COVID Update November 2020

There has been significant angst over the Thanksgiving holiday. In the weeks leading up to this celebration, the headlines were foreboding: “The world watches in dread and disbelief,” “CDC warns against Thanksgiving travel amid COVID surge.” There have been dire predictions and threats of coming “lockdowns.” In the midst of that, the Florida Division of Workers’ Compensation has continued its efforts to document COVID-19/SARS-CoV-2 in Florida Workers’ Compensation. 

The Division has published serial reports beginning in June 2020. Each has been addressed in a previous post to this blog: 

Report June 2020 – COVID 19 in Florida Claims

Report July 2020 – Florida COVID Claims June

Report August 2020 – COVID Florida Filing Update August

Report September 2020 – Florida COVID September

Report October 2020 – COVID-19 in Comp

Report November 2020 -

And, despite the doom and gloom from the headlines, the story in Florida workers’ compensation claims is somewhat encouraging. In fact, the 568 new COVID-19 work injury claims in October 2020 were the lowest since February. Note that this figure for October will grow. Some infections from that month will not be in the data set, as they have not been reported or documented fully at the time of this latest report.

For example, the November 2020 report says that March dates of accident related to COVID-19 totaled 2,264. When the initial report was published in June, that figure was 1,923; in July 1,978; in August 2,227; in September 2,242; in October 2,261. Thus, in the latest report this month, the March total had increased by 3. That adjustment to the March data came about ten months after March.  This merely illustrates that there is some probable time lag in reporting and documenting. Despite the statutory requirement for timely reporting of claims, medicine, and science may sometimes require time to conclude either diagnosis or causality. Therefore, the 568 total in October 2020 may reasonably be expected to increase as time passes. However, the figure is nonetheless encouraging.

It is also somewhat encouraging that the total volume of COVID-19 compensable death claims thus far is 33. Certainly, one is too many. However, with the death rates reported elsewhere in the U.S. population, this is a relatively low volume. Also of note, as of the November 2020 report, there are no death claims with accident dates in either September or October 2020.

Women (55%) continue to predominate over men (44%) regarding claim volume.  The total claims by women are 12,805 compared to men at 10,351, a difference of 2,454. A notable portion of the difference comes in the 50-59 age group in which there are 2,642 women and 1,749 men, a difference of 893. The distinction in the 60-69 group is also noteworthy, this is 1,180 women and 509 men, a difference of 671. In the age group 70 years or older, there are 164 women and only 80 men, a difference of 84. The combination of differences in these three age groups (893 + 671 + 84) is 1,684 which accounts for much of the overall 2,454 disparity between men and women overall.  

The report documents a total of 23,452 claims for COVID-19/SARS-CoV-2. Over two-thirds (69%) of those are “closed” claims, 16,098. The total expended on the “closed” claims is $17,416,269, or an average of $1,082 each. The “open” claims (7,354) represent expenditures of $23,429,269 or an average of $3,186. It is likely that a significant portion of the “closed” claims were of minimal expense. Some may even have been reported by obligation and then closed immediately due to patient recovery, negative testing results, etc. Some of those may have represented expenditures of zero.

Overall, COVID-19/SARS-CoV-2 claims remain a significant portion of the overall lost-time claims in Florida. The 23,452 claims represent 31.1% of all lost-time work claims in Florida since January 2020. This is of more significance in recognition of the claim numbers being very insignificant in the first Quarter of 2020 (January through March; 2,301 total in that period).  The severity of COVID-19 claims, overall, is seemingly dissimilar from other workers’ compensation claims. Despite representing 31.1% of the lost-time claims, those 23,452 represent only 8% of the total paid on lost-time claims in Florida during 2020. The frequency belies the severity in terms of cost at least as of this time.

The "long COVID" remains unknown, however. As discussed in the October Update, the "long COVID" is a subset of infections that are not demonstrating anticipated recovery consistent with expectations. The Center for Disease Control has updated its site with a discussion of the potential for longer-term implications, as has Mayo and other health systems.  It is entirely practical to consider that the long-term impacts and costs of an infection may not be apparent until months or years has passed. The implications of the Florida 120-day rule and similar statutory provisions may be significant in years to come. 

The COVID “severity” in present dollar terms is consistent, as illustrated in this chart. It is noteworthy that 95% of the population of COVID-19 claims are in the $0 to $4,999 range, with a mean cost of $703 each. The total for those claims, $15,591,157, representing 95% of the claims, is only 38% of the expenditures/payments.

Thus, the 5% of COVID-19 claims on which $5,000 or more has been expended represents $25,254,381, or 62% of the total. The significant claims are notably significant. And, that is consistent with the final column above that illustrates the “mean” (average) cost per claim progresses steadily upward. The highest cost per claim average is demonstrated for the very small minority of cases (6) for which expenditures have exceeded $500,000 each.

Of the 23,452 claims to date through October, 10,424 (44%) have been denied by the respective employer or carrier in whole or part. It is likely that the expenditures on this population is well below the average in the lowest tier above ($0 to $4,999), and on many such denied claims the expenditures may well be $0.00. It is likely that this “denied” population is skewing the average expenditure in this lowest tier downward.

The ten Florida counties with the highest volume of COVID-19 claims represent about 61% of the Florida population. At least 31% of the workers’ compensation claims for COVID-19 are from Miami (Dade County). The county has 2.717 million residents, which is Florida (21.48). The county represents 13% of the state population, but 31% of these claims. Broward County has a population of 1.953 million and accounts for 9% of the population overall. Broward County represents 8% of the COVID-19 work injury claims.

The distinction between population share and COVID-19 frequency is notable in Miami. Thirty-three (49%) of Florida’s sixty-seven counties have less than 100 COVID-19 claims each. Four of those have less than ten claims, and one (Desoto) has none. There are significant distinctions between various Florida geographic regions and between the urban and rural environments.

In all, the figures perhaps indicate that employers are doing well with protections from COVID-19/SARS-CoV-2. Certainly, the growth in claim volumes is in contrast to the overall diagnosis volume across the state. There is some chance that fewer people are prone to reporting claims. Or, it may be that the frequency of work-related infections is decreasing. Perhaps employer efforts at sanitation, awareness, and best practices are succeeding?

What is Important?

I reflect this Thanksgiving on what a year 2020 has been. Certainly, there has been the pandemic distraction, some significant cyclones, and more. I would be surprised if there is anyone reading this would say that 2020 was a great year, but it is possible. In a broad context, it is more likely to be remembered as a year of challenges perhaps. But, with challenges sometimes come triumphs; perhaps challenges even bring opportunities for growth. 

