Thursday, August 13, 2020

COVID Florida Filing Update August

The Florida Division of Workers' Compensation is continuing to provide data regarding the filing of COVID-19 related notices of injury. There have been two previous reports that have been the subject of posts in this blog (COVID-19 Claims in Florida and Florida COVID-19 Claims June 2020). A critical element in all of these reports is their limitation to claims involving indemnity benefits ("this summary does not include Medical Only claims in any claim counts or benefits paid.").  

The volume of such "Medical Only" claims might be significant in that this COVID-19/SARS-CoV-2 requires testing and quarantine in various instances. Some people may suffer significant hospitalization while others have minimal symptoms. That aspect of the disease suggests the implication of indemnity in many instances, however, under Florida law, "compensation is not allowed for the first 7 days of the disability, except for" medical benefits. That "seven day wait" period can be compensated retrospectively if the period of disability later exceeds 21 days total. Section 440.12(1). Thus, some with significant symptoms might not exceed the 7 days of absence to have a claim categorized as an "indemnity claim."

Additionally, there are employer-provided benefits required by federal law in many instances. Two weeks of paid sick leave are required to be provided by many employers by the Families First Coronavirus Response Act. There is an additional two weeks for an employee caring for someone else in quarantine. It is possible that this, or other available sick leave has impacted the need for indemnity claims for some who contracted this virus, but do not suffer the serious symptoms, complications, or hospitalizations. The disease is unprecedented, unpredictable, and uncertain. 

COVID-19 in Florida Claims; the key takeaways noted included:

  • Through May 31, 2020 - 3,807 indemnity claims reported (notice of injury filed).
  • About 55% had been accepted as compensable (1,718 denied at least in part).
  • The total paid at that time was $3,431,342.
  • About 64% of the total expenditures were for claims from Dade, Broward, and Palm Beach Counties.
  • The second largest group geographically was "not indicated," which was 16% of the total, $535,544).
  • Those three counties and the "not indicated" accounted for 80% of statewide expenditures.

The claims were distributed occupationally as follows:

  • Through June 30, 2020 - 5,693 indemnity claims reported (+50%)(notice of injury filed).
  • About 54% had been accepted as compensable (2,643 denied at least in part)
  • Through June 30, 2020, the total paid on claims in Florida was $7,074,389 (+106%)
  • About 57% of the total expenditures were for claims from Dade, Broward, and Palm Beach Counties.
  • The second largest group geographically was "not indicated," which was 24% of the total, $1,713,954).
  • Those three counties and the "not indicated" accounted for 81% of statewide expenditures.
The claims were occupationally distributed as follows:

In the latest report from the Division, which encompasses the figures for July and incorporates the previous numbers, the key takeaways are:

  • Through July, 31, 2020 - 11,872 indemnity claims reported (+109%)(notice of injury filed).
  • About 56% had been accepted as compensable (5,176 denied at least in part)
  • Through July 31, 2020, the total paid on claims in Florida was $13,120,059 (+85%)
  • About 54% of the total expenditures were for claims from Dade, Broward, and Palm Beach Counties.
  • The second largest group geographically was "not indicated," which was 17% of the total, $2,253,987).
  • Those three counties and the "not indicated" accounted for 71% of statewide expenditures.
The claims were occupationally distributed as follows:

COVID-19 indemnity claims have been notable since the first Division report. As of May 31, COVID-19 indemnity claims accounted for 15% of all Florida indemnity claims, and 2.9% of the total indemnity cost. As of June 30, 2020 COVID-19 indemnity claims accounted for 17.2% of all indemnity claim, and 4.1% of total indemnity claim cost. As of July 31, 2020 COVID-19 indemnity claims equal to 26.2% of all indemnity claims, and 5.3% of all indemnity cost. 

Note that the cost has increased by approximately 1.2% each month (2.9%, 4.1%, 5.3%). That growth in cost percentage is more consistent than the increase in COVID-19 indemnity claim volume, which increased 2.2% from May to June (15% to 17.2%), and increased 9% from June through July (17.2% to 26.2%). The volume, as a percentage of overall indemnity claims, is growing more significantly and less predictably than the cost as a percentage of all indemnity claim costs. 

The August report also provides a new delineation of information, “claim count & amount paid by  benefit ranges.” This divides the cases into predominately $10,000 ranges ($0-$4,999; $5,000-$9,999; $10,000-$19,999 and upward thereafter in $10,000 increments until $50,000; then in larger ranges: $50,000-$99,999, $100,000-$249,999, 250,000-$499,999, and finally $500,000+). This parameter delineation provides an initial glance at the potential and propensity for severity in the COVID-19 indemnity claims. 

The vast majority (11,544, 97%) of the total claim count (11,872) is in the $0 to $4, 999.00 range. But, overall this 97% accounts for 59% of the reported expenditures, $7,756,631. Nine cases in the upper "ranges" (8 in the $100,000-$249,999 range and one in the $500,000+) demonstrate the potential for significant financial impact of this disease. These nine claims account for 15% of the total COVID-19 indemnity claim expenditures ($2,022,046). This delineation of the expenditures substantiates that currently the preponderance of claims (97%) are individually in the lowest defined range, but together account for significant expenditures. The remaining 3% of claim volume accounts for 41% of the expenditures, with illustration that some claims are of significant individual expense. 

