COVID-19 & THE OJCC REVISITED

An update on the pandemic and its ongoing impact in the Florida Workers’ Compensation system.         

By: Wes Heim – Tampa

Just a few months ago we took a look at how the OJCC had been affected by the pandemic (link to my prior article here!). As we are all a few months deeper into this absolute gem of a year, I thought it wise to revisit the topic to see what we might learn. [1]Once again, here are some cliff notes of what has happened and what we might continue to expect on the back nine.

Please, let this be the back nine…

• Delays in authorized medical care continue, some of which are directly attributable to the prior state-wide halt on elective medical procedures instated by the governor. OJCC Case No.: 02-007872RLY (8/7/2020). As well as other delays due to the substantial back-log of elective procedures resuming thereafter. OJCC Case No.: 18-022888WJH (8/3/2020).

 

• Medical necessity considerations have been directly tied to the pandemic, such as the JCC noting authorization of a requested gym membership particularly unreasonable due to the pandemic. OJCC Case No.: 18-010742SMS (9/8/2020).

 

• Economic downturn defenses have been successfully asserted in lieu of otherwise owing indemnity benefits when adequate demonstration of furloughs/layoffs, (rather than medical restrictions), is established to be the cause of the Claimant’s loss/reduction of income. OJCC Case No.: 19-013464RAA & 19-029029RAA (7/7/2020), OJCC Case No.: 19-008640SLR (8/20/2020), OJCC Case No.: 20-006415NPP (8/31/2020). In some cases, indemnity benefits during furloughs/layoff periods are currently not even being sought in the first place by Claimant’s counsels. OJCC Case No.: 18-005771WRH (9/10/2020).

 

• ‘Because of the pandemic’ is generally not, itself, a sufficient excuse as most JCC decisions over the past few months do require some sort of demonstrable effect to the pending claim. OJCC Case No.: 20-003009RLY (9/11/2020). A Claimant who requested a $2000 advance ‘because of the pandemic’ was denied. OJCC Case No.: 17-017946MJR (8/13/2020). In another case, a Claimant failed to convince the OJCC in his defense against EC’s Motion to Enforce Settlement alleging ‘he was taking COVID mediations at the time of the settlement’ and ‘was confused.’ OJCC Case No.: 18-018879DAL (7/30/2020).

 

• Attorney fee awards have recently involved pandemic related considerations such as whether delays in authorizations or similar pandemic-related issues merit a modification of total hours expended during the traditional lee engineering and/or miles fee OJCC Case No.: 17-001668MES (8/4/2020).

 

• Medical non-compliance defenses have been particularly difficult to assert during this time when they have any reasonable allegation of pandemic related cause from the Claimant. The OJCC enumerated that the Claimant’s lack of treatment for several weeks was merited given the pandemic and uncertainty particularly present in the late March and April 2020 months. The Judge further noted that the Claimant had justifiably self-quarantined after a possible COVID-19 exposure during the contested period of indemnity entitlement. Ultimately, the JCC found the EC’s denial of indemnity benefits from 4/10/2020 through 4/23/2020 was not merited and awarded these benefits to the Claimant.

Side Note: the Judge also wrote an awesome line in her analysis indicating: “Only Captain America’s Steve Rogers just now emerging from the state of being a frozen human popsicle after nearly seventy years would have reason not to be aware of the current COVID-19 pandemic and the resulting state of emergency beginning around March of this year…” which I think we can all agree is simply amazing!  OJCC Case No.: 20-002947CJS (9/11/2020).

• Medical non-compliance HAS been successfully argued during this time. Despite the pandemic affecting one of the Claimant’s missed appointments, the Claimant had otherwise demonstrated a pattern of disregarding authorized medical care. OJCC Case No.: 19-007638RLY (7/24/2020).

 

• Offsets for unemployment benefits have been recognized/awarded to otherwise owing indemnity benefits. In one case ‘credit’ was given against indemnity benefits owed by the EC for the Claimant’s receipt of the stimulus check. OJCC Case No.: 19-023325RLD (6/23/2020).

 

• Litigation delays are mostly being accommodated by the various JCC offices across the state who generally demonstrate a recognition of inherent difficulties in the practice of law during this time. OJCC Case No.: 20-009003JIJ (9/15/2020). Continuances have been granted due to the pandemic, OJCC Case No.: 19-016865ERA (8/24/2020), and in one case a late response to an attorney fee verified PFB when defense’s internal transition to new software was complicated by the pandemic was found not enough to merit striking of the otherwise untimely response. OJCC Case No.: 14-019438TAH (8/27/2020). OJCC Case No.: 19-010034MGK (6/26/2020). OJCC Case No.: 18-023749IF (7/21/2020).

 

• Litigation-specific requests couched as related to the pandemic, without sufficient justification are not granted carte blanche: A Claimant who sought reduction of attorney fees contractually established was unsuccessful before the OJCC who noted, though the pandemic has caused great financial stress for many, the contract must stand. OJCC Case No.: 18-025812MGK (6/30/2020). An EC who failed to notarize their verified attorney fee response affidavit was not permitted to argue this improper response, despite alleging an attempt to ‘electronically verify’ the response. OJCC Case No.: 18-022888WJH (7/22/2020). Another EC attempted to continue a Final Hearing just one week prior to its scheduled date to which the JCC noted the pandemic itself should not be utilized as a catch-all for last minute motions to continue. OJCC Case No.: 19-031391SLR (9/14/2020).

Once again, the trend-line appears to be ‘largely accommodating’ in this brave new world insofar as the JCC. That said, the past few months have produced some distinctive positioning of the OJCC, effectively stating “we understand and will work with everyone in this system, but do not abuse our flexibility.”

Stay tuned for more updates and insights and, as always, please feel to reach out with any questions, thoughts, or hell, if you just need a virtual hug. I definitely do!

-Wes Heim

wheim@eraclides.com

[1] Orders examined roughly span June 2020 to the present and specifically exclude the mere mention of “pandemic” or “COVID” when only made to explain the invocation of electronic communication or incidental facts not related to the substance of OJCC determinations.

Wes Heim

Tampa