The fall of 2020 brought the passing of Victor Marrero, literally days ago. It was not unanticipated, but I find myself persistently unprepared for such things. There are many among us that contribute to this community. It seems each year brings another loss like Legend Jack Langdon or attorney Bob Keeter. The causes are varied. In 2020, it is likely that we all know someone at least who knows someone who has succumbed to COVID-19. 

It is perhaps difficult in the midst of all this to find an avenue to giving thanks this year. But, let us remember that Thanksgiving is historically steeped in challenging times. History.com describes the perspective of the "harvest feast" shared by "the Plymouth colonists and Wampanoag Native Americans" in 1621. There has historically been some glamorization of the native's largesse in teaching the Europeans how to feed themselves from the land after a bit of a rough start to their immigration. The feast part of the story is, this year, just short of 400 years in the making. 

USA Today contends that the idyllic story of that "first thanksgiving," gracious cooperation, and co-existence has been less than faithful to the facts. It points out that European visitors in 1620 were not even close to the first. Upon landing, they did not step onto Plymouth Rock. The Pilgrims were not all Puritans in search of religious freedom. And, it contends that the "Wampanoags were not invited to this celebration," but responded to the sounds of gunfire and remained when they discovered the ongoing feast. Is it possible that we, individually or collectively, may romanticize the past in our memories?

Of course, there was no United States in 1621. Even when there was on July 4, 1776, there was no Thanksgiving as yet. According to History.com, "It wasn’t until 1863, in the midst of the Civil War, that President Abraham Lincoln proclaimed a national" holiday for Thanksgiving. Thus, in another time of strife some 153 years ago, there was nonetheless time to pause and identify things for which one might still be thankful. 

While 2020 seems a time of great tribulation, it is not our first such time. According to the Library of Congress, in 1863, America suffered through The Battle of Chancellorsville (29,000 casualties), The Vicksburg Campaign (19,233 casualties), The Gettysburg Campaign (7,058 casualties), The Battle of Chickamauga (34,000 casualties), The Battle of Chattanooga (12,400 casualties), and The Siege of Knoxville. Over 100,000 in just that year, in just those campaigns and battles. It was a tough year in our history. In the first year we celebrated this holiday, America suffered strive, discord, and challenges. People were dying in 1863. A nation was in turmoil in 1863. A spirit of Thanksgiving was born during that challenging time; a time certainly no less challenging than today. 

2020 has brought loss, pain, and challenge(s). Among us, there will be those who struggle to find thankfulness, focused instead on how hard life may have been this year. We should not begrudge them their frustration, pain, and sorrow. It has been a tough year that has challenged the strongest and most resilient among us. 

However, I will not focus on the pandemic, bereavements, and tests we have endured. I will focus not on the loss and sorrow of those who we lost this year, but on how fortunate I was to know those people at all. I was saddened to lose Victor Marrero in 2020, and others. But, I was fortunate to know and work with him for about 20 years. I will strive to focus on, and be thankful today for, those good times rather than the loss.

For those who found 2020 so dispiriting, let's remember how good things were before COVID-19/SARS-CoV-2. Let's focus on how good things will undoubtedly be again. We are fortunate today that we remain in order to reflect. We indeed have much for which to be thankful in 2020. I choose to focus on that and wish the same for you. As I have taken to closing messages this year: be well, stay safe. Better times undoubtedly lie ahead.

Contracts and Compensation

Much discussion has occurred in recent months a bout contracts. The world is full of contracts, legally binding agreements between parties. The potential implications of COVID-19 and contracts are seen in the creation of COVID-19 presumptions of compensability by Executive and Legislative action across the country. This is discussed in a paper published by Sedgwick Institute recently. 

The point is that contracts exist largely to allow parties predictability. The onset of COVID impacted that because state laws intervened to change parties' commitments and obligations under contracts, essentially changing the agreements that had been entered. In the months after a vaccine (hopefully) diminishes the immediate threat of this virus, there may be litigation regarding the position changes implicated by legal challenges to retroactive effects, separation of powers, and emergency action. 

Contracts are a critical part of workers' compensation. It is a contract, in fact, that alters the usual relationship of responsibility for injury. Under the common law, and thus throughout much of American history, when a person was injured at work they had a common law right to sue their employer in tort. As the industrial revolution progressed, and labor migrated from agriculture to manufacturing, statutory intervention occurred first with employer liability acts and then with workers' compensation concepts adapted from Germany and Great Britain. 

The early efforts of the 19th century focused on decreasing employer liability and did not benefit the worker. The early 20th century, however, brought the workers' compensation concept that provided new benefits and responsibilities to both employer and employee. Some such efforts were deemed unconstitutional, largely in challenges by employers on the basis of "taking," the liability without fault element. But, in time, the U.S. Supreme Court saw value in the contractual adaptation of tort law in the so-called "Grand Bargain" (a contract of sorts between employers and employees, albeit a legislative contract). 

One cannot forget that there is also a major component of the contract in the sale of risk. The vast majority of employers in America thus become contractually responsible for injuries to their workers. They, in turn, make contracts with other businesses to assume the risk of loss in exchange for some amount of money. The exchange thus described is between an employer (customer) and the insurance company (vendor) by which the cost of a potential injury (loss) is sold to the vendor in exchange for a fee (insurance premium). This is a simplification, but illustrative hopefully. This is a major contractual element of the overall world of workers' compensation. 

What do insurance contracts cover? There is debate and discussion about that question and the onset of COVID-19/SARS-CoV-2. What do the contracts define, delineate, include, and exclude? How were they written, are they clear? A recent discussion of business interruption illustrates the methodology that courts may engage in interpreting these contracts. See Physical Damage and Ambiguity in the News. 

It may also be important to remember that although the responsibilities of "carriers" are set forth in many state workers' compensation laws, those statutes tend to describe the responsibility for work injury, medical care, and wage replacement as "employer" responsibilities. The involvement of the employer's carrier may come down to that contract between employer and carrier more than it is dependent upon the details of the law. Contracts, yet again. 

Thus, the very foundation of workers' compensation is contract. Whether in the grand sense of the Grand Bargain or in the more mundane realization that it is the contract of employment between employer and employee that forms the foundation of the relationship, the potential for injury and thus workers' compensation. Contract is critical to workers' compensation.