The volume of COVID-19 indemnity claims is increasing with each report issued by the Division. The rate of increase from the end of May to the end of June (+50%), was significant, but not as significant as the rate of increase from the end of June to the end of July (+109%). The volume is growing and the rate of growth appears to potentially be increasingly significant. When a vaccine becomes widely available, the growth in such claim volume would likely be expected to subside. 

The associated expenditures on COVID-19 indemnity claims is similarly increasing with each report. The rate of increase from the end of May to the end of June (+106%) was significant, more significant than the rate of increase from the end of June to the end of July (+85%). While that distinction is noted, the rate of increase is nonetheless significant in each of the two most recent reports. The COVID-19 indemnity claims as of July 31, 2020 are responsible for 5.3% of the overall indemnity claim expenditures in Florida. Because of the potential for claim expense to continue in a particular case, the arrival of a vaccine or compelling treatment may slow the growth in expenditures, but it is probable expenditures will continue in some population of such cases. 

The impact of COVID-19 on workers' compensation is receiving scrutiny and analysis. There are some who perceive the impact as significant, while others discount the impact entirely. Still others acknowledge the impact of these specific claims, but contend that resulting changes in employment generally have effected a counteracting impact of less frequency or severity (or both) of non-COVID-19 claims. Intermingled in discussions of that nature are questions raised as to whether the severity of non-COVID claims has actually diminished or whether COVID-19 related access to medical care issues (cancellation of elective surgeries, etc.) has only delayed related expenses. Some suggest that such delays may likewise have increased expected temporary indemnity in such cases as workers are out-of-work awaiting such care. There are many variables worthy of discussion. 

There are various perspectives and perceptions expressed. One point of clarity, which bears repeating, is that the Florida Division is providing timely and informative public access to pertinent data. Over time, these reports will further memorialize developments, and the trends they may portend. It will be interesting to see if other states begin to publish such data.

Tuesday, August 11, 2020

Desensitized to Death

Recently, I posed some questions about a "return to normal" after COVID-10, see Changes in the Marketplace. There are potentials for the world around us, situations, to affect us emotionally and profoundly. This is also highlighted in some recent medical articles. 

In May 2020, the International Journal of Mental Health Systems published Mental health and psychosocial well-being during the COVID-19 pandemic. The article refers to COVID as "a truly formidable threat to humankind's existence." The upshot is that this pandemic is a "trauma" and that individuals may have "resulting . . . mental challenges." The authors warn that this infection could lead to "elevated levels of stress or anxiety," or even "an epidemic of mental illness." 

The article stresses that what we see as a preventative for COVID, such as social distancing and quarantine, may be causative factors for other maladies such as "depression, self-harm, harmful alcohol and drug use." There are also concerns expressed regarding the economic impacts on society and how various strata of society may react to those challenges. These are potentially additional stresses added to the primary impact of fearing or suffering from the virus itself. 

The authors concede that the effect or impact "is only beginning to emerge," but challenge us to consider the potentials. They stress that these secondary impacts may come to light more slowly, warning of potential impacts in months or even years to come. They stress that it is important for us all to care for our mental well being and to remain conscious of that. I have said the same, see Stress in the Time of COVID, March 2020. The authors of the paper conclude that the solution is more government money to further increase "mental health services." Seemingly the solution to everything always seems to be more government money. 

I had that article on my mind when I happened across What makes people stop caring, published by the British Broadcasting Corporation (BBC) in June. It is a must read. This is similarly a psychology analysis, addressing how we individually and collectively react to tragedy such as death. It notes that as COVID-19 deaths then exceeded 400,000 and as a result people may lose the ability to "really wrap . . . (our) head around such large numbers." It describes how a comparison may be seen as helpful, and notes that journalists describing the 100,000 deaths in the United States had begun comparing that to the number killed in the Vietnam war (or "police action" if you prefer). 

The loss of American life in Vietnam was 58,220 according to the National Archives. According to CBS News, the American deaths in the Korean War (or "police action") were 54,260. So, we have now reached a COVID-19 milestone that exceeds the combination of these two conflicts (163,252 American COVID-19 deaths as of today). 

For several years, I have been speaking and writing similarly about the volume of Opioid deaths in this country. I have also used the Vietnam war deaths as comparison, see The Hot Seat, Opioids, Marijuana and More (2017) or Dying to me don't sound like all that much fun (2013). It is hard to believe that I have been on the overdose topic for a a decade. Links to other posts are at the end of this one. 

According to the Center for Disease Control (CDC), the following were the leading causes of death in the United States in 2017:

Heart disease: 647,457
Cancer: 599,108
Accidents (unintentional injuries): 169,936
Chronic lower respiratory diseases: 160,201
Stroke (cerebrovascular diseases): 146,383
Alzheimer’s disease: 121,404
Diabetes: 83,564
Influenza and pneumonia: 55,672
Nephritis, nephrotic syndrome, and nephrosis: 50,633
Intentional self-harm (suicide): 47,173

For some reason, the CDC does not include overdose death on this list, but does note the annual influenza figures. Despite many commenting publicly that COVID is "just a bad flu," may note that it is currently about 3 times the 2017 flu mortality rate and increasing daily. Will COVID be put on this list, or will it also have a separate CDC website to segregate it from the overall statistics? Recently, there have been predictions that it could be third on the list for 2020. 

