Good luck getting workers’ comp if you catch COVID-19 on the job

Teachers and others forced back to work despite Florida’s skyrocketing COVID-19 cases could be denied medical and wage-loss benefits under Florida’s workers’ compensation law, and their families could get nothing if they die.

That’s how it goes in one of the nation’s most worker-unfriendly states.

If injured by an unruly student or burned in a chemistry lab, a teacher would have indisputable proof of a covered workplace injury — of where, when and how it happened.

But it would be virtually impossible for that teacher to prove he or she contracted the coronavirus at school, rather than somewhere else.

Common sense says the probability of infection is immensely greater in a classroom — shared over six periods with a hundred or more students — than almost anywhere else.

However, common sense has no standing at Florida’s First District Court of Appeal in Tallahassee, where workers’ compensation appeals often go to die.

The danger this poses in the time of COVID-19 was dramatized last November by a pair of notably savage decisions. What the court said about toxic mold would apply to the virus as well.

The court denied benefits to two public employees — one living, one dead — who had contracted a rare meningitis that’s known to be caused by fungi they likely encountered on their jobs.

One was Robert Taylor, a heavy equipment operator for the City of Titusville, who had been clearing property for a new facility.

A judge of compensation claims ruled in his favor. The city and its insurance carrier appealed. A three-judge panel sent Taylor home empty-handed because there was no

“clear and convincing evidence” that he encountered the fungi at work.

It was a classic Catch-22. The debris was long gone when Taylor fell ill.

“It is the employee’s burden to establish the existence of a causal connection between the employment and the alleged injuries,” wrote Judge M.K. Thomas.

Thomas was a lawyer who defended employers against workers’ compensation claims before former Gov. Rick Scott appointed her to the court.

She conceded that state laws dealing with toxic substances put a “Herculean task” on injured workers.

Employers have lobbied relentlessly to limit benefits and make it harder to get them. One result is this section of the law:

“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.” (Emphasis supplied.)

“Clear and convincing” is one of the strictest legal standards of proof. Strong circumstantial evidence ought to suffice.

The court also reversed the award of survivors’ benefits to the widow and two children of Edward Cruce, a maintenance worker for the Indian River County School Board. After cleaning a storage building, he came home covered with an odorous white dust from bird droppings, a known medium for fungi. He had cleaned up the place, unwittingly destroying the evidence of what would kill him.

The court’s excuse was the same. Expert testimony that the fungus is everywhere “does not alone constitute clear and convincing evidence sufficient to satisfy the burden of providing workplace presence.”

In both cases, the court used law to subvert justice.

The First DCA has not decided any COVID-19 case yet. Its shabby record on lethal spores holds little hope for victims of a lethal virus.

According to Heather Carbone, a Jacksonville lawyer who specializes in workers’ compensation, some employers, through their insurance carriers, already are denying all COVID-related claims “as the burden of proof is so high.

“Some insurance companies are denying all of them,” she said. “Some carriers are picking up some of them and denying some of them.”

In a similar case not involving the workers’ compensation law, the AIG insurance company denied accidental death benefits to the family of Shannon Bennett, a Broward deputy sheriff who died of COVID-19. The company said it was not an accidental death, but owed to illness or disease, which are excluded from its policy with the sheriff ’s office. The sheriff ’s office is contesting that.

Some favored workers might escape having to prove how they contracted COVID-19.

Chief Financial Officer Jimmy Patronis directed the state’s self-insurance fund in March to grant workers’ compensation coverage for COVID to state employees in health care, law enforcement, corrections, child safety investigations and emergency services, such as firefighting and paramedicine.

An April 6 memorandum from the Office of Insurance Regulation appeared to apply that to all “public servants on the front line of COVID-19,” but left unsaid whether it would actually bind school boards and other local governments. In any event, it would not have paid benefits for Deputy Bennett’s death in the line of duty because he had no surviving spouse or children.

Under any reasonable standard of public decency, who’s routinely exposed to infection at work should be entitled to workers’ compensation. That should go for grocery clerks and wait staffs, as well as first responders. It shouldn’t matter whether they work for the state, local government or a private employer.

A few states are trying, according to the National Conference of State Legislatures. In California, an executive order and several pending bills extend coverage to all workers who test positive for the coronavirus and aren’t working exclusively from home. Bills covering most essential workers are pending in Colorado, Massachusetts, New Jersey, Michigan, Ohio and Vermont, passed in Illinois, and failed in Kansas and Louisiana.

Similar legislation is all the more urgent in Florida because there were nearly 3 million people medically uninsured even before the pandemic struck. Still, the Legislature went home this year without expanding Medicaid as authorized by Obamacare, or without even talking about comporting the workers’ compensation law with the cruel realities of a lethal virus and an irresponsible appellate court.

That’s as scandalous as scandal can get. Remember it when you vote.

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Dan Sweeney, Steve Bousquet and Editor-in-Chief Julie Anderson.