Eraclides Gelman | COVID & Florida Workers’ Comp

August 19, 2021

COVID & Florida Workers’ Comp

Wes Heim – Tampa

In July of 2020 we took a look at the OJCC and the impact of COVID-19 generally (July 2020 Article) and in September I revisited the topic noting some of the emerging litigation trends (September 2020 Article). Just a few months ago, Governor DeSantis of Florida signed Senate Bill 72 into Law limiting the potential causes of action stemming from COVID (Lawsuit Limitation Article).

Well, it is a few months later & we’re a few months deeper into this whole saga… unfortunately. With the recent spikes in case numbers I have had quite a few questions regarding the OJCC and the pandemic. To help make some sense of the ongoing chaos, I’ve read through several months of OJCC Orders[i] and summarized the important trends.

Medical Delays
Generally, there continue to be ongoing delays in medical treatment specifically due to COVID cancellations and issues with social distancing.[1] [2] In one case, COVID directly interfered with the Carrier’s ability to relay an investigation of medical necessity message for a pending surgical recommendation. The OJCC found the EC’s efforts were significant, demonstrable, and they did not waive the otherwise validly asserted medical necessity defense.[3]

Medical Non-Compliance
Claimant’s decision to delay surgery based on COVID concerns was not unreasonable and did not amount to medical non-compliance as alleged by the EC.[4] An EC was unsuccessful in arguing medical non-compliance due to lack of physical therapy attendance of which had been missed by the Claimant specifically because she did not feel comfortable utilizing a waiting room with others during the pandemic.[5] Alleging concerns isn’t a silver bullet however; In one case a Claimant’s purported objection to treating with an authorized physician in person due to the pandemic was found unreasonable after evidence was presented demonstrating her going to a Wal-Mart store frequently during the same time period.[6] [7] [8]

Expert Witnesses & COVID
COVID was alleged as the grounds from which the Claimant exacerbated his high blood pressure/cardiovascular issues as well as psychiatric issues. EC was partially successful in Daubert striking the expert medical opinion of the Claimant’s Doctor on the grounds the physician had no tangible experience dealing with physical injury exacerbations stemming from infectious diseases.[9]

Indemnity: Reduction of Income Due to Economic Downturn or Industrial Injury?
Closure or layoffs from an employer due to COVID has been generally considered a valid superseding cause of reduction of wages and “breaks the causal chain” between a prior industrial accident TPD status and the Claimant’s entitlement to indemnity benefits. [10] [11] [12] [13] [14] [15] [16] [17]

Of course, the successful application of this economic downturn defense is not universal. One employer could not accommodate light duty specifically due to the pandemic and thus the Claimant was found entitled to 40 hour work week wages.[18] In another case, light duty was justifiably suspended incident to a layoff of all workers.[19] Also of note, Judge Johnsen and Hedler of West Palm Beach did not believe the economic downturn defense offered by an EC was sufficient when the Claimant clearly demonstrated they were not affirmatively offered work within their restrictions at the time the Employer began to re-hire other laid-off (uninjured) workers employees during the same period due to COVID.[20] [21] An EC alleging the pandemic as grounds for a break in the causal chain must demonstrate the defense remains valid for the entirety of the requested period; an EC attempting to maintain this economic downturn defense was ordered to pay indemnity when the EC was shown to have brought back other employees who had been previously furloughed early in the pandemic.[22]

Ironically, the healthcare worker shortage was utilized to demonstrate widely available full-time and light duty work in response to an injured (healthcare) worker who attempted to argue against a refusal of suitable employment defense/causal challenge by the EC.[23]

“COVID Pay”
In calculating a Claimant’s average weekly wage a ‘COVID bonus’ was ultimately not included as it was not considered customary wages in light of its temporary nature.[24] [25] However, in another case the JCC utilized earnings from ‘COVID pay’ in the same way as traditional earnings in determining the Claimant’s entitlement to TPD indemnity benefits and the 80% threshold.[26]

