Case # G2718395
Matter of DOCCS Edgecombe Cor Facility
2020 NY Wrk Comp G2718395
Amended Board Panel Decision
By: Clarissa Rodriguez, Martin M. Dilan, Mark R. Stasko
By its own motion pursuant to its continuing jurisdiction under Workers' Compensation Law (WCLJ) § 123, the Board Panel finds that its Memorandum of Board Panel Decision filed October 21, 2020, must be amended to update a citation and to modify the direction for the claimant to produce medical evidence showing a link between his employment and his illness with a reasonable probability. The proper instruction should have been to suggest, not require, that the claimant consider submitting a medical report providing a COVID-19 diagnosis and opinion on causal relationship. The amended portions of the Board Panel decision follow and are in italics.
The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed July 3, 2020. The claimant filed a timely rebuttal.
The issue presented for administrative review is whether there is sufficient credible evidence in the record to establish this case for a work-related contraction of COVID-19.
The claimant filed an Employee Claim (C-3) on April 8, 2020, wherein he alleged that he became infected with COVID-19 in March of 2020 as a result of his employment activities as a corrections officer at two different correctional facilities, Edgecombe and Bedford Hills. The claimant stated that his normal job duties included the supervision of inmates.
On April 23, 2020, the carrier filed a Subsequent Report of Injury-Denial (SROI-04), wherein it controverted the claim on various grounds, including no accident arising out of employment and no causal relationship.
The medical evidence in the record includes a report dated March 24, 2020 from Jacobi Medical Center and an April 1, 2020 laboratory test report. The March 24, 2020 report states that the claimant presented with symptoms of a cough and fever and was advised that he should be presumed positive for COVID-19, that he should stop working, and that he should self-quarantine for seven days. The April 1, 2020 laboratory test report indicates that the claimant underwent testing for COVID-19 on March 31, 2020 and that the test results were positive.
By notice issued on April 30, 2020, the parties were advised that a pre-hearing conference was scheduled for May 19, 2020. Thereafter, both parties filed timely Pre-Hearing Conference Statements (PH-16.2).
At the pre-hearing conference held on May 19, 2020, the claimant failed to appear and the representative for the carrier raised "all issues", including no accidental injury and no causal relationship. In the resulting decision filed May 22, 2020, the WCLJ noted that the claimant did not appear at the hearing and that issues in controversy had been raised by the carrier. The case was marked for no further action.
On May 22, 2020, the claimant's attorney filed a Request for Further Action by Legal Counsel (RFA-1LC) requesting that a hearing be held to establish the case for COVID-19.
A hearing was then held on June 30, 2020, at which the claimant's counsel and a representative for the carrier appeared; the claimant was not present. At the hearing, the claimant's counsel requested further development of the record on the issue of work-related COVID-19 and pointed to the March 24, 2020 medical report and the claimant's positive COVID-19 test. In response, the carrier's representative conceded that the claimant had a positive COVID-19 test result but argued that the test result by itself was insufficient to establish the case and that a medical report from an authorized workers' compensation medical provider giving an opinion on causal relationship was required.
The WCLJ held that prima facie medical evidence (PFME) for COVID-19 existed based on the positive test results and the March 24, 2020 medical report, but that the claimant's testimony would be needed to establish the case. The carrier's representative then stated that he was resting on the record and requested that the claim be disallowed. The WCLJ denied that request and indicated that the case would be continued for the claimant's testimony. At that juncture, the carrier's representative declared that he was waiving the cross-examination of the claimant and of any treating physician. The WCLJ then stated that, since the carrier was waiving its right to cross-examine the claimant, she would establish the case. The carrier's represented duly noted his exception to the establishment of the case.
In the resulting decision filed July 3, 2020, the WCLJ found PFME for COVID-19 per a March 24, 2020 report and the positive test results dated March 31, 2020, established the case for an injury involving COVID-19 due to a work-related accident on March 1, 2020, and set the claimant's average weekly wage at $1,549.43, without prejudice. The WCLJ directed the carrier to produce payroll and lost time documents and held a medical billing/treatment objection (C-8.1) in abeyance. The case was marked for no further action.
In its application for administrative review, the carrier contends that the case should have been disallowed. The carrier argues that the claimant failed to demonstrate that his COVID-19 infection was causally related to a workplace exposure since none of the medical evidence in the record links the claimant's COVID-19 infection to workplace exposure, which is a necessary component of establishing a claim and, as per the guidance from the Board's own website, the claimant did not have a medical report from an authorized workers' compensation medical provider showing a diagnosis via a PCR test or by virtue of an examination by a treating physician. The carrier states that the claimant offered nothing to substantiate his claim and requests that the decision be reversed.
In rebuttal, the claimant requests that the decision be affirmed. The claimant asserts that the WCLJ has the discretion to determine causal relationship, as it is difficult to point to a specific exposure. The claimant argues that he works in a secure, enclosed environment in which COVID-19 was prevalent in both inmates and staff. The claimant mentions that the WCLJ was going to schedule testimony, but that the carrier's representative waived testimony and there is no contrary medical evidence to contradict the information provided about the claimant's exposure.
