The COVID-19 pandemic has not only thrown the world into a giant abyss of unknowns, but it’s also thrown the legal system for a loop!  With most states, including Florida, re-opening schools and private businesses bringing workers back into offices or restaurants, Florida workers’ compensation courts are about to get hit with a lot of cases against employers.  Unfortunately, the case law and courts have not found their footing yet in how to deal with these cases.

Generally speaking, employees who believe they were exposed to COVID-19 while on the job, have a very high burden to get their claim accepted as compensable in the State of Florida.  In fact, these types of cases are considered “occupational exposure disease” cases.  They require “clear and convincing evidence” to prove the elements required under Section 440.15(2), Fla. Stat.  This is the highest burden under the Florida workers’ compensation statute.

Prior to the COVID-19 pandemic, a number of Florida appellate and supreme court cases, came down setting out the almost impossible standard by which these types of claims have to be established for an occupational exposure case to be found compensable.  Compensability means the workers’ compensation carrier or servicing agent must pick up the claim and provide benefits as outlined in Chapter 440, Florida Statutes.  If a case is not found compensable, then workers’ compensation is off the hook and not required to provide any benefits.

The elements to prove any occupational exposure or occupational disease, is as follows:

  • The employee must first prove the disease was contracted within the scope of employment;
  • As a direct result of their employment, and
  • To exclude all other ordinary diseases of life which the general public is exposed, UNLESS, the incidence of the disease is substantially higher in that particular trade, occupation, process or employment other than the general public.

In order to prove the above elements, injured workers will need to provide epidemiological studies showing the exposure to the specific substance (COVID-19), at the levels to which the employee was exposed, caused the employee to get COVID-19.

Also, the injured worker must prove he or she suffered a disability.  At this juncture, it is not enough to allege you lost wages due to having a positive COVID-19 test without having sustained a physical disability.  In other words, it may not be enough to simply have a diagnosis of COVID-19 without having any physical symptoms.

Essentially, injured workers have a very high burden to prove their employment posed a higher incidence of exposure than the general public and prove by clear and convincing evidence the particular levels of COVID-19 they were exposed to on the job versus in the general public.

This would require an injured worker provide enough scientific and medical evidence regarding contact tracing, history of everywhere the claimant went in the 14-21 days (COVID-19 incubation period) preceding the onset of symptoms or a positive testing diagnosis for COVID-19.

The First District Court of Appeals acknowledged exposure claims have “the Herculean task for heightened burden of proof of toxic exposure claims.”  See City of Titusville v. Taylor, 1D17-3814, Fla. (1st DCA November 27, 2019). https://scholar.google.com/scholar_case?case=804442858159417305&hl=en&as_sdt=6&as_vis=1&oi=scholarr

However, if the injured worker is a Florida State employee who works in one of the following employment fields, he or she may be presumed to have gotten COVID-19 due to a State of Florida Executive Order, 2020-05 which created a mandatory presumption of compensability for front line state employees only.  You read a copy of the Governor’s Executive Order, 2020-05 by clicking on this link.  https://www.myfloridacfo.com/coronavirus/documents/CFO-Directive-20-05.pdf to determine if you are state employee and wondering if you qualify for the presumption.

The Judges of Compensation Claims are split regarding whether or not an injured worker is entitled to indemnity benefits (i.e. – a form of loss wages as outlined by Section 440.15, Fla. Stat.).  http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0440/Sections/0440.15.html

JCC Owens in the Port St. Lucie District office, determined an injured worker was not entitled to an advance because she failed to prove her loss in wages was due to her work accident even though she had been furloughed because of COVID-19.  See Esteban Gomez v.  Ridgeway Roof Trust/Zenith, OJCC: 19-016953TSS, Order dated April 24, 2020.  https://www.jcc.state.fl.us/jccdocs20/GNS/Alachua/2019/016953/19016953_229_04242020_01562679_i.pdf

Yes, JCC Stephenson in the West Palm Beach District office, found a claimant met his burden of proving entitled to indemnity benefits after being furloughed because of COVID-19.  See James Hybl v. Health Trust Work Force Solutions, et. al, OJCC: 19-024554CJS, Order dated May 15, 2020. https://www.jcc.state.fl.us/jccdocs20/TPA/Hillsborough/2019/024554/19024554_229_05152020_12324376_i.pdf

So if you are a teacher and you test positive for COVID-19, it is really unclear at this time if you will be guaranteed entitled to workers’ compensation benefits under Florida Chapter 440.

We are continuing to monitor this situation daily.

If you have any questions or concerns about entitlement to workers’ compensation in Florida, please feel free to call us at 833-LAW-STONE for a FREE PHONE CONSULTATION or email us at [email protected] and a member of our staff will each out to you.