COVID-19 AND FLORIDA WORKERS' COMPENSATION- A BRIEF OVERVIEW FOR EDUCATORS
September 8, 2020 Posted in Articles by
COVID-19 AND FLORIDA WORKERS’ COMPENSATION
A Brief Overview for Educators
Ralph Douglas, Esq.
- General Rule: Occupational Diseases may be covered, but Ordinary Disease of Life, including pandemics, are not usually covered under workers’ compensation.
Workers’ compensation covers illness or injury caused by employment activities. Generally however, it does not cover “ordinary diseases of life,” such as the flu. COVID-19 has been declared by various federal, state and local governments to be a “global pandemic.” Although COVID-19 is extraordinary in many respects, it falls within the statutory description of a communicable disease that is an ordinary disease of life.
In some narrowly defined situations, COVID-19 may be covered under workers’ compensation as an occupational disease. However, the Florida Workers’ Compensation Law, found at Chapter 440, Florida Statutes, places a strict burden on the employee to prove entitlement to benefits.
- Criteria and Burden of Proof:
COVID-19 is a global disease affecting the general population. An employee claiming exposure to COVID-19 at work would only be mandatorily covered under the law if he or she satisfied very rigorous criteria, and documented objectively, with medical proof and data, that the employee’s condition is clearly and directly linked to their employment. That nature of that employment must specifically and categorically place employees at a significantly greater risk of contracting the disease, and must be the actual cause of contracting the disease.
- Medical Evidence of Disability:
- Disability: Disability or death is a threshold for presenting a workers’ compensation claim based on exposure to a communicable disease. Mere “exposure” at work is not enough for a claim. Disability in workers’ compensation means, “incapacity” and inability to earn wages because of the illness.
- Objective medical evidence is required to prove that disability, but that disability need only be temporary for “coverage” purposes. Typically, this requires documentation from a licensed physician of the diagnosis and the disability. That documentation must be objective, scientific and inherently logical and consistent with the claimed diagnosis and disability, as discussed in other parts of the law.
- The Disease Is Actually Caused by employment conditions that are characteristic of and peculiar to a particular occupation, and such causal relationship must be more than a logical relationship based on speculation and conjecture;
- The Disease Must have been actually contracted during employment in the particular occupation;
- The Occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be higher than in usual occupations; and
- If the disease is an ordinary disease of life, (COVID-19), the incidence of such disease must be substantially higher in the particular occupation than in the general public.
- Employee’s Burden of Proof
The law requires the employee to strictly satisfy the statutory criteria with objective medical evidence, that the alleged exposure at work caused the disease and disability. That evidence must include objective medical evidence, must be supported to verifiable and objective data of increased risk of contracting the disease at work, and it must be “clear and convincing.” It must not be based only on speculation or conjecture about the relationship between an exposure to a sick person and contracting the disease. It cannot be based on “what we all tend to think” or even agree upon among ourselves. “Clear and convincing evidence” has been described as “highly probable,” substantially more likely than not to be true, and evidence that leaves you with a “firm conviction that the claim is true.”
- Benefits Generally Available if Entitlement Is Proven:
If the basic criteria and burdens of proof are satisfied, an employee with a compensable claim for occupational disease may become entitled to medical and disability benefits, as with any other type of valid workers’ compensation claim.
- Indemnity Benefits a/k/a Disability Benefits
An employee who is “disabled” as defined in the law, becomes entitled to claim disability benefits once they meet the criteria and satisfy any “waiting period” for payment of benefits. Ordinarily, the workers’ compensation “waiting period provides that benefits are not payable for the first 7 days of disability, unless objective medical evidence proves that they are disabled for more than 21 days from the work-related injury or disease. Employees may separately receive leave benefits payable per employer policy, as applicable, but the total of all such benefits including workers’ compensation disability and employer leave benefits should not exceed the established Average Weekly Wage (AWW.)
- Medical Benefits
As with any other compensable claim, workers compensation provides medical benefits for diagnosis and treatment where: 1) within a reasonable degree of medical certainty; 2) by objective medical evidence; 3) the compensable disease is shown to be the major contributing cause of the need for treatment. Treatment may, in appropriate circumstances, include diagnostic testing, but in the case of occupational disease, the diagnosis must first be established before payment for treatment becomes compensable or payable.
Comorbid diseases, such as cancer, liver disease, heart disease, hypertension, pulmonary disease, etc. might or might not receive covered treatment under workers’ compensation on a temporary basis, depending on whether stabilization of such conditions became necessary to treat the COVID-19 illness. Treatment of a temporary aggravation or exacerbation of certain diseases directly and substantially exacerbated by COVID-19 involving hospitalization, such as asthma or COPD, could be covered in a compensable claim. This is usually covered because COVID-19 is a disease which directly affects the pulmonary system, according to basic medical understanding.
As with any other illness or injury in the workers’ compensation system, medical treatment is divided into temporary (acute) and permanent (palliative) treatment phases. An employee may be entitled to more treatment at the temporary, acute stage of the disease, than after recovery from the acute phase of the disease. Typically, once the employee recovers from the acute stage of treatment, they are placed at “maximum medical improvement” (MMI), and workers’ compensation will assess whether objective medical evidence demonstrates that the compensable disease remains the major contributing cause of any need for palliative care after that date. Again, the burden of demonstrating entitlement for future care must be satisfied with objective, “clear and convincing evidence.”
- Death Benefits
If a compensable COVID-19 disease directly resulted in death, as demonstrated by clear and convincing evidence, and was not just one of many causes, such as aggravation of end stage kidney disease, cancer, etc., death benefits may be available under section 440.16, Fla. Stat.
- Workers’ Compensation and Beyond
Workers’ compensation exists to efficiently and cost-effectively provide benefits to employees who can meet certain criteria standards of proof. They must specifically demonstrate that they suffered an accident or injury that “arises out of employment.”
Most employees affected in some fashion by COVID-19 illness will not be able to prove mandatory entitlement to workers’ compensation benefits. However, employers are not prohibited from providing more benefits outside of workers’ compensation than what is mandatory in the law. They may want to consider items such as protective equipment, virus testing, and sick leave for policy reasons not specifically addressed herein. When doing so however, employers should also consider the financial, policy and legal ramifications of each new benefit provided, as well as for each policy change made in response to the COVID-19 pandemic. Each new benefit or policy may produce new legal obligations on the employer, as well as potential vested rights and causes of action for any employee who disagrees with the employer’s application of such. We are happy to answer more specific questions on a case by case basis.
Ralph Douglas, Esq.