The implication of contract is further seen in the fact that a large volume of workers' compensation situations are also closed through a contract. As is common in a variety of legal disputes in the U.S., parties often elect to forego the opportunity to proceed to trial and litigate their differences. They instead enter into compromise agreements with each other by which such disputes are resolved, often to the disappointment of all parties (one believes it paid too much and the other believes it received too little). Despite their disappointment in that regard, though, they form contracts (called "releases") to memorialize and formalize their elected resolution. 

Workers' compensation has similarities. In a general sense, the majority of jurisdictions allow injured workers and employers to resolve their differences through stipulations (issues) or settlements (entire case). Some are more maternal/paternal than others, with judges in some states making inquiries into the sufficiency of settlements and having the authority to withhold approval or contract terms. Florida had that oversight process into the 1990s and then opted for a hybrid. If the Florida injured worker is represented by counsel, judicial review is limited to attorney fee amount and child support recovery, but if unrepresented, the judge is required to inquire more fully before approval. 

Throughout the history of workers' compensation, there has been some tendency to misunderstand about terms of settlements/resolutions. There is also, in all contracts, the potential for what psychologists call "buyer's remorse." It seems that once we have made an agreement, as simple as buying a new appliance even, we may go through "cognitive dissonance," as we strive to come to terms with our decision and confront our own doubts. This can lead us to perhaps seek a way out of a deal. When one side of an agreement seeks to withdraw, the other side(s) may seek to enforce the deal. And, in the dispute that follows, it may be that the two sides express different perceptions as to what the deal actually was. 

There is therefore a persistence with motions to compel settlement agreements. Recently, there has been some perception of an increased frequency of disputes about agreements as workers' compensation matters have shifted to telephonic attendance as the norm. The ability to attend mediation telephonically is set forth in Rule 60Q6.110(5)(a), and usually "the mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the mediation conference by telephone upon the party’s written request." 

However, on March 14, 2020, the OJCC mandated telephonic mediation attendance for all, a response to the threats of Covid-19/SARS-CoV-2. When that mandate expired at the end of May, operations returned to the mediator discretion rule. but by the end of June, logistics supported a return to the mandatory telephonic paradigm that has since persisted. Many attorneys and mediators were spending significant time in the "request" and "approve" roles to seek ongoing telephonic attendance on a case-by-case basis. 

The telephonic process is more time-consuming for the mediator. Several attorneys have noted that it is conversely less time-consuming from their perspective as they are not traveling to/from the district office, and they are more productive in their office in the event that a mediation is delayed. The elimination of commute time and waiting room time has been expressed as a benefit. Furthermore, the elimination of the need to make individual case requests for such accommodation is seen as also enhancing productivity. For the most part, attorneys have been accepting or even complimentary of the telephonic paradigm.

Thus, in a telephonic norm, we must remember that just because mediation is telephonic that does not remove the necessity of documentation. The Rules specifically describe process in that regard. The rule mandates that those attending telephonically must "provide an e-mail address" to allow the exchange of documents. Upon conclusion of the mediation, the mediator "shall prepare a report stating which issues or claims in dispute are resolved and which remain unresolved." Rule 60Q6.110(7). 

The mediation "is not concluded until the signed report is returned to the mediator." Rule 60Q6.110(5)(b). As the old saying goes, no job is finished until the paperwork is done. Most importantly, " Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report." Rule 60Q6.110(5).

Thus, the outcome of a mediation should be in writing and should be signed. That may mean the parties sign, which is better, and yet could mean that the lawyers sign and thereby bind their clients. That reportedly comes as a surprise to some, but attorneys are generally "agents" with a significant ability to act for and on behalf of their clients. Those actions may come to be binding on the client through aspects of agency law including actual authority, express authority, implied authority, and even apparent authority. There is a great deal of power in the agency relationship, and as either Uncle Ben or a French revolutionary once noted, "with great power comes great responsibility." 

It is noteworthy that in the pre-2001 Florida workers' compensation system, judicial approval and findings were necessary for all settlements. The requirements of Fla. Stat. §440.20(12)(1991) made no distinction regarding whether or not a Claimant was represented by counsel. The statutory provisions of Fla. Stat. §440.20(12)(a)(1991) included the Legislature's express policy that settlements of future benefits were allowed only if such lump sum would "definitely" aid the claimant's rehabilitation, or was "clearly" in the claimant's best interests. 

Such determinations would necessarily be findings of fact made by the Judge of Compensation Claims. Further, settlements of workers' compensation benefits under any of the subsections of Fla. Stat. §440.20(12)(1991) required the entry of an order of the Judge of Compensation Claims. The signature on a mediation agreement then was perhaps not as conclusive or binding as it could later become.

Therefore, prior to 2001, either party could elect to withdraw from any settlement agreement until that agreement was considered by the Judge of Compensation Claims, specific factual findings were made, and an order approving the proposed settlement was entered. The Supreme Court explained in Brantley v. ADH Bldg. Contractors, Inc., 215 So. 2d 297 (Fla. 1968) the rationale for allowing either party to withdraw from a proposed settlement. It noted that the law required a conclusion of the "best interest of claimant," and at times this involved "such investigations as he considers necessary." This responsibility was "not merely a perfunctory, mechanical act. It requires the exercise of quasi-judicial judgment."

However, the 2001 amendments changed that paradigm with a substantial alteration to the settlement of worker's compensation claims. Settlements since then are divided into two subsets: (1) settlement of claims in which the injured worker, or "claimant" is represented by counsel, Fla. Stat. §440.20(11)(c); and (2) settlement of claims in which the claimant is not represented by counsel, Fla. Stat. §440.20(11)(a) and (b). The role and responsibility, and thus the jurisdiction, of the Office of the Judges of Compensation Claims is therefore demonstrably and markedly different in the settlement of claims in which the injured worker is represented by counsel versus claims in which the injured worker is unrepresented. 

Clearly, settlements effected between unrepresented injured workers and their employer or carrier are still not effective until a "joint petition" of the parties is considered by the Office of the Judges of Compensation Claims and specific factual findings are made by the Judge. Therefore, it is clear that an agreement by an unrepresented injured worker cannot be effective or binding prior to the consideration and approval of the Joint Petition by the Judge. The reasoning and holding of Brantley therefore still control the efficacy of settlements that occur between unrepresented injured workers and their employers.

However, the reasoning and holding of Brantley do not apply to settlements involving injured workers with attorneys. In those cases, it is the worker's attorney that fulfills the role of determining the injured worker's "best interests." 

