The 2019-20 Annual Report of the Florida Office of Judges of Compensation Claims has been published. It contains various interesting statistical evaluations of litigation in Florida. The following was excerpted and adapted from it.
One focus of this report is the rate at which claims are filed seeking adjudication of workers’ compensation benefit entitlement. There have been events in each of the last three years that impacted filing rates. When viewed in the context of annual figures, the petition filing rates over the last three years are similar. However, there are indicia those volumes would have demonstrated an increase but for significant events such as weather and the COVID-19 pandemic.
In 2019-20, petition volumes were trending upward through the first three quarters. In the fourth quarter, however, there was a dramatic downturn in litigation activity. This is detailed in a post Filing Volumes and Causes, December 2020. The impact of COVID-19/SARS-CoV-2 was immediate and profound.
Anecdotally, there were businesses that closed in the spring of 2020 secondary to health concerns and government directives beginning with Executive Order 2020-51 on March 1, 2020. Through the remainder of fiscal 2019-20, various counties and municipalities imposed restrictions on business, defined essential businesses, and impacted the operations of physicians, lawyers, claims professionals, and others. Those restrictions in various forms continued into Fiscal 2021. This, coupled with the closure of schools and challenges experienced by parents and others, may support that the occurrence of injury was less frequent, that law firms’ ability to staff and produce pleadings was inhibited, or that these combined in their effects.
The Florida Office of Judges of Compensation (OJCC) did not suspend or limit operations as a result of COVID-19, though various minor and often temporary process adjustments were undertaken. On March 14, 2020, the OJCC mandated that all mediations be conducted telephonically. Initially, that was through May 31, 2020. Thereafter, the OJCC returned to the operation of Rule 60Q6.110(5)(a), by which telephonic appearance at mediation is within the discretion of the assigned mediator. Based upon the volume of requests for telephonic appearance, and in recognition of the ongoing nature of the pandemic, the OJCC returned to mandatory telephonic mediation on June 28, 2020, and that exception has been ongoing since.
The OJCC began conducting hearings by video teleconference through a proprietary network in the early 2000s. It is believed that Florida was among the very first to adopt that paradigm. As a result, the OJCC Judges were familiar with and largely comfortable with such proceedings at the outset of this pandemic. The OJCC elected to provide access to an alternative, Internet-based, video teleconference platform in March 2020. The use of Zoom was embraced by many of the judges. However, the discretion of each assigned judge regarding proceedings and processes has remained intact throughout this challenge. Various judges have proceeded using that platform, the OJCC videoconference facilities in the District Offices, telephone, and in-person proceedings throughout, as they each deemed appropriate. Though there has been a pandemic impact, the discretion of each assigned judge has largely remained throughout.
External limitations have been imposed on some proceedings. Two of the OJCC offices are located in state office buildings (Miami and Pt. St. Lucie). Access to those buildings by the public has been constrained and restricted since spring 2020. That has been outside the control of this Office. Thereby, the discretion of judges in those particular offices to hold in-person proceedings has been effectively foreclosed. In addition, one OJCC office was administratively closed for a day to accommodate disinfecting following reports of a visit by someone known to be infected by COVID-19/SARS-CoV-2.
In terms of staffing, the OJCC afforded some telecommuting opportunities. The purposes of this reaction included diminishing the personal risk of infection and decreasing population density in some offices. The telecommuting effort was principled and focused. At the most, approximately 24% of OJCC employees had telecommuted, pursuant to specific written agreements, for some period.
Anecdotally, there were reports of state agencies closing completely due to COVID-19. On various webinars, state officials across the country explained their efforts to adapt. One described how their agency had “figured out” how to receive exhibits by email for trial. Another explained their adjustments to video hearings. The Florida OJCC's experience with video teleconference rendered such adjustment requirements minimal in Florida. The adaptation and adoption of electronic filing early this century likewise positioned the OJCC and Bar readily prepared for “distance” proceedings. There was no “figuring out” how to receive documents electronically; that was conceived in the early 2000s and mandated by the legislature in 2011. What others adapted to in their 2020 response, Florida had long embraced.
