Claims for workers' compensation benefits based on COVIS-19 must be supported by substantial evidence of a nexus to the claimant's employment

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.

 

Son who stole $194,000 in NYS pension and social security payments by impersonating his deceased father sentenced to five years in prison

On February 14, 2024, New York State Comptroller Thomas P. DiNapoli, the United States Attorney for the Eastern District of Pennsylvania Jacqueline C. Romero, the Inspector General for the Social Security Administration Gail S. Ennis, the United States Postal Inspection Service and the Federal Bureau of Investigation announced that the son of a deceased retiree of the New York State Employees' Retirement Plan who stole $194,000 of New York State retirement benefits paid to his deceased father was sentenced to five years in prison and ordered to pay full restitution.

Comptroller DiNapoli said “Timothy Gritman shamelessly hid his own father’s death, going so far as to attempt to disguise himself as him in order to collect his pension and Social Security payments for more than four years” and “Thanks to the work of my investigative team and our partners in law enforcement, he has been held accountable. My office will continue to bring anyone who seeks to defraud the pension system to justice.”

“Timothy Gritman chose dollars and cents over a dignified death for his dad,” said U.S. Attorney Romero and “He had been living off of his father Ralph’s retirement benefits for years, even before his father’s passing — and after it, went to significant lengths to keep that money coming in. With today’s sentence, he’s finally being made to answer for his criminal greed.”

“Timothy Gritman schemed to obtain the Social Security retirement benefits intended for his deceased father. His behavior is unacceptable, and this sentence holds him accountable for his criminal actions,” said Social Security Inspector General Ennis. “I thank our law enforcement partners and the New York State Comptroller’s Office for their efforts in investigating, and the U.S. Attorney’s Office, and Special Assistant U.S. Attorney Megan Curran for prosecuting this case.”

New York state pensioner Ralph Gritman retired from the Nassau County Clerk’s Office in 1992 and moved to Wyoming from Pennsylvania with his son, Timothy Gritman, in August 2017. In September 2017, Medicare records showed he went to a hospital emergency room in Wyoming. This was the last existing record of the father.

The father and son shared a joint bank account where Ralph’s retirement benefits were electronically deposited. Both Ralph Gritman’s pension and Social Security benefits were to cease upon his death, but Timothy Gritman concealed his father’s death in order to continue to receive his retirement benefits. In his attempts to impersonate his deceased father, he used makeup to whiten his hair and eyebrows.

In 2019, Timothy Gritman told a family member that his father had died several years earlier but would not say where he was buried or what had happened to his body. Ralph Gritman’s body still has not been located.

A call to DiNapoli’s Fraud Hotline led to a joint investigation and the suspension of Ralph Gritman’s pension payments and the investigation that led to his son’s arrest.

Gritman was sentenced by U.S. District Court Judge Cynthia M. Rufe in Philadelphia.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported by calling the Retirement Systems toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or filing online at https://www.osc.state.ny.us/investigations.

 

Applying the doctrine of forum non conveniens

New York State has codified the doctrine of forum non conveniens as CPLR 327.*

In Employees Retirement System for the City of Providence v Rohner, in which Credit Suisse Group AG, was named as a "Nominal Defendant", the Appellate Division opined  "There is no credible argument that a substantial nexus between this action and New York is lacking". Noting the parties agree that this case involves the application of Swiss substantive law, the Appellate Division said "New York courts routinely find that there is no inordinate burden involved in applying the substantive laws of foreign jurisdictions, including Swiss law".

Citing Di Lella v. Lehigh Val. R. Co., D.C.N.Y., 7 F.R.D. 192, 193, the Appellate Division indicated that "In determining whether doctrine should be applied, courts typically "consider relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises, and all other practical problems that make trial easy, expeditious and inexpensive". 

* See https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvpny-cplr-rule-327/

The Appellate Division's decision in this appeal of a ruling by a New York State Supreme Court is set out below:

 

Employees Retirement Sys. for the City of Providence v Rohner

2024 NY Slip Op 00674

Decided on February 08, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 08, 2024
Before: Manzanet-Daniels, J.P., Kern, Friedman, O'Neill Levy, Michael, JJ.

Index No. 651657/22 Appeal No. 1610 Case No. 2023-01215

Employees Retirement System for the City of Providence, etc., Plaintiff-Respondent,
v
Urs Rohner et al., Defendants, Eric Varvel et al., Defendants-Appellants, Credit Suisse Group AG, Nominal Defendant.

