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COVID-19 and The OJCC

With the pandemic upon us it should be no surprise there has already been a direct impact to the Florida Workers’ Compensation System. Monitoring the OJCC Orders docket closely, I have collected Orders demonstrating how the OJCC has been dealing with the pandemic and associated considerations thus far. Here are just a few cliff notes of what has happened to date[1] and what we may very well expect in the coming months as more of these sorts of issues mature to formal hearings:

  • Motions to Continue on the grounds of discovery delay due to the pandemic are generally being granted so long as the parties demonstrate some sort of reasonable/justifiable efforts. OJCC Case No: 19- 031733SLR (5/21/2020), OJCC Case No: 19- 032485SLR (6/2/2020).
  • Motions to Compel discovery have been denied, citing effects of the pandemic upon litigation and delays as entirely justifiable grounds to deny such ‘expedited discovery’ when reasonable. OJCC Case No: 20- 001019MGK (5/12/2020).
  • Advances & Advance Hearings have considered the economic downturn from the pandemic as a factor both to grant an Advance [in the case of a Claimant’s wife having lost her job due to the COVID-19 virus, OJCC Case No: 16- 020638RLY (4/9/2020)], as well as to deny an advance when a Claimant failed to demonstrate the loss of income was due to the industrial accident rather than the pandemic OJCC Case No: 20- 004078KFO (5/21/2020).
  • Evidentiary rules may be modified to accommodate pandemic considerations such as permitting use of an affidavit in lieu of formal deposition OJCC Case No.: 15- 024903JW (6/12/2020), as well as permitting a non-notarized document for evidentiary consideration when no reasonable question of authenticity/sworn nature was present. OJCC Case No.: 17- 012599JW (5/29/2020). Additionally, a previously sought and appointed EMA was mutually rescinded (and permitted by the OJCC) in favor of more expedited litigation given the pandemic’s significant delay associated with continuing the sought EMA and report. OJCC Case No.: 14- 029268IF (6/2/2020).
  • A good faith job search (or in this case a lack thereof), was found associated with a denial of PTD benefits requested when the Judge noted the Claimant’s inability to speak English was not dispositive of his clear ongoing ability to function as a delivery driver – something which the Judge noted was in even higher demand after the Pandemic. OJCC Case No: 18- 016981TAH (4/10/2020).
  • Delays in medical Care/authorizations/appointments from medical office closures or reductions in available appointments from the pandemic are generally acceptable given reasonable justification is provided to the Court. OJCC Case. No: 18- 024265RJH (5/21/2020).
  • Transportation to/from medical appointments is reasonable for a Claimant to refuse – citing unnecessary exposure to another individual in an enclosed space for any prolonged period of time as unnecessary given the pandemic. OJCC Case No.: 11- 024590RLD (6/3/2020),
  • Shorter distances to authorized providers are more reasonable during the pandemic; particularly if the Claimant would be required to seek 3rd party transportation with an unknown person to and from the appointment due to unnecessary risk of exposure. It is not unreasonable for a Claimant to refuse relatively long-distance medical providers on these grounds during the pandemic. OJCC Case No.: 19- 016953TSS (4/24/2020).
  • Entitlement to indemnity benefits may be asserted or denied on the grounds of the Pandemic, however this must be properly asserted to hold water as a defense. Indemnity benefits generally are payable when a workers’ compensation injury is the cause of a loss or reduction of income and the Claimant is restricted from work. The EC still carries the burden to demonstrate the Pandemic (or any other economic reason) is the justification for a reduction or loss of the Claimant’s income. If this is not properly supported by evidence of an otherwise available, suitable job position within work restrictions, the OJCC is essentially bound to deny this defense. OJCC Case Nos.: 17-023646RAA18-007954RAA (5/14/2020), OJCC Case No.: 19-024554CJS (5/15/2020). An EC who is able to demonstrate availability of a suitable job but for the pandemic can succeed on an ‘economic downturn’ defense to eclipse or limit ongoing TPD indemnity exposure specifically. OJCC Case No.: 19-031791MGK (6/23/2020).

 
The silver lining from the vast majority of ‘pandemic-related’ Orders is simple: exigent circumstances merit reasonable responses. This is certainly a sentiment which has been echoed in several blogs by Chief Judge Langham since the start of the Pandemic. In general, I would caution everyone to take an extra step backwards when making decisions such as whether to seek a Motion to Compel or otherwise object to an accommodation requested by the Claimant to truly evaluate whether the action is reasonable, in light of the current world’s circumstances. Of course, on the other side of the coin this Pandemic certainly presents an opportunity for abuse of the workers’ compensation system by less-than-upstanding parties in the very same way.
As we continue to monitor the pandemic and its affect upon our profession, I encourage everyone to “reach out when in doubt” so we may provide you the most up to date information possible on these sorts of issues.
 
They say only inside jokes are permitted during quarantine… as this helps to contain the pundemic! And now for my recurring evening plans of hitting the local living room around 7 or 8 PM… I’m done, I swear.
 
Wes Heim
EG Tampa
wheim@eraclides.com


[1] As of 6/30/2020 and specifically excluding mere mention of “pandemic” or “COVID” when only made to explain use of telephonic or video-hearing. Additionally, excluding Orders where the pandemic is incidentally mentioned without any relation to the holding.
Wes Heim
Assosiate, Tampa
wheim@eraclides.com