As claims for Workers' Compensation benefits arising out of COVID exposure at work make their way through the New York Workers' Compensation Board, I check Westlaw almost daily to read Board Panel Decisions to see how the Board will cope with these claims and the novel issues they present.
While I have yet to see a Board Panel Decision that definitively rules on the merits as to whether a COVID claim should be established or disallowed (so far the Board has been remanding the cases to the hearing calendar for further development), there is one lesson we can learn thus far -- the Board expects more than just a positive laboratory test to prove the claim.
In Matter of DOCCS Edgecombe Correctional Facility, 2020 NY Wrk. Comp G2718395, 2020 WL 6379737, the Board stood by the longstanding legal precedent that it is a claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley Spear, Inc., 6 AD3d 999 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ). The Board Panel went on to note that while the record contained a positive COVID-19 test result, a medical report providing a COVID-19 diagnosis and opinion on causal relationship should be offered and evaluated in conjunction with the positive test. The medical opinion may be founded upon a theory of prevalence, but must also be based upon a reasonable probability. The Board then remanded Edgecombe to the hearing calendar for testimony and clarifying medical evidence.
The lesson the Board is trying to teach is simple - it doesn't take much to have PFME, but it remains the law of the land that every claimant must prove causal relationship, even those alleging COVID exposure.
If you think you contracted COVID at work or need assistance with a COVID-related claim, contact Brandon S. Clark, P.C. for a free consultation now.
If you are relying solely on a lab test to prove your case, think again ..