But, on a different CDC webpage, it notes that in 2018 67,367 people died in the United States from drug overdose. If you are counting, that is also more than died in either Vietnam or Korea. It adds "Opioids were involved in 46,802 overdose deaths in 2018." So in fairness, the main list above should include overdose either right under Diabetes (total overdose) or just under "Intentional self-harm" (specific Opioid overdose). Why are these deaths not included on the overall list? Are we hiding drug abuse from ourselves?

The BBC article contends that we are unable to "comprehend the suffering" once these numbers get so large. With repeated reports of death, we are said to become numb or desensitized; "the more people die, the less we care." An expert cited in the article contends that we are best at empathizing with individuals, the focus is easier. An example is cited of a study that found we are most sympathetic when a person passes, and the sympathy changes even when there are two who pass. When the group grows, we become less attached, and our emotions less engaged. 

Should we be sympathetic regarding each of the COVID-19 deaths? Absolutely. Should we be as sympathetic for each of the overdose deaths? Absolutely. Should we strive to understand the effects that any of our societal pressures have on issues such as drug use, "Intentional self-harm," overdose, and mental health generally? Absolutely. Society needs to remain concerned about the impacts that death and disaster have. But, we become numb and immunized against it. We strive to shut it out for our own protection, whether consciously or not. 

There are emotional cohorts that may have significant impact on both other individuals and society. Recognizing that this is possible should alert us all to the need we have to focus upon our individual and personal well-being. We need to recognize the probability that we will become desensitized, and strive against that reaction. We recognize that death is traumatic and that avoidable death is only more so. 

That is not true merely for COVID, or "Intentional self-harm," or overdose. That is true for death. It is also likely somewhat true even being hospitalized for COVID, or having a family member hospitalized will be traumatic; those are also traumatic. The challenges of child care, home-schooling, limited social interaction, cancellation of our distractions are all traumatic. Can we change the trauma? Can we eliminate our collective sympathy bias in the face of large numbers? Can we recognize the effect of each little life-effect on our individual mental state and coping ability?

I would suggest that what we can do is remain conscious of our personal emotional state. We can strive to control what we can, such as exercise, eating right, and resting during this time. We can remember that we never really know what those around us are going through. Remember, the person on the other end of that phone may have stresses, big or small, that we can never understand. They may be affected by stress in ways we would not be, which we perhaps cannot even imagine. We can remember that it is possible to disagree with one another without being disrespectful or dismissive. See Perspective and Respect

Time will tell how COVID looks when compared in retrospect to these other challenges we face. We will all hope that when it is defeated the deaths will be far less than the 50 million who died from the 1918 influenza outbreak. And, hopefully, the experience will be a reminder that death is around us always, from many causes. Our ability to understand that, and its affects on us may be a challenge, but it is around us. Whether we acknowledge it or somehow disavow it, it is there. The numbers are growing. For the sake of our own health and well being, we must each take care or our own physical and mental health as we weather this pandemic. 

Part of that may be caring for others. Part of that may be talking it out. And, it is possible that demand for therapy may remain increased for some time to come, even if it is in a remote fashion. It is time for us to be individually conscious of ourselves and our emotions, and to be carefully alert to those around us, in our phone conferences, in our hearings, and our other interactions. The warnings are there that COVID may impact us long after the SARS-CoV-2 becomes a memory. The impact or scars of it may challenge us for years. As we work through that, lets' remember the far larger population that has been killed by drugs as the figure mounts year after year.

Hey, got an Auto-Injector I could Use? (2014)

What Worthwhile Can You do in 11.2 Minutes (2015)

If Not, What is the Point? (2016)

Does Farr's Law Bring us Good News (2017)

PDMP and Opioids in Ohio (2017)

Like a Broken (Drug Death) Record (2017)

Opioids 2019 (2019)

Sunday, August 9, 2020

Not the same, and yet . . .

This is a strange moment. As I have written before, the pandemic has not changed my daily habits much. I still come to the office everyday (well, I took a vacation in July, but that does not count as "telecommuting" does it?). Things are different in so many ways, but work also remains the same in so many ways. There are petitions filed, disputes, disagreements, and the need for resolutions. We are continuing forward with results, though the paths and processes have evolved. 

Usually August brings a push of activity related to the annual workers' compensation conference. It is labelled as such because that description, "the conference" is sufficient. You do not have to add "in Orlando," or "in August," or "WCI." The fact is, in our community of workers' compensation everyone knows when and where "the" workers' compensation conference is. And, for most it is an annual event attended without question. I ran into a retired attorney there several years ago and questioned "why are you here?" The reply: "it's August, this is where you come in August." 

What drives the conference? Some would say that it is the continuing education. Last August, I was awarded 10 hours of Continuing Legal Education (CLE) credit by The Florida Bar for attending. There were more hours than that available. But, I spend a fair amount of time each August coordinating meetings, answering questions, and being accessible to this little community of ours. That interaction, and the learning itself is always one of the highlights of my year. 

But, about five years ago, it became more important to me. Before that, Jim McConnaughhay had begun the "service day" activity at Give Kids the World (GKTW), appurtenant to the conference. I was juggling kids, college starts, and more. Judge John Lazzara had encouraged me to find a way to come to Orlando two days early and participate at GKTW, but that was a challenge. I demurred as persistently as he pushed. Then, about five years ago, I found the time. It was inspiring, uplifting, and emotional. 

