Case # G2796329
Matter of City of Long Beach
2021 NY Wrk Comp G2796329
Board Panel Decision
By: Frederick M. Ausili, Linda Hull, Mark R. Stasko
The self-insured employer (SIE) requests review of the Workers' Compensation Law Judge (WCLJ) decisions filed August 27, 2020, and October 6, 2020. The claimant filed a timely rebuttal regarding the SIE's appeal of the August 27, 2020, decision. No rebuttal was filed regarding the SIE's appeal of the October 6, 2020, decision.
The issues presented for administrative review are:
- Whether the claimant submitted prima facie medical evidence (PFME);
- Whether the SIE should be permitted to produce four different lay witnesses;
- Whether the independent medical examination (IME) report dated September 21, 2020, from the SIE's consultant, Dr. Insel, should be precluded;
- Whether the evidence supports establishment of the case for a work-related contraction of COVID-19; and,
- Whether a penalty should be assessed against the SIE pursuant to Workers' Compensation Law (WCL) § 114-a(3)(i).
On May 5, 2020, the SIE filed a First Report of Injury Report-Denial (FROI-04) controverting the claim on the basis that there was no compensable accident and/or there was no causal relationship.
The claimant, a paramedic, then filed an Employee Claim (C-3) on May 22, 2020, wherein he alleged that he had contracted COVID-19 on April 16, 2020, as a result of his employment activities as a paramedic with the SIE.
The medical evidence in the Board file includes a report dated April 16, 2020, and an April 16, 2020, laboratory test report from CityMD Urgent Care. The medical report indicates that the claimant was seen by Dr. Hourizadeh for exposure to viral communicable diseases and was tested for COVID-19 on that date. The laboratory test report noted a positive COVID-19 test result. Although nothing from the laboratory test result document identified that it belonged to the claimant, the document was submitted by the SIE as an attachment to an Employer's Report of Injured Employee's Change in Employment Status Resulting from Injury (C-11) for the claimant's case.
A pre-hearing conference was scheduled for June 22, 2020. The SIE filed a timely Pre-Hearing Conference Statement (PH-16.2) asserting that there was no PFME for COVID-19; listed the names of four employer lay witnesses it wished to present; and noted that the nature of the testimony for each of the lay witnesses would involve exposure and reporting of the asserted accident. The claimant was unrepresented at that time, whereby he was not required to file a PH-16.2.
At the pre-hearing conference the WCLJ explained to the claimant that the claim was being controverted and advised the claimant that he could either proceed with or without counsel. The claimant advised the WCLJ that he wished to retain counsel. As a result, the hearing was concluded for the claimant to obtain representation, which he did.
Attached to the Notice of Retainer and Appearance (OC-400) filed on June 26, 2020, the claimant's representative included an email sent to the claimant on May 19, 2020 from "NW HIE Notification" (Northwell Laboratories), wherein the claimant was informed that his COVID-19 antibody test results were positive.
At the pre-hearing conference held on August 24, 2020, the claimant's attorney referenced the positive COVID-19 test that was asserted to be for the claimant. The WCLJ determined that the positive laboratory test was PFME for COVID-19. The SIE's representative then advised the WCLJ that there would be four lay witnesses to be called. The WCLJ noted that the SIE's PH-16.2 stated that all named witnesses would be testifying with regard to exposure and reporting of the accident. The WCLJ indicated that cumulative testimony was unnecessary and that only one lay witness would be permitted to testify. In the resulting decision filed on August 27, 2020, the WCLJ designated the case for an expedited hearing; found PFME for COVID-19 per the April 16, 2020 positive lab test; and continued the case for testimony from the claimant and one SIE lay witness. The SIE appealed this decision.
Thereafter, in an IME report (records review) dated September 21, 2020, the SIE's consultant, Dr. Insel, indicated that he performed a file review to address the claimant's purported contraction of COVID-19. After reviewing various records, Dr. Insel concluded that there was no evidence that there was a work-related exposure that led to the claimant contracting COVID-19 and that there was no evidence that the claimant contracted COVID-19 in the course of employment. Dr. Insel's report indicates that it was sent to the SIE's third-party administrator, the Board, the claimant, and the claimant's physician, Dr. Hourizadeh. There was no indication that a copy of the report was served upon the claimant's counsel. Dr. Insel's report was filed with the Board on September 24, 2020.
