Recently, the Florida Division of Workers' Compensation report updated through June 30 was published and discussed in Florida COVID Claims June 2020 (August 2020). Reading that reminded me that Florida's workers' compensation system is a "self-executing" system in which injuries are reported and benefits are typically provided without the need for litigation. However, in some subset of claims, there is disagreement, and litigation is instituted with the filing of a petition for benefits.
Litigation is nothing novel in workers' compensation. For some reason, this system designed to be "self-executing" generates a significant amount of litigation and disputes. I use "novel" because this particular coronavirus has been labeled "novel," its name is probably COVID-19 (the disease itself)/SARS-CoV-2 (the virus that causes the disease)(subject to change and perception perhaps). Scientists see it as "novel" in that no evidence suggests that humans have heretofore suffered this virus. But, there is some evidence that some of us may have seen something awfully similar, allowing us to have some defenses, according to the BBC.
Of course, our recorded history is not that extensive in the grand scheme of things. After all, according to PBS, there has been life on this Third Rock from the Sun for about 3.5 billion years. However, humans seem to have been around for only 5-7 million years (less than 1% of that 3.5 billion), according to the NY Times. Human history is brief, and our beginnings in both documentation and science might be fairly described as "less than auspicious." The Guardian provides us with examples where science "got it horribly wrong." We are, after all, only human.
We started writing things down at some point. Though the record on that is not entirely clear, the oldest writings yet located are no more than a few thousand years old. For all we know, SARS-CoV-2 affected the human population at some point in the past, beyond our knowledge or collective recollection. Though we see this pandemic as "novel," we lack the perspective or records to make such a statement with any real confidence.
So, as to document for our posterity, let us delve in into the question of litigation regarding COVID-19. It is worth reiterating that the Florida Division of Workers' Compensation is publishing amazing and detailed data on COVID-19 claims. With the two reports issued in June and July, it looks like Florida is two reports ahead of the country. I have not found similar data being reported by other states. The scientists keep reminding us of the value of testing and tracing. I would suggest that in our community the corollary is also true, we need more data. Kudos to the Florida Division!
From the Division report, we know that there are now 5,693 claims now reported. About 38% of those have been denied, 2,617. That figure is notable. When the June report was issued, the rate of acceptance was about 55%, see Florida COVID-19 Litigation (June 2020) With that figure in mind, the next logical question is how many of those are now in litigation?
There is no way to discern with certainty, because how a malady is characterized is up to the person who files the Petition for Benefits. If, for example, an attorney or worker files a petition and describes the "description of the accident" or the "parts of body injured" without mentioning "COVID," that would make it difficult to find. Many petitions are filed annually, and it is possible that a respirator claim might be filed listing "pneumonia" or "respiratory failure" or "infection" without mentioning "COVID." Therefore, it is possible that the petitions discussed here understate the actual volume.
To study the volume in litigation, the OJCC has searched the data for the term "COVID." There was an initial effort to search for "corona" but that yielded a large volume of returns and all of them were related to "coronary" claims rather than specifically to this pandemic. The best methodology therefore is the search for COVID.
As of July 28, 2020, there were sixty-nine petitions filed that used the term COVID, but some cases had multiple petitions so there are only sixty-two cases currently in litigation in Florida. As noted in the previous Florida COVID-19 Litigation (June 2020) post, not all of these involve exposure to the SARS-CoV-2. One example alleges a hand injury while "making COVID-19 masks"; In another, use of a face mask caused "glasses to fog up" and a collision resulted";
There are general allegations of exposure to COVID-19 (the disease), some mention that COVID-19 was "developed" or "contracted" at work. Others instead allege a "Covid-19 Exposure." There is little mention of the virus itself (SARS-CoV-2). Some exposures are alleged to have occurred in the workplace or elsewhere while performing work duties. Others, it appears, may be alleged to have occurred in the course of receiving medical care for some other workers' compensation injury or illness.
There are allegations of virtually all of the eleven COVID-19 symptoms published by the Centers for Disease Control. There are allegations of pulmonological damage, immune system effects, pneumonia, blood clots, kidney issues, liver issues, and several claims allege that the worker passed away as a result of the SARS-CoV-2/COVID-19.
The occupations listed in the Division report bear reiteration. The July report categorizes the claims based on occupation. Approximations are:
- 1% are airline workers
- 34% are healthcare workers
- 33% are protective services ("first responders")
- 23% are service industry
- 8% are office workers.
The occupations that have currently filed petitions are:
- 2 Airline workers (3%)
- 30 healthcare workers (48%)
- 2 first responders (19%)
- 18 service workers (which may include some office workers)(29%)
One might conclude various outcomes from this. It is perhaps too early to begin litigating some claims. It is possible some filed notices of injury, received denials, and in the meantime recovered from COVID and returned to work. It is possible that some filed notices of injury and have struggled to even see a physician to discuss causation; anecdotes suggest that doctor appointments are a challenge in some areas. It is possible that the Petition process is underway in larger quantities, but that the impact of COVID on law offices is merely slowing the process. There are likely other potential factors influencing the rate and timing of filing. Time will tell, and for the near term, we will strive to continue tracking the filing of such petitions.