Give Kids the World is perhaps an adjunct to the more famous "Make A Wish" movement that uplifts kids suffering debilitating challenges. I have written about them before, see Pre-Conference Thoughts at WCI, The Man or Woman in the Glass, Some 2018 Comp Laude Honorees, and Give Kids the World - Our Community. The bottom line is that GKTW makes things easy for a huge number of kids in need. The act of working at Give Kids the World is fantastic. The sense of community is compelling, and the chance to participate has made The Annual Workers' Compensation Conference better, bigger, and more fulfilling. As a bonus, I have met many great people there. 

But not in 2020. Alas, I will not be in Orlando this August. I will think about it, lament it, and regret it. But I will not be there. It is not that there will not be The Annual Workers' Compensation Conference, see Nothing is Over until we Decide it is! No, there will be a conference, it is just that we will all be tuning in for it from across the globe. But, there will be no handshakes or hugs. There will be no chance to happen upon old acquaintances, renew connections, or be reminded of the great members in our community. It will be, like most of 2020, more isolated and perhaps lonely. 

That said, there will be lots of opportunity for education. The WCI has posted the agenda for August 2020, labelled the WCIvirtual August 17-19. Registration is a whopping FREE! You got that right, no charge for a great agenda of programming that includes Kimberly and Mark, Franco and Sanderson, A Florida case law update, two multistate reviewa of claims handling, a live surgery, an overview of the AMA Guides, and more on first responder presumptions. It is a weighty and substantial program. Did I mention it is free?

The program has been approved by The Florida Bar for 17 hours of CLE credit. That is half of the 33 hours of general credit required each three-year reporting cycle! That is about 20% of the Board Certification CLE required each four-year reporting cycle! It is a diverse and detailed program with dynamic and interesting speakers. And, did I mention that it is free?

It is not just for attorneys. The Florida Department of Financial Services has approved the WCIvirtual for: CE 3-24c - Adjuster Optional: 1 hour; Industry Keynote; CE 3-24a - Adjuster Law and Policy: 8 hours; and CE 5-620 - Law and Ethics Update – Adjuster: 5 hours. An smorgasbord of ideas and updates. And, as I mentioned, the price is right!

There are also credits available at this time in Georgia and Mississippi. Credits have been applied for in Texas, North Carolina, and Louisiana. Visit the website for details. You, of course, can apply for credits personally in any state. In a year of financial concerns, travel restrictions, and more, shouldn't you take advantage of this and join us for at least some of these outstanding programs?

No, there is no trip to Orlando this August. That is a let down. But there is great education available remotely. This is not an opportunity to pass up. I registered weeks ago, and look forward to the chance to soak up some knowledge and remain current on what is impacting our community. But, I will be back in person in 2021 to turn a shovel, push a broom, carry some mulch or whatever they need me to do at Give Kids the World. I look forward to being back in person, in the moment, and the community. I will see you there. 

Thursday, August 6, 2020

Florida COVID-19 Litigation Update

Recently, the Florida Division of Workers' Compensation report updated through June 30 was published, and discussed in Florida COVID Claims June 2020. Reading that reminded that Florida's workers' compensation system is a "self-executing" system in which injuries are reported and benefits are typically provided without the need for litigation. However, in some subset of claims there is disagreement and litigation is instituted with the filing of a petition for benefits.

Litigation is nothing novel in workers' compensation. For some reason, this system designed to be "self-executing" generates a significant amount of litigation and disputes. I use "novel" because this particular coronavirus has been labelled "novel," its name is probably COVID-19 (the disease itself)/SARS-CoV-2 (the virus that causes the disease)(subject to change and perception perhaps). Scientists see it as "novel" in that no evidence suggests that humans have heretofore suffered this virus. But, there is some evidence that some of us may have seen something awfully similar, allowing us to have some defenses, according to the BBC.

Of course, our recorded history is not that extensive in the grand scheme of things. After all, according to PBS, there has been life on this Third Rock from the Sun for about 3.5 billion years. However, humans seem to have been around for only 5-7 millions years (less than 1% of that 3.5 billion), according to the NY Times. Human history is a brief, and our beginnings in both documentation and science might be fairly described as "less than auspicious." The Guardian provides us with examples where science "got it horribly wrong." We are, after all, only human.

We started writing things down at some point. Though the record on that is not entirely clear, the oldest writings yet located are no more than a few thousand years old. For all we know, SARS-CoV-2 affected the human population at some point in the past, beyond our knowledge or collective recollection. Though we see this pandemic as "novel," we lack the perspective or records to make such a statement with any real confidence.

So, as to document for our posterity, let us delve in into the question of litigation regarding COVID-19. It is worth reiterating that the Florida Division of Workers' Compensation is publishing amazing and detailed data on COVID-19 claims. With the two reports issued in June and July, it looks like Florida is two reports ahead of the country. I have not found similar data being reported by other states. The scientists keep reminding us of the value of testing and tracing. I would suggest that in our community the corollary is also true, we need more data. Kudos to the Florida Division!

From the Division report, we know that there are now 5,693 claims now reported. About 38% of those have been denied, 2,617. That figure is notable. When the June report was issued, the rate of acceptance was about 55%, see Florida COVID-19 Litigation. With that figure in mind, the next logical question is how many of those are now in litigation?

