Multi-State Workers’ Comp Defense & Plaintiff COVID19 Legal Roundtable: CA, MA, IN, KC, MO, & FL

I will be right back in 2, 1, 2 seconds. Let's see. Okay, I've done that. Going to come back to our full screen. All right, let's get the toolbar back. I'm challenged as always with Zoom. Alright.

Oh, could you take the phone off the hook so it won't ring?

Maybe just hit talk and just leave it there.

Okay. Alright, so I'm going to take us live. All right, and we'll give everyone a few minutes to come in to the live. Okay, now my technical skills are in play. All right, we'll give everybody a chance to come in to our live broadcast. Um, it— everybody's in the waiting room and we are going to be starting in a few minutes. And we have our participants loading in. Okay, thank you everyone for joining us today. Um, we are getting ready to start. I want to do some housekeeping before we get going. Welcome to the Multistate Workers' Comp COVID-19 Legal Roundtable. I've put this program together from both sides of the room, both the plaintiff and defense side, and bringing you an amazing group of attorneys to talk through our COVID-19 workers' comp exposure. Um, this is Multi-State Workers' Comp Defense and Plaintiff Legal Roundtable. I want to thank first, um, Jim Anderson and Kip Kubin, um, with the College of Workers' Compensation Lawyers for coordinating this. I had an idea probably about 3 weeks ago. I sent an email out to Jim Anderson with Anderson Crawley out of Mississippi, and I said, I want to put together a webinar that has both sides of the room together and so we can talk through COVID-19 for employers, insurance adjusters, and also to give a perspective. So I do want to thank Kip for coordinating our panelists for me and also thanking Hannah Brophy, Dugan Voland, Cole Scott Cassane, Pomp Ham— I'm going to mess up all these names— Pomp Ham Law Firm, Pierce, Pierce, and Napolitano for participating on this webinar with me. So here's our housekeeping. Before we begin, we have a chat box for you to post questions in. I will continuously monitor the chat as each attorney is presenting. I will ask questions. If there's something that we want to follow up on, I will create the follow-up. Everyone who participates or registers will get a link to the webinar replay. It generally takes me a day 2, and I'm reminded now to say that because I'll get an email right after it's over saying, "Where's the replay?" So it does take a day or two for the replay to happen. If you stay till the end, we will have a survey. The survey will be emailed out to you a couple days after the webinar, and we will ask you for information about the content we shared as well as information about future webinars that you want to see. So for those of you who have no idea who I am, my name is Margaret Spence. I am the CEO of C. Douglas and Associates, and we are, um, one of the larger risk management consulting companies dedicated to linking HR with workers' comp. We operate in a pretty specific space. My team and I manage $109 million, a little bit more than that, in workers' compensation claims for our multinational clients. We do auditing and workplace evaluation for our clients. I'm an author of 2 books, and I sit on the Workers' Comp Institute's planning committee, and I, I'm the co-chair of the Return to Work section. So join me in welcoming Leslie Tuxhorn. She is a partner with Hannah Brophy McLean McLeer Jensen, and as I was looking at her bio, I realized that they are one of the first workers' comp firms out there. She started her legal career— she is a graduate of Western State University College of Law. She's dedicated her entire legal career at Hanna Brophy. She was honored to join the ranks in 1995 as an associate attorney in San Bernardino, and she's coming to us with the California perspective. And for anyone who thinks that things don't head east, they all start in California and they head east. So I'm really pretty honored and happy to have you here, Leslie. She is also, um, in 2011 she became the office managing partner in Santa Rosa and was selected by her partners to hold the position of firm managing partner from 2012 to 2018. She has a master's degree in law firm management from George Washington University, and I'm so happy to have you here, Leslie.

Thank you so much, Mark.

Great. Yeah, and our next attorney is Scott Mack, I spelled it, I did it wrong again, Scott, partner with Pomham Law Firm. Scott is coming to us from Kansas City, and he and I had a good banter about Kansas City, and he's conflicted. So I always say that he's got K-State and KU. So anybody that's from Kansas City knows that there's like this rivalry between the two schools, but he's got a degree from both of them. He graduated with a degree in journalism from Kansas State University, He was a 4-year varsity letterman on the Kansas State basketball team, which he— and he still ranks as one of their top 5 career wins as pitcher. He graduated from the University of Kansas Law School in 1981, went directly to work for Pomham Law, and has been a partner since 1987. He's tried more than 50 jury trials and recorded verdicts in excess of $2 million each. Scott is coming to our webinar today to give us the view from the plaintiff's side of the room, but also from the exposure side of the room and talking that through with us. And he, in our prelim, said he's a recovering defense attorney and had been on the defense side as well. So thank you for joining us, Scott. We then have Gina Jacobs. And Gina is here in Florida. Gina is a partner of the firm's Orlando office. She is with Cole Scott Cassane. They are one of our largest defense practice firms in the state of Florida. She leads the workers' comp department, and Gina is certified by the state of Florida as an instructor in workers' comp continuing education for adjusters. Prior to joining CSK, Ms. Jacobs was a managing attorney for the Orlando and Tampa office for another national firm. She's a recipient of the 2012-13 2013 and '14 Excellence Award for making a difference in workers' comp. And she's recognized as one of Florida's top attorneys for 40 Under 40 by the National Black Lawyers in Florida. Prior to her legal career, which is just amazing, Gina was an adjuster like me. So she's come out of an adjuster's desk. And she graduated cum laude from Florida Atlantic University with a bachelor's degree in public communications. And she attended Nova Southeastern Shepherd Road Law Center, where she had her JD, and she was a rising star and runner-up, and she's got all kinds of great accolades. Gina, thank you for joining me today.

Thank you for having me.

Yeah. And then we have Alan Pierce. Alan is the founding partner of Pierce, Pierce Napolitano. He is in Salem, Mass. And Scott is— Alan, sorry, is a graduate of Suffolk University Law School in Boston. He has a JD. He also attended the University of Massachusetts Amherst, and he has a Bachelor of Arts from them. He is a member of the bar. He is also on the— has tried cases in the appeals court, federal court, Supreme Court, and the district within Massachusetts. And Alan is going to give us as well another view from both the plaintiff's side, but the wonderful thing about Alan is that he has a defense background as well, having been on the carrier side in the defense world. So I think his perspective will be quite amazing as well. And then we have Sally, and last but not least, Sally Voland is a founding partner of Indianapolis firm Dugan Voland. She concentrates her practice in employment law and represents public and private sector management with all aspects of workers' compensation. She received her JD from Indiana University, and she was summa cum laude, and she's a member of the Indiana District Court Bar and Indiana State Bar. She's a fellow at the College of Workers' Compensation Lawyers, and she sort— she serves on the board of Kids' Chance for Indiana and is a past chair of the workers' comp section of the Defense Trial Council of Indiana. So thank you for joining me, Sally. Um, yeah, so our final housekeeping: we have another webinar coming up next Tuesday. It's on integrated Disability Management. I want to tell everybody about that. Alicia Thompson will be our speaker for that webinar. She is the former senior accommodation disability person for Amazon, and for 21 years she was with Macy's. So what are we going to talk about today? We're going to talk about compensability. And to lead us off, I'm going to have Leslie lead us off in where are we now and where are we going? So, Leslie, the floor is yours. Tell me what you— where you think we are. What do we need to know as folks handling workers' comp?