For a contract, there must be a "meeting of the minds." The two sides of the negotiation can decide the terms of the agreement. They each can put forward what they believe is critical to the agreement, and they are unlikely to initially and easily agree. Often, they may need the assistance of a professional conciliator or mediator to help them with both self-analysis and communication. The process may be lengthy and involved, and a test of patience. However, for those who remember the words of Mick Jagger ("You can't always get what you want, But if you try sometimes you find, You get what you need"), and who focus on her/his respective priorities while conceding on other issues, there is a high probability of success through negotiation. 

When an agreement is reached, it is written about either by the mediator/conciliator or by one or more of the parties and her/his attorney. That agreement may be critical if either party thereafter experiences "buyer's remorse" or disputes any of the terms of the agreement. Litigants should remember that settlements are highly favored as a means to conserve judicial resources, and will be enforced when it is possible to do so. See, Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985).

Thus, workers' compensation is largely intertwined with contracts. The concept forms its foundation. Contracts are involved in the vast majority of resolutions within the system. Those who would represent clients or settle cases in their employment would do well to understand contracts, their implications, and intricacies. 

Incidence or Prevalence?

What does "recovered" mean? We have seen literally 56+ million people test positive for COVID-19, according to Johns Hopkins (on 11.19.20). Pew Research says that 14% of adults in the U.S. have either tested positive or "are ‘pretty sure’ they have had it." That is a fairly significant number. The fact is that this virus is extremely widespread.

But, the impact is so varied for different people. We have all heard about the "risk factors" in the news, as also published by the Center for Disease Control. But, that may not explain all of the variety in different people's reactions and symptoms. And, the reactions can be quite different. According to the Mayo Clinic: 

"COVID-19 symptoms can sometimes persist for months. The virus can damage the lungs, heart and brain, which increases the risk of long-term health problems."

Fortunately, there are also those who "recover completely within a few weeks." Anecdotally, I know people who have tested positive and claim to have never experienced symptoms. What determines which of these any one of us might anticipate?

And, what does "recovered" mean? According to Statista.com, there have been about 56 million cases of COVID-19 worldwide (as of 11.19.20). There have also been about 39 million "recoveries" worldwide. That means currently about 17 million cases worldwide have not recovered. The same site says that almost 1.4 million have died of COVID. Thus, presumably, about 15.6 million are currently afflicted with the disease, that is, "symptomatic" and capable of spreading it. That is .2% of the 7.9 billion people on the planet.  

But, then the statistics become curious. The "recovery" rate for various nations is detailed.

                            Courtesy Statista. 

Striving to put those figures into context, what percentage of cases are "recovered" versus "active?" According to this data, it varies notably from country to country. 

And, we are bombarded with the diagnosis volume in our country, state, or county. The numbers are parroted daily by the news media. In recent days, the focus has been on the "increasing numbers." or the "second wave," or a "spike" in diagnosis rate. But, when I see these numbers, I am reminded of Albert Einstein: "Not everything that can be counted counts, and not everything that counts can be counted." So, perhaps there is merit in discussing how things are being counted?

The Centers for Disease Control (CDC) recognized this early on in the COVID-19/SARS-CoV-2 pandemic. The importance is that "having a case definition helps to make sure cases are counted the same way everywhere." Therefore, it cast a definition, and "in the United States, a confirmed case of COVID-19 is defined as a person who tests positive for the virus that causes COVID-19." Thus, when we discuss that 56+ million, those are each a "positive" test (perhaps if you test positive twice you are counted twice?). 

Explaining further, the CDC explains that "case" counts and differentiates it also. It explains that "incidence" is the "number of new cases reported over a specific period of time." Thus, since the beginning of this pandemic, the "incidence" is 56+ million. However, we are also steered to a separate term, "Prevalence," which is the "number of cases at one specific point in time."

So, consider if we were counting the incidence and prevalence of theme park visitors instead. According to the Orange County Register, 57,000 is the average daily attendance at Disney Magic Kingdom. So, if we are discussing "incidence" then we look to the point of beginning (October 1, 1971) and we might say there are over a billion park visitors (1,023,150,000 = 17,950 days at 57,000 each). No wonder the lines are so long! But that is misleading. People have come, visited, and gone. They are not all there in line today. The "prevalence" today is perhaps 57,000. The prevalence last week might have been 399,000 (7 * 57,000). But no one is going to say "A billion people is a lot so I won't visit." 

So, it is perhaps the "prevalence" upon which we should focus our anxiety and even fear? Harvard Medical School suggests that:

"Most people with coronavirus who have symptoms will no longer be contagious by 10 days after symptoms resolve. People who test positive for the virus but never develop symptoms over the following 10 days after testing are probably no longer contagious, but again there are documented exceptions. So some experts are still recommending 14 days of isolation." 

Knowing that symptoms may take some time to appear (according to Florida, it could take up to 14 days), this creates a window of about 28 days during which someone might pass the SARS-CoV-2 virus to you, leading to contracting COVID-19, however, the period might be shorter. 

Returning to "prevalence," then, it is likely that most of those 56+ million positive test-result individuals do not pose a threat to you or me. Instead, it is likely that the threat we face is only those "who test(ed) positive" in the last 28 days (up to 14 days after exposure for symptoms to appear, and thus get tested, followed by 14 days at the outside for contagiousness to abate). The time period could of course be shorter in the event that testing is done on surveillance (you learn of potential exposure and test before symptoms). 

The relevant "incidence" period as of November 22, 2020, is not 266 days (March 1, 2020, first diagnosis in Florida), but 28 days. The risk we face is not the 56+ million "cases" (positive diagnoses), it is the cases positive in the last 28 days (counted from when this post was written 11.19.20). According to OurWorldinData, 41.4 million of those total diagnoses had occurred as of October 22, 2020. Thus, the real concern, the "prevalence" for infection is 15 million (56m - 41.1 m) worldwide as of now. That is still a sizeable volume of people to avoid contact with, but it is far smaller than the 56 million touted by the news. 

Even better, most of those 15 million people do not live in your town, shop at your supermarket, or attend worship with you. The bad news is, of course, that you don't have to be exposed to dozens of "cases" to become ill; one exposure will do. What, then is the Florida picture using this 28-day construct of relevant prevalence?

According to the Florida Department of Health, there have been 905,248 cases ("incidence") since March 1, 2020. The news recently has included headlines of Florida's "approaching one million" cases, suggesting that milestone has some relevance. Perhaps it does in terms of measuring our long-term experience through 2020. But, while that makes for a catchy headline, the relevant fact is that between October 22, 2020, and November 18, 2020, that prevalence for Florida is far less, only 150,442. Of the 21,477,737 Floridians, that is .7%. That is higher than the risk worldwide, but remains less than one percent. 

