By: Sean Patrick Riordan, Esq.
The horrendous effects of COVID-19 have impacted every aspect of our lives. New Yorkers have dealt with unfathomable death, illness and the substantial economic impact of this pandemic during the past 5+ months. Essential personnel bore an especially heavy burden during this crisis, risking their own health and lives in order to maintain a semblance of societal structure. Their heroism resulted in New York “flattening the curve”, but also simultaneously exposed workers to the virus’s deleterious effects.
Recognizing the impact that the virus was imposing on essential personnel, MDASR immediately began filing Workers’ Compensation claims for those that contracted the virus. Understanding that establishing these claims would be difficult due to prevalence of the virus in society (not just in a specific work area), we remained hopeful that the legislature would pass some protective bill for workers, thereby easing the legal challenges faced in such claims. Unfortunately, such a bill has not emerged to date and insurance carriers have roundly controverted these claims, denying compensability. Even more unfortunate, countless workers remain unable to work in their positions due to the lasting symptoms COVID-19 has caused. As many of those workers have run out of sick time, they now face an economic crisis due to a lack of income. MDASR has begun litigating these cases in hopes of securing Workers’ Compensation benefits for those that desperately need, and deserve it.
The “first wave” of COVID-19 claims has taught us some valuable lessons in the event that COVID-19 re-emerges in the fall/winter. If there is a “second wave” of the virus in New York over the coming months, I urge you to take the following steps which will help establish any future Worker’s Compensation COVID Exposure claim which may need to be filed:
If you come into contact with anyone that shows symptoms of, or you know has, COVID-19, file an exposure form immediately. As MDASR predicted early in the “first wave”, many carriers are looking for a definitive link between a worker’s duties and contraction of the virus. Exposure forms serve this indispensable purpose and act as helpful documentary evidence in a Workers’ Compensation claim.
Exposure Forms 2
If you do not have “Exposure Forms” at your place of employment, I urge you to work with employers now to develop one. Simple, concise forms that simply document one’s potential exposure to the virus can mean the difference between an established Workers’ Compensation case and one that is rejected. In the event a form cannot be had, we would suggest a clear and concise email detailing your exposure to your immediate supervisor if email is available to you.
A diary/log can serve two purposes as it relates to COVID-19 and Workers’ Compensation:
- If your employer does not have an “Exposure Form”, write down your potential exposure in a diary/log. Be sure to date and sign the log entry. While the evidentiary strength of such an entry is somewhat less than an official, submitted, Exposure Form, it will serve as contemporaneous documentation of your exposure and can help establish any subsequent claim.
- Document your daily activities and whereabouts in signed and dated daily entries in the diary/log. Countless workers have told me “there is no way I got the virus anywhere else but work, I only went to and from work and my home.” A simple diary/log entry can help us establish this fact later on.
File All Necessary Workers’ Compensation Paperwork Early
If you contract the virus, and have a definitive reason to believe that you contracted it while working, file all the necessary Workers’ Compensation paperwork with both your Employer and the Workers Compensation Board immediately. Far too many workers waited weeks, and in some cases months, to file any paperwork with either entity. Understanding that COVID-19 was indeed “novel” during the “first wave”, there is no reason to delay enforcement of your rights in the event of a “second wave.” We do not want to provide carriers with any additional reasons to deny these cases in the future, file your claim as soon as you are physically able.
Although it would seem obvious, if you believe you have COVID-19, go to a physician and get tested. Do not assume you have the virus and self-quarantine without doctor consult. When you consult a doctor due to your symptoms, be sure to advise the doctor of your exposure at work and have them include such exposure history in their medical report. If your physician advises you to quarantine, or otherwise, keeps you out of work, retain a copy of this medical note before submitting it to your employer. Lastly, get tested if sufficient testing is available. While many doctors rationed the COVID tests in the early months of the pandemic, moving forward it is an absolute necessity that workers be tested and be capable of establishing a positive COVID diagnosis.
Make no mistake about it, MDASR hopes and prays that the virus has seen the last of New York and disappears as quickly as it arrived. But is our job to listen to the scientific experts and start preparing for any new crisis. Implementation of the easy steps above can help us help you moving forward.
As always, if anyone has any questions or concerns, never hesitate to contact me directly at Sean@nycomplaw.com and/or (646) 831-6229
Be safe and be well!