Okay, thank you, Margaret. Thank you for inviting me here today, and thank you for everyone who's joined us, who's taking this opportunity to improve their response to COVID-19. In California, Margaret, all of our employers have been impacted one way or another by the coronavirus, either quarantine or even responses to that virus. And all of our employers have concern about how that's going to affect their business on a broader scale as well as causation. Those issues kind of break down for me in, in 3 different ways because HR decisions are such an important part of the response. Response. So the quarantine issues, the work at home, unemployment, essential versus non-essential, and all of these raise these issues of causation. We're going to have the reopening and return to work issues with retail workers facing violence due to public reaction to our COVID responses, such as the mask. I think we've already seen one of those cases where someone was actually physically attacked over the mask issues. We know that COVID-19 is raising kind of those political divides in the country. So there is a very, very strong emotional response, not only to the economic issues that people are facing, but also these changes that they're just not used to. Right. There's the volatility from the increased exposure from street protests with our police officers, our safety, our safety workers. We've had worker walkouts. Workers don't want to wear the masks, and so these raise issues about if the employer wants a worker to wear a mask and the employer is not wearing one or does and refuses to wear one, where does that leave us? There's a refusal to return to work. If we make the worker return to work, how does that affect us? We're also going to have the reclosing issues that come up in October and November. I don't know if folks in the seminar are facing that, or this webinar are facing that, but I know that some of our employers are already preparing for a reclosure before we even get the reopening. And I know that you— and I have encouraged others who have already responded in the chat to take part, make it an interactive session.

Exactly.

If that's what you prefer.

Yeah, absolutely. And so, from a perspective of I'm an employer, I'm trying to figure out how do I keep my employees safe, number one, on one side of the room. How do I manage the workers' comp exposure that I'm facing on the other side, but the two sides of the coin, and then how do I serve my customers? So if you're dissecting that and you're advising me as an employer, um, what are you telling your employers in California and the ones that are reaching out to you first about safety concerns for their employees, number one? And the exposure likelihood, number 2. And just to pause for 2 seconds, we actually had, I think it's Ohio, no, Oklahoma, 2 McDonald's employees were shot yesterday. Oh my goodness. By a person who did not want to go through the drive-through. Okay, they wanted the door of the restaurant open, and when the drive-through employee would not open it, the person opened fire on both employees who were trying to serve them.

Oh my goodness.

So this is not something that I don't think any other country is facing this. I think that we are unique in our box that we've put ourselves in. So, so from, from that perspective, what are you telling employers?

Well, HR has to take a minimum of actions, at least that show that they're looking out for the health and welfare of the employees as much as possible. And we're getting a lot of questions about that. And we also know that the way we handle those upfront are going to make a big difference on the other end. A lot of our employers here are requiring employees to wear masks, and I know that's a very controversial issue about whether it helps or doesn't help, but I think we come down on the side of safety. If that is something that can potentially help us, we want to do that. We have a lot of questions around, you know, some compensability and temporary disability that come in later. But in terms of just keeping our employees safe, I think that we have to keep the distancing as much as possible. We only want to have folks who are coming to work that actually have to be at work. And why is that? Here in California in particular, I don't know how many of others are aware in other parts of the country, but yesterday Governor Newsom issued an executive order that makes it easier for an employee now to make a successful claim for benefits. And so what he's done is he's created a rebuttable presumption. Rebuttable presumptions in law are different from conclusive presumptions, and that's going to have a big impact on our advice to our clients in California.

Can you elaborate on that a little bit? What, what's the big difference for those who may not have ever had that come up for them before? What's the big difference and what does that do? Because here, and I'll tell you my thing and I'll do my soapbox right now. I think that a lot of the insurance carriers, adjusters, third-party administrators are in this vacuum cleaner. We could just keep doing things the way we used to do them. So, and now they're, you know, now things are happening around them. So from that perspective, what are you saying to your employers?

Well, as of today, because we have new rules as of yesterday, and it has been a very changing environment, Margaret. It's not static, and as you say, people get ingrained in their habits and they want to continue to just handle things the way they have, particularly the— some of our more experienced people who've been in the same rut maybe of preparing their cases the same way for 10 years or so. One thing that we're saying is, and I believe I've heard this even in previous materials that you've provided, Margaret, is that when an employee claims that they've had an exposure, that it should not just send them to the doctor. You have to call ahead. We're not— we're telling folks not to just send the employee to, you know, the employment health office. They have to call ahead and make sure that the office that they're going to is prepared to deal with that, has the proper testing, all of those things. That's a first step that's, that's super important. In terms of how the executive order changes things for employees, employers, that is going to be based on the presumption. So normally when we have a workers' compensation claim in California, It's going to be based on substantial evidence, and "more likely than not" is our standard. And I know that that can vary probably throughout the various states, but ours is "more likely than not," and that burden is on the employee to prove. The rebuttable presumption in California is going to switch that burden over to the employer, and the employer now has to show that the employee did not get the COVID-19 due to the work exposure, and it's very difficult to prove a negative, as you know. And that's how that is affecting our employers here.

Employees here. Okay. Yeah. So, Scott, I'm going to jump over to you for a second. Having listened to what Leslie laid out, and if you're now saying, if I were an employer, this is what I would be doing, what would you be saying?

To the employer?

Yeah. Mm-hmm.