Breaking that analysis even further, what is really relevant is how many infected "cases" there are where you are (your grocery store, your house of worship, your workplace). There is relevance in how often you leave home, and what sorts of destinations that entails. I know a gentleman that has not been in a restaurant since March. I have been in dozens. I know people who are using "touchless" grocery pickup. I have spoken to people who compulsively wear masks (one does even in their own personal vehicle). You can take precautions as you see fit. You can literally reduce the number of people you meet while not wearing a mask to 0 if you choose.

The point is that overall prevalence is likely a better guide for us than incidence since March 2020. While there is merit in keeping track of the overall infection rate for many analyses, the risk to each of us comes down more to the prevalence and frankly our behavior. If we avoid crowds, wash hands, socially distance, wear masks, etc., it improves our odds should we happen upon someone who is positive and within that contagious period. Thus, while we may feel powerless, it is suggested that we each have significant power to avoid this infection while we wait for the vaccination that is right around the corner, "coming soon to a pharmacy near you."

Of note, between October 22, 2020, and November 18, 2020, the prevalence for Florida was only 150,442. Of the 21,477,737 Floridians, that is .7%. On November 19, 2020 Florida reported 8,228 cases, so that is added to the running 28-day total in this model of prevalence, but the total cases for October 22, 2020 (3,692) would be similarly removed. The real change of concern is the difference, which is 4,536 (8,228 - 3,692). The total for the 28 days from October 23, 2020, through November 19, 2020 is 154,978, still .7%. 

The fact remains that most of those people have appropriately quarantined and avoided you. Most of you have appropriately washed hands often, worn a mask when in enclosed spaces, practiced social distancing, and avoided crowds. While the headlines focus on incidence, our better focus is prevalence. There are not a billion visitors in Disney World today, and there are not 931,827 people in Florida with COVID-19 today. The prevalence is relevant to our risk of encountering SARS-CoV-2, and that incidence number may really only be of interest to scientists who study such things. 

Changes, getting Cooler

When I was young, I always wanted to be "cool." There were many reasons; obviously Hollywood played a role in that. For those who do not recall, James Dean brought us "cool" on the big screen, as did Steve McQueen. In the 70s, we saw Henry Winkler (aka "Fonzie") bring "cool" to a whole new small-screen level in the sitcom Happy Days. The word "nerd" did not originate in that show (but in a Dr. Seuss book), but Happy Days seemingly brought it to the fore for a generation. For the uninitiated, it was generally accepted that being a "nerd" is the opposite of "cool."

We all wanted to be "cool." And, to some extent, perhaps we all still do. We want to be "hip," "chill," and "with it." I remember when a cute girl on the school bus in grade school assured me "You will never be cool." Well, that hurt. I knew, somehow, that she was wrong. Someday, someway, I would be able to say I'm cooler than you know. And, today is that day. As KQED notes in a January 2020 headline "You're Cooler than you Think."

The Smithsonian Magazine explains there is a great cooling occurring, and it is not the climate. It explains that the old standard of 98.6 degrees as the "normal" human temperature is getting some re-analysis and resistance. See, the "normal" is not about physiology or "normality," it is merely an average of readings taken in a survey. 

This particular math dates to a German doctor's conclusions in 1851. Somehow, he obtained readings from 25,000 patients and the rest, as they say, is history. Note, in those days there was no ear thermometer or scanning thermometer. Glass tubes had to be held under the tongue or in an armpit to get those readings. Despite the rudimentary equipment, this 1851 average became "a benchmark for medical professionals today." 

A much smaller sample (148 patients) in 1992 suggested a lower average, 98.2 degrees. But, "more recently" a large (35,000) British sampling yielded an average of only 97.9 degrees. This discrepancy has been attributed by some to inaccurate readings back in the 1800s, but some also suggest that "human bodies are actually cooling." One notes that "we're actually changing physiologically." Imagine that, I am actually getting cooler. 

If you are tempted now to have any doubts, you must remember that this is science and science is always right. It is infallible and always correct (sarcasm warning). Everyone knows you cannot doubt science. When the scientists tell you that you should not wear a mask, you must accept their opinion. When they later tell you that you should wear a mask, you must accept their opinion. It is, after all, science. But, should we accept the science of 1851 or the science of today? Will the science of tomorrow be different still? It is a challenge for those of us who wish to avoid thinking and instead want to simply "follow the science." 

After extensive research described in the article, some scientists quoted by Smithsonian Magazine suggested there more here than testing or recording failures; that indeed body "temperature has gone down." They contend that this may be because of "improvement in temperature regulation" (heated and cooled living environments). It may also be because of gains in the treatment of disease that causes inflammation, "such as tuberculosis, malaria, and dental disease." 

But, the infallible science is not unanimous. The article also quotes other's conclusions that the manner in which temperatures were obtained (oral versus armpit) may have influenced the population outcome and therefore the 1851 average. These doubters find the change in temperature to be difficult to accept scientifically, noting that such "evolution" by humans over the course of the last 170 years would be too rapid; they say those years would be "just the blink of the eye" in evolutionary terms. 

So, there we have it. Science, and perhaps technology, leading to the rescission of what was a nearly universal truth that "normal" human temperature is 98.6 degrees. The remaining question is simply whether we are getting cooler or whether we are just finally appreciating how cool we really are. This is interesting as some businesses continue to scan customers and employees as part of their defense against COVID-19/SARS-CoV-2, despite some suggestions that fever may not be the best differentiator or predictor. 

It is coincidental that these articles on temperature change appeared right before the COVID-19 pandemic. A great many more people have checked their temperature in 2020 than in other years. Many have noted to me, as regards their COVID fears, that "I don't have a fever"; my temperature is below normal. In fact, it was one such representation that led me back to these articles in January 2020 and this exploration of the great cooling of humans. If you are not careful, you learn something new every day. 

Which science is right? Are we cooler, or are we just better equipped for data gathering/processing? For now, perhaps it is just best to accept it all and bask in our newfound "cool."

One-Half Billion Dollars

The 2019-20 Florida Office of Judges of Compensation Claims Annual Report is published. It documents that attorney fees in Florida workers' compensation increased in 2019-20. Overall, fees have trended upward in Florida since 2015-16, with significant increases in some recent years. 

Claimant attorney fees have demonstrated notable increases in each of the last four fiscal years (+36.07%, +6.99%, 9.19%, and 11.05%). Defense fees have also increased but in smaller increments (+4.88%, +0.23%, +.98% and +3.80%). In 2019-20 the total claimant's fees were $240,867,847 and defense fees were $266,787,990. 