There is not way to discern with certainty, because how a malady is characterized is up to the person that files the Petition for Benefits. If, for example, an attorney or worker files a petition and describes the "description of the accident" or the "parts of body injured" without mentioning "COVID," that would make it difficult to find. Many petitions are filed annually, and it is possible that a respirator claim might be filed listing "pneumonia" or "respiratory failure" or "infection" without mentioning  "COVID." Therefore, it is possible that the petitions discussed here understate the actual volume.

To study the volume in litigation, the OJCC has searched the data for the term "COVID." There was an initial effort to search for "corona" but that yielded a large volume of returns and all of them were related to "coronary" claims rather than specifically to this pandemic. The best methodology therefore is the search for COVID.

As of July 28, 2020 there were sixty-nine petitions filed that used the term COVID, but some cases had multiple petitions so there are only sixty-two cases currently in litigation in Florida. As noted in the previous Florida COVID-19 Litigation post, not all of these involve exposure to the SARS-CoV-2. One example alleges a hand injury while "making COVID19 masks"; In another, use of a face mask caused "glasses to fog up" and a collision resulted";

There are general allegations of exposure to COVID-19 (the disease), some mention that COVID-19 was "developed" or "contracted" at work. Others instead allege a "Covid-19 Exposure." There is little mention of the virus itself (SARS-CoV-2). Some exposures are alleged to have occurred in the workplace or elsewhere while performing work duties. Others, it appears, may be alleged to have occurred in the course of receiving medical care for some other workers' compensation injury or illness.

There are allegations of virtually all of the eleven COVID-19 symptoms published by the Center for Disease Control. There are allegations of pulmonological damage, immune system effects, pneumonia, blood clots, kidney issues, liver issues, and several claims allege that the worker passed away as a result of the SARS-CoV-2/COVID-19.

The occupations listed in the Division report bear reiteration.The July report categorizes the claims based upon occupation. Approximations are:
  • 1% are airline workers
  • 34% are healthcare workers
  • 33% are protective services ("first responders")
  • 23% are service industry  
  • 8% are office workers. 
The occupations that have currently filed petitions are:
  •  2 Airline workers (3%)
  •  30 healthcare workers (48%)
  •  2 first responders (19%)
  •  18 service workers (which may include some office workers)(29%)
One might conclude various outcomes from this. It is perhaps too early to begin litigating some claims. It is possible some filed notices of injury, received denials, and in the meantime recovered from COVID and returned to work. It is possible that some filed notices of injury and have struggled to even see a physician to discuss causation; anecdotes suggest that doctor appointments are a challenge in some areas. It is possible that the Petition process is underway in larger quantities, but that the impact of COVID on law offices is merely slowing process. There are likely other potential factors influencing the rate and timing of filing. Time will tell, and for the near term we will strive to continue tracking the filing of such petitions. 

Tuesday, August 4, 2020

Florida COVID Claims June 2020

In June, the Florida Division of Workers' Compensation (DWC) released a report regarding filings related to COVID-19. A new report issued in July updated those statistics. The June report was summarized in a post COVID-19 in Florida Claims. I followed soon after with an analysis of the volume of petitions for COVID and related issues in Florida COVID-19 Litigation. A main take-away is that there is far less litigation over COVID than there is reporting of it to the Division. That may change in time, but the future is for soothsayers and fortune tellers. 

Much has occurred in the meantime. Various states have created legislative or executive presumptions for workers that test positive for COVID-19. One of the broadest was an executive action in California that drew significant attention. That burst on the scene in May, but was limited by a July 5, 2020 expiration date. It was among the broadest, but also the briefest. Thus, it has now come and gone; the California legislature may enact a statutory presumption, or the Governor there may step in yet again. California illustrates both extraordinary COVID presumption process and uncertainty. 

Most recently a New Jersey legislative committee moved forward with a bill (A3999) to create a legislative compensability presumption for COVID-19 claims. The National Council on Compensation Insurance (NCCI) has an excellent overview of compensability considerations and questions. Since the first Division report, Sedgwick has striven to deliver analysis also. There is a plan for a series of analytical papers on the subject of occupational disease and presumptions. I was proud to be involved in the first paper in the series and a podcast that is related to it. On August 5, 2020 I will present a "View from the Bench" program on presumptions for WCCP. There may still be some availability at that link. 

In the vein of interpretations, a recent post on Occupational Disease and the 1918 Flu might be of interest. That was a much more deadly pandemic than we are currently experiencing (at least thus far). The decision discussed in that post illustrates an evolution to some or a mere interpretation to others. In the end, the Court concluded that the flu was a compensable event under the circumstances described there. Some will see the interpretation as strict construction and others will see activism. The decision occurred when American workers' compensation was in it infancy. It may be that the stricter treatment of "ordinary diseases of life" across the country owe some homage to this early California Court decision.

Also, in the last few weeks there has been a national increase in diagnoses. As of June 1, 2020, there were "1.8 million cases reported" in the United States, with "at least 105,099 people" killed, according to CNN. As of July 30, 2020 the confirmed diagnoses are about 4.4 million Americans. So the diagnosis volume has roughly doubled in two months. No one ever talks about the recover rate though. That is curious. Of that 4.4 million, how many are over the virus now and back to their lives as before? Also as of July 30, 2020 the U.S. death total is 150,716. So, while diagnosis has more than doubled, the deaths have increased about 43%. Perhaps the doctor's efforts are bringing notable success? 

