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Sunday, September 27, 2020

Florida COVID-19 Litigation September Update

The latest trends in COVID-19 litigated claims in Florida are below. This data reflects Petitions for Benefits filed in Florida through September 22, 2020. This reflects that far fewer workers are filing petitions regarding COVID than are submitting notices of injury. This data is best considered in conjunction with the data published by the Florida Division of Workers' Compensation, and some comparisons are drawn. 

COVID-19 continues to dominate our news, both generally and in the world of workers' compensation. This is the 35th blog post I have written that has some relationship to this pandemic, in roughly six months. There is a periodically updated list of all of those in the announcement blog, and the list is repeated at the end of this post. 

In a more general news sense, Florida moved to Phase Three of re-opening with an announcement on September 25, 2020. According to News4JAX that means that "all statewide restrictions on bars and restaurants will be removed" effective immediately. Furthermore, There is "a suspension of collecting fines or fees for restrictions like not wearing a mask." That does not mean business as usual, as any private establishment is allowed to "still operate with any self-imposed restrictions under the order."

This is not the only change in either our environment or policy. For example, WalMart is "scrapping one-way aisle" restrictions, which had generated some criticism in the past. Publix had similarly done away with the practice recently. Various retailers had also limited the volume of customers allowed in stores, with associates stationed at some designated specific entrance and exit to keep count. The "one way" in and out with doors so designated had also been in vogue. Recently, these efforts seem to be abating. 

The Florida Division of Workers' Compensation has done an exemplary job of isolating data regarding the filing of notices of injury for "lost time" claims related to COVID-19. The statistics it provides have been published now in four reports available on the Division website (https://www.myfloridacfo.com/division/wc/), under the "reports" tab. 


Thus, as we have seen since February, COVID-19 actions are evolutionary. There are concerns and fears, and both business and government have striven to adjust to the threat with cleaning, constraining, and re-directing. The fears are shared by customers, businesses, and their employees. And, it is those employees who are submitting notices of injury regarding workers' compensation and COVID, as detailed in the four Division reports. 

To summarize the September Division report, 17,653 employees have reported a "lost time" (meaning work was missed as a result) COVID-19 claims to the Division. Of the approximate 21.5 million Floridians, this is about .082% (less than one-tenth of one percent). More than half (56%) of those 17,653 claims have been accepted as compensable, and more than half (10,720) have already been closed. Of course, overall, only 3% (698,692/21,477,737) of Floridians have tested positive for COVID-19 since it was first detected. Many of those likely never noticed symptoms. Many of those are likely back to their normal activities, having since "recovered."

The Division's figures support that most (96%) of those claims have a total individual cost less than $5,000 each. However, there have been financially significant claims reported. A very small portion (<.10% - less than one-tenth of one percent) of the claims are associated with a notable portion (16%) of the total expenditures for COVID-19 workers' compensation claims. 

This leads to the discussion of litigation of workers' compensation claims. The 44% of reported claims "denied" in whole or part equals 7,760 (7,728 "total" denials and 32 "partial" denials), according to the Division's figures. When an injured worker in Florida reports or claims an injury and the compensability is denied by the employer, the path forward is through filing a petition for benefits seeking to prove the compensability of the complaint(s). In fiscal year 2019-20, the Florida OJCC system had 72,086 petitions filed. 

As of September 22, 2020, the Florida OJCC can identify approximately 150 total petitions for benefits filed that mention the term "COVID." Some employees have filed more than one petition, thus 121 total employees have been found with such petitions. Thus, three-tenths of one percent (.036%) of Floridians have had a COVID-19 claim denied. About one and one-half percent (1.56%) of those have filed a petition for benefits (presuming that all petitions mentioning "COVID" are for that malady as opposed to orthopedic or other issues complicated by COVID, such as medical access, etc.) 

Those filing claims have been categorized by the Division: Airline, Health Care, Office Worker, Protective Services (including first responders), and Service Industry. The following chart illustrates the share each of these occupational descriptions in the number of "claims" reported to the division, and the "cases" filed with the OJCC. This is an interesting comparison, but has no real relevance in the discussion of COVID, or its effects. 


For such figures to be of any assistance, one would have to consider the rates of denial by such category (in other words, what percentage of airline worker claims are denied, and included in that 7,760). If some segment's denial rate were known, then the rate of petition filing for that segment might become relevant when compared with others. 

The litigation volume conclusions are clear: (1) a small percentage of Floridians have tested positive for this virus (SARS-CoV-2); (2) the recovery rate has been significant; (3) there have been compensable claims from COVID-19 (the disease process resulting from the SARS-CoV-2 virus); (4) the vast majority of COVID-19 claims denied have not led to instigation of litigation as yet; (5) COVID-19/SARS-CoV-2 has not had a significant impact on the rate of litigation in Florida workers' compensation. 

As the state evolves into the next "new normal" for COVID, with the implementation of Phase Three, time will tell whether the rate of diagnosis changes. As businesses adjust their constraints and requirements on customers and employees, time will tell whether the rate of workers' compensation claims changes. And, finally, time will tell if the denial decisions regarding COVID-19 lead more employees to file petitions seeking a judicial determination of the compensability of an occupational disease, an admittedly challenging undertaking. 

On September 29, 2020, I will participate in two panel discussions regarding COVID-19. RIMS will present The Expanding Use of Presumption in Workers Compensation: Grand Bargain at Risk? (with Twane Duckworth, Max Koonce, and Christopher Mandel), at 1:00 Eastern. WorkCompCentral will present The COVID-19 Effect, A Florida Update (With Rafael Gonzalez, Matthew Landon, and Ya'Sheaka Williams) at 3:00 Eastern. Registration for each is free, and the links above lead to registration pages. These are both excellent opportunities to better appreciate COVID impacts and the legal processes that are evolving to meet those challenges.


Blog posts re COVID-19:
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