Cahill Gordon & Reindel LLP, New York (Jason M. Hall of counsel), for appellants.

Bernstein Litowitz Berger & Grossmann LLP, New York (Jeroen van Kwawegen of counsel), for respondent.

Order, Supreme Court, New York County (Andrea Masley, J.), entered January 31, 2023, which denied the motion of defendants Eric Varvel, Brian Chin, and Radhka Venkatraman to dismiss the complaint pursuant to CPLR 327 and 3211(a)(7), unanimously affirmed, with costs.

The doctrine of forum non conveniens, codified in CPLR 327, permits a court to stay or dismiss an action where it finds "that in the interest of substantial justice the action should be heard in another forum." CPLR 327 requires that "balancing of many factors," and the decision to retain jurisdiction over a dispute is within the motion court's discretion (Al Rushaid v Pictet & Cie, 28 NY3d 316, 332 [2016]; see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]). Here, defendants have not met their "heavy burden" of establishing that the complaint should have been dismissed on forum non conveniens grounds (see Elmaliach v Bank of China Ltd., 110 AD3d 192, 208 [1st Dept 2013]).

There is no credible argument that a substantial nexus between this action and New York is lacking (Islamic Republic of Iran, 62 NY2d at 478-479). Virtually every aspect of the subject matter underlying this action occurred in New York, and this Court has found a substantial nexus to exist in New York under less compelling circumstances (see e.g. Elmaliach, 110 AD3d at 208-209).

The court also properly found that New York, as a preeminent commercial center, has a significant interest in adjudicating this dispute. While Switzerland also has an interest in adjudicating this action and regulating its banks, this is only "one factor to be weighed," and does not compel dismissal (id. at 209 [internal quotation marks omitted]). Nor is there any parallel litigation pending in Switzerland that might weigh in favor of adjudicating the dispute there.

Defendants also failed to meet their heavy burden of establishing that the Commercial Division is unduly burdened or incapable of handling this case. While the parties agree that this case involves the application of Swiss substantive law, this is not dispositive. New York courts routinely find that there is no inordinate burden involved in applying the substantive laws of foreign jurisdictions, including Swiss law (see e.g. Wormwood Capital LLC v Mulleady, 203 AD3d 500 [1st Dept 2022]).

The court properly determined that the heightened pleading standard of CPLR 3016(b) does not apply to plaintiff's negligence-based breach of fiduciary duty claims under Swiss law.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 8, 2024

State Department and Agency Audits released by New York State Comptroller Thomas P. DiNapoli

On February 12, 2024, New York State Comptroller Thomas P. DiNapoli announced the following audit reports of State Departments and Agencies were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

New York State Dental Insurance Program – EmblemHealth Plan, Inc. – Overpayments for Services Requiring Coordination of Benefits (2022-S-27)
The Department of Civil Service contracts with EmblemHealth Plan, Inc. (Emblem) to process and pay claims for services on behalf of the New York State Dental Insurance Program. To prevent duplicate payment of services, health insurance companies use a process called coordination of benefits for paying health care claims when an individual is covered by more than one insurance plan. Auditors identified $492,061 in overpayments for services processed with coordination of benefits for the audit period, January 2018 through October 2022, because Emblem failed to correctly coordinate benefits with each member’s other subscriber plan.

 

Department of Health – Medicaid Program – Recovering Managed Care Overpayments for Pharmacy Services on Behalf of Recipients With Third-Party Health Insurance (Follow-Up) (2023-F-27)
Many of the State’s Medicaid recipients receive their services through managed care and also have other third-party health insurance. Managed care organizations (MCOs) are required to coordinate benefits with recipients’ third-party health insurance prior to paying for Medicaid services. The Office of the Medicaid Inspector General (OMIG) contracts with Health Management Systems, Inc. (HMS) to identify and recover Medicaid payments that should have been paid for by third-party health insurance. A prior audit, issued in July 2022, determined that the Department of Health (DOH) and OMIG lacked adequate oversight of the third-party liability recovery process. HMS had not billed third-party health insurance carriers for the recovery of about $292 million in pharmacy claims that MCOs paid as the primary insurance for recipients who, according to the Medicaid claims processing system, had third-party health insurance drug coverage. The follow-up found that, of the initial report’s six audit recommendations, three were partially implemented and three were not implemented.

