New York - Coronavirus (COVID-19)
- Alex C. Dell
- George P. Ferro
- Nicholas A. Fusco
- Mindy E. McDermott
- Genelle J. Bayer
- Daniel Koskinen
- Ed Obertubbesing
- Sarah M. Bennett
If you or someone you know is exposed to and/or diagnosed with the Coronavirus (COVID-19), consideration should be given whether to file a claim for New York State Workers’ Compensation benefits. A contagious and uncontrolled disease which arises out of and in the course of one’s employment may constitute a compensable claim under the New York State Workers’ Compensation Law.
WHY SHOULD I FILE A WORKERS’ COMPENSATION CLAIM FOR THE CORONAVIRUS?
A successful Workers’ Compensation claim can provide the affected individual with two (2) big basic benefits – lost wages for temporary and/or permanent disability/death caused by the virus, and payment for the medical evaluation/treatment of the virus, and reimbursement for associated expenses.
WHEN SHOULD I FILE A WORKERS’ COMPENSATION CLAIM FOR THE CORONAVIRUS?
Questions have been raised whether a claim should be filed when an individual merely suspects they have been exposed to the virus, been quarantined and/or after the individual has been diagnosed as having the virus. Exposure to the virus, standing alone, may not be sufficient to establish a compensable claim under the Workers’ Compensation Law. In general, a claim should be filed after the exposure has occurred and after the individual has been quarantined and/or diagnosed with the virus. Keep in mind that one is not prohibited from filing a claim after they believe they have been exposed to the virus but prior to being quarantined and/or diagnosed with the virus. Consideration should definitely be given to filing a claim after exposure but before being quarantined due to the virus and/or being diagnosed with the virus. But, the practical reality is that the New York State Workers’ Compensation Board may not establish a compensable claim for the virus without sufficient medical evidence confirming the virus exposure and that there is a relationship between the quarantine due to the virus and/or contraction of the virus and your employment.
WHAT DO I NEED TO DO TO PROPERLY FILE A WORKERS’ COMPENSATION CLAIM FOR THE CORONAVIRUS?
To pursue a claim, you must:
(1) Provide written notice to your employer of the facts and circumstances which lead to the exposure to the virus and/or contraction of the virus within thirty (30) days of the date of the exposure, if known, or within thirty (30) days of the diagnosis of the virus; and
(2) File a written claim with the New York State Workers’ Compensation Board within two (2) years of the exposure or diagnosis of the virus or death. Written notice to the Workers’ Compensation Board is accomplished by the filing of an Employee’s Claim for Compensation, otherwise known as Workers’ Compensation Board Form C-3.0. This form is available on the New York State Workers’ Compensation Board Website: www.WCB.ny.gov/content/main/forms/c3.pdf
In addition to the above, you must also provide the Workers’ Compensation Board with a report signed by your medical doctor or other qualified medical provider which includes:
(1) a summary of the facts and circumstances at work leading to the exposure;
(2) your diagnosis (for example, Coronavirus, COVID-19); and
(3) a statement that there is a causal connection between the diagnosis and your work activity at the time of the exposure.
Under the Workers’ Compensation Law, a medical opinion regarding causation need not be expressed with absolute or even reasonable medical certainty. However, it must be apparent that the medical expert intended to signify a probability as to the cause of the virus, and the expert’s opinion must be supported by a rational basis. In other words, a medical provider who can state that the virus “is related”, “is probably related”, or even is “more likely than not related” to your work activity can be sufficient to support the claim. However, where a provider can only state that the virus may be related or is only possibly related to your work activity is generally not sufficient to support a claim.
HOW CAN YOU HELP YOUR MEDICAL PROVIDER SUPPORT A CONNECTION BETWEEN THE VIRUS AND YOUR EMPLOYMENT?
As you can imagine, the worldwide spread of the virus calls into question whether you would have contracted the virus regardless of your employment. To combat this anticipated argument of behalf of the employer and their workers’ compensation insurer/administrator, you should, where possible, record as many details in support of the claimed, work-related exposure(s). What day/date(s) did the exposure occur? What was the approximate time of day/night when the exposure occurred? Where were you located when the exposure occurred? What were you doing at that time? Were you considered or classified as an essential worker as a result of the virus? Can you identify the specific individual(s) who had the virus? Can you estimate the length of the exposure? Were you wearing any type of personal protective equipment such as a mask/respirator, hazmat suit, etc. at the time of the exposure? How close in time after the exposure did you experience any symptoms? Were you working and fully functional without restrictions or limitations prior to the exposure?
While it certainly may not be possible to record all of these details, the law does not require you to pinpoint the exact date which the exposure occurred. However, the more detail you can provide the better as it may allow the medical provider to make the necessary connection between the virus and your employment. Such detail(s) may also enhance the credibility of the medical provider’s opinion on causation.
If you have not done so already, consider keeping a written log or diary of the individual(s) and group(s) you come in contact with at work on a daily basis. Recording details of who and when you came in close contact/proximity of any individual(s) who appeared visibly sick: male/female, approximate age, race, nature and length of any exposure, and any unique identifying observations about the person such as whether they were coughing, sneezing, shivering, shaking, excessively sweating, had flushed or hot skin, a runny nose, red eyes, raspy voice, etc. may help make the connection between the exposure to the virus and your employment. This can be especially helpful if you cannot determine exactly when and where the exposure occurred.
The Law Firm of Alex Dell, PLLC represents injured and disabled individuals throughout Florida and New York with their Workers’ Compensation, Disability Retirement, Social Security Disability and Veterans Affairs claims. Should you have any questions or concerns on how best to pursue a Workers’ Compensation claim for the Coronavirus or any other claim(s), call or email us today for a free consultation. We are here to help you.