How many times have practitioners before the Board litigated the issue of causal relationship in a claim, whether as a threshold matter or when an additional site or condition is in question? It is probably the most common issue we encounter at the Workers' Compensation Board. If I had a dime for every time I cited the tome of the law on this issue in a summation or appeal, I'd have quite a few dollars! It goes something like:
“It [i]s 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 ). To this end, a medical opinion on the issue of causation must signify ‘a probability as to the underlying cause’ of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 ; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ). ‘[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship’ (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 , affd 90 NY2d 914 ; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 )” (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ).
This precedent is a fundamental concept of every workers' compensation claim in New York. After all, it is the "CR" in "ANCR" or "ODNCR".
However, apparently claims involving work-related exposure to COVID only need prove an "A" to establish the claim. I am yet to see a claim where "N" has been a real issue in a COVID claim. However, "CR" most certainly has been an issue in most if not all COVID claims, with many of these claims entering litigation on the basis of solely a positive COVID laboratory result, if that. As the Board's Decisions to date demonstrate, these claims often and permissibly move forward to extensive litigation without any medical evidence whatsoever of causal relationship.
Nonetheless, according to the Board's recent Decision in Matter of Stony Brook Hospital, 2021 NY Wrk Comp G265 5554, not only does the claimant not require any documentary evidence of causal relationship between the claimant's employment and his contracture of COVID, it is of no matter even if the claimant's medical witnesses blatantly admit under oath they have no idea how or where the claimant contracted COVID. The Board decided this compelling medical testimony will not bar establishment of a claim for work-related COVID-19. The Board in Matter of Stony Brooky Hospital said as follows at page 7 of its Decision:
Additionally, although neither Dr. Pourmand nor Dr. Maramara could state with any certainty as to how or where the claimant contracted COVID-19, a medical opinion providing a causal relationship between the claimant's employment and his COVID-19 illness is unnecessary for the establishment of the case. The claimant presented sufficient evidence that he sustained an accident in the course of his employment, which in turn entitles his to the presumption of WCL § 21(1) that his accident also arose out of his employment, and such presumption has not been rebutted with sufficient credible evidence.
I certainly appreciate that the COVID pandemic has presented unique challenges never before seen in the history of the Workers' Compensation Law and the world. These cases in particular present a formidable challenge to practitioners on the claimant's side - the doctors who often treat the claimant for COVID are not Board-coded and are not familiar with the concept or importance of causal relationship in Workers' Compensation claims. Their priority, rightly so, was to provide emergent, hopefully life-saving treatment to their COVID patients. This in turn makes it more difficult for claimants to obtain the requisite proof in these cases that is required in all other cases.
But what does the Board say to the thousands of claimants whose claims in whole or claims for additional sites of injury or conditions in part were disallowed for the claimant's failure to produce competent evidence of causal relationship? Surely, if Dr. X, the treating provider, admitted in any non-COVID claim that he had no idea how the claimant's knee condition came to be, the Board would never establish the claim for a work-related injury to the knee. Yet the Board has created a double-standard for COVID claims, has thrown the rule of law to the wind, and will apparently establish these claims not only where there is no evidence of causal relationship, but where treating providers admit under oath they have no idea how or where the claimant contracted the COVID infection.
Do not misinterpret this blog. I agree claimants alleging work-related COVID infections should be entitled to allowances and exceptions in their claims that do not apply in other claims based on the novelty and tragedy of the situation. However, these allowances and exceptions must be made in a legally-valid fashion, i.e., by amendment of the Workers' Compensation Law or perhaps through new legal precedent when these claims make their way to the Appellate Division and undoubtedly the Court of Appeals. Time will tell ..