Case # G2812826
Matter of Samaritan Daytop Village
2021 NY Wrk Comp G2812826
Board Panel Decision
By: Clarissa Rodriguez, Freida Foster, Arelis Tavares
The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed July 28, 2020. The claimant filed a timely rebuttal.
The issue presented for administrative review is whether the carrier should be directed to produce documentation concerning COVID-19 infections at the claimant's place of employment from March 2020 through May 2020, as requested by the claimant's counsel at the July 23, 2020 pre-hearing conference.
The claimant filed an Employee Claim (C-3) on June 6, 2020, wherein he alleged that he contracted COVID-19 on May 8, 2020 as a result of his employment activities as a driver for Samaritan Daytop Village. The claimant asserted that he was exposed to COVID-19 when he was given new duties in March 2020 due to coronavirus concerns. The claimant indicated that, rather than driving people to and from apartment viewings, he was directed to work in the shelter, handling people's belongings, doing room inspections, and performing security functions.
On June 22, 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 the records from East Orange VA Hospital, which includes a medical narrative dated May 4, 2020 stating that the claimant was tested for COVID-19 and the test results returned as positive. In addition, the claimant's FMLA application signed May 13, 2020, which was completed by Dr. Singal, the claimant's internist, indicates that the claimant was diagnosed with COVID-19 on March 15, 2020 and is unable to work.
By notice issued on July 9, 2020, the parties were advised that a pre-hearing conference was scheduled for July 23, 2020. The claimant was represented by counsel at the time the notice for the pre-hearing conference was sent to the parties. Thereafter, only the carrier filed a timely Pre-Hearing Conference Statement (PH-16.2). The PH-16.2 filed by the claimant's attorney was untimely.
At the pre-hearing conference held on July 23, 2020, when asked by the WCLJ if he wanted a finding of prima facie medical evidence (PFME) to be made that day, the claimant's counsel indicated that he did not want to rely on the physicians the claimant treated with at the VA Hospital (whose records were only recently uploaded to the file) and instead would like to get the claimant treating with a physician more familiar with workers' compensation matters. However, the claimant's counsel did note the positive test results in the VA records. The carrier's representative raised various defenses, including no PFME. The WCLJ stated that the case would be marked for a failure to prosecute and advised the claimant's attorney that, when he found the appropriate physician, he should request a reopening of the case. The carrier's representative reserved the right to take the testimony of the claimant and five employer witnesses, as well as the right to obtain a consultant's opinion and cross-examine the claimant's doctors. The claimant's counsel reserved the right to cross-examine any consultant and indicated that he was reiterating the request made in his (late) PH-16.2 that the carrier be directed to produce "documentation referencing COVID-19 outbreak or - - or - - or simply the presence of COVID-19 in the workplace between May and March of this year." The WCLJ granted that request and the carrier's representative noted an objection.
In a decision filed July 28, 2020, the WCLJ noted that the claimant did not appear or was not otherwise prepared to proceed at the hearing; noted that the carrier raised issues in controversy; noted that the claimant intends to see a doctor who is more familiar with workers' compensation cases; and directed the carrier to produce documentation regarding COVID-19 infections at the homeless shelter during the period from March 2020 through May 2020. The case was marked for no further action.
In its application for administrative review, the carrier contends that the direction to produce documentation of COVID-19 infections at the employer's facility was contrary to the Board's Guidelines for Production of Medical Records. The carrier also argues that the discovery request was over broad and would likely lead to a violation of HIPAA. The carrier further asserts that directing it to produce documentation of COVID-19 infections impermissibly shifts the burden of proof from the claimant to the carrier. The carrier maintains that the claimant could develop the record regarding the prevalence of COVID-19 infections at his workplace through the testimony of the employer's witnesses. As a result, the carrier requests that the directive be rescinded.
In rebuttal, the claimant requests that the decision be affirmed. The claimant argues that he made a timely discovery request at a pre-hearing conference and it was within the WCLJ's discretion to grant the request. The claimant contends that the documentation requested need not contain personal identifying information such that HIPAA would not be violated as any such information could be redacted.
Initially, the Board Panel notes that the record contains medical evidence in the form of a May 4, 2020 medical narrative indicating that the claimant had tested positive for COVID-19 and the claimant's FMLA application confirming such diagnosis. The Board Panel finds that these documents satisfy the requirements for PFME as they document an illness (see 12 NYCRR 300.1[a]). As a result, the decision filed July 28, 2020 should be modified to include a finding that PFME has been submitted for COVID-19.
Turning next to the merits of the carrier's appeal, 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 ).
Concerning the claimant's discovery request in the present case, which resulted in the WCLJ's direction for the carrier to produce documentation regarding COVID-19 infections at the employer's facility during the period from March 2020 through May 2020, the Board Panel initially finds that such request improperly sought to shift the burden of proof (as outlined above) from the claimant to the carrier.
In addition, the Board Panel notes that the Board does not have a formal discovery process similar to the court system. In fact, WCL § 118 provides, in pertinent part, that when conducting a hearing, the Board shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, but may conduct such hearing in such manner as to ascertain the substantial rights of the parties. Similarly, 12 NYCRR 300.9 provides that all hearings are to be conducted in an orderly manner in order to ascertain the substantial rights of the parties and that the Board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure. Although the carrier also references the Board's Guidelines for Production of Medical Records, the Board Panel notes that such guidelines merely note the types of medical records that are obtainable via records release vs. subpoena, and that such guidelines were intended to apply to the claimant's medical records, not medical records pertaining to other people (see Subject Number 046-129).
The Board Panel further notes that, in addition to possible HIPAA limitations, the claimant's discovery request was overly broad and too unrestricted for the employer to reasonably execute. It is unclear if the documentation requested refers to the homeless persons at the shelter and/or employees, and it is unknown if the employer kept, or was capable of collecting, information on the homeless population it serves concerning COVID-19 infections. Rather, the claimant merely assumes that such records were generated and are in the employer's possession.
Based upon the foregoing, the Board Panel finds that the direction for the carrier to produce documentation regarding COVID-19 infections at the employer's facility during the period from March 2020 through May 2020 was improper and should be rescinded. The Board Panel agrees with the carrier's assertion that the claimant could develop the record on the prevalence of COVID-19 infections at his workplace through both his testimony and the cross-examination of the employer witnesses. However, as the claimant has requested time to obtain additional/clarifying medical evidence (on causal relationship), the Board Panel finds that the case will remain inactive until the claimant files a request for a hearing, with or without the additional medical evidence. At that time, the case will be put back on the calendar for another pre-hearing conference, during which the carrier may indicate the witnesses that it would like to call for testimony.
Therefore, upon review of the record and based upon a preponderance of the evidence, the Board Panel finds that the claimant has submitted PFME for COVID-19; that the directive for the carrier to produce documentation regarding COVID-19 infections at the homeless shelter during the period from March 2020 through May 2020 is rescinded; that the case is designated for no further action pending a hearing request by the claimant; and that, if and when the case is continued for another pre-hearing conference, the carrier may indicate the witnesses that it would like to call for testimony.
ACCORDINGLY, the WCLJ decision filed July 28, 2020 is MODIFIED to find PFME for COVID-19; to rescind the direction for the carrier to produce documentation regarding COVID-19 infections at the homeless shelter during the period from March 2020 through May 2020; to indicate that the case is designated for no further action pending a hearing request by the claimant; and to indicate that, if and when the case is continued for another pre-hearing conference, the carrier may indicate the witnesses that it would like to call for testimony. The balance of the decision remains unchanged. No further action is planned by the Board at this time.