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Almost every trial level decision made by a Florida judge of workers’ compensation claims (JCC) relies, at least in part, on the opinion of a physician. If there is a disagreement in the opinions of the health care providers, section 440.13(9)(c), Florida Statutes allows the JCC to appoint what the statute calls an expert medical advisor (EMA) to break the tie. Because the statute provides that “[t]he opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary,” the EMA doctor has come to be known as a “Super Doc.”

More times than not, the presumption favoring the opinion of the Super Doc cannot be overcome. This can even be the case, for example, where the Super Doc has only reviewed medical records or examined the patient once, while the authorized doctor, who may hold a different opinion, has been treating the claimant for years. The constitutionality of the provision has been challenged. Unfortunately — in my opinion — it has survived constitutional muster. See Abreu v. Riverland Elementary School (1st DCA 2019).

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It is fairly certain that until an effective vaccine is created to control Covid-19 (a.k.a.
“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:

1. 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”.
2. The virus was actually contracted while so engaged.
3. 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.

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Employers and their workers’ compensation insurance companies (E/C) relish the opportunity to deny benefits to employees injured on the job. One of the most powerful weapons in their ample arsenal is the section 440.09(3), Florida Statutes drug defense. It reads as follows:

(3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….

Urine is the specimen of choice for drug testing. It is collected from the donor at a collection site or directly from the injured worker’s urine bag when urinating into a cup cannot be accomplished.