Out of State Medical Authorizations
A Claimant who was trapped outside of the State of Florida due to pandemic lockdowns and who decided to stay out-of-state for the foreseeable future was found to be entitled to authorization of an orthopedist in her immediate location.[27]

COVID Exposure Concerns
A Claimant’s argument as to not feeling comfortable using public transportation to/from work was not reasonable considering the actual COVID safety measures implemented on public transportation and the lack of the Claimant’s knowledge/research on this topic.[28] A Claimant’s refusal for at-home physical therapy due to COVID was found insufficient as grounds for a subsequently sought attorney fee and costs when the initial provision of care was complicated by the pandemic and the Claimant ultimately began in-person physical therapy a few months later.[29] An employer representative who had decided to appear telephonically due to concerns about the pandemic was justifiable and the Claimant’s Motion to Compel physical appearance was denied.[30]

A PFB requesting authorization for in-person medical care (vs. telemedicine) was ultimately found to be unsupported. The JCC focused on the ‘personal opinion’ of the Claimant’s IME that in-person medical care was superior to telemedicine and noted the same was insufficient to overcome the EC’s medical necessity challenge. In this case the OJCC also noted the Claimant had vaguely worded the request for authorization of in-person medical care in the Pretrial Stipulation.[31]

Complications for Litigation
The OJCC tends to not accept the pandemic as a general excuse to an otherwise run Statute of Limitations, particularly noting the long-standing availability of electronic filing and universal use of email within the practice. [32] [33] [34] [35]

A Claimant who was trapped outside of the Country during the pandemic shutdowns elected to participate in videoconference IME. Numerous other Claimants have elected video-teleconferencing and electronic appearances in lieu of physical presence or continuing their claims.[36] A records review (in lieu of a physical IME) was found reasonable given the general physical proximity restrictions incident to the pandemic.[37]

A Claimant attorney’s office closure for five weeks due to COVID was offered as an excuse incident to a motion to dismiss for lack of prosecution but this excuse was not sufficient to defeat the EC’s Motion.[38][39] However, the opposite has also been true with COVID being evaluated as a part of the picture in which Judge Hedler found there was good cause to excuse an otherwise present lack of prosecution due to demonstrable complications from the pandemic.[40] A Claimant was unable to prosecute claims due to being relegated to Cuba where he was visiting during the travel lockdown. EC was awarded costs when the Claimant’s counsel dismissed two pending PFBs and thus made the EC the prevailing party (despite the circumstance).[41]

The OJCC has considered the moratorium on evictions as a mitigating factor as to Claimant’s recurring expenses in the analysis of a pending Motion for Advance.[42] A certified letter confirmed delivered in May of 2020 to the EC attorney (despite the office having been closed and/or unoccupied during this time) was sufficient grounds to establish notice under the mailbox rule and began the five day one-time-change request (absent additional evidence to sufficiently establish that the delivery had not occurred).[43]

PTD & COVID
The “post-COVID economy” was a factor considered in a PTD determination as to whether the Claimant was re-employable.[44] The inherent difficulty in securing any job during the pandemic associated with a Claimant’s offered PTD job search was considered by the OJCC.[45] [46] The pandemic itself was the subject of a Motion in Limine by the EC who (successfully) sought to preclude discussion and analysis of the pandemic upon the Claimant’s ability to be employed within a PTD Final Hearing.[47]

Settlement Issues
A Claimant’s lack of notary on settlement paperwork due to his unwillingness to leave his home during the pandemic did not change the fact a settlement of the claim had been reached.[48]

Conclusion
Once again, I find the OJCC has been remarkably consistent in their application of principles to novel issues associated with the pandemic. My primary take-away from this project is simple: reasonable accommodations have and will be offered by the OJCC concerning COVID; while unreasonable excuses and requests will not. Please feel free to reach out should you have any questions. Stay safe out there! Hope to see everyone in person again… one day… eventually… please!

-Wes Heim
EG Tampa
wheim@eraclides.com

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Wes Heim – Tampa