“Coronavirus”), the virus will continue to spread from human-to-human contact. With the reopening of businesses, the threat of being infected in the workplace is real. If an employee can prove that his coronavirus infection came from the workplace, he would be entitled to workers’ compensation benefits (including medical and indemnity). The trick is in proving the case.
There are two possible approaches. One approach is to view the infection as an occupational disease and pursue relief under s. 440.151, Florida Statutes. To succeed under this section of Chapter 440, the employee must establish the following elements:
- The virus has resulted from the nature of the employment in which the employee was engaged under such employer. Section 440.151(1) explains “nature of employment” this way: “in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations”.
- The virus was actually contracted while so engaged.
- The nature of the employment was the major contributing cause of the disease.
Because the virus knows no boundaries, establishing that it was contracted in the workplace and resulted from the nature of the employment is going to be exceedingly difficult in most cases. While there may be some types of employment, say, medical staff in hospitals, where the elements will be easier to satisfy, the burden of proof in most cases may be too great to overcome. Making matters worse is that in cases involving occupational disease, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. s. 440.09(1). This is a higher standard of proof than for many other types of workplace injuries. The lower standard is, “to a reasonable degree of medical of medical certainty.” Section 440.09(1), Florida Statutes.
The second approach to pursuing relief may be the one set forth in the last sentence of s. 440.02(1):
An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.
While this standard does not require the presentation of s. 440.151(1) “nature of the employment” evidence, it does, nevertheless, present its own set of challenges. For starters, the heightened “clear and convincing evidence” standard also applies. Additionally, while the virus can certainly be toxic, is it even the type of “toxic substance,” such as fungus and mold, for which the section is intended to address?
Here is a list of a number of reported Florida workers’ compensation cases showing the types of toxic substances considered by the statute:
- City of Titusville v. Taylor, (Fla. App. 2019): involved a claim for exposure to Cryptococcus gattii (C. gattii), a fungus that lives in the environment.
- School District of Indian River County v. Cruce (2019): claimed exposure to C. gatti.
- Crown Diversified Industries Corp. v Pendiville (2018): claimed exposure to Curvularia, a dematiaceous filamentous fungus.
- Altman Contractors v Gibson (2011): claimed exposure to mold.
- Matrix Employee Leasing v. Pierce (2008): claimed exposure to the MagnaMax, a lacquer.
- Polk Nursery Co., Inc. v Riley (1983): claimed exposure to Temik, a highly toxic pesticide.
Even if 440.02 is the proper vehicle for pursuing a Covid-19 claim, establishing workplace causation will be exceedingly difficult. The claimant will be required to show:
- An infected carrier,
- The level of virus to which he/she was exposed.
In mold cases, for example, proving number 2 has been difficult. Proper testing is costly and oftentimes the mold at a level high enough to cause trouble is not to be found, either because it was remediated before testing or was never there in the first place. Moreover, mold, like the virus, exists outside of the workplace, which makes the workplace causation connection that much more difficult to establish.
It is not the purpose of this blog to present a comprehensive road map for prosecuting Covid-19 workers’ compensation cases. That would require many more pages of discussion than is provided here. Rather, the purpose of this blog is to give a rudimentary overview of some of the basic issues. Consult with a lawyer for more information.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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