Case # G2806375
Matter of Jewish Home Lifecare Manhattan
2021 NY Wrk Comp G2806375
Board Panel Decision
By: Loren D. Lobban, Mark D. Higgins, Samuel G. Williams
The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed on September 22, 2020. A timely rebuttal was not filed by the unrepresented claimant.
The issue presented for administrative review is whether the record supports establishing the case for COVID-19.
On June 26, 2020, the carrier filed a First Report of Injury-Original (FROI-00), in which it stated that the claimant had first developed symptoms of COVID-19 on or about March 27, 2020. The claimant did not file an Employee Claim (C-3).
On June 30, 2020, the Board received a copy of a laboratory report dated April 5, 2020 indicating that COVID-19 testing performed on the claimant on March 31, 2020 came back positive.
On July 8, 2020, the carrier filed a Subsequent Report of Injury-Denial (SROI-04), wherein it controverted the claim on various grounds, including that the claimant did not sustain an accident in the course of his employment and that there was no causal relationship between his injury and his employment.
By notice issued on July 10, 2020, the Board advised the parties that a pre-hearing conference had been scheduled for July 30, 2020. On July 15, 2020, the carrier timely filed a Pre-Hearing Conference Statement (PH-16.2), wherein it continued to assert that the claimant did not sustain an accident arising out of his employment. The carrier also identified one lay witness whose testimony was being requested on the issue of whether the claimant sustained an accident in the course of his employment. As the claimant is unrepresented he was not required to file a PH-16.2.
At the pre-hearing conference held on July 30, 2020 and by decision filed August 4, 2020, the WCLJ found prima facie medical evidence for COVID-19 per the positive test and continued the case for the testimony of the claimant and one lay witness.
At a hearing on September 17, 2020, the claimant testified as follows: In March of 2020, he was working as a security guard for a residential care facility. His job duties included patrolling the facility to ensure the safety of the facility and its residents. Ninety percent of his work day was spent inside the facility and he came into contact with many other people, including patients and employees. However, his job did not involve direct patient care. In the two weeks prior to his positive COVID-19 test, he had followed the state mandate to remain at home except for when he went to work. He lived by himself at that time and did not see any friends or family. He traveled to work via public transportation and regularly wore a mask while traveling to work. He did his own grocery shopping. The facility did have an outbreak of the virus, but he was unaware of any resident who tested positive for COVID-19 in the facility in the weeks prior to his positive test and he had no knowledge of how many people had tested positive at the facility. At least one other security guard tested positive for COVID-19. He thinks that person was positive before him, and that there were one or two after him. He was exposed to the other guard who tested positive about a week prior to him (the claimant) becoming sick. When a resident tested positive, they were placed on a separate floor and he never went on that floor. The employer provided gloves and surgical masks to wear while at work, which he wore most of the time. He could not recall when his symptoms started; he arrived at work one day and had a temperature and was sent home. He required no treatment. He believes he contracted the virus while working in the security booth in the main entrance. He initially indicated that no one who was positive was brought into the facility. However, he then modified his testimony to indicate that they did bring in positive patients but they did not stop at his booth, he only told EMS where to take them. There was no plexiglass in the booth. They were given a list of incoming patients and the ones who had the virus were highlighted in red, although he did not always have the list in front of him.
Following the claimant's testimony, the carrier waived its right to produce a witness and to cross-examine any of the claimant's treating physicians. The WCLJ thereafter established the case for COVID-19, noting that COVID-19 was prevalent in the claimant's workplace and he was exposed to people at check-in. The WCLJ made awards at the temporary total disability rate from March 28, 2020 to April 20, 2020, as a credit to the employer, and found no compensable lost time from April 20, 2020 forward. The resulting decision was filed September 22, 2020 and the carrier's application for review ensued.
The carrier contends that the claimant failed to demonstrate a causal relationship between his COVID-19 diagnosis and his employment, whereby the claim should be disallowed.
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).
If a claimant is deemed credible with respect to the happening of an accident or illness (i.e. "out of" employment) and the presumption in WCL § 21(1) is found to apply (i.e. "in the course of" employment), the presumption may then be rebutted by the carrier with substantial evidence to the contrary (Matter of Pinto v Southport Corr. Facility, 19 AD3d 948 ). 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 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 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.
Upon review of the record in this case, the Board Panel finds that the claimant credibly testified regarding his work environment and the prevalence of COVID-19 in his workplace. The claimant credibly testified that there was an outbreak at the facility and that there was a separate floor for COVID-19 patients. While the claimant did not patrol that floor, he did patrol the building and came into contact with employees who worked on that floor. In addition, the claimant testified that at least one other security employee tested positive for COVID-19 prior to him, that he worked with such employee approximately one week prior to becoming sick himself, and that one or two more security employees tested positive after him. Moreover, the claimant credibly testified that while working in the security booth at the main entrance he had interactions with EMS and positive patients who were being admitted into the facility. While the claimant did wear a mask and gloves once they were provided by the employer, it is unclear when such equipment was provided and there is no guarantee that such equipment will prevent contraction even when used. Thus, the claimant established prevalence (i.e. that an accident arose "out of" his employment) whereby he is entitled to the presumption of WCL § 21(1) that his accident also occurred "during the course of" his employment.
The Board Panel further finds that the carrier failed to rebut the claimant's testimony. The carrier waived the opportunity to produce a lay witness or contrary medical opinion. In addition, the carrier failed to elicit any testimony from the claimant on cross-examination that was sufficient to rebut/undermine his direct testimony under questioning by the WCLJ. The claimant credibly testified that, other than grocery shopping (when he also wore a mask), he did not socialize or leave his house once the State of Emergency was declared (on March 7, 2020).
Therefore, upon review of the record and based upon a preponderance of the evidence, the Board Panel finds that the case was properly established for COVID-19. However, the Board Panel further finds, pursuant to its continuing jurisdiction under WCL § 123, that the record fails to support any awards, as there is no medical evidence of a disability for any period. As a result, the WCLJ decision must be modified to rescind the awards for the period March 28, 2020 to April 20, 2020 and to designate that period as "no medical evidence".
ACCORDINGLY, the WCLJ decision filed on September 22, 2020 is MODIFIED to rescind the awards for the period March 28, 2020 to April 20, 2020 and to designate that period as "no medical evidence". The balance of the decision remains unchanged. No further action is planned by the Board at this time.