No, there, uh, in Missouri, and I want to address that presumption just briefly, Missouri has, uh, the governor, uh, added to the Code of State Regulations a presumption for first responders. Uh, they're presumed to have, uh, had their, uh, COVID-19 on the job if they get it, and that it's a rebuttable presumption here too. But one of the things that's going to happen is that's going to be attacked as to whether or not that's constitutional or not because the governor just threw, you know, just did it. Ours says it's retroactive in Missouri, so that's going to make it very suspect. I mean, the Code of State Regulation itself says that. So just know that there's going to be a lot of litigation around all of these issues. And from the— what the plaintiff's bar is going to do, and I've kind of outlined it here just a little bit, you're gonna see an unprecedented attempt by the plaintiff's bar to get around the sole remedy provisions of the workers' compact because this is such a new and insidious disease. And I— the Missouri Lawyers Weekly You may know about this already, the Smithfield lawsuit claiming that it's in federal court in Missouri, that the COVID-19 going through a Smithfield plant is a public nuisance. I'll just read the bullet point here. The suit addresses both the nuisance that the plant poses to the workers who put themselves at risk every day and how the risk extends to the community itself. And so that's a, that's a whole new attack that's going to happen. Uh, you know, from, it's not the sole remedy, it's not a workers' comp claim per se, but it's workers who are, are, uh, trying to find a remedy because of the mess that they're put in, in some of these meatpacking plants in the Midwest. So, so those are some of the things that are happening, and this is just a little bit tangential, but I got this in the mail yesterday. The COVID-19 Business Litigation Group is out there from the plaintiff side, and they're looking for affected industries on business interruption policy. That's, that's, that's coming too. And that's a little bit off the workers' comp, but, but Missouri is a little different too, because we have a specific statute that deals with contagious diseases, because generally ordinary diseases of life are not going to be covered under comp, but, uh, we've got a section that says any employee who is exposed to and contracts any contagious or communicable disease arising out of and in the course of his employment shall be eligible for benefits under this chapter as an occupational disease. And the cases that we used to see in that were Hep C cases, those types of cases. A nurse on a needle stick, those types of cases. But I think you're going to see a broader attempt to put COVID-19 cases in that. And then come to the problems of causation and in workers' comp, I don't know how it is in other parts of the country, but I imagine it's the same. There's this club of claimant side doctors, generally orthopedics or industrial medicine guys that will write your report for you. And I, independent medical exam report. Uh, we call them something different than that sometimes from the plaintiff's side, as Alan probably knows. But, uh, and the, the, uh, employment bar is going to have to find— they, you know, these infectious disease doctors and, uh, pulmonologists, they're not going to know the magic words that are needed in some states to make compensability. So it's going to be kind of the job of the lawyers to train the medical people to at least be able to say the right words in reports to make causation. Missouri is a prevailing cause state, so that's already difficult. And to go into an infectious disease doctor and say to he or her, you know, I need a report that says that the prevailing cause of my client getting COVID-19 was the fact that he was working at a grocery store, sacking groceries. That's, that's going to be hard, but those cases are going to happen. And, and these presumptions too, you know, they don't apply to the grocery store worker or to the person who's probably going to be exposed more than than some of the first responders. So it's, it's just going to be a, I mean, it's wild. I live in the Midwest, but it's really the wild west here is what we're, we're going to see all the way across the country with this, because there's so many unknowns and we're trying to predict, you know, where to go as, as claimants' attorneys. And does it make sense to take a COVID-19 case for somebody that recovers? Probably not. You know, there's probably no permanent injury to them. What if we got a death case? You know, it just, I mean, that's just, it's going to be really hard for the claimants' bar to decide which of these cases are worth taking. And then stuff about, you know, the possibility of permanent lung damage, you know, even to people that recover and how do you keep medical open on these cases? If you can make compensability, there's just, I'm supposed to, I'm raising more questions than.

Yeah, no, but you know what, Scott, one of the reasons why I absolutely wanted to have both you and Alan on this webinar is one of the things that, that I am trying to shake free from our industry and all— both the entire industry is business is not the same, number one. You guys are not thinking through every single thing that can happen. Here's an example that I raised. I was on a webinar on Tuesday with Ed Fuchs, who used to be the director of OSHA during the George W. Bush administration. And he and I sat on the CIDRAP board many years ago during H1N1. And I reached out to him and said, let's do this. So here's where we went. We went, you give me the mask. I have COPD. I can't breathe through the N95. I'm allergic to whatever is in it. And now I have something else going on. OK, employers, you have got to think this all the way through. But even more, adjusters who are managing these cases that are showing up on their desk cannot take the business as usual stance, which is sort of why I wanted everybody to hear both sides of the argument because it's— I think we live in this bubble of, oh, you know, we're in the defense bubble, but there is both sides of this. And I think, I don't know that we've even evaluated it in its full totality. Gina, give me your perspective.

Absolutely. And I wanted to touch on something that Scott mentioned because, you know, as we all know, there's two parts of your standard workers' compensation policy. So you're going to have Part 1 and you're going to have Part 2, which is former Coverage A and Coverage B. And here in the state of Florida, the department issued a memorandum early last month to say, please be aware that if anybody is making discriminatory or arbitrary denials of these COVID cases, there's going to be sanctions for that. And there— and the assessment is in the state of Florida, these claims can be compensable so long as the claimant is able to meet their burden of proof. And in Florida, our burden of proof is the claimant has to establish that this exposure and contracting this virus is the major contributing cause of the condition, their disability, and their need for medical treatment. Now, the challenge with that is— looks like my light just cut off here. Oops, sorry about that. But the challenge with that is there's a second component of that when you're dealing with exposure claims. And there's a case called Vesta that means the claimant has to gather evidence that is quantitative and qualitative, and then this is when we start playing around with the science of the issue. You know, as with many states, we have administrative law judges that rule on these cases, and so ultimately if you go to trial and you lose, even if the ruling and the holding is incorrect, then you have to look at, do we have to file an appeal and spend more money to correct the issue. And, you know, what I have been advising my clients is that it's very critical, getting back to Margaret Spence's point, that the claim professional be trained on understanding the virus and taking a very detailed recorded statement. This is not business as usual. So, for example, if a new case came in and the person tested positive last week, asking somebody if they've been to China, now that we know where we are as far as international travel, is not going to be relevant the first week of May. Understanding that, for example, in the healthcare setting, if an individual— there is a known positive within that facility and we know that it is airborne, You know, person-to-person transmission doesn't mean that I will be directly in front of you, because we know that the virus is airborne and it's highly contagious. So when, you know, we see these recorded statements that suggest the person worked in maintenance within this hospital system, so because they were not providing direct patient care, we're going to deny it. Well, let's examine the job description. What does this individual do? Is this person responsible for waste management within the facility, disposing of soiled PPE? Is it the person that works in laundry, for example? Those are all very critical questions. And, you know, as attorneys, we have to be very mindful, you know, on the defense side of giving legal opinions based on bare-bones information. You know, I'm always, well, what about this? And what about that? You definitely have to dig deeper. Because if we're denying the benefit, then now are we going to have a Part II former coverage B exposure for a lawsuit in circuit court where you have pain and suffering and damages versus on the work comp side of the policy, you've got statutorily capped benefits, and in Florida there's no pain and suffering. Um, and so we have to be mindful of that because I could see a scenario where the case has been denied and the plaintiff lawyer withdraws that complaint before the judge of compensation claims and files in circuit court, and then the employer goes, wait a minute, I have immunity. Well, we have a body of case law that says not so fast, because this actually turns into a jury question depending on the language used in your denial. So in other words, you can potentially be stopped from raising that argument. So as practitioners, if it is a case that needs to be denied, let's just say it's an employee that works part-time for two healthcare professionals and both facilities have known positive patients and known positive employees. Now that's a different conversation, but it's very important because, as was discussed earlier, we are making decisions based on what we know about the virus now, but if we go back to late February, early March, March, we were under the understanding that you're either going to have a mild version of symptoms or severe. Now we're seeing that not only is it a respiratory issue, but now we're hearing that the virus attacks the blood vessel, and in certain age groups it's causing stroke. That's a whole different risk because there's potential permanency. I know Scott mentioned earlier that, you know, is there going to be some kind of, you know, permanent side effect as a result of the virus? And so, you know, let's just say it's only a respiratory issue. You know, there's very substantial ratings, um, under the Florida Impairment Guides because we don't use AMA. But with that said, it's still, you know, it's a cost-benefit analysis sometimes. But at the end of the day, you know, do you want to be sued in circuit court or do you want to accept the claim under workers' compensation? And compensability is going to depend on whether or not there are known positives, because if it's just one employee within that location, you have to ask yourself and maybe do a little mini contract tracing to determine where this individual could have picked up the virus.

The virus. I agree completely. Yeah, great, great points, Veena. Sally, what are you, having listened to everybody else, what are your thoughts?

Sure, I'd like to weigh in. Well, Indiana as yet hasn't taken any steps to modify or amend any of the existing statutes dealing with this COVID issue, although I agree with Margaret Spence] The other speakers that this is a highly unusual case and you can't just go business as usual. Now, in our case, Margaret Spence: it would be handled under the Occupational Disease Act, and like many others, you have to show that it arose out of and in the course of employment, and also that it wasn't just a normal disease of life. But it's still the employee's burden to show that. However, If you have employees who are in high-risk situations or essential workers such as the healthcare, and we've talked a lot about meatpacking plants, because if, if you look at the overriding concerns, it's frequency and duration of exposure. Well, these people have it, right? And so we're talking about different concepts. Now we still, you know, would encourage our clients to investigate the claims as they, you know, should, as they would in any case. But I can see where there's a heightened due diligence and getting the information out quickly if there are complicated cases. It's probably also good to remember though that a lot of these cases are going to be not the heightened case, you might have a hospitalization, but most of the time you're not going to have permanent impairment. Of course, you have to look to that risk because there could be future medical for— according to a webinar I listened to, it could be neurological, cardiovascular, lung You know, when you're in the hospital, let's say you're intubated, it could be your vocal cords, it could be your teeth, it could be all kinds of things that, you know, you wouldn't really anticipate. So it does kind of open up a whole new set. But in our case, we have made checklists for our employers to go through when they're— let's just say they get a report And sort of starting from general to specific, you know, generally you want to know why does the employer report it's work-related? I mean, what's the— what's their understanding? What does the employer think? What are the job duties and descriptions? And is there exposure outside of work as well as at work? We've had, as yet, excuse me, as yet we haven't had litigated cases. We've had claims that we've talked to employers about. And so it'll be interesting to see when it actually gets into litigation what the claims are going to be and the novel theories and also what defenses might be available. And right now, it seems like when we get responses from employers and questions, it has a lot to do with temporal things. Okay, it takes so long to get exposed. It takes so long to develop the disease. If you were around a person with COVID during that period of time, that's one set of facts. If you were doing something outside of work, we've had reports from, you know, employees that had those living in their home have it. And so you have to go through a lot to get to, you know, to distill down into what you can rely on. And I agree with the comments there that, you know, it's wide open. It's going to be an interesting ride.

Yeah. Yeah. So, Alan, you've listened to everyone. I'm waiting for you to weigh in. What's your thoughts?

Tell me.

So much to say in so little time. And, and, you know, the landscape changes every day.

Right.

A couple, a couple points that I'll touch on. First of all, I like to always start with the basics. You have to define, for a workers' comp claim, there has to be a personal injury. Most workers' comp statutes define personal injury usually in the definition portion of their their statute. So the first thing, uh, whatever state you're practicing in, if you are dealing with a workers' comp claim, you want to understand first of all whether do you have an exclusion for infectious or contagious diseases. Massachusetts has one in their definition.

Wow.

Infection, it says that contagious or infectious diseases are excluded unless the disease or the condition is a hazard of the particular nature of employment. Now, that has been with us for a number of years, and it has come up in the cases, for example, the Hep C needle sticks or tuberculosis cases or some MRSA cases in the healthcare. Now, you know, the nature of employment always seemed to suggest a medical setting where you would be exposed to people with a communicable disease as opposed to a co-worker who brings it in. However, now that we know what is the nature of employment, we are seeing essential workers and essential jobs allowed to remain open during shutdown periods. So can we make an argument that the bagger at the local supermarket or the truck driver delivering the toilet paper is— that the nature of that employment is exposing that person to the risk that would bring the contagious disease exception? Out of, out of play. Uh, we also touched on, and I think it's important to differentiate between occupational diseases and contagious diseases. They are not identically synonymous. An occupational disease is a disease that, uh, arises from the nature of that employment, so that if you are working in the coal industry and you contract pneumoconiosis or silicosis, you're exposed to asbestos or benzene or, or, or you know, chemicals that cause a pulmonary condition or whatever, that could be an occupational disease but not an infectious or contagious disease. So there's kind of different rules there. Uh, but the main thing that overrides all of this— infectious, contagious, whatever— is that it must arise out of and in the course of employment. And here we are dealing with a ubiquitous virus that is everywhere. And as Scott and the others have mentioned, the burden of proof is really the big stumbling block. Can you prove by a preponderance of the evidence that it is more likely than not that my client contracted COVID-19 in the course of his or her employment? And we need to support that by responsible medical evidence. Uh, you know, there are legal standards for the admissibility of medical evidence, and a lot of physicians, unless they are physicians that are regularly engaged in this area of law they, when they offer an opinion that something is related or not related, they usually think, as a scientist would do, that they have to be medically certain or reasonably medically certain, where, you know, workers' comp, it's a preponderance of the evidence and more likely than not, a 51% versus 49%. So that's, that's, you know, a point number 1 or 2. We're talking about presumptions, and there are various issues surrounding these presumptions. First of all, they are done by executive or administrative order, and in various states that is problematic. For example, in Illinois, it was one of the first states to— Governor Pritzker signed an executive order creating a presumption that anybody in the healthcare, first responder, public health industry that contracted COVID would be covered under workers' comp, and industry groups sought and gained an injunction that this is not within the purview of an executive, a governor, to do something like this. Now, some states have different powers for their executive, but this may be a legislative— it's a constitutional issue of separation of powers. Who can change the law to change the law retroactively? As Scott had indicated, that Missouri was— I believe it was retroactive. So you have that problem. And of course, you know, if it's a rebuttable presumption, the insurer has to just simply produce evidence to rebut the presumption. At the end of the day, these COVID cases that are going to be litigated— and I hope, and I suspect it'll be the permanent damage of the, you know, the, unfortunately, the fatal cases. I don't think the 3 weeks of sick cases will really be litigated. But it's going to come down to the jurisdiction that you're in. It's going to come down to whether the fact-finder is going to make a case-by-case, fact-by-fact analysis. You may get inconsistent results from jurisdiction to jurisdiction. You may get inconsistent results within a jurisdiction. You have judges or hearing officers that might be a little more liberal than others, and a close case might be more conservative. You might have an industrial border commission that relies upon the beneficent nature or the humanitarian nature of work workers' comp, where the burden of proof is— it's still there for preponderance of the evidence, but there is a more relaxed standard. And you also have going to have— we're going to have appellate cases dealing with perhaps evidentiary issues as to the admissibility of evidence without a lot of study. You know, we have a federal Supreme Court case called Daubert and another one called Frye on the requirements of scientific reliability for that type of medical opinion to be considered valid. So we are operating with a pandemic in a new era of workers' comp litigation, and, you know, we will find out how this plays out as these cases start to matriculate into the system. And don't be surprised if you see one result here and one result there, even within the same state or jurisdiction, or even out of the same employment. You may have two to supermarket workers that have a COVID case. One lifestyle may be such that there was potential exposure outside of work, and the other's lifestyle might be she came to work and went home and lived alone, and there was really no one else breathing or not wearing a mask around her. And you may get two different results. So a lot remains to be seen.