Overall, claimant fees have increased by about 76.5% ($240,867,847 - $136,461,404 = $104,406,443; $104,406,443/$136,461,404 = 76%) in the last four years. Defense fees have increased about 10.2% total over the same period ($266,787,990 - $242,112,498 = $24,675,492; $24,675,402/$242,112,498 = 10%). 

For the first time I know of, the aggregate combination of claimant and defense fees exceeded one-half billion dollars in 2019-20 ($240,867,847 + $266,787,990 = $507,655,837). Because of the increases in claimant fees, the ratio of claimant to defense has also changed markedly. Four years ago, in 2015-16 the claimant fees made up 36.05% of the fee total, and defense fees were 64%. In 2019-20, the Claimant fees are 47.45% and the defense 52.55%. In 2002-03, claimant and defense fees were very close to equal (49.3% claimant to 50.7% defense). 

Neither claimant nor defense fees have maintained pace with inflation. In fact, the aggregate in 2019-20 would have been $604,527,477 had the 2002-03 total grown in parallel with the inflation rate. That is almost one hundred million dollars ($96,871,640) more than the actual 2019-20 figure $507,655,837.

Both the number of settlements approved and the overall dollar value of combined settlements also increased in 2019-20. Coincidentally, each increased about 10%, which is generally consistent with the reported increase in Claimant attorney fees (11.05%). 

Not all of the 2019-20 increase in claimant fees was settlement-related, however. Fees for non-hourly/non-settlement fees increased in 2019-20 from $5,977,656 to $7,562,276 (+27%). The hourly/non-settlement fees increased slightly from 71,584,645 to 72,220,452 (+1%). Settlement fees increased from $139,343,544 to $161,085,119 (16%). Though non-settlement fees increased, the preponderance of the increase was settlement fees. 

Most fees approved during any particular fiscal year will be associated with accidents that occurred prior to that particular fiscal year. This is because most cases in the OJCC system are not related to accidents in the current fiscal year and because many cases in the workers’ compensation system remain active, with periodic litigation issues, for many years. 

Furthermore, it usually requires more than six months (accident dates are attributable to calendar years, January 1 through December 31, but the OJCC data is defined by fiscal years) to file a claim, resolve a benefit entitlement, file for attorney’s fees, and resolve or litigate that issue. Logically, most litigated cases within the responsibility of the OJCC at a particular time involve dates of accident prior to any particular current fiscal year. It is reasonably normal to see a significant portion of the approved fees relate to a date of injury within the last five years. 

In 2019-20, fees were approved regarding 50 distinct accident-date years. This is reasonably consistent with prior years, in which fees were recorded related to a range of 44 to 51 accident-date years. In one recent example cited in the report, fees were approved on a 66-year-old date of accident. This illustrates that workers' compensation injuries may result in circumstances that last a lifetime. Furthermore, absent a settlement or the statute of limitations, issues regarding an accident might arise at any time. 

Despite that potential, the majority of claimant attorney fees are usually attributable to accident dates within the five calendar years prior to the year in which an OJCC Annual Report is published (2020 publication) In this instance, the accident dates in 2015-2019 accounted for 79% of the claimant's attorney fee total,  or $191,432,686.

Evidence and the Evolving Medicine of COVID

I had a wonderful opportunity last week to participate in an educational program produced by the National Worker’s Compensation Defense Network (NWCDN). The pandemic has resulted in far fewer public gatherings. Like most other organizations, the NWCDN took their annual conference virtual.

Virtual really has some great advantages. Of course, the cost is less (no ballrooms to rent, no audiovisual equipment to obtain, etc.). Of course, the attendees save significant costs also and they do not have to travel to some exotic location. Certainly, some locations are more exotic than others. I have delivered lectures in more than a few budget-rate hotels over the years. I have also traveled to a few locations literally so remote they had never heard of an airport. Some organizations actually seek out such oases. 

One of the great attributes of in-person attendance is the ability to loiter after a presentation, around the podium, in the hallway, or even in a restaurant to discuss topics that were raised in the main session. I have engaged in literally hundreds of fascinating conversations instigated by such interactions. That, unfortunately, it’s a bit difficult virtually.

So at the very end of the presumption panel discussion last Thursday, the moderator tossed me a question regarding how judges might approach the differing opinions of medical experts regarding the evolving science surrounding COVID-19/SARS-CoV-2. For whatever reason, the software enabling our presence elected not to allow me to respond. It was likely just as well, because as Mr. Fish then pointed out there were only 20 seconds remaining in the allotted time.

The fact is that COVID is novel (remember when they were calling it the Novel Coronavirus?). It has presented us with so many various challenges. We have learned about getting sick from someone who has no symptoms. We have learned about getting sick from touching a surface that no one else has touched for days? We have learned that one may be exposed to an ill person and suffer debilitating symptomatology while someone else may be identically exposed and not even contract the virus.

So yes, there are various considerations, perspectives, and challenges with COVID-19. But at the end of the day, are those challenges any different from the medical causation of a knee injury, low back pain, or a rotator cuff tear?

How will judges deal with the fact that medicine is evolving regarding this disease? The same way they have always dealt with the same challenge and other conditions. COVID is not special in that medical science is evolving. COVID is not special in the symptoms vary from patient to patient. COVID is not special in that it presents challenges for the treater and those who must strive to understand the treatment. COVID is widespread, uncertain, and pernicious. Thus, it presents risks for large populations. 

What is true is that more is being learned every day about COVID, perhaps daily. That is likewise true for a variety of maladies. I can remember a variety of tests and treatments that have been touted over the years in orthopedics. Some went on to prove quite effective, while others not so much. Some innovative cures/treatments actually ended up being discredited by later research and by the results seen in patient populations. Remember when patients with joint replacements were kept on bed rest?

That circles back to the Battle cry of some to “follow the science,“ “follow the science.” Would that be the science of today, yesterday, next week, or can we appreciate that it may even be different next month or year? I remember when the world's top scientists warned us of the coming Ice Age and the perils of global cooling. I remember last spring when some of the world's best scientists advised us not to wear masks as a protection against Covid. I don't fault them for changing their minds, or blame science for evolving. I merely suggest that it may be appropriate at times for even science to change its mind. Perhaps the only constant is change?

It seems possible that science does not possess all answers at a given moment in time. It is possible that medicine will evolve in its general consensus on a subject (remember the doctor that invented lobotomies won the Nobel Peace Prize as a result). Even if a treatment is sound, it is also possible that one human body will react differently to an insult or invasion than some other human body or mind. Similarly, different bodies similarly react differently to treatments or modalities. It turns out that people can have differences from each other. 