The record shows that Dr. Insel's September 21, 2020, IME report was subsequently re-sent to the same entities, along with a copy to the claimant's counsel. This second submission was filed with the Board on September 29, 2020 but was not viewable in the Board's electronic file until October 6, 2020.
The claimant testified at a hearing held on October 1, 2020, as follows: He has worked for the SIE as a paramedic for over five years. His duties include responding to emergency calls and operating a 911 ambulance. The calls ranged from medical calls, trauma calls, or emotionally disturbed calls. He has close contact with the patients in rendering emergency medical care.
In April 2020, most of the calls he received were COVID-19 related. There was a two-week span from April 3, 2020 to April 16, 2020, when he came into contact with about 35 positive COVID-19 patients. He understood the patients to be COVID-19 positive due to the nature of the call and it was also confirmed by the interview with the dispatchers. When patients call 911, the ambulance and dispatchers are trained for specific functions concerning COVID-19 symptoms. This way, they know if the patient has COVID-19 symptoms, if they were in contact with COVID-19 individuals, and if there were other positive COVID-19 family members. The paramedics are also notified by the dispatchers ahead of time if they are going into a COVID-19 environment, such as a nursing home. After they transported a patient to the hospital, there would then be follow-up from the hospital informing the dispatcher that the patient had tested positive for COVID-19. He never refused to go on a COVID-19 call and he was provided with PPE.
On April 16, 2020, he was on duty and started to feel a sore throat. The sore throat persisted and he got nasal congestion. When he checked his temperature, it was over 101 degrees. He was instructed to go home and quarantine. He was PCR tested for COVID-19 on April 16, 2020. He received a positive test result for COVID-19 on or about April 21, 2020 and informed his supervisor. He returned to work on May 3, 2020.
After the completion of the claimant's testimony, the SIE's representative advised that the SIE would not be presenting any lay witness.
In a decision filed October 6, 2020, the WCLJ established the case for COVID-19, set the claimant's average weekly wage at $1,208.38, and precluded the records review report by Dr. Insel dated September 21, 2020, under WCL § 137. The WCLJ also assessed a penalty in the amount of $500.00 against the SIE pursuant to WCL § 114-a(3)(i) and the case was marked for no further action.
In its application for administrative review of the August 27, 2020, decision, the SIE contends that the medical evidence does not constitute PFME and that the WCLJ should not have limited the SIE's lay witness testimony to one witness. The SIE relies on a 2002 Board Panel case, Matter of Excelcior 2 Way Radio Group, 2002 NY Wrk Comp 09910371, for its position that PFME requires an accurate history of a work-related accident, a diagnosis of an injury, and a statement on causal relationship, and alleges that the evidence in this case does not provide a statement of causality or a history. The SIE further asserts that there was no basis to be limited to one witness when it properly requested four lay witnesses and cannot know what the claimant will testify to at this time in order to determine which of its witnesses would be in the best position to defend the SIE's position and/or rebut the claimant's testimony. The SIE requests that the decision be rescinded.
In rebuttal, the claimant requests that the decision be affirmed. The claimant argues that the SIE's appeal is interlocutory as it was filed prior to the completion of the controverted matter and prior to the ruling on the merits. The claimant also observes that the SIE failed to present any witnesses at the subsequent hearing held on October 1, 2020.
In its application for administrative review of the October 6, 2020, decision, the SIE contends that Dr. Insel's IME record review report should not have been precluded, that the claim should not have been established for COVID-19, and that it should not have been assessed a penalty for a frivolous controversy. The SIE argues that Dr. Insel's IME report was sent to all parties prior to the due date but was not yet viewable in the file; it was received by the Board on September 29, 2020, which is seventh business day, and thus there is no WCL § 137 violation. The SIE further asserts that the claimant failed to present a competent medical opinion for causal relationship for COVID-19. The SIE observes that the only medical report in the file is a discharge summary from Dr. Hourizadeh, dated April 16, 2020, and alleges that such report does not provide any indication or sufficient probability as to the cause of the claimant's exposure to COVID-19. The SIE also contends that Dr. Insel's IME report further supports its contention that it had reasonable grounds to continue to controvert the claim, whereby the penalty should not have been assessed. The SIE requests that the decision rescinded.