Yeah, wow. Well, well, Alan, thank you for that perspective, because as I said at the very beginning, I don't think that we've put all the cards on the table. I mean, there's so many. Every time you think about it, there's a new card that gets put on the table. I mean, we started with Scott, and one of the two things I want to ask both you, Alan and Scott, you know, Scott, you mentioned something about infectious disease doctors and their expertise around this virus. I don't think anybody has an expertise around this virus. So the question is, if I'm going out there to look, if I'm even— it doesn't matter what side of the room I'm I'm on, right? And I'm, I'm an adjuster side, I'm on the employer side, I'm on the, the, the claimant side. Where am I finding my experts for this?

That's, that's the $64,000 question because you, you don't know. I mean, these, these people, you know, is it community spread or is it from, you know, the work? It's just going to be, it's going to be total, you're going to have to weed out case by case and you're going to have to find I think from the claimant side, you have to go, you may have to pay for it, but if you've got a good case, you may have to go and buy a half hour of an immunologist's time or a communicable disease person's time and sit down with them and say, "This is what the law is. Can you back that up?" And I suppose the same would be true on the—

On the defense side.

Defense side, because it's not like your orthopedic doc who sees, you know, 50 workers' comp cases every week and knows how to rate them. And, you know, has the form of the letter on his, on his word processing. These people that we're going to deal with, and pulmonologists, I do, did a fair amount of asbestos litigation and the pulmonologist, some of those, uh, people do get involved in the workers' comp system. And I think they're a little bit easier to, to deal with because they— so many diseases that they deal with come out of the employment situation, the pulmonologists. But, you know, and, but are they going to be willing to say, in Missouri, we've got prevailing cause based on reasonable medical certainty, was the prevailing cause of this COVID-19 the grocery store workers work at work, you know, when you've got 500 people in a meatpacking plant that gets sick, I think your causation gets a lot easier and you're going to— and your doctor is going to be more apt to— the treating doctor, that's likely going to say, you know, make the causation for you. It's a more isolated case of somebody in a, you know, in an allied work, I think that it's going to be difficult.

So we have a couple questions in the chat. I want to, I want to go to them. Leslie, there's a few questions on California. One of the California questions was, with California, there's a current stat— there are the current statutes and laws that may affect the way that the new executive order will be enforced? Does the EO supersede? Is the question that I got in the chat.

Yeah, and everybody in California has questions right now. I'm not surprised that there are a few coming from our attendees.

Right.

The governor has recently been involved in more than one spat, uh, where he backed down. I don't know if you guys watched that Newport Beach—

Yes, yes.

And so I think he is You know, he has the best interests of the state at heart. He's trying to do what he can. The answer to the question right this minute, because it's like, you know, just came out yesterday, is we're analyzing that statute right now. We don't know, but we do know that his track record so far has not been perfect. So there could be ways to attack that order, and that's what we're looking at now. And I did notice some of the questions, and I have sent my email to some. But I'd be happy to provide our analysis to our attendees after the meeting.

Yeah, and I—

to advise on that.

Right, right, and I'll send that out. Sally and Gina, I'm going to direct both of these to you. Sally first, we have a question from one of the panelists that said, should we be asking people in our investigation who they ride with, who they've been in close contact with, And what is their home lifestyle? And how do we ask that question legally is the question for you, Sally, and then I'll follow up with Gina.

How do we ask that question?

Legally, how do we ask, you know, how do we, if I'm investigating this claim, how do I ask you your entire lifestyle? Who you riding with? Who do you live with? Who's, you know, who's your grandma? Who's your grandpa? What, you know, do I have the ability to ask all those questions?

Margaret Spence: Well, I think that some of the guidance that we get from all of the different agencies that have to do with when you're investigating, you do have the right to find out whether the exposure was at the workplace or otherwise or both or neither. And so questions as to, you know, specific individuals, I think I think it would be within the purview of the discovery to find out, you know, what's your— what is your daily routine? And maybe ask it in a way that it comes from the person, but you're not asking inappropriate questions. Have you been exposed to a person that has been tested positive with COVID That's not to say you identify the person, but do you know if you have or not? I think those are the kind of questions that even, you know, nationally and state, if you're going to track these things, you've got to know these things. And so, yeah, but you're right, you kind of— there have been concerns with HIPAA and privacy and just how far you can go with them. And I think that's But those are kind of the landmines that we don't know yet, okay? The HIPAA things, it was brought up, what if you have lack of due diligence and you have a bad faith claim? I thought it was also interesting that in New York there was an executive order that basically kind of gave qualified immunity to essential workers for some of the decisions they make in treating patients, you know, so people aren't going after them, I guess you would say, unless it's total reckless gross negligence. So yeah, I mean, we're put into an unusual situation, and some of the rules that worked in the past are probably not going to work right now.

Right. Yeah. Yeah. And Gina, how do you follow up with that?

Absolutely.

I agree with Sally in that during the investigation process, another individual's COVID-19 status is, you know, protected. So therefore, the claims professional needs to realize— let's just say during that recorded statement, the claimant is asked, do you know anybody around you, within your household, outside of your household, that you've come in contact with that is a known COVID-positive? But the investigation can't continue. Well, who is that person? And did they go for medical treatment? And how bad was the condition? Those are the no-nos. And that's when you find yourself in trouble. But as I mentioned earlier, it's kind of a different scenario for the claims examiner because during that, that interview, they have to do contact tracing. So they have to find out, well, Who's in your household, first of all? And then do you have— is it just your family members? Do you have friends living with you? Prior to getting this positive test, you know, were you in contact with somebody outside of your home? We need to verify specifically what they're doing as far as quarantine. I actually saw a recorded statement summary recently where the employee that tested positive was a healthcare professional. And was doing the recorded statement while shopping at a supermarket. And this is a healthcare professional that knows that they are COVID-positive, and they're leaving the house, right? Which is extremely alarming. But getting back to the issue of, you know, we have seen in some of these summaries where there are other individuals in the household that have tested positive within days of the employee, but you have to figure out You know, again, are there any known positives in the workplace? Another question would be, you know, have you done any out-of-state travel since we have been under stay-at-home orders? During that period of time, you know, what grocery store did you go to? And, and one of the questions that I built into the recorded statement summary for a client of mine is, first of all, when did you become aware of COVID-19 and the nature of this virus, and did you actually buy any PPE yourself, and were you using any PPE when you were outside of work? I think that's a very relevant question. Another question as well is, for those that continue to work, are they using their own PPE, or are they utilizing any PPE as has been provided by their employer? Because that also helps Helps to establish some background information because I know prior to some of the partial closure— reopening, excuse me, that have been transpiring across the country, you know, in some places it's a recommendation to utilize a mask. In other locations it's mandatory. And those types of things are going to be relevant. So, we definitely need to ask these questions and the reality is that is necessary for a thorough and good faith investigation because of the nature of the virus. So those are— that's definitely wide open, but minus those questions that go beyond, like we mentioned, someone else's COVID status. So in other words, that claims adjuster has the right to ask the question and confirm that with the employer, and all the employer needs to say is Yes, this individual tested positive on 5/7. However, this healthcare professional was providing direct care to somebody that was COVID-19 positive, or there was somebody on their team or on their floor that tested positive on XYZ date, and that individual shares the same, maybe, nursing station with this individual. Right, right. We can't get into the identity of that other employee.

