Tuesday, December 1, 2020

Litigation of COVID-19 Update November

The litigation environment for COVID-19/SARS-CoV-2 in Florida has not evolved much recently. The latest litigation statistics from mid-November 2020 do not reflect a significant volume of such claims are entering the litigation process. The most recent report from the Florida Division of Workers' Compensation were detailed and discussed recently in COVID Update November 2020. Those figures represent the statistics available regarding lost-time claims through October 31, 2020. 

In a nutshell, the Division reports that 23,452 lost-time claims have been filed in Florida. The majority of those are now closed, but may be subject to re-opening at a later date. The only statutory paths to a claim being permanently closed are essentially settlement (section 440.20(11)) and the statute of limitations (section 440.19). Other claims may periodically ebb into dormancy, but are not truly over. The Division reports that 10,424 (44%) have been totally denied, and another 47 have been partially denied. It has determined that only 79 claims have had petitions for benefits filed, thus entering the litigation process. It concludes that 23 of those are denials related to "compensable" clams and 56 to "denied" claims. 

The OJCC database was queried for the term "COVID." This returned a population of 201 petitions for benefits with that term in the "work performed," or "accident description," or "injury fields." Of the 201 total, 39 of the petitions are a "subsequent" petition. Thus the 201 petitions represent only 162 discreet cases. 

That does not mean that each is an allegation of exposure to the SARS-CoV-2 or contracting the COVID-19 disease. For example some merely say that the employee had to quarantine following a potential exposure or after exhibiting symptoms. Another was engaged in producing "COVID-19 masks." In yet another, a "COVID mask" caused glasses to fog, resulting in a vehicle accident. Another references "moving and lifting" related to facility cleaning related to COVID-19. Two reference exposure and infection while hospitalized for a primary work injury. If those are removed, there remain 149 discreet petitions alleging exposure to or contracting COVID-19. 

The Division has divided the lost-time claims in its report into five occupational categories: Airline, Health Care, Office Workers, Protective Services (includes first responders), and Service Industry. These categories are reasonably distinctive. However, it is possible for one to be an office worker in a health care facility or otherwise capable of characterization in more than one population. With that caveat, the 149 discreet petitions can be similarly divided into these categories:

From this, it is clear that the predominant categories in litigation are Health Care. Protective Services,  and Service Industry (combining for 93% of the total). The Office Worker and Airline categories are much smaller portions by comparison. When the Division's reported "Full Denial" volume in its report is compared to the volume of claims in litigation in the same categories, the litigation rate is notably small. The Division report notes that 10,424 lost-time claims are "Full Denial," compared to the 149 cases in litigation (1.43%). The following illustrates the variance of the categories from this overall calculation.

There is a statutory requirement for any injured employee to "advise his or her employer of the injury within 30 days after the initial manifestation of the injury." Section 440.185, Fla. Stat. There are various exceptions to this requirement, which could excuse delays in such notification. The statute of limitations in section 440.19FlaStat. requires that a petition is to be filed "within 2 years of the date on which the employee knew of should have known that the injury or death arose out of work performed in the course and scope of employment." 

Thus, in any event, it is likely very early to be reaching any conclusions regarding the volume of litigation of workers' compensation benefits related to COVID-19/SARS-CoV-2. There remains much to be learned about the illness and its symptoms. There may be long-term effects and complications that are more challenging than the immediate symptoms and complaints. It is also possible that the disease is of minimal impact or impairment in some population of patients, and that litigation from them is unlikely. Whether current filings reflect future trends remains to be seen.