How will judges sort through the uncertainties, and the persistent evolution of medicine with COVID? They’ll do it now just as judges always have. They will rely upon the parties to bring evidence. Judges will assess the credibility of that evidence-based on each expert's ability to support and explain her or his logic. They will look to the scientists to both bring conclusions and opinions, but also to explain their conclusions in a method that is digestible by us non-scientists. Judges will look to the expert's process, conclusions, and credibility. 

Judges will follow the evidence, as developed and presented by the parties; through research, direct examination, explanation, and the critical test of cross-examination. they will hear both sides develop and frame their respective evidence and argument, and do their best as non-scientists to digest their conclusions, processes, and explanations. Judges will then apply the law, and render their best decisions. They may make mistakes, just as the scientists might. 

As regards fact-finding and legal holdings, COVID is really not that different from any other human malady. Science is not perfect, neither is the law. But, the legal process is effective. Those who prepare and try workers' compensation cases are exceptional attorneys. Through their preparation and presentation of evidence, cross-examination, and argument, they will hone the issues and facilitate the process of judicial decisions. 

Aren’t you glad I didn’t try to squeeze that into the 20 seconds remaining last Thursday?

True, mostly true, or false?

"It is getting harder and harder to run a law firm." I heard this over a year ago at an "in-person gathering." For those who do not recall our history, there was a time when humans purposefully gathered together to share knowledge, build relationships, experience collegiality, and grow professionally. It is something that some still strive to do, as recently as the Florida Association of Self-Insureds in October. The intrusion of Covid-19/SARS-CoV-2 changed much in our lives personal and professional. Is it affecting the quality of our work?

I was reminded of Snopes during a recent community legal organization meeting that evolved into a discussion of challenges in the practice of law. A law firm administrator similarly voiced frustration with finding and recruiting effective and efficient staff. There was mention of the current pandemic frustrating that effort, but there seems to be recognition that struggles in this regard existed and frustrated before last spring's pivot to telecommuting, and more.

Snopes.com has become known for its objective analysis of rumor and innuendo. It reports with clear adjectives like "true," "false," "mostly false," "miscaptioned," "misattributed," "mixture," and others. When something is submitted, the folks at Snopes strive to form their own opinions on such matters and declare their conclusions to the world. Its conclusions are respected by many. The Wall Street Journal says "Sophisticated netizens swear by the myth-busting of Snopes." 

So, there are those who believe that running a law firm is becoming more difficult. There are also those who remind us that merely working is becoming more difficult. Life in general, perhaps, is becoming more complex and therefore more difficult?

During that recent meeting, the subject of work quality arose. There was a seeming consensus that the quality of legal work has suffered in the pandemic. Some are readily admitting that they have personally made more errors in recent months. One candidly noted that long after some document is filed this author will happen across a glaring error that inexplicably escaped both the drafting and proofing processes. 

That reminded me of recent posts like We Must Do Better with Pleading and Proof (09.29.20) and Complacency or Zealousness (08.17.20). These discuss perceptions that the quality of pleadings has diminished. There is an inclination perhaps to blame that on the pandemic. I have been told of lawyers struggling to produce documents without staff in the office regularly. They are "isolated" from their document-producing experts. I have also heard of staff stressed alternatively by being in the office and instead by being stuck at home. Stress comes in all shapes and sizes, from a variety of sources.  

Stress has led to frustration. As documented last June, it has led in some instances to untoward behavior that is unfortunate. See Rude Behavior only Begets Regret (06.16.20). Last month, WorkersCompensation.com reminded us that there has been violence in the workplace, perhaps in part from stress. There has been stress aplenty for everyone, despite their personal experiences perhaps seeming less challenging than one's own. See We will get Through This (04.19.20). 

The stress theme resurfaced in that recent meeting. We were also reminded that some who telecommute face a myriad of challenges of which we may or may not know, or understand. A cited example is the telecommuting employee who possesses one computer, one job, and two "virtually" attending school-aged children. That computer is likely to be getting significant use. Thus, the production of documents may be rushed or even frantic during the limited time a computer is available for work.

Does that potential impact the stress of a supervisor or lawyer who wonders if a day's work is being accomplished for each day's pay? If that work is being crammed into some shorter time, to the detriment of overall quality, is it appropriate for the payroll not to acknowledge that impact? If an employee is rushed, does it make sense for her/him to acknowledge that so perhaps a coworker might do some proofreading before filing?

There was also a revelation. A conversant noted that the practice of law overall has changed. Staff, it was said, have to be more today than was historically required. The statement was made to the effect that "constraints do not allow attorneys to watch over the work of staff" as has been traditionally done. Staff, therefore, must be more self-sufficient, independent, and competent. 

In that regard, no one at the meeting raised the supervisory responsibility of lawyers found in Rule 4-5.3 Responsibilities Regarding Nonlawyer Assistants. That a non-lawyer is delegated tasks or functions does not change that it is the lawyer who is responsible for the practice of law. One person mentioned that if a filing deadline were missed by staff, that would mean dismissal. Somehow, there was no discussion of how such an error would mean the dismissal of the lawyer who was actually responsible as supervisor. 

Where should such responsibility lie? Does the pandemic and its challenges change that? It is respectfully suggested that the responsibility remains with the attorney. If a deadline is missed, that is ultimately the attorney's fault; staff is in support of, ancillary to, the attorney. They may be relied upon and delegated to, but it seems that the responsibility remains regardless of the pandemic. 

How would Snopes rate that (1) professional stress has increased in 2020; (2) supervising staff has become more difficult in 2020; (3) lawyers and staff are making more errors in 2020; (4) errors are increasingly serious in 2020; (5) there is nothing we can do to combat either frequency or severity of errors. Are these "true," "mostly true," "mixture," or "false?" How about the initial premise: "It is getting harder and harder to run a law firm?"

As to the last, only those running law firms could really comment. As to (5), I would suggest that the answer has to be "false." The fact is that we can always strive to do better work. When we strive to be better, to do better, we will see better results. That effort may produce stress, but clients are not paying for mistakes, but for success. 

What do I think is undeniably "true?" That we will get through this pandemic. That it will impact our lives personal and professional. That we must strive persistently to deliver quality in our work for the sake of our customers. Whether in the practice of law, medicine, nursing, adjusting, managing, or otherwise, people are depending upon us. Professionals have a responsibility to both strive for excellence and to train, and supervise their subordinates. 