All right, so I have a bunch of questions, but this one I think is a good one for all of us. What happens if on pre-hire, can I ask an employee, can I mandate a COVID-19 test on pre-hire for somebody coming to work for me? Is one of the questions we had. You know, is that a question? Would somebody run to your office, Scott, and say my employer asked me to do pre-COVID and that's against the law?

I don't know. I wouldn't want to ask that question, but I think you can— I mean, I don't know the answer to that.

Sally, what do you think?

If you can ask them if they tested positive—

Can you require the testing? Can you require COVID-19 testing? Testing before you hire someone to come to work for your company?

Right. Well, I don't know the exact answer to it, same way as my colleagues, but what comes to mind is that there's a lot of push nationally and statewide for testing, both for the virus itself and serologically to see if people have had it, and then we do contact tracing, and that's all public health health information. So depending on what kind of employer you were, let's say if you were with a nursing home versus you're with, um, geez, uh, maybe a manufacturer or something, you might have a different set of circumstances where that would be relevant to an assignment of work duties, right? So I could foresee possibility in some cases. Yeah.

So, Leslie, one of the other— the other part of this question was, I want to take temperatures of my employees and they're refusing to allow me to take their temperature. What is my remedy as an employer if the person's refusing to have the temperature taken?

I think that if you try to take— if you have, say, 100 employees— I'll take my law firm. I use myself as an example. We have about 100 employees. If I say tomorrow, I just want to take everybody's temperature to see how you're doing, I don't think that's going to be okay. On the other hand, I think that if we want to have a medical professional do that, it might be a little bit more tolerable. Also, if there's a reason to do that— let's just say someone in my office has come down with COVID-19 and others that are exposed to that, it seems like it would be in the best interest of employees and employers to have that testing done. But I— and so I think that especially in this current environment, it would be something that would be justifiable legally, although we don't have bright light answers on any of this, as the other panelists have said. But I think that that's how I would approach it. And have a medical professional come to do that, make it available, and if there's a refusal, then we would deal with it around that, whether we have to modify the person's duties in some way to isolate them from other employees. Kind of opens a whole stream of analysis, if that makes sense at all, Margaret.

Yeah. Simona, you asked— you said airlines are requiring employees to take their temperature. A lot of companies are requiring the temperature. We did an earlier webinar about 2 weeks ago with a bunch of physicians, and during that webinar, the physicians recommended there's training that goes along with the temperature. When I did the webinar 2 days ago with Ed Fuchs with OSHA, he recommended that you take the temperature but you not write it down, because again, writing it down creates a HIPAA violation. I've now given this employee temperature. I mean, you know, so for everybody, I think the consensus here is we're operating in a gray zone. And the gray zone, this gray zone is turning like dark gray to light gray, back to dark gray, you know, in the millisecond. But the recommendation was from an OSHA perspective, they are requiring certain industries to take people's temperature. Like nursing homes, right?

Makes sense.

You know, assisted living facilities and so on and so forth. But they are also saying two things from the OSHA perspective. And the video, I will send the link out to everybody who's on this if you haven't gotten it. The general consensus is deal with this as you would deal with an occupational disease. If you have somebody who's got a high temperature, don't write it down. Don't create a separate medical file, the whole nine yards. And go into the HR world and don't just say, oh, Johnny tested positive, he's got a 90-degree, or, you know, and you start announcing that somebody's got 101 temperature running through your workforce, you know, now you're creating a stigmatism. You're also creating disparate impact. You're creating EEOC issues. And the Pandora's box just keeps on going. Alan, what do you think?

I think, you know, I'm not as troubled about taking the temperature as I would be troubled, for example, if they required you to have the test with the swab up your nose, which is really uncomfortable.

Yeah, invasive.

Or a blood test where you're actually piercing the skin and drawing blood. Um, but yeah, it's a gray area, but I certainly think taking the temperature in an appropriate HIPAA-protected way, um, would not be as problematic as some of these more extreme tests.

Yeah, yeah, yeah. Would you agree, Scott, as well?

I, I agree. One question I— that just keeps rolling through my mind is what do employers do do when they have somebody that's released to go back to work who's 68 years old and has asthma and the work environment in a meatpacking plant. And he says, "No, I'm not going back to work." Does he get to stay on unemployment or does he get to go back and he's high risk and might die? I mean, what do employers do with that guy?

And that, that's the question, because I was looking at what the Nebraska governor said, which was pretty interesting because, you know, up in that neck of the woods, the Nebraska governor said, if, if we say you come back to work, you come back to work. There's no exception. You lose your unemployment benefit, you lose everything. So again, I think sometimes the, the governors of the states— not that we're blaming them, I think everybody's operating in this this knee-jerk situation. I think sometimes the governors in their orders— because here in Florida we've had presumption for a while, and our presumption is pretty expansive. Our presumption is if you're a firefighter, police officer, and you are sitting on your sofa at home and you die, it's workers' comp. Doesn't matter what you died from. You could have been out in the yard and cutting the grass and you came in and you laid down and you're done and it's gone. You were, it's workers' comp. And that was a knee-jerk law from 9/11. 9/11 created the presumption in Florida. It has been a battle for municipals and cities and local government here for 20 years almost. And Gina can actually speak to that. I think presumption is our challenge. And so for all the other states that are getting presumptions, for the first time, our Department of Insurance issued a guidance 2 weeks ago that expanded presumption to grocery stores, nursing homes, yada yada yada. And if we think that's gonna get rolled back in Florida, it's not gonna happen. What do you think, Gina?

I agree. As far as the presumptions that have actually been issued. The first one came from the department regarding State of Florida employees. And so ultimately they're talking about these frontline workers, but a State of Florida employee is not an employee that works with a municipal entity. So ultimately, as Margaret mentioned, you know, this is a scenario where it's just constantly revolving and because the situation is so fluid, you— I have to remind my clients that X is the current state of the law. However, as we learn more about the virus, as we get additional instructions from our insurance commissioner, we have to be mindful that a compensability decision now may not be your compensability decision in another 45 days. So obviously, if a claim has been denied I have recommended to my clients that any denied claims, those need to be reviewed. You know, I'm not sure what's a good frequency, but ultimately those need to be reviewed because again, as new information becomes available about the nature of the virus and about, you know, what our expectations are, you know, is that a denial that needs to be rescinded? Earlier I noticed that my colleagues were saying in their states the burden of proof is by a preponderance of the evidence, but in Florida, it's clear and convincing evidence, which is a higher evidentiary standard. So how do you balance, you know, clear and convincing evidence? Because you have some defense attorneys that are saying deny them all because good luck, my clear and convincing evidence, since it's a higher evidentiary standard, they will not be able to prove that. But let's think about the facts and the circumstances and making that, you know, independent assessment based on what we know from the insurance commissioner and the current state of the law. So it's just, it's, you know, every day we come in, there might be something new. And those are things that, you know, we need to revisit. We just can't take that denied claim and close it out and forget about it. Those things need to be revisited.

