On 4/6, the Florida Office of Insurance Regulation (which all of you know from paying close attention during our 5 hr law and ethics CEU) issued an informational memo:
TO ALL INSURERS AND ENTITIES REGULATED BY THE FLORIDA OFFICE OF INSURANCE REGULATION AUTHORIZED TO WRITE WORKERS’ COMPENSATION INSURANCE regarding COVID-19 and WC.
Basically it says COVID-19 would fall under the Occupational disease section of the statute 440.151. “First responders, health care workers, and others that contract COVID-19 due to work-related exposure would be eligible for workers’ compensation benefits under Florida law. See § 440.151, Fla Stat.”
That has been the statute section that almost everyone I have spoken with is using in determining compensability. It appears the intent of the memo is to classify COVID-19 as an occupational disease under 440.151, meaning the same burdens of proof are required. I am not reading the memo as any major change in how we have been advising the claims be handled. It appears the intent is that we should treat it as an occupational disease, and not more like the flu which is typically denied as not being occupational.
One key point, the burden of proof is not changed by the memo. First Responders have a lesser burden than other workers, including healthcare workers. The memo specifically points to 440.151, so it does not appear to lump healthcare workers in with First responders, at least in my reading of it.
Non-First responders fall under 440.151:
Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence.
First responders fall under:
112.1815 Firefighters, paramedics, emergency medical technicians, and law enforcement officers; special provisions for employment-related accidents and injuries.—
In cases involving occupational disease, both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by a preponderance of the evidence.
What that means is First Responders have an easier time proving it was an Occupational disease than other occupations.
In general, as it is worded, I don’t see the FOIR memo being a significant change. Of course that may change as things progress or they issue more guidance
Morgan Indek | Managing Partner