March 2021 New York
Workers’ Compensation Law Reporter Highlights

WCL doesn’t cover home health aide’s travel to clients home

Case name: Better Home Health Care, 120 NYWCLR 233 (N.Y. W.C.B., Panel 2021).

Ruling: A Board panel held that an accident sustained by the claimant, a home health aide, while traveling from her home to her client’s home, did not arise out of or in the course of employment.

What it means: A claimant who works as a live-in aid, alternating every week between two clients, is considered inside work or not covered by the WCL while commuting to the client’s home.

Insufficient evidence of chronic pain dooms request for medical marijuana

Case name:  New York State/Department of taxation and finance, 120 NWCLR 238 (N.Y. W.C.B., Panel 2021)

Ruling: A Board panel denied the treating doctor’s variance request for medical marijuana, as the doctor did not meet the requisite burden of proof.

What it means:  Where the claimant rates her pain a 5 out of 10, has a normal gait, and uses no assistive devices, insufficient evidence exists that the claimant suffers from chronic pain, for the department of health regulation, to support a variance request for medical marijuana.

Security guard establishes a claim for COVID-19

Case name: Jewish home life care Manhattan, 120 NYWCLR236 (N.Y. W.C.B., Panel 2021)

Ruling:  Upon review, a Board panel found the claimant established a case for COVID-19 allegedly contracted while working as a security guard for a residential care facility.

What it means:  A claimant’s credible testimony that there was a COVID-19 outbreak at the facility where he works, he came into contact with employees who worked on the floor with COVID-19 patients, and he worked with a coworker who contracted COVID-19 one week before becoming sick himself, constitute sufficient evidence to establish a claim for COVID-19.

Former officer fails to prove entitlement to reduced earnings after retirement

Case name:  Hamill vs. Orange County Sheriff Department, 120 NYWCLR225 (N.Y. App. Div. 2021).

Ruling:  In affirming, the appellate division held that substantial evidence supported the board ruling that the claimant, a police officer who voluntarily really voluntarily retired in September 2017, was not entitled to an award of reduced earnings after re-attaching to the labor market in November 2018.

What it means:  Where the evidence establishes that the claimants’ decision to retire was influenced by economic factors, including retirement incentive package offered by the employer, and the claimant was able to perform administrative work required of his job as a police captain for many years after sustaining his work injury, sufficient support exists for the determination that his earnings capacity and ability to secure comparable post-injury employment was not adversely affected by his disability.