On April 24, 2020, Judge Timothy Stanton of the Gainesville Office of Judges of Compensation Claims found in Gomez, Esteban v. Ridgeway Roof Truss/Zenith Insurance Company, OJCC Case No. 19-016953TSS (Final Compensation Order dated April 24, 2020)  that âbased upon the COVID-19 pandemic and its associated risks and restrictions,â the employerâs/carrierâs selection of a physician an hour away from the claimantâs home whereby the claimant would be transported to the medical appointment in âclose proximity to a stranger, in an enclosed vehicle for close to two hours for each medical visit that may expose him and his family to COVID-19 (was) unreasonable.â The employer/carrier was required to select and authorize a local physician to provide the claimant with medical treatment, whereby his wife could drive him to appointments, due to Florida being âengulfed in the Coronavirus (COVID-19) pandemicâ and preventing the spread of this virus.
On May 14, 2020, Judge Robert Arthur of the Lakeland Office of Judges of Compensation Claims opined asserting that an injured employeeâs failure to meet its prima facia burden to show entitlement to temporary partial disability benefits (i.e. in asserting there was a break in the causation chain due to COVID-19) is an affirmative defense that should be listed on the Uniform Pretrial Stipulation.  âThe parties are required to set forth their claims and defenses in the Pretrial Stipulation. It is the employerâs/carrier’s burden to demonstrate a break in the causation chain. As the employer/carrier bears the burden to establish the break in the causal chain this is an affirmative defense that must be pled with specificity on the Pretrial Stipulation.â See Gamero-Hernandez, Teresa v. Beals/Sedgwick CMS, OJCC Case Nos. 17-023646RAA; 18-007955RAA (Final Compensation Order dated May 14, 2020) citing Knight v. Walgreens, 109 So. 3d 1224 (Fla. 1st DCA 2013); Perez v. Se. Freight Lines, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015); Meehan v. Orange County Data & Appraisals, 272 So. 3d 458 (Fla. 1st DCA 2019)
On May 21, 2020, Judge Keef Owens of the Port St. Lucie Office of Judges of Compensation Claims denied a claimantâs motion for an advance of $2,000.00 as the claimant failed to demonstrate (1) a failure to return to employment at no substantial wage reduction; (2) a substantial loss of earning capacity; or (3) an actual or apparent physical impairment. Judge Owens stated, âAn advance serves as a âstopgap to help a claimant avoid defaulting with creditors while awaiting the potential distribution of workersâ compensation benefits, when the reduction in income is caused by the injury.â In this case, the claimant was not working for the employer because she had been furloughed due to COVID-19.  As such, Judge Owens found that her âreduction of earnings is not a result of her work-related accidentâ and therefore no advance was due and owing to the claimant. See Paradise, Kyley v. Global Hospitality Management/MEMIC Indemnity Co., OJCC No. 20-004078KFO (Evidentiary Order on Claimantâs Motion for Advance dated May 21, 2020 (citations omitted.)
The decisions amongst the various Offices of Judges of Compensation Claims may vary on a case-by-case basis. In general, it appears that JCCs prefer employerâs/carrierâs to limit exposure by coordinating appointments that the claimant is able to drive to, without the need for providing means of transportation. Â Any COVID-19 affirmative defenses need to be listed on the Uniform Pretrial Stipulation or same will be waived as a defense. Â And when determining whether an advance may be due and owing to an injured employee, the employer/carrier should further investigate whether the claimantâs reduction in income is due to the industrial accident or rather furloughs due to COVID-19.
Remember that coronavirus/COVID-19 exposure claims are being treated as occupational injuries and/or exposure. Â These claims have a higher burden of proof and require the claimant to use a clear and convincing burden of proof to prove causation in relation to Florida Statute Sections 440.01(1) and 440.151(1)(a) and (2).
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This article was written by Amanda Mitteer Bartley with Chartwell Law. Article link is below:
https://www.jdsupra.com/legalnews/various-effects-of-coronavirus-on-96202/