The Longest Time Long-Haul COVID, Causality, and the 120-Day Rule by Wes Heim, Tampa Office

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In March of 2020 Florida’s Chief Financial Officer, Jimmy Patronis, issued a directive indicating Frontline State
Employees 1who test positive for COVID should be generally processed as compensable occupational disease
workers’ compensation claims. Despite this, the directive does establish methodology for the State to deny these
claims noting: “unless the State of Florida can show, by preponderance of the evidence, that a Frontline State
Employee contracted COVID-19 outside his or her scope of employment…” in an apparent attempt to limit universal compensability. In practical terms this means the burden on the Claimant is effectively lowered from
the traditional “clear and convincing” evidentiary burden of Fla. Stat. 440.09 and Fla. Stat. 440.151 to one of a
“preponderance of the evidence” (and actually shifts that burden to the EC if we are splitting hairs).

While the initial language of this directive seems to paint frontline claims as generally compensable, there is a
whole different consideration before us with potentially massive long-term implications: “long-haul COVID.”
At its core, my job as a workers’ compensation defense attorney is to project and mitigate exposure for an
inherently unknown future. This is (among other things) why long-haul COVID is so concerning to me.
Fundamentally, COVID represents an actively evolving situation in our world and accordingly, risk is far more
difficult to project and manage.

With the barrage of information we currently receive on a day-to-day basis, it is easy to forget that an exposure is
not the same as an infection. In reality viral load 2plays a massive role in whether or not an infection ultimately
takes hold. Practically, even a person who has never contracted COVID has essentially a 0% chance of ‘never
having been exposed to the SARS COV2 virus’ if anything, because of how many trillions/quadrillions of copies of
the virus are inherently out there in the wild. 3The question is instead, whether a person was exposed to enough
of the virus (e.g. getting simultaneously hit with several million copies of the virus into their respiratory system as
someone actively shedding copies nearby coughs into the air they breathe in) to overcome the general immune
system response and develop an infection.

In the context of frontline state employees (and really viral exposure claims in general), the question should be:
Did they get exposed to a sufficient amount of the virus to contract their infection? vs. Were they get exposed at
all? Given the general exposure language of the Florida workers’ compensation law’s specific requirement of
contraction of a disease causally related to Employment this is certainly worth keeping in mind.

All of this considered, I can’t stress enough how much I think a 120 day pay-and-investigate notice is universally
merited for these types of frontline worker claims and, frankly, COVID workers’ compensation claims in general if
they are going to be accepted. Of course, with a new virus/new disease comes an inherent lack of data. In the
world of risk management less (quality) data means less certainty and consequently more risk. Unlike an acute
muscular or bone injury, a much less studied novel viral disease carries the very real risk of current medical
opinions based on later-determined bad science. While there is undoubtedly a sympathetic angle to

compensability of frontline worker infections generally, the risk of not curtailing compensability particularly in the
case of long-haul symptoms, arises out of this very lack of information.
To put this into perspective, consider some of the following: What if long-haul COVID is actually the result of
repeated exposure to SARS COV-2? What if long-haul COVID symptoms continue and significantly increase
every time a person contracts the influenza virus? What if COVID really does become a yearly mutating disease
and re-infects people – after which the risk to a re-infected individual for long-haul COVID goes up? What if
COVID long-haul is later tied to coronary artery failure or serious lung issues 5 years from now? The answers to
some of these questions have the potential to massively increase exposure on claims which might right now
seem relatively trivial.

In summary, whether or not long-haul should be covered essentially has to be evaluated on a case-by-case basis
and we should be very cautious allowing these claims to remain open past the 120 day mark because of these
huge unknowns. This is particularly true given the ongoing interplay of a Claimant’s ongoing burden to objectively
demonstrate the major contributing cause of their current symptomology is the original accident/exposure. All in
all, perhaps the 120 day rule is the ultimate shield to the massive ambiguity of long haul COVID which produces
purported symptoms for the longest time. And finally, to book-end our discussion, in the (loosely paraphrased)
words of Billy Joel: Maybe we’ve been hoping too hard; but we’ve gone this far, and it’s certainly more than we
hoped for…

Wesley Heim | Tampa Office

1First responder, correctional officers, state employees in the healthcare field working with COVID patients, child
safety investigators, and national guard on active duty for COVID. 2