The evidence needed to find PFME and direct further development of the record is distinct from the evidence needed to establish a case for COVID-19. 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.). It is only when the WCLJ finds that there is no PFME that an appeal is deemed not to be interlocutory (see Matter of Mount Sinai Medical Center, 2013 NY Wrk Comp G0424401).
The SIE's reliance on Excelcior 2 Way Radio Group, 2002 NY Wrk Comp 09910371, which predates the court's holding in Garti, 80 AD3d 1101 (2011), by almost a decade, is misplaced. Since Garti was issued, the Board has repeatedly held that PFME simply requires that a medical report refence an injury; there is no requirement for the medical evidence to draw any causal link between the injury and the claimant's employment for it to rise to the level of PFME (see, e.g., Matter of Best Choice Health Care, 2020 NY Wrk Comp G1809751). Moreover, the regulation defining PFME [300.1(a)(9)] was promulgated in 2011, nine years subsequent to the Garti decision.
With regard to pre-hearing conferences, 12 NYCRR 300.38(g)(3) provides that if the carrier or SIE 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 WCLJ found that PFME had been submitted at the pre-hearing conference held on August 24, 2020. Based upon 12 NYCRR 300.38(g)(3)(i), the SIE's appeal of this finding was clearly interlocutory. However, as the WCLJ subsequently established the case at the October 1, 2020, hearing, and the SIE also appealed that finding, the issue of PFME is now ripe for review.
Upon review of the record, the Board Panel notes that the Board file contains medical evidence in the form of a positive PCR laboratory test for COVID-19 dated April 16, 2020. The Board Panel finds that this evidence clearly satisfies the requirements for PFME as it documents the COVID-19 illness (see 12 NYCRR 300.1[a]). As a result, the Board Panel finds that there is no merit to the SIE's appeal on the issue of PFME.
Limitation to One Lay Witness
Pursuant to WCL § 118 and 12 NYCRR 300.9, a WCLJ is granted considerable discretion to conduct hearings in an orderly manner, while ascertaining the substantial rights of the parties.
The filing of a PH-16.2 by a carrier/SIE and any represented claimant is required by 12 NYCRR 300.38(f), which sets forth the timeframe and particulars of such filing. The information that must be included in the PH-16.2 is set forth in 12 NYCRR 300.38(f)(2). Specifically, 12 NYCRR 300.38(f)(2)(iv) requires a list of lay witnesses, including the claimant, the party will call to testify at the initial hearing, including the names, addresses, employers if known, and a summary of, and the estimated time needed for, the testimony. Furthermore, if a party fails to subsequently produce its witness(es) at the initial expedited hearing, then the party is deemed to have waived the right to produce any such witness(es), absent the filing of an affidavit setting forth good cause for granting additional time and that the party exercised good faith and due diligence (12 NYCRR 300.38[h][ii]).
Here, the SIE filed its PH-16.2 on May 15, 2020. While the SIE listed the names of the four lay witnesses it wished to call to testify, it also stated that the testimony for all four lay witnesses would involve exposure and reporting of the accident. As the SIE failed to make any offer of proof or assert any differentiation between the testimony of its four listed lay witnesses, the Board Panel finds that the WCLJ exercised reasonable discretion at the August 24, 2020, pre-hearing conference in permitting only one lay witness to testify so as to avoid cumulative and/or duplicative testimony.
Moreover, the Board Panel notes that the SIE declined to produce any lay witness at the subsequent initial expedited hearing held on October 1, 2020, and did not submit any affidavit in support of an extension of time to present any such witness. By declining the opportunity to produce any lay witness, the SIE waived not only the issue concerning the limitation to one lay witness, but waived the right to any lay witness testimony per 12 NYCRR 300.38(h)(1)(ii). Thus, the SIE's appeal of the issue was rendered moot by its subsequent actions.
