Greetings,

Well, I have started getting questions about COVID-19, the corona virus, and whether this could be compensable under Florida WC. There are two “presumptive” cases of the virus in Florida, meaning the formal diagnosis has not be 100% verified yet.

In general, diseases and sicknesses are excluded from WC. However, the statute does give an exception to Occupational Diseases in FL statute 440.151 (entire section is below). Below is also an Occupational Disease case that I lectured on at our firm’s afterhours CEU Friday.

The first starting point for an analysis of compensability is the occupation of the claimant. The disease must result from the “nature of the employment” AND must actually contract while working AND the nature of the employment must be the major contributing cause. For the corona virus to result from the nature of employment means there is a particular hazard of getting it in that occupation compared to other occupation and the incidence of people getting it in that occupation is higher than in other occupation. The claimant has the burden of proving all of those items by the heightened standard (as compared to regular old WC claims) by clear and convincing evidence (except for First Responders see the bottom of the email). In regular WC claims, it’s a preponderance of the evidence, a “more likely than not standard”.

Don’t confuse occupation with job (where you actually work), it’s the career and not the position with the specific employer. Just for example, if a carpet installer contracts COVID-19, it would likely not be compensable because the incidence would not likely be higher in that occupation than the general public.

The claimant has the burden also of proving Major Contributing Cause, meaning medical evidence.

Let’s hope these are all hypothetical issues. Please let me know if you have any questions.

Morgan

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Seminole County Gov’t v. Bartlett,
933 So 2d 550 (Fla. 1st DCA 2006)

The Claimant, a firefighter, sought compensability of hepatitis C under theory of occupational disease. For Claimant to establish his hepatitis C was caused by his employment as a firefighter, he was required to establish causation by introducing clear and convincing evidence of each element of the four-part test. Although Claimant testified to needle sticks during his tenure as a firefighter, he did not know whether the sticks involved people infected with hepatitis C. The Claimant also testified he had experienced episodes of blood-to-blood contact during his employment, but, again, did not know whether any particular individuals were hepatitis C positive. The Claimant could therefore not establish any exposure to hepatitis C during the course of his employment. None of the doctors could testify, within the scope of their expertise, how or when the Claimant contracted the disease, based on a reasonable degree of medical certainty.

The testimony at the hearing was that the most common causes of hepatitis C were: (1) illegal intravenous drug usage, which accounted for approximately 70% of cases; (2) receiving blood transfusions prior to 1990, which accounted for approximately 10% of cases; (3) engaging in unprotected sex, which accounted for approximately 5% of cases, (4) unknown causes accounted for approximately 4% of cases, and (5) needle sticks, which accounted for 1% to 2% of cases.

Additionally, there was no evidence that firefighters contract hepatitis C more frequently than those in other occupations. Significantly, the only expert testimony comparing the prevalence of hepatitis C in firefighters to that occurring in the general population was that the disease occurred in both with the exact same frequency. Consequently, there is no evidence that being a firefighter presents a particular hazard of contracting the disease, or that the incidence of the disease is substantially higher in firefighters than in the general public.

Based on the foregoing, the 1st DCA reversed the JCC’s determination of compensability as The Claimant had failed to present clear evidence that he more likely than not contracted hepatitis C during his employment as a firefighter, or that the disease was actually caused by employment conditions characteristic of and particular to his employment as a firefighter.

● Speculation or a logical relationship between the disease and the Claimant’s work is insufficient to meet the required test.

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440.151 Occupational diseases.—

(1)(a) Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. 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.

(b) No compensation shall be payable for an occupational disease if the employee, at the time of entering into the employment of the employer by whom the compensation would otherwise be payable, falsely represents herself or himself in writing as not having previously been disabled, laid off or compensated in damages or otherwise, because of such disease.

(c) Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation shall be payable only if the occupational disease is the major contributing cause of the injury. Any compensation shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. Major contributing cause must be demonstrated by medical evidence based on physical examination findings and diagnostic testing.

(d) No compensation for death from an occupational disease shall be payable to any person whose relationship to the deceased, which under the provisions of this Workers’ Compensation Law would give right to compensation, arose subsequent to the beginning of the first compensable disability, save only to afterborn children of a marriage existing at the beginning of such disability.

(e) No compensation shall be payable for disability or death resulting from tuberculosis arising out of and in the course of employment by the Department of Health at a state tuberculosis hospital, or aggravated by such employment, when the employee had suffered from said disease at any time prior to the commencement of such employment.

(2) Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.

(3) Except as otherwise provided in this section, “disablement” means disability as described in s. 440.02(13).

(4) This section shall not apply to cases of occupational disease in which the last injurious exposure to the hazards of such disease occurred before this section shall have taken effect.

(5) Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier; and the notice of injury and claim for compensation, as hereinafter required, shall be given and made to such employer; provided, however, that in case of disability from any dust disease the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last injuriously exposed to the hazards of the disease for a period of at least 60 days.

(6) The time for notice of injury or death provided in s. 440.185(1) shall be extended in cases of occupational diseases to a period of 90 days.

 

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Key language from First Responder statute:

112.1815 Firefighters, paramedics, emergency medical technicians, and law enforcement officers; special provisions for employment-related accidents and injuries.—
(1) The term “first responder” as used in this section means a law enforcement officer as defined in s. 943.10, a firefighter as defined in s. 633.102, or an emergency medical technician or paramedic as defined in s. 401.23 employed by state or local government. A volunteer law enforcement officer, firefighter, or emergency medical technician or paramedic engaged by the state or a local government is also considered a first responder of the state or local government for purposes of this section.
(2) (b) 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.
(4) For the purposes of this section, the term “occupational disease” means only a disease that arises out of employment as a first responder and is due to causes and conditions that are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.

Sincerely,
Morgan Indek | Managing Partner