The burden of proof on these types of cases is extremely difficult under Florida’s Workers’ Compensation Act.
In general, diseases and sicknesses are excluded from Florida Workers’ Compensation coverage. However, the statute does provide an exception to occupational diseases in Florida Statute 440.151, which states, in part:
(1)(a)—Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that 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. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence …
(2)—Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude 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 than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee …
As such, the starting point for an analysis of compensability is the occupation of the claimant. The disease must result from the “nature of the employment”; the claimant must actually contract the disease while working; and the nature of the employment must be the major contributing cause. For the coronavirus to result from the nature of employment means there must be a particular hazard of contraction specific to the claimant’s occupation compared to other occupations, and the incidence of contraction in that occupation must be higher than in other occupations. The claimant has the burden of proving all of those items by a heightened standard of clear and convincing evidence (except for First Responders, who onlyrequire a preponderance of the evidence). In regular Workers’ Compensation claims, the standard is lower than in an exposure/ occupational disease case, or a preponderance of the evidence (a “more likely than not standard”).
It is important not to confuse occupation with job (where someone actually works), as it is the career that is the focus, and not the claimant’s position with a specific employer. For example, if a carpet installer contracts the coronavirus, it would likely not be compensable because the incidence would not likely be higher in that occupation versus the general public.
In Seminole County Gov’t v. Bartlett7, the claimant, a firefighter, sought compensability of hepatitis C under the theory of an occupational disease. For the claimant to establish his hepatitis C was caused by his employment as a firefighter, he was required to establish causation by introducing clear and convincing evidence of each element of the four-part test. Although the claimant testified to needle sticks during his tenure as a firefighter, he did not know whether the sticks involved people infected with hepatitis C. The claimant also testified he had experienced episodes of blood-to-blood contact during his employment, but, again, did not know whether any particular individuals were hepatitis C- positive. The claimant could therefore not establish any exposure to hepatitis C during the course of his employment. None of the doctors could testify, within the scope of their expertise, how or when the claimant contracted the disease, based on a reasonable degree of medical certainty.
The testimony at the hearing was that the most common causes of hepatitis C were:
- Illegal intravenous drug usage, which accounted for approximately 70 percent of cases;
- Receiving blood transfusions prior to 1990, which accounted for approximately 10 percent of cases;
- Engaging in unprotected sex, which accounted for approximately five percent of cases;
- Unknown causes, which accounted for approximately four percent of cases;
- Needle sticks, which accounted for one- to-two percent of cases.
Additionally, there was no evidence that firefighters contract hepatitis C more frequently than those in other occupations. Significantly, the only expert testimony comparing the prevalence of hepatitis C in firefighters to that occurring in the general population was that the disease occurred in both with the exact same frequency. Consequently, there is no evidence that being a firefighter presents a particular hazard of contracting the disease, or that the incidence of the disease is substantially higher in firefighters than in the general public.
Based on the foregoing, the First District Court of Appeal reversed the Judges of Compensation Claims’ determination of compensability as the claimant had failed to present clear evidence that he more likely than not contracted hepatitis C during his employment as a firefighter, or that the disease was actually caused by employment conditions characteristic of and particular to his employment as a firefighter. Speculation or a logical relationship between the disease and the claimant’s work is insufficient to meet the required test.