New York State's Workers' Compensation Law §21(1) provides a presumption that an accident that occurs in the course of employment arises out of that employment. However, the statutory presumption cannot be used "to establish that an accident occurred in the first instance, and it does not wholly relieve a claimant of the burden of demonstrating that the accident occurred in the course of, and arose out of, the claimant's employment".
Claimant's husband [Decedent], began suffering from a fever and flu-like symptoms and went to a clinic complaining of a high fever and respiratory distress. Transported to a hospital emergency room, Decedent tested positive for COVID-19 and after being discharge, was readmitted to the hospital after experiencing "a syncopal episode and was found to have myoclonus and presumed anoxic brain injury". Decedent later died from cardiac arrest due to or as a consequence of respiratory failure and COVID-19.
Claimant — Decedent's widow — filed a claim for workers' compensation in a death case. The employer controverted the claim contending, among other things, that Decedent did not sustain a compensable accident.
A Workers' Compensation Law Judge [WCLJ] established the claim for a work-related injury involving death and made an award of benefits. The Employer sought an administrative review of the WCLJ's ruling.
The New York State Workers' Compensation Board [Board] affirmed the WCLJ's decision establishing the claim, finding that the Decedent had sustained an accident arising out of and in the course of his employment that resulted in a causally related death based upon the medical evidence of a positive COVID-19 test result' and credible testimony about the prevalence of COVID-19 in decedent's workplace when he contracted the virus. The employer appealed.
The Appellate Division affirmed the Board's decision, noting that "The contraction of COVID-19 in the workplace reasonably qualifies as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers' Compensation Law".
Citing Matter of Flores v Wellwood Cemetery Assoc., Inc., 232 AD3d 1003, the Appellate Division's decision notes that "Whether a compensable accident has occurred in the first instance is a question of fact to be resolved by the Board, and its determination in this regard will not be disturbed where supported by substantial evidence".
In the words of the Appellate Division, "... the claimant bears the burden of establishing:
1. "That the subject injury arose out of and in the course of his or her employment; and
2. "Must demonstrate, by competent medical evidence, the existence of a causal connection between his or her injury and his or her employment".
In this instance, Appellate Division noted that a claimant may meet his or her burden to show that an injury arose in the course of employment by demonstrating the claimant:
1. "Suffered a specific exposure to COVID-19 or a prevalence of COVID-19 in the work environment so as to present an elevated risk of exposure constituting an extraordinary event; or
2. "Had significant contact with the public in communities with high rates of COVID-19 infection; or
3. "Was employed in a workplace experiencing high rates of COVID-19 infection".
Opining that as the sole arbiter of witness credibility, "the Board has broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inference from the evidence in the record."
Click HERE to access the Appellate Division's decision posted on the Internet.