The New York State Workers' Compensation Board [Board] had reversed a Workers' Compensation Administrative Law Judge's finding that the Claimant was not eligible for workers' compensation benefits related to contracting COID-19. In so doing the Board reasoned that Claimant's public-facing job exposed him to an elevated risk of contracting the disease.
The School District and its workers' compensation carrier [jointly referred to as "Carrier"] had controverted the Claimant's application for benefits, contending, among other things, that the alleged injury did not occur in the course of Claimant's employment and that there was no causal relationship between the alleged injury and Claimant's employment, appealed the Board's ruling.
Acknowledging that "the contraction of COVID-19 in the workplace is compensable under the Workers' Compensation Law", the Appellate Division explained:
a. The issue of whether a compensable accident has occurred is a question of fact for the Board to resolve; and
b. The Board's findings in this regard, if supported by substantial evidence, will not be disturbed.
Opining that case law makes clear that where, as here, the injured Claimant alleges that he or she contracted COVID-19 at work, the Appellate Division said that the claimant for workers' compensation benefits "bears the burden of demonstrating either a specific exposure to COVID-19 or that COVID-19 was so prevalent in the work environment as to present an elevated risk of exposure constituting an extraordinary event". As an example, the Appellate Division identified such individuals as "workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection".
Although Claimant did not allege, and the Board did not conclude, nor did the record did not support a finding that Claimant had a specific exposure to COVID-19, the Appellate Division decided that "the issue distills to whether substantial evidence supports the Board's finding that '[Claimant's] job as a high school custodian was a public-facing job that significantly elevated his risk of exposure to COVID-19 via contact with students'".
Noting that the record was silent as to the rate of infection in either the school where Claimant worked or the surrounding community, the Court, considering the record as a whole, concluded that the Board's decision was not supported by substantial evidence. The Appellate Division found:
1. The record was devoid of proof that there was a high rate of infection present in Claimant's work environment at the relevant point in time;
2. Claimant's brief encounters with a passing group of students in a corridor falls short of the degree of regular, consistent and close interaction with the public at large necessary to sustain a finding of prevalence; and
3. The record indicated that either Claimant or members of his household engaged in other in-person pursuits during the relevant time period.
In the words of the Appellate Division, "Under these circumstances, the Board's finding that [Claimant's] employment exposed him to an elevated risk of exposure to COVID-19 cannot stand". Reversing the Board's decision, the Court remanded the matter "to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision".
Click HERE to access the Appellate Division's decision posted on the Internet.