Florida - Coronavirus (COVID-19)
- Alex C. Dell
- George P. Ferro
- Nicholas A. Fusco
- Mindy E. McDermott
- Genelle J. Bayer
- Daniel Koskinen
- Ed Obertubbesing
- Sarah M. Bennett
If someone is directed by their employer to be quarantined due to Coronavirus (COVID-19) exposure and/or diagnosed with the COVID-19, consideration should be given whether to file a claim for Florida Workers’ Compensation benefits. A contagious and uncontrolled disease which arises out of and in the course of one’s employment can constitute a compensable claim under the Florida Workers’ Compensation Law.
WHY SHOULD I FILE A WORKERS’ COMPENSATION CLAIM FOR THE CORONAVIRUS?
A successful Workers’ Compensation claim can provide the affected individual with two (2) big basic benefits – lost wages for temporary and/or permanent disability caused by the virus, and payment for the medical evaluation/treatment of the virus, and reimbursement for associated expenses.
WHEN SHOULD I FILE A WORKERS’ COMPENSATION CLAIM FOR THE CORONAVIRUS?
Questions have been raised whether a claim should be filed when an individual merely suspects they have been exposed to the virus, been involuntarily quarantined and/or after the individual has been diagnosed as having the virus. Exposure to the virus or being involuntarily quarantined, standing alone, is likely not sufficient at the moment to establish a compensable claim under the Florida Workers’ Compensation Law. In general, a claim should be filed after the exposure has occurred and after the individual has been diagnosed with the virus. Keep in mind that one is not prohibited from filing a claim after they believe they have been exposed to the virus and been directed to be quarantined by their employer prior to being diagnosed with the virus. Consideration should be given to filing a claim after exposure and after being directed to be quarantined, but before being diagnosed with the virus. However, the practical reality is that the current Florida Workers’ Compensation Law will generally not support the establishment of a compensable claim for the virus without sufficient medical evidence confirming the virus and that there is a relationship between the contraction of the virus and your employment, unless the affected individual is covered by one or more of the special COVID-19 situations described below.
Consideration must also be given whether the claim for the contraction of virus is the result of a specific exposure related to one’s employment activity, or an occupational disease caused by employment conditions that are characteristic of and peculiar to a particular occupation such that the contraction of the virus would be considered a risk or hazard inherent with their employment, greater than that which the public is exposed, unless the affected individual is covered by one or more of the special COVID-19 situations described below. A March 30, 2020 Directive from the Chief Financial Officer of the State of Florida creates an opportunity to have a successful Workers’ Compensation claim for COVID-19 under an occupational disease theory.
On March 30, 2020, Jimmy T. Patronis, Jr., the Chief Financial Officer for the State of Florida, signed a Directive (2020-05) stating that the Florida Division of Risk Management, which provides workers’ compensation coverage on behalf of Florida to certain state employees, shall process process Workers’ Compensation claims submitted by “Frontline State Employees” who have tested positive for COVID-19 through a reliable method, as compensable claims for occupational disease unless the State of Florida can show, by preponderance of the evidence, that a “Frontline State Employee” contracted COVID-19 outside of his or her scope of employment as a state employee.
While this Directive is certainly positive, it only covers certain State employees. However, three days earlier, on March 27, 2020, the Florida League of Cities, which is the administrator for the Florida Municipal Insurance Trust (“FMIT”), which provides workers’ compensation coverage for local government entities throughout Florida, advised Mr. Patronis that it believes a first responder with a positive test for COVID-19 has suffered a compensable disease under Section 112.1815, Florida Statutes, unless by reasonable evidence, it is determined that the disease was not contracted in the line of duty. The Florida League of Cities has advised that FMIT has also taken this position regarding the provision of WC coverage.
WHAT DO I NEED TO DO TO PROPERLY FILE A WORKERS’ COMPENSATION CLAIM FOR THE CORONAVIRUS?