Yeah. I have a Massachusetts question, and the question is, there's a lot of— we on a prior call, a webinar that we did on Monday, we had a lot of people working in dental offices, and we had a lot of them working in Massachusetts in dental offices. And because they cannot social distance within a dental office, some of the things that were being asked, and I think when you you brought up the Occupational Disease Act in Massachusetts. Who does that cover? I think that's what you were saying. It's the— there was some difference with Massachusetts than the other states. Explain that a little bit.

No, no, no.

What I was saying generally, occupational diseases are not necessarily coterminous with infectious contagious diseases.

Right.

OK. So I think in terms of the— Dental hygienists, they are certainly in an occupation in our statute where infectious or contagious diseases are excluded. Clearly, the nature of their employment, the risk of contracting a communicable disease, whether it's COVID or whether it's the flu or whether it's, you know, anything else they could catch from a patient, is in the nature of that employment, which means it's not excluded by statute. Statute, it still means that they have to make an offer of proof. They have to prove that a particular— you know, if they just came down with COVID and they've been working on a patient population, they would still have the same burden of proof of anyone else that they contracted it in the course of their employment. But because of the nature of the employment in the dental field, they would not be exempt under the statute.

Okay, okay, makes sense. Sally, I have an FMLA question. Which is pretty, pretty interesting. We had this one where the employee is already out on FMLA and there's a COVID-positive employee in the building where we're asking this person to come back on. The employee had— the employee has a heart condition is what it was posted in the chat. And so now we're asking the employee to come back to work. How do you, how do you line up FMLA and workers' comp COVID-19 into this triangle? Can you answer that?

Well, that's a very good question. It gets very complicated. And, you know, some of the FMLA has been expanded through the Family First Coronavirus Act. And so depending on what level you're at and, and what your circumstances are, whether you would qualify for for extended coverage or you would not. I think that, um, as a general rule in FMLA, the medical is going to be very important. I mean, the doc is going to weigh in about whether, uh, this is a situation which is going to qualify you for staying away from work and not having any personnel ramifications from that. And if I understood your question correctly, this was a person that's at risk because of a cardiac situation. And so, yeah, I think it's going to be on an individual basis. I don't think you can just say across the board those are going to be denied or they're going to be administered in a different way. I think it's going to be very individualistic.

I have a question in the chat. Scott asked a question, and he's asked it a couple times, and I want to— Robert did, sorry. He feels that we are obsessed about HIPAA, and so I've got both sides of the room here. Can you explain to me, Leslie or Gina or Sally or Scott or Alan, why we are not obsessed about HIPAA? Because it I just need everybody to understand that we're not obsessed about HIPAA.

Leslie, I would say in Florida specifically, when let's just say we send the claimant to a doctor to have an evaluation, it's stated in our statute that there is no HIPAA regarding not only access to that medical information but let's just say, you know, in the medical records, but let's just say we conference with the doctor and the doctor didn't ask all of the relevant questions, which needs to be the predicate of his ultimate opinion if we're dealing with, you know, evidence-based medicine, right? You know, in Florida, that would be another avenue. And again, as you mentioned, I don't necessarily think that we are, but it's more of a let's get the information in a safe way because we don't want to necessarily trigger other litigation stemming from the case, you know, at hand.

Right, right. And Leslie, Leslie, I see you're itching to answer, so tell me.

I just wanted to agree with what Gina said, but in California, I don't necessarily think we can ever obsess on privacy enough. Uh, you know, it's a very claimant and a privacy-oriented state.

Right.

So we don't want to be obsessive about it. We want to look at the totality of the circumstances, make good decisions. But I think my concern would be around where you start to bring in records or medical information, particularly about others who are not involved in the claim. The claimant kind of opens the medical for discovery and investigation, but others who are somehow in contact with that person, it's important to know that the contact that existed, but maybe not necessarily the identity and all the information that relates behind that.

Behind it, yeah.

Yeah, I would say if somebody brings a claim, they lose a lot of their medical privacy. But in terms of employment law, I'm certainly not the expert that Sally may be or some of the others may be, but let's say, first of all, an employer would have a duty to his or her other employees if the employer knew that one of the coworkers was COVID positive. Positive. So it's one thing to say, uh, one of our co-workers has been discovered to be COVID positive, maybe okay, but, um, Scott Mack, uh, has been found to be COVID positive, that would, I would say, would be a HIPAA violation. So it'd be the identity of the, the sick person as opposed to the fact that there is a sick person might be a very valid distinction.

Valid distinction, right, right. So, um, one of the other parts of the FMLA question, Sally, that was in our chat is, um, uh, Stacy asked, um, the, the FMLA is running, the person's out, they want to come back, there's COVID positive in the workplace. I think everybody has forgotten that we still have ADA running on the same train track with workers' comp, FMLA. ADA is on that track and they're running together. So just because the FMLA runs out, you still have to kick into the ADA to say, is there an accommodation? And one of the things that came up on our webinar on Tuesday is people who ask for ADA accommodations for wearing a mask, where they say, I can't wear that mask and I need a different mask. The ADA does still come back in. And I know, Sally, you could probably speak to this on— and Leslie as well. We have to take the totality of the employment, the entire employment process when we are dealing with COVID COVID-19. Sally, what, what do you, what is your thought on that?

No, I think that's a very good point. And that's actually what came to mind when some of these other subjects came up in that. So for instance, the HIPAA question, well, you're going to come into possession sometimes of HIPAA-protected information. It's what you do with it, or what you don't do with it as an employer. That's the important part, I think. Same way with, um, you're talking about accommodations and, uh, different types of leave. So, um, it, it's going to be, um, I think dependent upon looking at all of the underlying facts of the case. So a person, as you give the example, that, um, has a difficult time wearing a mask. Okay. You're going to have the interactive process. If you require at your workplace that someone has to wear a mask, then you're going to work through that and see if there is an accommodation and how you can go about that process so you can come to some sort of agreeable resolution to it. But I think that what I also hear is that employers— and it's difficult because there's just an overwhelming amount lot of information out there on COVID and what we should do from a federal guideline and a state guideline, and OSHA has their guidelines, uh, Department of Homeland Security has their guidelines. We got guidelines today from the Indiana State Bar. We've gotten from the health department. You know, it's difficult to, um, distill down all of the recommendations and guidelines that are out out there for you, but you, you are well served if you look at them and become as familiar with them as you can, because as an employer, let's just say we have this question about, well, what if people don't wear masks and you want them to wear masks at work? Well, depending on what your policy is and what your employment situation is, you as an employer have a responsibility. It's not preference. It's a responsibility to your employees. And if you have the public coming in and all of those things, so you kind of have to weigh the balance as to what kind of consequences there are going to be out there, right?