 

Department of Motor Vehicles – Assessable Expenses of Administering the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act for the State Fiscal Year Ended March 31, 2023 (2023-M-1)
The Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act help ensure that the operators of motor vehicles driven in New York State possess adequate insurance coverage, or are financially secure, to compensate those persons they might injure or whose property they might damage as a result of an accident. The Department of Motor Vehicles is responsible for tracking the expenses of administering the acts and assessing these expenses on insurance carriers that issue policies or contracts of automotive bodily injury insurance. Auditors found that the expenses for administering the acts for the State Fiscal Year ended March 31, 2023 totaled $25.5 million.

 

New York Racing Association – Purchasing and Procurement Practices (Follow-Up) (2023-F-31)
The New York Racing Association, Inc. (NYRA), a not-for-profit corporation that holds the exclusive franchise rights to operate New York State’s three major thoroughbred racetracks, entered into a bankruptcy settlement agreement in September 2008, conveying all rights, titles, and interests in its racetracks to the State. In return, the State forgave nearly all of NYRA’s debt obligations and a Franchise Oversight Board was established to oversee NYRA’s financial operations. A prior audit, issued in March 2022, found that NYRA needed to improve its monitoring and oversight of its purchasing and procurement process to promote sufficient competition. The follow-up found that of the initial report’s eight audit recommendations, three were implemented, two were partially implemented, and three were not implemented.

 

New York City Department of Education – Compliance With School Safety Planning Requirements (Follow-Up) (2022-F-32)
The New York State Safe Schools Against Violence in Education (SAVE) Act was signed into law in 2000 to promote a safer and more effective learning environment within State schools. Further, the Education Law requires schools and school districts to take safety planning actions and the State Education Department Commissioner’s Regulations and DOE Chancellor’s Regulations provide additional guidance. For example, the New York City Department of Education’s (DOE) District Safety Team must develop a comprehensive district-wide school safety plan and DOE’s schools must develop school-specific emergency response plans. A prior audit, issued in June 2019, determined that DOE could improve its compliance with the school safety planning requirements. The follow-up found that, of the initial report’s 19 recommendations, nine were implemented, four were partially implemented, and six were not implemented.

 

New York City Department of Buildings – Oversight of Building Construction Site Safety (Follow-Up) (2023-F-32)
The New York City Department of Buildings (DOB) is responsible for regulating the safe and lawful use of buildings and construction sites to promote the safety of all people who visit, live, and work in NYC. A prior audit, issued in September 2022, found that DOB’s oversight of building construction sites and enforcement activity needed to be improved to ensure that responsible parties report all building construction site incidents and comply with codes, rules, and regulations. Additionally, DOB’s enforcement activities provided limited assurance that immediately hazardous conditions identified by DOB were being addressed in a timely manner. The follow-up found that, of the initial report’s six recommendations, two were implemented, one was partially implemented, and three were not implemented.

 

New York City Department of Social Services – New York City Department of Homeless Services – Oversight of Contract Expenditures of Samaritan Daytop Village, Inc. (2022-N-6)
The New York City Department of Homeless Services (DHS), a unit of the New York City Department of Social Services (DSS), is responsible for providing transitional housing and services for eligible homeless families and individuals in New York City (City) and for providing fiscal oversight of the homeless shelters. In July 2013, DHS contracted with Samaritan, a City-based not-for-profit organization, to provide services for men with mental illness at their 160-bed Myrtle Avenue Men’s Shelter (Myrtle) for the period from August 2013 to June 2018. To qualify for reimbursement, Samaritan’s expenses must comply with the DHS Human Service Providers Fiscal Manual, the New York City Health and Human Services Cost Policies and Procedures Manual, and the Myrtle contract. The audit found that DHS is not effectively monitoring its contract with Samaritan to ensure reported costs are allowable, supported, and program related. For the two fiscal years ended June 30, 2021, auditors identified $566,556 that did not comply with requirements.

About the New York State Common Retirement Fund

The New York State Common Retirement Fund [Fund]  is one of the largest public pension funds in the United States. The Fund holds and invests the assets of the New York State and Local Retirement System on behalf of more than one million state and local government employees and retirees and their beneficiaries. It has consistently been ranked as one of the best managed and best funded plans in the nation.

On February 03, 2024, Comptroller DiNapoli announced that the estimated value of the Fund was $259.9 billion at the end of the third quarter of state fiscal year 2023-24. For the three-month period ending Dec. 31, 2023, Fund investments returned an estimated 6.18%.

“The markets have seen an improvement over the past quarter, but some volatility remains,” DiNapoli said. “Economic opinions are mixed about the year ahead and uncertainty persists. Still, thanks to our prudent management and long-term strategy, our pensioners and members can remain confident that their pension benefits are safe.”

The Fund's value reflects retirement and death benefits of $4.2 billion paid out during the quarter. Its audited value was $248.5 billion as of March 31, 2023, the end of last state fiscal year.

As of Dec. 31, the Fund had 41.84% of its assets invested in publicly traded equities. The remaining Fund assets by allocation are invested in cash, bonds, and mortgages (22.62%), private equity (14.75%), real estate and real assets (13.30%) and credit, absolute return strategies, and opportunistic alternatives (7.49%).

The Fund’s long-term expected rate of return is 5.9%.

DiNapoli initiated quarterly performance reporting by the Fund in 2009 as part of his on-going efforts to increase accountability and transparency.

###

 

A claimant seeking unemployment insurance benefits is ineligible to receive such benefits if the claimant is not totally unemployed during the period claimed

In administrative appeals from four decisions issued by the Unemployment Insurance Appeal Board the Claimants were found ineligible to receive unemployment insurance benefits because they were not totally unemployed during the period claimed.

Claimants were civil service employees working full-time at facilities operated by the Department of Corrections and Community Supervision [DOCCS]. performing services as either educational supervisors or instructors or teachers for incarcerated individuals. Claimants were paid an annual salary for their teaching or supervisory duties during the academic year, which typically ran from September 1 through the June 30, next following.*

Prior to 2020, all Claimants also elected performed services for DOCCS during the summer months and were paid additional compensation at an hourly rate. Due to the COVID-19 pandemic, however, Claimants were not offered, and did not perform, additional duties over the summer months in 2020. 

Claimants, however, applied for and received various unemployment insurance benefits for 2020 summer months. Ultimately the Department of Labor [Department] determined that because Claimants were employed and paid on an annual basis with respect to their regular professional obligations, they were [1] not totally unemployed on the dates for which they sought unemployment benefits beginning in June 2020, [2] were deemed ineligible to receive state or federal benefits for this period and [3] were charged with recoverable over-payments for such period.

The Claimants appealed the Department's determination. An Administrative Law Judge [ALJ] concluded that Claimants were not entitled to regular unemployment insurance benefits, nor Federal Pandemic Unemployment Compensation [FPUC], Pandemic Unemployment Assistance [PUA] or Lost Wages Assistance [LWA] benefits because they were not fully unemployed during the period for which they sought any such benefits and held any such payments were recoverable.

Claimants' filed an administrative appeal challenging the ALJ's ruling. The Unemployment Insurance Appeal Board, however, issued the said four decisions affirming the ALJ's findings and conclusions. Claimants then filed a CPLR Article 78 petition appealing the Appeal Board's decisions.

The Appellate Division, referencing Matter of Almindo (New York State Dept. of Corr. & Community Supervision-Commissioner of Labor) [___ AD3d ___, 2023 NY Slip Op 0642], noted that not unlike the Claimants in the instant matter, the Almindo claimants were full-time instructors, teachers or educational supervisors employed by DOCCS at various correctional facilities. Similarly, Almindo claimants were paid an annual salary during the course of the academic year and had the option of receiving such salaries over the course of a 10- or 12-month period. 

As was the situation here, the claimants in Almindo were not offered additional work during the summer of 2020 due to the COVID-19 pandemic, applied for and received various state and federal unemployment benefits and subsequently were found to be ineligible to receive such benefits because "they were not totally unemployed during the relevant periods".

Noting the Almindo court had opined "The fact that optional, additional work was not available over the summer ..., as it had been in prior years, does not change the analysis or conclusion that [Almindo] claimants remained employed over the summer recess, i.e., they were not totally unemployed ... and, thus, were ineligible to receive regular unemployment benefits for that period", the Appellate Division, in the instant matter, held the Almindo "analysis and holding applies with equal force" to Claimants here and affirmed the Appeals Board's determinations, without costs.

* The Claimants had the option of receiving their annual salary over the course of either the 10-month academic year or the 12-month calendar year. Three Claimants elected to be paid over a 12-month period, and one claimant opted to be paid over a 10-month period.

Click HERE to access the Appellate Division decision posted on the Internet.