In order to pursue an occupational disease claim under Florida’s Workers Compensation law for covid-19, we first must look to the definition of an occupational disease for what elements need to be proven. In order to meet the definition of an occupational disease, the disease must be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment; and excludes all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher, in the particular trade, occupation, process or employment then for the general public. The nature of the employment must be the major contributing cause of the disease. In addition, there must be epidemiological studies showing that exposure to the specific substance, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.
These elements present several problems when it comes to covid-19. The disease would have to be characteristic of and particular to a particular occupation. Certain occupations have certain risks attached to them, and are particular to that occupation. This, however is not the case with Covid-19 which is a worldwide pandemic and is not characteristic of any particular occupation.
Thus, the employee would need to prove that the incidence of contracting the disease is “substantially” higher in their particular employment than in the general public due to the nature of the employment. Arguably, the incidence of contracting covid-19 is substantially higher in some particular employments then for the general public, such as emergency room staff, doctors and technicians. If you are simply working at a restaurant or shop and contract covid-19 from interaction with a customer, this may not meet the major contributing cause test.
Additionally, in order for the disease to be compensable, there must be “disablement or death” resulting from the occupational disease. The definition of “disability” is “incapacity” because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of injury. Therefore, an employee must have some loss of earnings in order to be considered disabled and meet the disability test for occupational disease. So, if there is no loss of earnings, say for example if the employee is asymptomatic, then there would not be a compensable claim under the workers compensation law, even if all other elements were met.
Notably, the burden of proof is on the injured worker. The law requires that the worker use epidemiological studies to show that exposure to the specific substance at the levels that he or she was exposed to at the workplace may cause the precise disease sustained. Both causation and sufficient exposure to support causation must be proven by clear and convincing evidence, which is a very high legal burden to meet. It basically means that these have to be shown such that there is no speculation but near certainty.
An alternative to pursuing an occupational disease claim under the workers compensation law is to argue a toxic or repetitive exposure theory. In order to show that an injury or disease caused by exposure to a toxic substance arose out of the employment, the employee must produce clear and convincing evidence that he or she was in fact exposed to the specific substance. Also, the employee must demonstrate the level of exposure. Further, the employee must show that the level of exposure to the specific substance can cause the injury or disease actually sustained. The injured worker again has to demonstrate this by clear and convincing evidence.
These elements are almost impossible to meet in the era of covid-19. The injured worker would need to establish the happening of the exposure whether repeated exposure or a single exposure. Yet, with covid-19, symptoms can appear several days after even a single exposure. So how likely is it going to be that an injured worker can establish by clear and convincing evidence that there was an identifiable workplace exposure? This is especially difficult when the disease is rampant in the community at large. The courts have been very strict about requiring the injured worker to prove the elements of their case despite the heavy burden and difficulty with proving causation. Looking at other toxic exposure claims, involving toxic mold for example, even where medical experts indicated that the most likely source for the exposure was from the workplace, the courts have denied compensability for failure of the injured worker to meet the very stringent standards of proving causation. The courts have not allowed for circumstantial evidence to establish compensability. The statute provides an exacting standard of proof, and the courts have upheld it. The injured worker will be required to present scientific and medical testimony to support that exposure to the measured levels of a specific substance can cause the injury or disease. This will be an uphill battle trying to prove by clear and convincing evidence that the exposure occurred in the workplace: first by identifying the exposure, as well as the level of exposure, and then that the level of exposure to the specific substance caused the disease.
It should be noted that Florida’s executive branch issued a directive that allows Frontline State Employees to file workers’ compensation claims and easily obtain benefits, circumventing the high burdens under the statute. Frontline State Employees are state workers that perform critical functions directly, which can require substantial contacts with populations known or suspected of carrying covid-19, or who have tested positive for covid-19. The presumption is that these particular workers contracted covid-19 from the workplace. Who are front-line workers? These are first responders, including law enforcement officers, firefighters, emergency medical technicians or paramedics, correction officers other state employees whose duties require contact with persons being tested for covid-19 or otherwise infected with covid-19, among others. Please know that this directive may be rescinded at any point since it is not technically law.
Also please note that whether pursuing an occupational disease or a toxic exposure claim under the Florida’s workers’ compensation law, the burden is still the same for both- clear and convincing evidence. Also, both theories require proof of causation and sufficient exposure with objective medical findings to support the claims. These will include both scientific and medical experts to show that the disease occurred within the course and scope of employment in order to prove compensability. Thus, it will not be an easy road to pursue a worker’s compensation claim based upon covid-19.
As demonstrated in this article, an injured worker must establish certain elements of his or her claim before being entitled to workers’ compensation disability benefits. The burden is on the injured worker to prove his or her claim. If you have suffered a work-related injury, contact us at the LaBovick Law Group to see what benefits you may be entitled to. We provide free consultations where we will review the facts of your case to determine the right course for you. Call us today at (561) 625-8400 for your free evaluation.
