Case # G2818157
Matter of Montefiore Medical Center
2021 NY Wrk Comp G2818157
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 on October 16, 2020. The claimant filed a timely rebuttal.
The issues presented for administrative review are:
- Whether the carrier's application for review should be denied as interlocutory; and,
- If not, whether the finding that the claimant is an essential worker should be rescinded.
The claimant, a Registered Nurse, filed an Employee Claim (EC-3) on August 19, 2020, setting forth that she was exposed to COVID-19 in March and April of 2020, when she was responsible for treating six or seven patients who had COVID-19.
On September 2, 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 her employment and that there was no causal relationship between her injury and her employment.
On September 14, 2020, the Board received a laboratory report dated April 12, 2020, indicating that the claimant had tested positive for COVID-19 from a sample taken on April 8, 2020.
By notice issued on September 25, 2020, the Board advised the parties that a pre-hearing conference had been scheduled for October 13, 2020. The record reflects that the carrier had previously filed a Pre-Hearing Conference Statement (PH-16.2) on September 10, 2020, wherein it continued to raise various defenses and identified one witness whose testimony was being requested regarding the claimant's alleged exposure to COVID-19, the claimant's work duties, and the claimant's access to personal protective equipment (PPE). The claimant also filed a timely PH-16.2.
At the pre-hearing conference held on October 13, 2020, brief testimony was taken from the claimant. The WCLJ, among other things, found prima facie medical evidence (PFME) for COVID-19 and that the claimant was an essential worker. Counsel for the carrier objected to both findings. The WCLJ then continued the case for development of the record on the issues of controversy raised by the carrier. The resulting decision was filed on October 16, 2020, and this appeal ensued.
At the hearing held on December 23, 2020, and by decision filed December 29, 2020, the WCLJ precluded any consultant's report by the carrier; denied the carrier's request to preclude the positive COVID-19 test result from Dr. Zucker; granted the carrier's request for an extension to depose Dr. Lief; directed the claimant to provide her up-to-date address to the Board; and continued the case for testimony from the claimant and one lay witness.
In its application for review, the carrier contends that there is no provision in the Workers' Compensation Law (WCL) that defines an essential worker, and therefore it was inappropriate for the WCLJ to make such a finding.
In rebuttal, the claimant argues that the finding that she is an essential worker is relevant to the ultimate determination of whether she contracted COVID-19 while at work.
While a Board decision that neither decides all substantive issues nor involves a threshold legal issue is generally not appealable (Matter of McClam v American Axle & Mfg., 79 AD3d 1315 ; Matter of Bush v Beltrone Constr., 289 AD2d 722 ; Matter of Fowler v Crouse Community Ctr, 101 AD3d 1568 ), the Board has continuing jurisdiction over every case and may make any modifications or changes that it deems are necessary in the interest of justice (see WCL § 123).
In the present case, the carrier's appeal of the claimant's classification as an essential worker does not involve a substantive issue or a threshold legal issue. However, given the novelty of COVID-19 compensability claims and the questions surrounding what information is needed to show that a COVID-19 claim is work-related, the Board Panel elects to address the carrier's application for review on the merits regarding this issue pursuant to WCL § 123.
The Board Panel further finds that there is no requirement that a claimant must be an essential worker in order to establish a claim a for workers' compensation due to COVID-19. Thus, as a claimant's status as an essential worker has no bearing on any issue related to a workers' compensation claim, including prevalence, the Board Panel finds that the claimant's designation as an essential worker in this case is hereby rescinded.
Therefore, upon review of the record and based on a preponderance of the evidence, the Board Panel finds that the claimant's classification as an essential worker is rescinded.
ACCORDINGLY, the WCLJ decision filed on October 16, 2020 is MODIFIED to rescind the finding that the claimant is an essential worker. The balance of the decision remains unchanged. The case is continued.