New York’s top court on Wednesday endorsed a method for workers to prove “extraordinary” COVID-19 exposure through frequent contact with the public or co-workers in areas where the virus is prevalent.
Family Dollar lost its argument that the prevalence assessment used by the State Workers’ Compensation Board is inconsistent with the goal of providing coverage for accidental injuries arising out of and in the course of employment, and diseases or infections that “naturally and unavoidably result therefrom,” according to Matter of the Claim of Frank Aungst v. Family Dollar et al.
According to the ruling, Frank Aungst worked for Family Dollar full-time during the early stages of the pandemic in March and April 2020. He was deemed an “essential worker” and exempted from restrictions on public gatherings and commercial activities.
Although the company encouraged social distancing and asked customers to wear masks, management advised employees not to enforce the policy. Mr. Aungst testified that many customers did not wear masks and he identified specific instances of close contact with members of the public.
He tested positive for COVID-19 on April 23, 2020. On May 1, 2020, he suffered a stroke and was hospitalized for four months. A neurologist said Mr. Aungst didn’t have typical risk factors for a stroke and agreed with other providers that there was a connection between the COVID-19 disease and the stroke. A workers compensation judge approved the claim and the SWCB and Appellate Division both affirmed.
On appeal, the company said the high court’s holding in another case, Matter of Lerner v. Rump Bros., requires injured workers seeking benefits for COVID-19 to identify with some specificity when they were exposed to the disease. According to the company, the prevalence analysis relieves them of that burden.
The State of New York Court of Appeals said more recent precedent has repudiated the reading of the Lerner decision. It clarified that an injury doesn’t need to be precisely identified in space or time, or be attributed to something catastrophic or extraordinary, to be compensable.
In Matter of Middleton v. Coxsackie Correctional Facility, the high court acknowledged the possibility that persistent exposure to harmful conditions could result in a compensable accident, “and it is not decisive that a claimant is unable to pinpoint the exact date on which the incident occurred.”
In Middleton, the high court found a correctional officer who was regularly exposed to an inmate with tuberculosis for several months had a compensable claim. Other cases have awarded benefits to teachers who developed mumps from classroom exposure and to a worker whose asthma was aggravated by tobacco smoke and dust in the workplace.
The high court explained that the prevalence assessment is consistent with case law requiring injured workers to prove that a claimed illness resulted from extraordinary workplace exposure.
“As applied to COVID-19, the ‘prevalence’ framework specifically requires a claimant to demonstrate an ‘extraordinary’ level of exposure through evidence of frequent contact with the public or co-workers ‘in an area where COVID-19 is prevalent,'” the court said. “It thus recognizes, as have our prior cases, that persistent, high-risk exposure to a disease in the workplace culminating in infection can constitute a compensable accident.”
The high court said this analysis is consistent with workers compensation law; therefore, it upheld the board’s decision, finding Mr. Aungst had a compensable claim for a stroke he suffered after catching COVID-19 at work.
The high court’s decision came at the same time it rejected the use of the prevalence assessment for mental stress claims from possible exposure in the early days of the pandemic.
On the same day the court affirmed the finding that Aungst had a compensable claim, it reversed an Appellate Division ruling awarding benefits to three transit workers and a teacher for post-traumatic stress disorder. The court said the prevalence assessment is not sufficient to establish compensability for mental stress claims.
“To put it another way, evidence of COVID-19’s prevalence in the workplace does not relieve a claimant of the burden to establish that the injury was accidental which, in cases of emotional stress-induced psychological injury, has involved a demonstration by the claimant of stress greater than the stress experienced by similarly situated workers in the normal work environment,” the court said. “Here, substantial evidence supports the board’s determination that the stress of workplace exposure experienced by claimants was comparable to the stress experienced by similarly situated workers in the normal work environment during the COVID-19 pandemic.”
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