To pursue a claim, you must:
(1) Provide notice to your employer of the facts and circumstances which lead to the contraction of the virus within thirty (30) days after the date of the exposure or initial showing of the injury resulting from the exposure. Such notification period may be excused or extended where the cause of the injury (COVID-19) could not be identified without a medical opinion and the employee advised the employer within thirty (30) days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment; In certain situations, the thirty (30) day notice requirement is extended to ninety (90) days if the claim is pursued as a condition which represents a risk inherent in your employment under an occupational disease theory; and
(2) To the extent that your employer and their workers’ compensation insurer/administrator does not accept responsibility for the claim, file a written, Petition for Benefits with the Office of Judges of Compensation Claims in the State of Florida within two (2) years after the date on which you knew or should have known that the injury arose out of work performed in the course and scope of your employment. A Petition for Benefits Form can be found at www.jcc.state.fl.us
Unless you are currently covered by a specific presumption of compensability described above, you must also provide your employer and their workers’ compensation insurer/administrator with a report signed by a doctor which includes:
(1) a summary of the facts and circumstances at work leading to the exposure;
(2) your diagnosis (for example, Coronavirus, COVID-19); and
(3) a statement that there is a causal connection between the diagnosis and your work activity at the time of the exposure.
Under the Workers’ Compensation Law, a medical opinion regarding causation need not be expressed with absolute medical certainty. However, the medical opinion must be based on a reasonable degree of medical certainty based on objective relevant medical findings. The accidental compensable injury must also be the major contributing cause of any resulting injuries. Major contributing cause means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence, unless you are covered under a special COVID-19 presumption of compensability described above.
HOW CAN YOU HELP YOUR MEDICAL PROVIDER SUPPORT A CONNECTION BETWEEN THE VIRUS AND YOUR EMPLOYMENT?
As you can imagine, the worldwide spread of the virus calls into question whether you would have contracted the virus regardless of your employment. To combat this anticipated argument of behalf of the employer and their workers’ compensation insurer/administrator, even if you covered by a special presumption of compensability, you should, where possible, record as many details in support of the claimed, work-related exposure(s). What day/date(s) did the exposure occur? What was the approximate time of day/night when the exposure occurred? Where were you located when the exposure occurred? What were you doing at that time? Can you identify the specific individual(s) who had the virus? What specific interaction(s) did you have with the individual(s) who had COVID-19? Can you estimate the length of the exposure? Were you wearing any type of personal protective equipment such as a mask/respirator, hazmat suit, etc. at the time of the exposure? How close in time after the exposure did you experience any symptoms? Were you working and fully functional without restrictions or limitations prior to the exposure? If not for your job, would you have been exposed to the virus or contracted COVID-19?
While it certainly may not be possible to record all of these details, the law does not require you to pinpoint the exact date when the exposure occurred. However, the more detail you can provide the better as it may allow the medical provider to make the necessary connection between the virus and your employment, if necessary. Such detail may also enhance the credibility of the medical provider’s opinion on causation, if necessary.
If you have not done so already, consider keeping a written log or diary of the individual(s) and group(s) you come in contact with at work on a daily basis. Recording details of who and when you came in close contact/proximity of any individual(s) who appeared visibly sick: male/female, approximate age, race, nature and length of any exposure, and any unique identifying observations about the person such as whether they were coughing, sneezing, shivering, shaking, excessively sweating, had flushed or hot skin, a runny nose, red eyes, raspy voice, etc. may help make the connection between the exposure to the virus, diagnosis of the virus and your employment. This can be especially helpful if you cannot determine exactly when and where the exposure occurred.
The Law Firm of Alex Dell, PLLC represents injured and disabled individuals throughout Florida and New York with their Workers’ Compensation, Disability Retirement, Social Security Disability and Veterans Affairs claims. Should you have any questions or concerns on how best to pursue a Workers’ Compensation claim for the Coronavirus or any other claim(s), call or email us today for a free consultation. We are here to help you.