A significant volume of Florida workers have reported workplace exposures to COVID-19/SARS-CoV-2. The Division of Workers’ Compensation has provided monthly updates regarding the reports of lost-time exposures and the financial impact of those claims (detailed recently in November COVID-19 Volumes, December 2020). The impact of these claims has been significant, but not as pervasive as some anticipated. Florida is not alone in that regard. For example, research suggested that only one in fourteen COVID-19 infections among working-age individuals was reported as work-related in California. This is despite Executive action there and in other states to legislate COVID-19/SARS-CoV-2 presumptions for various classes of workers. It is predicted that such presumptions, and the burdens of proof in workers’ compensation for occupational disease, will be the subject of state legislative discussions in 2020-21.
The pandemic has resulted in significant volumes of employees reporting COVID-19/SARS-CoV-2 exposure. In October 2020, the Florida Division reported that 21,221 reports of “lost-time” occupational disease claims have been reported. Of those, 9,365 (44%) were denied at least in part, while 11,856 (56%) were accepted. The total paid on these COVID-19 claims as of September 30, 2020, was 30,793,827, which represented about 7.4% of the total paid on all workers’ compensation lost-time claims. A very small volume of COVID-19 claims had entered litigation according to searches of the OJCC database. The total is believed to be less than 200. Some of those claims are not allegations of compensability of this disease, but claims related to the tangential effects of that disease on other recovery (closed doctor offices, cancellations of elective surgeries, challenges with medical care transportation, and more).
There are those who see workers' compensation as a broader safety net or social welfare system. They eschew the limitations of coverage to those who are injured at work, striving instead for a benefits system that pays regardless of the cause of work absence. There is some sentiment for a fully no-fault system that provides lost wages whenever work is missed. This was highlighted late in calendar 2020 by WorkCompCentral in "Patronis Helped 'Move the Needle' on COVID Claims, but Data Show Many Denied." Sources quoted in that article lament that claims for compensability of COVID-19 were denied merely because the worker involved tested negative for the disease. In some opinions, benefits should flow regardless of the existence of either injury or disease ("but on other claims, in which the firefighters were ordered to quarantine for two weeks and later tested negative for the virus, the carrier has refused to pay the claim"). The advocacy for such expansion of a work-injury system, to the coverage of non-injury, is intriguing.
In short, the SARS-CoV-2/COVID-19 has been a significant challenge to workers' compensation systems. Florida has persevered and adapted with minimal interruptions to the mediation and adjudication processes. As we enter the second half of fiscal 2021, and the promise of various vaccinations is on the horizon, there are potentials for other challenges. Safety experts have long warned of the risk of injury in new employees. The initial work days are said to present a risk due to the novelty of tasks and the environment. As the economy benefits from science and we hopefully return to more traditional work settings, it is probable that volumes of workers will be in unfamiliar settings and at risk for injury.
Despite the relatively low volume of litigated SARS-CoV-2/COVID-19 claims in litigation in Florida, those volumes may rise in coming years. With the payment of benefits in such cases could come a responsibility for the long-term effects of this virus which are difficult in the present to either predict or appreciate. As symptomatology develops in particular individuals, there is the potential for debate and litigation over causation and compensability of allegedly virus-related conditions and complaints. While compensability of the virus itself may be a matter of law under the operation of Florida's 120-day denial law, there may be those who choose to litigate compensability of more diffuse complaints and complications as they develop. There is, from many accounts, a great deal about this virus yet to be learned.
The challenges have been many. The response of this agency has been steadfast and appropriate. Through the efforts of the various employees of the Florida OJCC, the operations of this agency have remained, persevered, and prevailed. It is hoped and anticipated that performance remains through the remainder of this pandemic and beyond. The credit for this success lies squarely with the staff of this agency and their professionalism and commitment.