It is well established that an IME report that involves only a records review is not subject to the requirements of WCL § 137 (see Matter of Coratti v Jon Josef Hair & Colour Group, 17 AD3d 768 ). However, any such report is still subject to several regulatory requirements.
12 NYCRR 300.2(d)(4)(iv) provides that a written report of an IME records review obtained by any party that is to be used for reference at a hearing "must be filed with the Board and submitted to all other parties or their representatives, if any, three business days prior to the hearing" (see also 12 NYCRR 300.2[d]). In addition, the regulations for expedited hearings require that all IME reports must be filed at least three days before the date of the initial expedited hearing (see 12 NYCRR 300.38[h][iii]; Matter of Cartafalsa v Zurich Am. Ins. Co., 175 AD3d 1762 ).
In this matter, Dr. Insel performed a records review of the claimant's available medical records on behalf of the SIE on September 21, 2020. A copy of this report was sent to the claimant, the SIE's third-party administrator, the Board, and the claimant's physician, Dr. Hourizadeh. However, as the regulations only require that the report be sent to the other party (claimant) or the other party's representative (claimant's attorney), the Board Panel finds that service upon only the claimant was sufficient under 12 NYCRR 300.2(d)(4)(iv). In addition, as such report was filed with the Board on September 24, 2020, it was timely filed more than three business days prior to the October 1, 2020 expedited hearing. Thus, the initial filing was not defective, and the re-submission made on September 29, 2020 to include service upon the claimant's attorney was unnecessary, whereby the preclusion was improper and the September 21, 2020 IME report of Dr. Insel remains part of the record.
Establishment of the Case for COVID-19
It is well established that, in order to be compensable under the WCL, an accidental injury must have arisen both out of and in the course of the claimant's employment (see Matter of Rosen v First Manhattan Bank, 202 AD2d 864 , aff'd 84 NY2d 856 ; Matter of Thompson v New York Tel. Co., 114 AD2d 639 ; see WCL §§ 2, 10).
The credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Matter of Carota Enters v Jackson, 24 AD2d 667 ; Matter of DiDonato v Hartnett, 176 AD2d 1102 ). If a claimant is deemed credible with respect to the happening of an accident or illness and the presumption is found to apply, the presumption may be rebutted with substantial evidence to the contrary (Matter of Pinto v Southport Corr. Facility, 19 AD3d 948 ).
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 ([WCL] § 2)."
When viewed together, McDonough, 15 AD2d 191 (1961), which was established for the contraction of mumps following exposure to sick students during an epidemic, 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 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, a claimant's entitlement to awards for lost time must be supported by additional medical reports indicating that the claimant sustained a causally related disability (see Matter of DOCCS Edgecomb Cor Facility, 2020 NY Wrk Comp G2718395, issued December 1, 2020). Furthermore, if sufficient evidence is presented to rebut the presumption, the claimant is allowed an opportunity to submit additional/clarifying medical evidence before a final determination is made regarding the merits of the claim.
In this matter, the Board Panel finds that the claimant credibly testified that his work duties as a paramedic included answering emergency calls and rendering medical care to patients in a variety of locations, including nursing homes. The claimant also credibly testified that from April 3, 2020 to April 16, 2020, he came into close contact with and was involved in the care of approximately 35 positive COVID-19 patients. The claimant credibly testified that his contact with the 35 positive COVID-19 patients was confirmed through his dispatchers and follow-up from the hospital to which the patients were transported, and produced credible documentary support for his testimony.
The claimant became symptomatic on April 16, 2020, and stated that he was tested for COVID-19 on the same date, which returned as positive. In this regard, the record contains a positive April 16, 2020, COVID-19 laboratory test report and a medical report from Dr. Hourizadeh dated April 16, 2020. While the positive COVID-19 laboratory test does not contain any identifying information, it was submitted by the SIE as an attachment to a C-11 and the April 16, 2020, report corroborates that the claimant was tested for COVID-19 on that date. In addition, a subsequent antibody test clearly pertained to the claimant and was positive.