The roles of paraprofessionals and staff may be evolving. Those changes may be temporary, transient, or perhaps permanent. What is not changing is that the supervisor and manager remain responsible for ensuring that, despite any challenges or distractions, the work product remains professional, compliant, and effective. The customer or client deserves quality work. Someone is paying for it, and they deserve their money's worth. 

Knowing of the stress and the potential, lawyers would do well to ensure there is oversight, proofreading, and patience. This is a time when the pace must perhaps decrease, and supervision must increase. Quality, I would urge, matters. That needs to be "true," and "mostly true" is simply not good enough. 

The Immunity May Matter

There are periodic criticisms of workers' compensation. Some lament its intricacies and complexities. Others complain about the cost(s). It is perhaps as universally misunderstood as it is maligned. But, remember that immunity from tort exposure is fundamental to the concept of this statutory abrogation of common law rights. That immunity for employers and coworkers is a critical feature common to each jurisdiction's statutory program. And, it is among the features of workers' compensation most readily forgotten or overlooked. 

Immunity. That is an important attribute. The term can have significant import in both medical and legal contexts. In the present pandemic, there is some tendency perhaps to focus on the medical perspective. There is perhaps encouraging news there. 

To be immune is something upon which we have perhaps all focused in recent months. There is some evidence surfacing that suggests our bodies, to varying degrees, have the ability to fight of the dreaded COVID-19/SARS-CoV-2, an "immunity." The latest on this came from Britain recently, reported by the British Broadcasting Corporation (BBC). The report suggests, without yet being peer-reviewed or published, that it is possible our t-cells can be critical regarding our susceptibility to the virus and our response, independent of antibodies, inoculations, and treatments. 

However, the focus today is on the law. the workers' compensation immunity. Even Statler and Waldorf will see connections between the virus and the workplace. Certainly, there are apparent implications in the potential for suffering the virus, spreading the virus, avoiding the virus, and there could be associated expenses including medical care, hospitalization, lost wages, and more. 

A recent article reminded of the importance of legal immunity. In Florida, this comes from section 440.11(1):

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:

Obviously, the caveat "except as follows" bears consideration. This is not an absolute immunity, but one which is relatively clear in its primary expression. The liability for workers' compensation benefits is "exclusive and in place of all other liability." This is the "shield" of workers' compensation, the primary benefit that employers enjoy from the "Grand Bargain." While employers may be compelled to compensate a variety of injuries and illnesses for which they are not at fault (comp is a no-fault system), they are likewise immune from tort liability for injuries in which they are in fact negligent, or otherwise at fault in a tort sense.  

A reminder of this recently made the news in Florida. The Insider reports that a nurse has alleged a physician intentionally passed the COVID-19/SARS-CoV-2 to her in the workplace. Her allegations include that the employer failed to provide personal protective equipment (PPE), did not allow employees to consistently wear PPE, and disregarded workplace safety. Specifically, she alleges that when she complained about the working conditions, her boss "coughed on her while he was infected with COVID-19" and then informed her that she was thereby infected and to leave him alone (regarding fears of contracting the disease). 

After this interaction, the employee alleges she contracted COVID-19. She claims this was a result of the act of her boss, a doctor, coughing on her intentionally. Thereafter, COVID-19 allegedly spread (more likely the virus - SARS-CoV-2 spread) to other members of her family. She has now "filed a lawsuit against her boss, and claimed that the office she worked for did not provide personal protective equipment during the pandemic." She seeks to recover in tort for the action or inaction of her employer. 

The employer denies her allegations. In a statement, it asserts the "allegations set forth in the complaint are unfounded and will be aggressively defended." As a side note, there has been mention in the medical literature of the "long COVID," that is long-term effects on the body left by the disease after recovery from the virus. See, COVID-19 in Comp - October Update. The employee's allegations in this instance include suffering "medical consequences that will last a lifetime." Thus, there is a least the potential that such a lawsuit might be of significant import. Different people seem to have a variety of experiences with this virus. 

Though there has been much discussion of the compensability of viruses and other occupational diseases, there has been little attention to the topic of tort liability. This is likely because proving a tort claim for SARS-CoV-2 might be difficult at best. Though one might know or have interaction with an infected person, and later fall ill her/himself, the court will likely require more than this circumstance. The plaintiff will have to prove that the actual exposure occurred as a result of the defendant's negligence, or even intent. Proving such causation may involve medical experts, testing, and circumstance. In the end, it may prove an expensive endeavor. 

There is also the potential that an employer will defend such a tort claim based on section 440.11. Back in 1995, Florida's First District Court rendered Emergency One, Inc. v. Keffer, 652 So. 2d 1233, 1234 (Fla. 1st DCA 1995). There, an employee in a production plant "was expected to use a metal-banded detail brush and flammable lacquer thinner to clean" vehicles. This included around "the battery compartment," which was labeled with decals saying “explosive” and “no smoking.” 

Her work area was close to stored "lacquer thinner marked 'flammable.'” Prior instances of electrical arcs from the work made the employer "aware of" the potential for electrical arcs from brush to battery during this task. The employee asked the employer to provide "plastic brushes" to mitigate this risk, but the employer "refused . . . because of the additional expense." Thereafter an arc ignited the thinner and the employee was severely burned. 

Though the trial court in Keffer had denied the employer's motion to dismiss the tort claim based upon section 440.11, the District Court reversed. It concluded that the employer was entitled to the statutory immunity from tort. This, is despite the "evidence of a dangerous work environment," and the "allegation that safety precautions were withheld." Despite that evidence, the Court noted, "there was no competent evidence to support a view of intentional misrepresentation of the dangers involved," and "there was no evidence of a concerted intentional effort to do so."

There are a variety of arguments that might be raised. Is the withholding of a plastic brush different than a PPE? Perhaps in that PPE is a requirement in some settings? Would a legal requirement impact the analysis? Would the timing of the allegations be of interest, as in when were the masks discouraged or not provided (there was a time when America's best scientists recommended against masks; there was a time the obtaining masks was challenging). If found to be true, would the allegation of intentionally coughing on someone change the analysis?

The point is that some events may not be covered by workers' compensation. Some actions or inactions may be amenable to a civil case (tort), but it appears the exceptions to workers' compensation immunity may well be narrow. Will there be a few examples of such allegations and civil lawsuits, or will there be many? The history of COVID-19/SARS-CoV-2 is not written yet. There is much to learn in days/years to come. The long-term medical implications, the path to better detection/prevention, and these legal questions are among the many subjects likely to face analysis and discussion.