It is well established that, in order to be compensable under the Workers' Compensation Law (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). Accidents arising "in the course of" employment are presumed to arise "out of" such employment, and this presumption can only be rebutted by substantial evidence to the contrary (see WCL § 21(1); Matter of Van Horn v Red Hook Cent. School, 75 AD2d 669 ; Matter of Keevins v Farmingdale UFSD, 304 AD2d 1013 ).
However, the presumption provided by WCL § 21(1) cannot be used to show that an unwitnessed or unexplained accident or exposure actually occurred (see Matter of Fedor-Leo v Broome County Sheriff's Dept., 305 AD2d 760 ). Rather, that issue generally depends upon a credibility determination following testimony with respect to the mechanism of the accident or exposure.
In addition, it is a claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley Spear, Inc., 6 AD3d 999 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ).
In the present case, one of the arguments made by the carrier on appeal is that the medical evidence must be offered by an authorized workers' compensation medical provider. In that regard, it is noted that WCL § 13-b(1) provides that "[n]o person shall render medical care or conduct independent medical examinations under [the WCL] without [the] authorization [of] the chair." As stated by the Court of Appeals, the clear legislative purpose of this provision is to insure the quality of the medical care and treatment rendered to injured claimants by limiting payment for such medical care and treatment to lawfully qualified persons under the WCL (see Matter of Szold v Outlet Embroidery Supply Co., 274 NY 271 , app dismissed 303 US 623 ).
However, the statutory provision does not prohibit evidence from physicians who are not authorized to receive payment for treatment rendered to injured claimants, "since to do so would impermissively influence the selection of the physician by a workers' compensation claimant...particularly where...in an attempt to determine the cause and suitable treatment of [an illness], [the] claimant selected a physician without regard to the establishment of [a workers' compensation] claim. In short, the statute at issue prevents payment to unregistered physicians. It does not erect an evidentiary barrier to exclude the testimony and records of such a physician" (Matter of VanDam v New Paltz Cent. School Dist., 46 AD3d 1194 ). As a result, the Board Panel initially finds that the medical records submitted by the claimant to date remain part of the record and may be considered for any relevant issue.
Turning next to the issue of causal relationship, the Board Panel notes that, in Matter of McDonough v Whitney Point Cent. School, 15 AD2d 191 (1961), 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."
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, 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.
Moreover, it is not necessary that the medical opinion of causally related COVID-19 be 100% certain (see Matter of Castiglione v Mechanical Tech., 227 AD2d 865 ). Rather, it is sufficient for the claimant to provide testimony regarding the work environment along with a medical opinion that indicates that because COVID-19 is prevalent in the community and in the workplace, it is reasonably probable that it is causally related (see Matter of Johnson v Borg Warner, Inc., 186 AD3d 1772 ).
Here, the record contains medical evidence in the form of a positive laboratory test for COVID-19 dated April 1, 2020 and a March 24, 2020 medical report that maintained that the claimant should be presumed positive for COVID-19. The Board Panel finds that these documents satisfy the requirements for PFME as they document an illness (see 12 NYCRR 300.1[a]).
However, the claimant is still required to show that an accident occurred in the course of employment (i.e. the claimant needs to show that the exposure was at such a level of elevated risk, or was prevalent in the workplace, so as to constitute an extraordinary event). In this regard, the claimant has yet to testify regarding his work environment and the nature and extent of his work activities. Additionally, while the record contains a positive COVID-19 test result, the claimant may wish to consider submitting a medical report providing a COVID-19 diagnosis and an opinion showing a link between his employment and his illness with a reasonable probability, as such would facilitate findings concerning the period and extent of awards, if any. As noted above, the medical opinion may be founded upon a theory of prevalence. As such, the case is returned to the hearing calendar to afford the claimant an opportunity to testify, and be cross-examined, regarding his work environments and activities, and, if desired, to produce medical evidence of causality. The carrier may produce a consultant's report prior to the next hearing, if desired, or else it shall be waived.
Therefore, upon review of the record and based upon a preponderance of the evidence, the Board Panel finds that there is insufficient evidence in the record to establish this case, and that the claimant should be directed to testify concerning the circumstances surrounding his employment, including the nature and extent of his work activities.
ACCORDINGLY, the WCLJ decision filed July 3, 2020 is MODIFIED to rescind, without prejudice, the establishment of the case for an injury involving COVID-19, the establishment of the claimant's average weekly wage, the authorization of treatment, and the directives for the carrier to produce payroll and lost time evidence; and to continue the case for the claimant to testify concerning the circumstances surrounding his employment, including the nature and extent of his work activities. The balance of the decision finding PFME and holding the C-8.1 issue in abeyance remains unchanged. The case is continued.