Recent COVID-19 Claims Examples and Changes

Check out the article below to see some examples of COVID-19 claims and how it is affecting employers, carriers and employees alike.
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Coronavirus/COVID-19 is affecting Florida workers’ compensation claims in a variety of ways, including litigation events (being required to appear telephonically for events or having to continue final hearings due to delays in being able to depose physicians) and the actual workers’ compensation claims themselves as discussed below.

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 “based upon the COVID-19 pandemic and its associated risks and restrictions,” the employer’s/carrier’s selection of a physician an hour away from the claimant’s home whereby the claimant would be transported to the medical appointment in “close 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.” 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 “engulfed in the Coronavirus (COVID-19) pandemic” 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 employee’s 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.  “The parties are required to set forth their claims and defenses in the Pretrial Stipulation. It is the employer’s/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.” 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 claimant’s 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, “An advance serves as a ‘stopgap to help a claimant avoid defaulting with creditors while awaiting the potential distribution of workers’ compensation benefits, when the reduction in income is caused by the injury.” 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 “reduction of earnings is not a result of her work-related accident” 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 Claimant’s 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 employer’s/carrier’s to limit exposure by coordinating appointments that the claimant is able to drive to, without the need for providing means of transportation.  Any COVID-19 affirmative defenses need to be listed on the Uniform Pretrial Stipulation or same will be waived as a defense.  And when determining whether an advance may be due and owing to an injured employee, the employer/carrier should further investigate whether the claimant’s 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.  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/

Legislative Activity Update – FL Senate Bill 292

The state of Florida has passed Senate Bill 292.  This bill is responsible for defining the terms “loss run statement” and “provide”; requiring surplus lines and authorized insurers, respectively, to provide insureds either a loss run statement or certain information within a certain time frame after receipt of the insured’s written request.  This also requires insurers to provide notice to the agent of record after providing a loss run statement and prohibits insurers from charging a fee to prepare and provide one loss run statement annually.

Effective Date: 1/1/2021
Last Action: 6/22/2020 – Chapter No. 2020-51
Bill Text: Web Page | PDF

See the source image

Florida – Effective January 1, 2021, FL law changes for providing Loss Runs to the insured as well as notification to the Agent of Record.

  • An insurer shall provide loss runs to an insured within 15 calendar days after receipt of the insured’s written request.
  • Loss runs provided must contain the claims history with the insurer for the preceding 5 years or if history is less than 5 years then all years must be provided to the insured.
  • They can be electronically provided, allowing access through a secure website login or generate documents and mail.
  • The insurer must notify the Agent of Record that loss runs were provided to the insured at the time they are provided.
  • An insurer is not required to provide loss reserve information.