Focusing on the deaths, I originally wrote about the tragic side of this pandemic on April 2, 2020. I noted that:
"Unfortunately, some of us will know and perhaps love someone who it kills. If we are lucky enough not to know someone, well, . . . we will be connected somehow to someone that dies."
I remain personally fortunate. I now know several people who have tested positive, but none that even have been hospitalized to my knowledge. I do not know anyone that has passed away from it. However, I now know people who have had friends or relatives pass away. The disease is hitting closer to home. It will likely profoundly and directly affect someone I know eventually. I am dreading that day. 

The report that DWC issued in July updated the reporting trends as of June 30, 2020. The previous information posted by the DWC in early June reflected a total of 3,807 total reported COVID-19 workers' compensation claims in Florida, with dates of accident between January and May. The figures in the new July report indicate that through the end of June (an added 30 days) claims then totaled 5,693, an increase of 1,886 (+50% approx.). That may be significant. 

The total paid on the 5,693 claims as of June 30 is $7,074,039 (this includes $4,509,064 paid on claims that remain open and another $2,565,235 that was paid on claims that are now closed). The predominant portion of that, $4,998,070 (approx. 71%) has been paid by self-insured entities. In a corresponding statistic, some 2,617 claims have been denied, more by insurance carriers than self-insured employers. That point has been the cause of questions by some. Why is there that disparity? Some might suggest that more first responders and health care workers are employed by self-insured businesses? 

The June report documented $3,431,342 paid on COVID-19 claims as of that time (through May 31, 2020). Thus, in the thirty days of June, total payments ($7,074,389) increased by $3,643,047, which is 106%. Keeping in mind that the June report covered claims for the period January through May 2020 (5 months), it is interesting that the expenditures in one month, June, resulted in that notable increase. It suggests that expenditures continue and have the potential to be significant. 

A large portion of the payments are in Dade ($2,774,428), Broward ($713,931), and Palm Beach ($568,750) counties. These three account for $4,057,109, which is 57% of the statewide total ($7,074,389). That area is also where Florida has been hardest hit with diagnoses. A sizable portion (24%) of $1,713,954 is reflected in the report as "not indicated," meaning that at this stage the state is not certain in which counties the funds were paid. This likely illustrates challenges in record keeping and data reporting. Thus, the three highest counties and the "not indicated" account for about 81.5% of the total payments to date in Florida. 

The latest report continues to categorize the claims based upon occupation. Roughly 1% are airline workers, 34% are healthcare workers, 33% are protective services ("first responders"), 23% are service industry, and 8% are office workers. The large portion in these may explain in part the self-insured/insurance differences noted above. The service industry percentage has changed markedly since the June report; now at 23%, that category was only 9% in the initial report. Some would suggest that this is no surprise as those occupations all have significant potential for person-to-person interaction with the public. Office workers, perhaps not so much, but overall that is likely a fair conclusion to suggest. 

According to the Employee Assistance Office, the Ombudsmen have assisted with advice on the Petition for Benefits Process. The DSC identified petitions as filed in 10 claims. There have been more than that filed, and a later post will address current OJCC data data on petition filing. In the post regarding Petitions through May the total was at least 14. 

The DWC report also supports that the new processes of telemedicine continue to be utilized. The cumulative volume of bills for telemedicine in 2020 is now 20,747 (up 71% from the 12,156 reported as of May 31). The vast majority of the telemedicine in both bills and payments has been the medical doctors (bills = 49% of total, paid = 45% of total). The second largest group is physical therapists (bills = 26% of total, paid = 27% of total), followed by ostopathic physicians (bills = 7% of total, paid = 6% of total). These three account for about 82% of the telemedicine bills and 80% of the total paid for telemedicine. However, there are payments to podiatrists, dentists, family therapists, and dieticians. Overall, the trend is seemingly to broader acceptance of telemedicine by payers and patients. 

A nod to the Florida Division of Workers' Compensation. The periodic reporting is informative and useful. It is also, seemingly, unprecedented. If the DWC can produce this kind of timely and helpful data on a month-to-month basis, it would seem that national data of this kind could be similarly produced.

Sunday, August 2, 2020

Employer Service is Here

A new process for has been developed. Electronic service for employers begins in August 2020!

The development of electronic filing (e-JCC) in Florida has been an evolution. Those who have practiced here since before 2005 will remember the days of paper, postage, and delay. The system was rolled out in November 2005, and participation increased rapidly. It was an adjustment for everyone, as paper became a thing of the past. 

The evolutionary nature of this tool has been periodically frustrating. No one likes change. But, it is important to remember that change brings benefits, even if there may be some accompanying challenges as well. All of this leads up to the next big change for e-JCC, the “Registered Employer.” Many will remember when the OJCC similarly registered all of the carriers and servicing agents (C/SA) in Florida.

For a time, years ago, a party filing with this Office could type in the name and address of any C/SA she/he wished. As a result, our database had literally hundreds of iterations of some C/SA with only subtle differences in their spelling, spacing, or address. And, in that era, the filing party had to accomplish service on the C/SA manually (U.S. Mail or delivery) after filing.

Then the C/SA were "registered," each provided us email addresses, and was listed in the database. The parties could no longer add a new C/SA, but could always ask us to do so. Recently, we likely add about one per year. This was seen as a burden by many. They wanted to send their pleading to “XYZ Insurance” at the address the filer preferred, rather than the address supplied by XYZ Insurance. Of course, nothing prevents a party to a case today from mailing anything she/he wishes to anyone, at any address. But, the system had begun emailing the pleading to the C/SA at its registered address. 