Although the claimant was not entirely aware as to when he contracted COVID-19, this does not preclude a finding that an accident occurred in the course of his employment. The claimant's work duties included significant contact with the public. Moreover, the claimant's illness began on or about mid-April 2020, a time when COVID-19 was particularly prevalent throughout New York State. While it may be impossible to determine exactly when or where the claimant's infection with COVID-19 occurred, the Board Panel finds that the claimant's testimony concerning the nature and extent of his work activities provides sufficient evidence that he was exposed to COVID-19 at work due to his usual interactions with the public as part of his employment during the pandemic (i.e. he has presented sufficient evidence that he sustained an accident in the course of his employment). The record demonstrates that the claimant was subjected to a series of events in time and space (treating positive COVID-19 patients), and his exposure was at a level of elevated risk in a prevalent COVID-19 environment as to qualify as an adverse environmental condition and unusual hazard or extraordinary event. In addition, the onset of his symptoms leading to his testing on April 16, 2020, satisfies the time-definiteness requirement for an accident. Thus, the claimant has established that an accidental illness occurred in the course of his employment and that he is entitled to the presumption afforded by WCL § 21 that his accident also arose out of his employment.
While the SIE waived its right to present lay witnesses and failed to produce any contrary documentary evidence from the employer to rebut the presumptions afforded by WCL § 21, the SIE did produce an IME report containing an opinion that the claimant's COVID-19 diagnosis was not causally related to his work. The WCLJ did not consider this opinion, as it was improperly precluded. As a result, the Board Panel finds that the establishment of the case should be rescinded, without prejudice, in order for the WCLJ to review the IME report, for the claimant's representative to have an opportunity to request cross-examination of the SIE's consultant (if desired), and for the WCLJ to render a decision upon the completed record.
WCL § 114-a(3)(i) Penalty
While the SIE's appeal of PFME was without merit and the SIE waived the opportunity to present lay witness testimony, the SIE's arguments regarding the preclusion of its IME's report have been found to have merit, and the establishment of the case is being rescinded, without prejudice, for the WCLJ to consider such report. Based upon the foregoing, the Board Panel finds that the record does not support the assessment of a WCL § 114-a(3)(i) penalty against the SIE in this case.
Therefore, upon review of the record and based upon a preponderance of the evidence, the Board Panel finds that the claimant submitted PFME for COVID-19; that the WCLJ acted reasonably in denying the SIE's request for the production of four lay witnesses and that the issue was subsequently rendered moot by the SIE's failure to produce any witness at the initial expedited hearing; that the September 21, 2020 IME report of Dr. Insel was improperly precluded and remains part of the record; that COVID-19 was prevalent in the claimant's work environment; that the claimant's job duties included close contact with the public, some of whom were positive for COVID-19; that the claimant's COVID-19 illness began on or about April 16, 2020; that the claimant presented sufficient evidence that he sustained an accident in the course of his employment, which in turn entitles him to the presumption of WCL § 21(1); that the establishment of the case must be rescinded, without prejudice, for the WCLJ to consider the September 21, 2020 IME report from Dr. Insel, to allow the claimant an opportunity to request the cross-examination of Dr. Insel (if desired), and for the WCLJ to render a determination upon the completed record; and to rescind the $500.00 penalty imposed against the SIE pursuant to WCL § 114-a(3)(i).
ACCORDINGLY, the WCLJ decision filed August 27, 2020 is AFFIRMED. In addition, the WCLJ decision filed October 6, 2020 is MODIFIED to find that the records review report of Dr. Insel is not precluded; to find that COVID-19 was prevalent in the claimant's work environment; to find that the claimant's job duties included close contact with the public, some of whom were positive for COVID-19; to find that the claimant's COVID-19 illness began on or about April 16, 2020; to find that the claimant presented sufficient evidence that he sustained an accident in the course of his employment, which in turn entitled him to the presumption of WCL § 21(1); to rescind the establishment of the case, without prejudice; to return the case to the hearing calendar for the WCLJ to consider the September 21, 2020 IME report from Dr. Insel, to allow the claimant an opportunity to request the cross-examination of Dr. Insel (if desired), and for the WCLJ to render a determination upon the completed record; and to rescind the penalty imposed against the SIE under WCL § 114-(3)(i). The case is continued.