are also listed, and both protective services and office worker expenditures as a percentage of the total spent were higher than those two groups' respective claim percentages.

Which claims are being accepted as compensable? The breakdown by occupations is as follows (in parentheses is accepted number/totally denied number/partially denied number, then a semicolon and the accepted percentage/totally denied percentage/partially denied percentage): Airline workers 57 (22/35/0; 39%/61%/0%); health care workers for 1,740 (1,200/521/19; 69%/30%/1%), office workers 234 (128/104/2; 55%/44%/1%), protective services 1,431 (650/780/1; 45%/55%/0%), and service industry 345 (89/255/1; 26%/74%/0%). The expenditures for each group are also listed, and both protective services and office worker expenditures as a percentage of the total spent were higher than those two group's claim percentages.

Despite some of those claims being "full denials," about $44,851 was nevertheless paid on those claims (likely during the investigation and before denial).

Most (53%) of the Florida workers' compensation claims involve individuals that are reported as female (2,017) and the claims for those reported as male are 1,782 (47%). a small number (8) is labeled as gender/sex "not indicated." The distribution of the various claims by age is illustrated in the table below. This illustrates that men over 50 comprise a smaller percentage (21%) than women in that age range (30%). Similarly, men in the group 39 or under comprise 54% of men's claims while women in that age range comprise only 44% of female claims.

Finally, the Division notes that telemedicine has seen serious increased billing in Florida in recent months. In January there were 264 bills for that service; February brought 307. But in March 2020 there were 2,356 (667% increase). April made that look tame with 8,374 bills for telemedicine (369% increase month to month). But, for some reason the trend changed in May, dropping back to only 1,426. Notably, however, that figure for May is still more than 5 times the total in January (264), the pre-COVID time. There is no conclusion suggested as to why May is significantly lower than March and April.

In what professions is telemedicine occurring? The vast majority (6,338 bills, 52% of the total) came from medical doctors. The next largest group (3,041 bills, 25%) from physical therapists. The numbers drop precipitously for the next largest groups: osteopathic physicians (734 bills, 6%), "out of state care providers (660 bills, 5%) occupational therapists (296 bills, 2%), physician assistants (290 bills, 2%) and psychologists (239 bills, 2%); the other providers in 12 categories were all fewer than 200 bills each, many were only one or two each.