Carrier service was thus simplified. Time was saved (printing, folding, mailing), and so was money (paper, envelopes, postage). In fact, as to petitions for benefits, lots of money was saved on the petition for benefits which was then served by electronic mail (free) instead of by certified mail (expensive).

As the workers’ compensation community adjusted and adapted to that new paradigm, the Employer remained to be served by U.S. Mail. And, certified mail is generally required for the service of any petition for benefits:
“The employee shall also serve copies of the petition for benefits by certified mail, or by electronic means approved by the Deputy Chief Judge, upon the employer and the employer’s carrier.” Section 440.192(1).
Thus, even when the “electronic means” was approved for email service on the C/SA, the certified mail expense remains for the employer. Over a decade, I have struggled with how this Office might afford a method for electronically serving an Employer, while assuring receipt for the sake of due process. You see, the epitome of due process is that parties received notice and an opportunity to be heard. When that notice (petition) is not being sent by certified mail, it is important that it is being sent in a method that assures delivery. That was the driving force in the C/SA registration process.

It is likely impossible, but certainly impractical, that all employers in Florida would register for OJCC e-service. According to the Florida Division of Corporations, there were 439,528 registered businesses here in 2019. That does not include all of the businesses that are not incorporated. There are at least another 98,672 fictitious name registrations. The fact is, there are a great many employers in Florida and many may never have any workers’ compensation injuries to report. Expecting them to all register for OJCC e-service "just in case," is folly.

After many discussions, the OJCC has decided to deploy a new feature in e-JCC that will allow a filer to either type in an Employer name and address (leaving that filer responsible for the U.S. Mail service alternative), or to select a “Registered Employer” for their petition or new case filing. If the “Registered Employer” is selected, then the pleading will be served electronically on the employer at the same time it is e-filed and served on the C/SA. The selection of “Registered Employer” will save the filed time and money.

This new process comes with a system change. Currently, in the midst of filing a petition, if the filer makes an error while entering the Employer information, the filer can return to that data and make corrections. This will no longer be possible. If such an error occurs now, the filer will have to delete that employer information, begin that section again, and re-enter all of the Employer information, rather than merely amending their typographical or other error. Many hours have been devoted to why this is necessary, but in the end, there are limits to technology, and this solution is our best path forward. 

Once the initial filing is made in a case, the Employer and its details will be part of the record (in the OJCC database). To change that, a party will have to file a notice for correction, just as they do today. 

As time passes, it is hoped that many employers will register with the OJCC. These will be “Registered” and then be available for use by other filers in other cases. Each time an Employer is registered, that will change the Employer information on all cases in which that Employer is implicated. For example:
A petition is filed in case 21-000001 against Employer “FictionalOne.” The filer provides a mailing address for that company’s facility in Tamarac. Months later, “FictionalOne” registers with the OJCC and provides its email address for service. The database will change the Employer contact information in case 21-000001 to reflect the “Registered Employer” information for “FictionalOne” including the email address for service. This will be an evolving process.
The OJCC has commitments from some employers to be the first “Registered Employers.” These will be added to the system initially and will afford the opportunity for testing this new process in the real world. As time passes, additional Employers may request this status and the list of “Registered Employers” will grow. We will never reach a point where all Florida employers are Registered. But, it is hoped that we will minimize the instances in which certified mail expense remains necessary.

This will be an evolutionary process. It will be new, and thus a challenge. But, it will be positive in the end. Employers that become “Registered” will not have envelopes to open and documents to scan for storage. They will receive information more rapidly than the mail can achieve. Injured workers will be relieved, in those cases, of the need to serve by U.S. Mail and Certified Mail. There will be savings and economies for all parties. But, there will be that slight change of not being able to amend a petition to easily correct a typo in the Employer data. It is a small price to pay.

The new process will begin soon, so it is something to both be aware of and to watch for.

Thursday, July 30, 2020

Change in the Marketplace

It persistently surprises me when people question how I am adjusting to telecommuting. It really has not been any adjustment, as I have remained on-the-job, and in the office throughout 2020. For this, the entire OJCC deserves significant praise. We have had a few absences in recent months, and perhaps about 20% of staff has telecommuted at some point. But, here I have been day after day. It has been a long spring and summer. I had every intention of taking my planned vacation in July, but travel constraints interfered with those plans for THE trip. Nonetheless, we managed a trip.

Taking to the air again was eye-opening. Things are different. I was afforded great parking choices at the airport. The lots were all minimally populated. It would seem fair to say that air travel is diminished.

I was confronted by the signs at the airport door "masks must be worn at all times in the airport, NO EXCEPTIONS." Within minutes thereafter, I presented my boarding pass to the Transportation Security Agency (TSA) officer who, looking at my driver's license, literally said "take off your mask." You cannot make this stuff up. Notably, their was no line whatsoever at the TSA station. The personnel were striving mightily to appear busy, though they outnumbered the passengers at the check point at least two to one. 

There is now stress on social distancing in the terminal and gate area. This was not difficult as there are far fewer travelers than you might expect. Even at the through-hub Dallas Fort Worth, there was minimal foot traffic. Many of the airport stores are closed. Particularly noted were the sun glasses, jewelry, and candy stores. However, almost all the food spots were open. 

