Recent court decisions* make clear "the contraction of COVID-19 in the workplace may qualify as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers' Compensation Law".
In the instant matter, however, the Workers' Compensation Board [Board] ruled that Claimant's spouse's [Decedent] COVID-19 related death was not causally-related to his employment and denied Claimant's application for workers' compensation death benefits.
Claimant's spouse had filed a claim for workers' compensation benefits, alleging he had suffered a COVID-19 work-related injury or disease. Claimant subsequently filed a claim for death benefits upon the passing of the Decedent. Following a hearing and the consideration of depositions of certain medical providers, a Workers' Compensation Law Judge found, among other things, that Decedent had sustained a COVID-19 work-related injury. The Board, however, ultimately denied the claim. Claimant appealed the Board's determination.
The Appellate Division explained:
1. Whether a compensable accident has occurred is a question of fact for the Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed;
2. A claimant "bears the burden of establishing that the subject injury arose out of and in the course of his or her employment";
3. A claimant may meet his or her burden to show that an injury arose in the course of employment by demonstrating either a specific exposure to COVID-19 or prevalence of COVID-19 in the work environment so as to present an elevated risk of exposure constituting an extraordinary event; for example, workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection"; and
4. "Although Workers' Compensation Law §21(1) provides a presumption that an accident that occurs in the course of employment also arises out of that employment, 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, his or her employment."
Here Claimant testified that a number of Decedent's coworkers tested positive for COVID-19 at some undetermined point, but she was unable to provide any names, dates or other details from which it reasonably could be inferred that Decedent contracted COVID-19 from one or more coworkers.
Although Claimant also testified that Decedent provided his own masks, gloves and hand sanitizer, the Appellate Division opined "the record is devoid of any evidence that Decedent's job as a subway track inspector required him to work in a contained environment that, in turn, brought him into regular contact with the public at large".
Under the circumstances, the Appellate Division held that "substantial evidence supports the Board's finding that Claimant failed to meet her burden of demonstrating that Decedent contracted COVID-19 in the course of his employment" and affirmed the Board's decision.
* See Matter of Pierre v ABF Frgt., 211 AD3d 1284; accord Matter of Leroy v Brookdale Hosp. Med. Ctr., 222 AD3d 1160; Matter of Aungst v Family Dollar, 221 AD3d 1222; and Matter of Holder v Office for People with Dev. Disabilities, 215 AD3d 1201.
Click HERE to access the Appellate Division's decision posted on the Internet.