Yeah. And, and so I'll give you just a little scenario of what happened yesterday. I had a client call me. They were getting their call center. They were getting ready to reopen. 'cause they're considered an essential business and they're taking calls for, on utilities, so they have to reopen. Their employees have been working from home. So the ordinance was 6 feet apart for, you know, we've all been telling 6 feet apart, but the city that their building is in created a 12-foot rule for call centers. So now they got on the phone, they called me and we were bantering back and forth back and forth about it, and I said, hey, you've got to take every single piece of this and lay it all out, because there isn't a one rule fits all. Your city created an ordinance that said 12 feet. The fire department showed up yesterday and shut you guys back down. What do you want me to do? I can't help you. You know what I'm saying? It's not that I'm being callous about that. It's your rule— the rules are being created as we go, and I think Scott started out saying that the rules are being created as we go, and so you eat your— you've got to overlap them all at some point and say, you know, here we are. So I'm going to start with you, Scott. Give me the wrap-up because we're going to wrap up our webinar, and tell me what you think. And looking in the Scott crystal ball, what do you think?

I think that there will be litigation over the next 5 to 10 years over the 6-month period that we're living in right now. I don't think anybody has any answers, but I think common sense is probably a good rule of thumb. Don't send somebody back into the workplace that's sick. Don't require somebody to go back to work that's at risk, those types of things. And understand that the claimants' bar is not going to take every COVID case because most people recover. And even if they're covered under comp, they're going to be kind of hard to process because of causation. And it's a risk to the claimants' attorney to take some of these cases because we don't— not because they're not good cases or not because they're nice people that are hurt, But sometimes it's not economically feasible to try to help somebody in these cases, and that's something we, we have to look at from the claimant side.

Okay. All right. Um, Sally, what do you want to say to us?

Sure. I would say just in wrap-up that, um, it's, it's, uh, a challenge to both employers and just the general public and employees as to what to do. People are on the spectrum as to how comfortable they are working at the workplace, staying home. And I think that there are a lot of remedies out there. And that's another thing I would encourage all of the listeners become, you know, familiar with the remedies. Sometimes it's going to be the fact that we've heard this question come up that Employees might be called back to work, but the employer is only at 50% capacity. Well, if that employee is on unemployment compensation from the state and they're getting the federal bump also, that's monetarily not really a very good trade-off, right, to come back to work 50%. So there's going to be a lot of challenges going forward, and people have to decide which is the best way for them to go. And The feds have passed a lot of temporary legislation, if you want to call it that, or the emergency acts where we're trying to get the best remedy going for the most amount of people that we can, but it's a challenge for sure.

Yeah. Gina, what would you say?

I think the most important part, as Sally just mentioned, is is knowing the remedies. So, um, you know, are we going the workers' compensation route, uh, with the claim? Are we dealing with a Part II Coverage B? And also in Florida, even if you pick up the claim, the question also arises, is it, um, are you going to be faced with, um, some kind of circuit court lawsuit, um, based on the specific facts? So it does require a very thorough investigation on the front side of the claim, and then the claims examiner and the employer should seek a legal opinion before deciding which route to go with the case. Because I think the more that you gather information and you front-loaded it with as much data, facts as possible, then you're going to have a better outcome understanding the exposure and what your probable ultimate costs are going going to be, if it falls in the workers' compensation bucket or if it falls in the circuit bucket. So I definitely think a thorough investigation is very, very critical, a very critical piece of the analysis.

Yeah. So Alan, what do you, what do you say?

I now have been thinking about all of the positives when this gets behind us that this may this whole experience may have generated. I've been representing workers for 35 or 40 years, and I've always recognized, but even with that recognition, it has come home to me that all workers are valuable. Everybody is essential. That the way we look upon people who do the toughest work, the dirtiest work, and are often the lowest paid is somehow skewed. And I'm hoping that as we come through this, that as a society, we look at each other and we look at the workers who are performing the jobs that we don't want to do, that because they have to do, that they not only may be more compensated more fairly, but they may be looked upon more favorably and not dismissed and be placed into categories of unskilled or semi-skilled or highly skilled. But, you know, we are now, recognizing that the person changing the linens on our grandmothers, for my grandmother's nursing home, is every bit as— at $12 an hour— is every bit as valuable, essential, and vulnerable as everybody else. So I hope that as a society we learn some lessons here as we look at each other and work with each other going forward.

Yeah, I agree with you. I can't, I can't echo that even anymore. I think I think the first book I wrote was From Workers' Comp Claimant to Valued Employee. That was my first— the title of my first book. And I think that one of my angst is that we often throw the shoe. You're not 100% anymore. Have a good life. Goodbye. And we tend to operate that people must be at 100%. Well, right now we're all operating at zero. So it's— great equalizer COVID-19 has been. So Leslie, you are going to wrap— you started out, now I'm asking you to wrap it up. Tell me what you think.

I so appreciate that, Margaret. I think that the thought I'd like to leave everyone with is this is an evolving landscape, and this time reminds me of a speech that Robert Kennedy gave, and I know some of the panelists still remember him, and hopefully the attendees know who he was. But he said that it's a Chinese curse to wish someone live an interesting life. And I think that's apocryphal, but I do believe it applies. Uh, you know, business school teaches business leaders to assess strengths, weaknesses, threats, and opportunities. And this really dovetails with what Alan said, only from the other side, from the side of the employer. And, and actually it goes without what Alan's saying, it was society as a as a whole, because I think COVID has exposed weaknesses in our families, our individuals, communities, cities, counties, our government, also in ourselves. And it also has exposed strengths. I walk down the street and people are nicer to me. I think it's making us appreciate one another more. So, no employers— and I always speak in this scenario anyhow from the perspective of an employer, they've had to adapt already. What about these adaptations are positive and can be carried forward into the future? If we have video depots, telephonic court appearances, it gives employers an opportunity to be present at those and to participate in the system much more. Just one positive aspect. But I think if we were to have a different focus in a different webinar and talk about the positive aspects, as Alan says, that have come from COVID What have we learned about our own strengths and where we can improve? That's the thought I'd like to leave everyone with.

Yeah. And I can't say it enough. I think that as an organization, and I say organization, not in terms of company, I think as an industry, you know, we all operate in the space of employer and legal, that whole space. I think within that space, We've always been, this is how we do it. And now we are not doing it the way we always did it. And so even, for example, I did a thing on telemedicine and people resisted telemedicine for years, but now we're embracing it. So the question is, what blinders do we have on and how do we remove them permanently at the end of this? And what do we see now that we didn't see before and how do we make make that adjustment. So I absolutely want to thank my panelists. I think I can't say enough that I was so— I'm impressed and honored to be with all of you on this webinar. I want to do a tiny bit of housekeeping before we end. We have a free webinar coming up on the 12th around advocacy and empathy. Integrative Leave and Disability Management and Return to Work Policies Post-COVID. How do we bring people back to work with empathy and with advocacy is our next webinar. So thank you for joining us. I want to thank my panelists. This was an amazing webinar. Thank you so much for participating, and I'm sure we will do this again as time continues. And for everyone that asked questions during the webinar, webinar. We will go back and look through the chat, and if there's something that we didn't answer— I know there was a couple things on ADA and FMLA— I'm probably going to put together an employment webinar around employment law to get folks to answer some of those questions. So thank you again for everyone who participated, and I, I'm so honored to have been a part of this. Thank you.

Thank you, Margaret.

Thank you, Margaret.

Thank you.

Bye, everybody.

Thank you.

Stay safe.

Bye-bye. Stay safe.

Bye-bye.

Bye-bye.