First and foremost, I hope that everyone reading this update is healthy and safe during the pandemic. As New York appears to be on the precipice of it’s “second wave” of the Coronavirus, effecting everyone’s daily lives, it important to update everyone on what we have encountered with COVID-19 litigation since the outbreak in March and remind everyone of the important steps you should be taking to protect your legal rights in the event you contract the virus. While I certainly understand “COVID Fatigue” and a potential lack of desire to read anything else about virus, I urge you keep reading!
As I wrote back in March, the most difficult part of the various COVID-19 benefit claims is what we refer to as “burden of proof.” In Workers’ Compensation the Injured Employee has the ‘burden of proof” of establishing that their injury/illness was incurred in the performance of their duties. While airborne viruses such as COVID-19, where exposure to the virus can take place virtually anywhere, meeting this burden of proof can be extremely difficult. Despite these hurdles MDASR advised its Essential Personnel clients to file claims for Workers’ Compensation based on the overwhelming likelihood that such personnel contracted the virus while working.
Since the initial outbreak the New York State Workers’ Compensation Board (“WCB”) has given positive feedback regarding the viability of COVID-19 claims. The WCB has issued numerous social media advisories encouraging Essential Personnel to file claims, especially those employees that work in industries with well documented elevated exposure risks. The WCB even pointed to specific jobs where they believed the work environment presented “exposure risks that are significantly higher” for COVID-19, such as “health care workers, first responders, transportation workers, correction officers and food service workers.” While this list is in no way exhaustive, and other workers can certainly also submit claims for job-related COVID-19, it does present a road map of what the WCB is looking towards in order to meet our “burden of proof” in these cases. Namely, where the “prevalence” of the virus is high at a particular job site, or the area(s) where a worker performs their duties, it is within a “reasonable probability” that a worker contracted the virus while working. In other words, the more prevalent the virus is at work, the more likely it is that an employee will be able to substantiate their Workers’ Compensation claim that they contracted the virus while working.
Make no mistake, we are still required to submit a medical opinion from a board-certified physician that a workers’ COVID-19 diagnosis is causally related to their work. However, in a recent WCB Panel decision, on which the Chair of the WCB sat, the WCB ruled that a doctor’s opinion that a worker developed the virus as a result of their job duties can be founded upon this “reasonable probability” standard. For most Essential Workers in New York who contract the virus, this is an easily reached standard for most doctors to state.
Lastly, I urge you to refresh your memory regarding the easy steps you can take now that will protect your legal rights later. My article, “COVID-19 & Workers’ Compensation: If There is a Second Wave, Exposure Reports & Diaries!” provide some very easy tools upon which you can rely in this uncertain atmosphere. The article can be found at https://licomplaw.com/2nd-wave-workers-compensation-covid-exposure.
As always, if you have any questions, issues or concerns, please do not hesitate to contact me directly at (646) 831-6229 anytime.
Be well and be safe!
By: Sean Patrick Riordan, Esq.
Senior Partner @ McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP.