The national pandemic presents two critical issues relative to New York Workers’ Compensation.
The obvious is whether employees can bring a Workers’ Compensation case if they become COVID positive. The second less obvious is whether employees working at home can bring a claim if they have an injury. The answer to both of these important questions is Yes.
While New York has not adopted a COVID presumption law (the AFL-CIO has proposed such legislation: A10401/S08266), the case law clearly supports such a claim. To establish a case, the employee/injured worker must show a causal connection between the employment and the sickness. As with all workers’ compensation cases, a medical report must be offered into evidence that contains a history of the exposure and documents how the diagnosis was reached.
Obtaining medical evidence can be challenging. Many people who tested positive for COVID treated with primary care doctors who do not participate with or are not “coded” by the New York Workers’ Compensation Board. Many sick workers stayed home, self-treated, and may or may not have been tested, especially in the early days and months of the pandemic. Unfortunately, some have yet to recover but delayed treatment until recently. Sometimes evidence can be reconstructed and experts retained to offer opinions.
Of course, the two-pronged Statute of Limitations must be met. The first prong is that employees/injured workers are supposed to give notice within 30 days of knowing they have a work-related sickness or injury. The second prong is that employees/injured workers must file a claim within two years of the disability date. The notice provision does not have to be supported by evidence and can be verbal. However, it is best to give written notice of the possibility of a claim for COVID as soon as possible.
The same two-pronged Statute of Limitations and the need for medical evidence applies to an injury that occurs while working at home or away from the ordinary place of business. The “history” of how the injury occurred can be of paramount importance. Injured workers should take care to explain how they were working at the time of the injury as opposed to merely stating that they were injured while working.
Recently, the Appellate Division reversed a New York Workers’ Compensation Board decision that applied a new rigid standard for injuries that occur while working at home. See Capraro v. Matrix Absence Management decided on September 11, 2020. In doing so, the court reaffirmed the proposition that an injury is compensable if the injury is reasonably and sufficiently work-related under the circumstances. Thus, claims may arise outside of regular business hours or activities.
Unlike other courts, the Workers’ Compensation Board has continued to conduct hearings. Hearings are held virtually and electronic filings are the rule. If you believe a case exists, do not delay in taking action.