Case # G2814568
Matter of C-Town Supermarkets
2021 NY Wrk Comp G2814568
Board Panel Decision
By: Steven A. Crain, Mark R. Stasko, Samuel G. Williams
The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed August 20, 2020. The claimant filed a timely rebuttal.
The issue presented for administrative review is whether the carrier's application for administrative review should be denied as interlocutory.
On June 30, 2020, the mother of the decedent's minor child on behalf of the child (claimant), filed a Claim for Compensation in a Death Case (C-62), wherein it was reported that the decedent, had contracted COVID-19 while working at C-Town Supermarkets, which resulted in his death on April 9, 2020.
The claimant also submitted a Certificate of Death, dated April 13, 2020, which lists the decedent's causes of death to be acute respiratory failure, ARDS, pneumonia, and COVID-19. The decedent's occupation is listed as Manager. This document was electronically signed by a physician, Dr. Marc Yee.
The case was indexed by the Board, and the carrier filed a timely First Report of Injury-Denial (FROI-04) on July 22, 2020, wherein it controverted the claim on the basis that there was no accident, there was no medical evidence, and there was no causal relationship.
On July 28, 2020, the Board advised the parties that a pre-hearing conference had been scheduled for August 17, 2020. Both parties filed timely Pre-Hearing Conference Statements (PH-16.2).
At the pre-hearing conference held on August 17, 2020, the lifetime case filed by the claimant on behalf of the decedent's minor child (WCB #G2814271) was cancelled and combined with the present case. The claimant's attorney then asserted that the decedent's Certificate of Death referenced COVID-19 as a cause of death and was sufficient prima facie medical evidence (PFME) to move forward. In response, the carrier's representative argued that the Certificate of Death was not enough for PFME since there was no positive COVID-19 test nor any treatment or hospitalization records. The WCLJ found the Certificate of Death sufficient for PFME, directed the claimant to produce the decedent's treatment records, and continued the case for medical and lay witness testimony, along with proof of dependency. The carrier's representative objected to the PFME finding.
In the resulting decision filed on August 20, 2020, the WCLJ directed the claimant to produce treatment and testing records within 30 days, and directed the parties to produce deposition transcripts of Drs. Yee and Jesnajlan by November 17, 2020. The WCLJ advised the carrier that if it wished to produce an Independent Medical Examination (IME) report on the issue of COVID-19 related death, it must be produced within 90 days, and further advised the carrier that if such report was not produced, a finding may be made that the carrier had waived its opportunity to submit such report. The case was continued.
In its application for administrative review, the carrier the carrier contends that it was improper for the WCLJ to find PFME for COVID-19. The carrier mentions that it is aware of the provisions of 12 NYCRR 300.38 in connection with findings of PFME; however, the carrier requests that the appeal be entertained in the interests of justice because there is no medical evidence to support the claim. The carrier argues that the only document provided by the claimant was the decedent's Certificate of Death, which is not a medical report. The carrier states that, assuming that the decedent was diagnosed and tested positive for COVID-19, there is no evidence to suggest that the decedent had been exposed to the virus while working. The carrier alleges that the file contains only a diagnosis and no medical reports or any opinion on causal relationship. The carrier requests that the decision be rescinded.
In rebuttal, the claimant requests that the decision be affirmed. The claimant argues that the carrier's appeal is interlocutory and should be denied. The claimant maintains that there is valid PFME based on the Certificate of Death and the case should be allowed to proceed.
In Matter of McDonough v Whitney Point Cent. School, 15 AD2d 191 (1961), the Third Department found that an epidemic was sufficient to constitute an abnormal condition of sufficient gravity to find the happening of an accident. In doing so, the Third Department relied upon the prior Court of Appeals decision in Matter of Lerner v Rump Bros., 241 NY 153 (1925), wherein the Court stated,
"A distinction exists between accidental injury and disease, but disease may be an accidental injury. The exception arises out of abnormal conditions which must be established to sustain an award. Two concurrent limitations have been placed on the right to recover an award when a disease, not the natural and unavoidable result of the employment, is developed during the course of the employment, although it does not follow that compensation should be awarded in all cases coming literally within these limitations. First, the inception of the disease must be assignable to a determinate or single act, identified in space or time. Secondly, it must also be assignable to something catastrophic or extraordinary [citations omitted]."
In Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130 (1975), the Court of Appeals noted that the Board's finding that persistent impacts of exposure provided "substantial evidence from which the board could determine that this was an accident gauged by the common-sense viewpoint of the average man, [and also that] the time-definiteness required of an accident was satisfied by application to the result..."
In Matter of Johannesen v New York City Dep't of Hous. Pres. & Dev., 84 NY2d 129 (1994), the Court of Appeals stated, "[t]he seriously adverse environmental conditions to which claimant was subjected as part of her job and workplace reasonably qualify as an unusual hazard, not the 'natural and unavoidable' result of employment ([WCLJ] § 2)."
When viewed together, Middleton, 38 NY2d 130 (1975), which was established for tuberculosis following exposure to a coughing inmate with the condition, and Johannesen, 84 NY2d 129 (1994), which was established for aggravation of asthma due to exposure to second-hand smoke, indicate that if a claimant contracts COVID-19 through close contact with the public (such as a patient), such exposure could be found to be a work-related accident within the meaning of WCL § 2(7).
When alleging that COVID-19 was contracted at work, the claimant may show that an accident occurred in the course of employment by demonstrating prevalence. Prevalence is evidence of significantly elevated hazards of environmental exposure that are endemic to or in a workplace which demonstrates that the level of exposure is extraordinary. A claimant may demonstrate prevalence through evidence of the nature and extent of work activities, which must include significant contact with the public and/or co-workers in an area where COVID-19 is prevalent. Public-facing workers and workers in a highly prevalent COVID-19 environments are the workers who can show that the exposure was at such a level of elevated risk as to constitute an extraordinary event.
However, it must be noted that the evidence needed to establish a case for COVID-19 is different from the evidence needed to find PFME and direct further development of the record. PFME is defined as a medical report referencing an injury, which includes trauma and illnesses (12 NYCRR 300.1[a]; see also 12 NYCRR 300.38[g]). There is no requirement that such evidence, in itself, "draw a causal link between the injury and the claimant's employment" (Matter of Garti v Salvation Army, 80 AD3d 1101 ). Whether a particular document or combination of documents constitutes PFME is an interlocutory issue and not reviewable until the claim is finally determined (id.).
With regard to pre-hearing conferences, 12 NYCRR 300.38(g)(3) provides that if the carrier alleges in the notice of controversy (i.e. SROI-04) and/or PH-16.2 that the claimant has not presented PFME, the WCLJ shall determine at the pre-hearing conference whether the medical report presented constitutes PFME. Significantly, 12 NYCRR 300.38(g)(3)(i) states, "A finding that the medical report or reports constitutes [PFME] is an evidentiary determination that the case may proceed and is interlocutory and is not reviewable by the board...."
In the instant matter, the Board file contains medical evidence in the form of a Certificate of Death which lists the decedent's cause of death to be due to COVID-19. This satisfies the requirements for PFME. Although later development of the record may lead the trier of fact to conclude that there is insufficient evidence to support a claim, at issue is simply whether the claim contains sufficient PFME to move forward, not whether sufficient evidence has been presented to make the claimant's case. Here, the decision filed on August 20, 2020, did not dispose of any substantive issue or reach a potentially dispositive threshold legal issue, but simply allowed the case to proceed. As a result, the Board Panel finds that the decision from which administrative review is sought is interlocutory and shall not be reviewed. All issues and grounds raised are preserved and may be asserted in an application for administrative review upon the settlement or disallowance of the claim.
Therefore, upon review of the record and based upon the preponderance of the evidence, the Board Panel finds that the carrier's application for review on the issue of PFME is denied as interlocutory in nature and is not subject to review at this time.
ACCORDINGLY, the carrier's application for review of the WCLJ decision filed August 20, 2020 is DENIED as interlocutory. The case is continued.