The aircraft boarding process has not changed much. Before COVID became a thing, people were studying the efficiency of aircraft boarding. Using "4D math," a study in January 2020 Popular Mechanics made recommendations for efficient loading. It is a bit complicated, but essentially is "let the slow people go first." Notably, The Points Guy notes that some airlines have elected to try "back-to-front" boarding. This is seen as minimizing customer interaction and minimizing contact. I did not witness this on my trip. 

Wired noted several years ago that airlines will not be efficient in boarding, instead it claims they are "too enamored with their different levels of boarding for different perks." We all get to file past the premium travelers, way closer than 6 feet, to reach our cheap seats. And, for the price they pay, they get to be exposed to us all as we pass them. Not efficient or COVID-friendly, but it is a business model. 

When I landed, they announced on the public address system their preference that the passengers deplane "front-to-back" to assist with "social distancing." How do you deplane other than front-to-back? Has anyone ever been on a plane that deplaned back-to-front? It would be as illogical to keep the front seat passengers seated while those in the back filed past. And, it would also upset the premium price-payers. Upon arrival, some people behind me (I stood in the aisle to stretch while the front row passengers deplaned) asked to step around me. They assured me that the "front-to-back" did not apply to them because "we have no luggage." That confused me, but likely there is some logic there I am missing. 

Upon taxi commencing, the flight attendant announced that there would be "no service" in order to minimize traffic in the aisles and to maintain the continuous use of masks. The first thing that struck me was that the airlines are striving to get their planes airborne and full, the jobs of so many depend upon that: pilots, attendants, agents (gate and counter), maintenance, fuel, etc. But, I felt some concern for the folks that deliver cookies, pretzels, and canned drinks to planes. Perhaps some jobs will return slower than others. Then, on another flight, I was handed a paper bag that contained a napkin, bottle of water, and cookies. So, perhaps some catering is occurring? And, there is the added task; someone has to put the items in those bags. 

The lack of drinks on the one flight got me thinking about weight and cost. Flight is, in large part, about overcoming and lifting weight. Airlines have been historically focused on minimizing weight and costs. ABC News reported in 2001 that "Penny Pinching Adds Up." The context there was olives. An airline executive figured out that "if you removed just one olive from every salad served to passengers, nobody would notice … and the airline would save $100,000 a year." Remember when airlines served food? (they still do, but only on really long flights). 

What would airlines save if they eliminated the weight of that drink cart on flights (average drink cart weighs about 300 pounds by some estimates)? How might it decrease costs for the galley doors on aircraft to remain closed (easier to maintain air conditioned or heated cabin on the ground). How much might be saved in terms of aircraft cleaning? A side note, airlines seem to be bragging about their "enhanced" cleaning during COVID, but that was not apparent on this trip in either presence of personnel or cleanliness of the aircraft, gates, or jet-bridges. 

I encountered restaurants that had eliminated menus completely. The tables had QR codes taped to them to allow menu viewing on a cell phone. I noted many eateries with tables or booths taped-off to enhance social distancing. Virtually all of the restaurant employees wore masks. Many of them wore the masks incorrectly (with the mouth covered but not the nose), but they did wear masks. Some restaurants are checking everyone's temperature upon entry. And, for those of you wondering why you cannot find hand sanitizer or masks, many restaurants and hotels have an abundance of each available for customer use. 

I ate from disposable plates with plastic utensils. I was provided condiments in individual size packets in some instances. I went to a fast food outlet that actually had a door-person that was keeping count of how many were inside the store and granting or denying entry accordingly. The drive-thru at that business had 25 cars in its line. At yet another restaurant there was a sign for "drive thru only" service. As I sat in the line, I watched personnel walking out to make deliveries to cars in the lot. Upon reaching the menu board (to communicate inside with that horrible speaker system), I first encountered a sign encouraging Internet ordering for "car service." Once you are at the ordering point, that seems a little late? 

One hotel featured door seals (like you may remember from the old police shows): "this room has been cleaned and is sealed for your safety." Most had closed their exercise rooms (which are most often deserted, but this way they need not be cleaned constantly). The free breakfast buffet (all buffets frankly) have disappeared. Hotels are substituting? You guessed it, little paper bags filled with goodies, often distributed right to your hotel room door. In the end, so many things were  different. And, I miss the "good old days," you know 2019?

Some of this may be old news to you. Maybe this is how things are where you live also. The main point of all of this is that business is adapting to the realities that we face. Or, perhaps they are striving to make us think so (let's "deplane front-to-back"). They are striving to provide products, service, and consumer confidence. They are unlikely to be perfect or perhaps even consistent, but the point is that they are trying. In the present, we will likely adjust and adapt to their efforts. But, what happens when COVID ends? 

Will we return to the pre-COVID? Will telecommuting and telemedicine again be doubted or eschewed? Will we return in droves to sit-down dining in crowded rooms, salad bars, and similar? Or, will COVID effect permanent changes? Bob Wilson recently noted how we sometimes fail to make accurate predictions in Never Waste a Pandemic. Can we any better foresee where we will be in a year, and whether the changes of today were permanent or temporary? 

What are you doing with your habits and practices? Will they be efficiencies that survive the end of this illness, or are you focused on a return to "normal." How will the outcome of all of this affect us all emotionally, and does that depend upon our belief regarding predicting the future? Perhaps from that standpoint we would all be well advised to just say "I will wait and see?"