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Anyone that has visited this blog has perceived the impacts of COVID-19 on workers' compensation. Many of the related posts (about 25) are linked in Florida Covid-19 Litigation September Update (September 2020). Links to about 32 more are in Long COVID Seminar (April 2022). It is fair to say that COVID has had a breadth of impacts on workers' compensation, from a variety of perspectives.
COVID has impacted the way businesses were run, the management of employees, and more. The potential for infection has impacted workplace safety, attendance, and efficacy. There have been management and employee issues with vaccines, mandates, and more. COVID has contributed to many blog posts. And, it is back in the news today.
On December 13, 2022, Governor Ron DeSantis filed a petition with The Florida Supreme Court "for an order to impanel a statewide grand jury." The focus of the petition is COVID, with a more specific focus on vaccination, and the process and promises that evolved in the responses to COVID that impacted lives, business, and the workers' compensation community.
There were challenges in participation with vaccinations. See Vaccination Implications (February 2021). I have noted that some displayed little interest in the COVID-19 vaccine. See Vaccination Tribulation (February 2021)("I have spoken to some who are ambivalent, and others who are fearful."). There has been variety in people's perceptions of the virus, and the appropriate reactions to it. The vastly different opinions regarding masking and other precautions were of great interest in communities and offices. I know people who still choose to mask today, and others that have only ever masked when forced. I have striven to be respectful of each.
The December 13 petition asserts "it is in the public interest to impanel a statewide grand jury" for the investigation of "crimes and wrongs" as regards Floridians. It alleges
"The federal government, medical associations, and other experts have created an expectation that receiving a COVID-19 vaccine is an ethical or civic duty and that choosing not to get vaccinated against COVID-19 is selfish and harmful to others."
Some of the focus in this regard is on statements that vaccination would hinder the virus' spread. Vaccination, we were told, would protect us individually and protect those around us. The petition contends that "some Floridians made the choice to receive the COVID-19 vaccine because they believed that receiving the vaccine would prevent them from spreading COVID-19 to others." There is one particularly heart-tugging quote out there about protecting your grandparents. Florida has a fair number of such seasoned citizens, at least for part of each year.
There is mention of federal attempts at vaccine mandates for "healthcare workers and members of the military." The foci of these being a diminished "spread (of) the virus." There is also mention of specific instances in which broader statements were allegedly made about the self-protective effect of the vaccination, and its efficacy generally. The petition notes that the virus has nonetheless spread, and that a vaccinated individual may nonetheless spread the virus to others or be infected personally.
There is discussion of the vaccine approval process, manufacturers, and the Center for Disease Control. It notes commitments made regarding the vaccine's safety and efficacy by medical professionals, government leaders, and more. Specifics are cited regarding manufacturer claims about the extent to which vaccines were "effective" in protecting the inoculated over time. It is perhaps a sign of our times that there are references there to Internet websites and social media. While the old standby, Television, is also mentioned, it is clear that the manner in which information is transmitted and received in the twenty-first century has truly evolved.
Despite the hopes and claims regarding immunity and protection, the petition cites the "breakthrough" infections that became part of our reality. See Breakthrough, Vacillation, and Consensus (August 2021). Science is about hypotheses being subjected to testing and study. Reliability and proof come through multiple studies and confirmations of results. Consensus is more about collective thought, and can be driven to or by "groupthink." See Consensus in the Absence of Proof (January 2021). That an idea is not the best cannot be changed by the volume of those who believe it.
During the COVID experience, we were encouraged to inoculate. There was a perceived need for rapid roll-out and protection. We thereafter witnessed "waning immunity" and a campaign for repeated inoculations, "boosters." At first, this was for the seniors and other "at risk" portions of society and then for us all. As time passes, and research continues, we are perhaps learning more about this virus. Science, studies, and findings are perhaps now beginning to replace the conjecture and consensus of the virus' early days. When there is no data, we are perhaps forced to the consensus of the bright and brilliant. But, over time, our admonishment should be "bring data." That data flow has likely only begun, but the studies and data will grow.
There are allegations in the petition regarding the vaccine's testing. One asserts that one vaccine was not tested regarding its ability to "prevent() the transmission of COVID-19." There is discussion regarding perceptions at the World Health Organization (WHO) about the potential for breakthrough and the potential for preventing the virus' spread. The petition asserts that various statements and representations regarding vaccine efficacy may have been since undermined or contradicted by studies and academic efforts.
There is discussion of potential side effects or risks of vaccination. This includes both general population focus and specifically notes children, adolescents, and others. The extent to which we are different from each other, despite our many similarities or identicalities is intriguing. There is specific reference in the petition to "myocarditis and/ or pericarditis," and the perceptions and statements regarding these conditions. There are references to the prevalence and impact of such conditions. And, there is mention of scientific studies regarding the prevalence of such conditions "following receipt of COVID-19 mRNA vaccines."
The petition suggests that there are questions worthy of consideration regarding the vaccine producers, "veracity of () representations," marketing, safety, efficacy (protection), and societal benefit (preventing "the spread"). It concludes with an allegation
"that there are good and sufficient reasons to deem it to be in the public interest to impanel a statewide grand jury to investigate criminal or wrongful activity in Florida relating to the development, promotion, and distribution of vaccines purported to prevent COVID19 infection, symptoms, and transmission."
There are challenges with anything described with the word "statewide." Florida, is a great deal "wider" than people give it credit for. I once compared Florida to New York and noted some interesting facts. See Comparing Florida to New York (February 2015). Florida is larger than New York, and more populous. But the distances across it are most surprising. I noted there:
"the 12.6 hour, 832 mile, drive time from Pensacola to Key West illustrates this. By comparison, the drive from Manhattan to Jacksonville, Florida is only 13.5 hours, 932 miles. It can be a great distance between two points in Florida." (ed. note - it sure looks like that last hundred miles only takes an hour, but the drive to Key west includes much two-lane road).
In light of those significant distances, the petition requests that the Court designate a geographic subset from which to draw a grand jury, and for a "base operating area." The suggestion is in the center-west of the state (the Fifth, Sixth, Tenth, Twelfth, and Thirteenth Judicial Circuits). This is essentially from Ocala south just beyond Lakeland and west to the Gulf. The major cities in that area also include Tampa, St. Petersburg, Sarasota, and Bradenton.
The issue will likely remain in the news. The Court's decision on this request for a grand jury will be interesting. For the convenience of the public, the Court maintains a list of "high profile" cases (to ease public access to filings and other information). This case (petition) has been added to that list for convenience.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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